Foucault and Law

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Foucault and Law refers to the work of the French philosopher Michel Foucault on law as well as its posthumous interpretation and further development by philosophers , legal sociologists and legal philosophers.

Right in Foucault's texts

Michel Foucault refused all his life to set up fixed theories of an object. There are only more central concepts in his work, and the treatment of law was not given a definitive treatise. While Michel Foucault's own writings on law have remained fragmentary, they have sparked a long-lasting reception.

Foucault explicitly complained several times that the social sciences give too much space to the law in their analyzes. Foucault repeatedly examined institutions of law such as prisons or courts , but the focus of his work was on the distribution of power and control mechanisms throughout society; the exclusive state power that embodies the legal system was less important for his analyzes. While state repressive law was the most important form of exercise of power in the premodern, it is partially replaced by surveillance in the modern age.

The traditional interpretation, strongly advocated by Hunt and Wickham (1994), assumes that Foucault's work primarily describes the decline of law in modern times. In particular in Monitoring and Punishing and The Will to Know , Foucault describes the replacement of law by concepts such as discipline and biopower . He often describes the law as an instrument of other forces and reduces it to a purely instrumental function.

Criticism of Foucault's legal concept is annoying because he too unilaterally restricts law as repressive criminal law without going into the numerous other legal concepts. Foucault equates law with sovereignty and absolutism , without going into the various other functions of law in modern times.

Golder and Fitzpatrick describe "Foucault's Law" as a law of possibilities, contingency and instability, a law that could be different at any time. You construct Foucault's legal concept as an open one, which in many ways acts like a norm that is only implemented through administrative action. François Ewald creates a connection between norms and laws. In many ways the law is no longer based on abstract universal principles, but on what is normal, the attitudes and attitudes of a particular group at a particular time.

reception

There are two approaches within the studies on Foucault and Law. One direction takes tools such as power / knowledge or genealogy that Foucault provides in his theoretical work and uses them to analyze various areas of law. Researchers are thus following the approach propagated by Foucault himself, of using his texts as a toolbox. The studies here range from legal training to labor, administrative and constitutional law to international law.

The second works more focused on Foucault's work and tries to determine the legal concept and legal analysis of Foucault. It tries to determine how Foucault conceived law, what position it occupies in his work, and how it relates to other concepts such as biopower, governmentality and other concepts.

Remarks

  1. ↑ Golder / Fitzpatrick p. 3
  2. ↑ Reza Banakar, Max Travers: Understanding Law and Society Taylor & Francis, 2009 ISBN 041543033X page 151
  3. ↑ Sharyn L. Roach Anleu: Law and Social Change SAGE Publications Ltd, 2009 ISBN 1412945607 p. 55
  4. ↑ a b Golder / Fitzpatrick p. 2
  5. ↑ a b Bettina Lange: Foucauldian-inspired discourse analysis: a contribution to critical environmental law scholarship in: Andreas Philippopoulos-Mihalopoulos (ed.): Law and Ecology New Environmental Foundations Routledge ISBN 1136817123 p. 46
  6. ↑ Christopher Gray: Democracy Where and Where Not Dorrance Publishing, 2011 ISBN 1434982971 p. 48
  7. ↑ Bettina Lange: Foucauldian-inspired discourse analysis: a contribution to critical environmental law scholarship in: Andreas Philippopoulos-Mihalopoulos (ed.): Law and Ecology New Environmental Foundations Routledge ISBN 1136817123 p. 47
  8. ↑ a b Golder / Fitzpatrick p. 5

literature

  • Ben Golder, Peter Fitzpatrick: Foucault's Law Taylor & Francis, 2009 ISBN 0415424534
  • Ben Golder, Peter Fitzpatrick (eds.): Foucault and Law Ashgate 2010 ISBN 978-0-7546-2866-8
  • Alan Hunt, Gary Wickham: Foucault and law: towards a sociology of law as governance Pluto Press, 1994 ISBN 0745308422
  • Sonja Buckel : Subjectivation and Cohesion. To reconstruct a materialistic theory of law. Velbrück Wissenschaft 2007, pp. 165-210, ISBN 978-3-9388-0829-0