Foucault, Law, and Power: A Reassessment

After raising doubts about Foucault's approach to law-power, in the light of various acts of religion-inspired violence on and after 11 September 2001, a case is made against this approach, based on the charge that Foucault ties law far too tightly to what he calls negative power. He makes law part of juridico-sovereignty power, a form of power he regards as outmoded, with an outmoded commitment to sovereignty and the state. It is argued that in attempting to separate law from what he sees as the positive power of modern governmentality, Foucault never understands law's role as a part of a crucial balance - between political power, military power, the social, the cultural, the legal, and the economic - a balance that tries to achieve both individual freedom and the security to enjoy that freedom. An alternative way of understanding law, and of understanding sovereignty and the state - the state under the rule of law - is presented as a much better route to an appreciation of law's part in the balance.     

私法社会化的反思与批判——社会法学的视角

社会法不属于特别私法,也非私法社会化的表现形态,而为第三法域;早期以《德国民法典》为代表的大陆法系私法,比较完整地保留了传统私法要素,社会化表现微弱;加世纪以来,私法以"外接"与"内设"两种形态回应法的社会化要求;当代私法与私法学面临困境,私法将保持传统,不应、不能彻底社会化,社会法为实现向纵深发展的法律社会化的主要工具。~①     

Reasonable Interpretation: A Radical Legal Realist Critique

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - The notion of reasonable interpretation of legal texts, as opposed to the absurd or unacceptable...     

西方女性主义自由派法律思想评介

女性主义自由派是西方女权主义运动的先驱,也是其他各派女性主义的起点,其法律思想对女性权利意识的觉醒起到启蒙作用,并为整个女性主义法学的发展奠定了基础。进一步思考这一理论将给我们带来更多的启示及反思。     

Foucault's Expulsion of Law: Toward a Retrieval

This essay argues that there is an important sense in which Foucault gets law wrong—that the pursuit of Foucault's own objectives had the unintended consequence of inhibiting a fruitful interrogation of the place of law in modernity. His immediate concern was with the emergence of distinctive manifestations of modern power that constitute a new configuration, the disciplinary society. The most distinctive feature of his account of the historical emergence of modernity was his expulsion of law from modernity. This "expulsion of law" is found in his metahistorical thesis that law constituted the primary form of power in the premodern era, and that although law lingers on in the doctrine of sovereignty, it is supplanted by discipline and government as the key embodiments of modernity.
The essay proposes an exercise in retrieval, a "retrieval of law," to recuperate much in Foucault's thought that is suggestive for our understanding of law's role in the constitution of modern society. It rejects Foucault's opposition of law and discipline and makes use of his treatment of government and governmentality toward that end. It argues that a more adequate grasp of the place of law in modernity can be developed by establishing that law and discipline are complementary and characteristically combine in the ubiquitous presence of regulation as the mark of the modem condition.     

Doing Justice to Foucault: Legal Theory and the Later Ethics

This article provides a critical evaluation of Ben Golder’s and Peter Fitzpatrick’s recent Foucault’s Law, which it characterizes as a decisive intervention into both legal theory and Foucault scholarship. It argues in favour of Golder’s and Fitzpatrick’s effort to affirm the multiplicity of Foucault’s work, rather than treat that work as either unified by a consistent position or broken into a series of relatively stable periods. But it also argues against Golder’s and Fitzpatrick’s analysis of Foucault’s understanding of the law through a conceptual framework borrowed from Derrida, and especially Derrida’s distinction between law and justice. It shows how this approach to reading Foucault effectively transforms some of his more powerful criticisms of the law into defences of justice. In place of this interpretation, the second half of this paper initiates a reading of Foucault’s later work on ethics and the self in the ancient world. It develops the theme of an ethics, or a way of life, that takes shape at a distance from politics on the one side and law on the other.     

Toleration and the Law in the West 1500–1700

Before the emergence of the concept of individual rights, in the eighteenth century, toleration was conceded by states only to the corporations that constituted the state. Many states that, like France after the Edict of Nantes, conceded a form of toleration, did so without accepting the principle of toleration. The recognition or toleration of rights for individuals first became possible only in a wholly secularised society such as that of colonial north America.     

Madness and the Law: The Derrida/Foucault Debate Revisited

In this article the Derrida/Foucault debate is scrutinised with two closely related aims in mind: (1) reconsidering the way in which Foucault’s texts, and especially the more recently published lectures, should be read; and (2) establishing the relation between law and madness. The article firstly calls for a reading of Foucault which exceeds metaphysics with the security it offers, by taking account of Derrida’s reading of Foucault as well as of the heterogeneity of Foucault’s texts. The article reflects in detail on a text of Derrida on Foucault (‘Cogito and the History of Madness’) as well as a text of Foucault on Blanchot (‘Maurice Blanchot: The Thought from Outside’). The latter text shows that Foucault was at times acutely aware of the difficulty involved in exceeding metaphysics and that he realised the importance in this regard of a reflection on literature. These reflections tie in closely with Foucault’s History of Madness as well as with Derrida’s reflections on literature and on madness. Both Derrida and Foucault contend that law has much to learn from literature in understanding the relation between itself and madness. Literature more specifically points to law’s ‘origin’ in madness. The article contends that a failure to take seriously this origin, also in the reading of Foucault’s lectures, would amount to a denial by law of itself.     

The Limits of Critique and the Forces of Law

Three recent publications evidence a growing interest in critical jurisprudence with materiality, technology, affect and atmosphere. These approaches pose fundamental challenges to existing traditions within legal critique, spurning a focus on the ideology of legal reasoning and exploring instead the unique practices through which the law binds subjects through material, affective and atmospheric manipulations. Through either Andreas Philippopoulos-Mihalopoulos’s ‘lawscape’ or Kyle McGee’s ‘jurimorphs’ these innovative theoretical projects pluralise the ‘forces’ which account for the law’s normativity, disavowing the notion that such forces can be reduced either to a transcendental form (like sovereignty) or to notions of structural or symbolic violence. These approaches address a ‘democratic deficit’ in legal philosophy that has generally excluded the realm of the material in its theorising and allows us to attend to the multiple forms that allow for the passage of law.     

知识产权法典化论证质评

在中国知识产权的立法进程中,存在“特别立法”、“单独法典”和“作为民法典的一篇”三种模式,它们基本上沿袭了世界上既有的知识产权三种立法模式。在理论界,多数学者指出,知识产权的法典化是历史发展的必然趋势。在方法论上他们多数采用的是比较、逻辑的进路;在知识资源上多数依赖的是比较法和历史史实的支撑。法典化论者有关制定知识产权法典的论证是不充分的。在中国语境下,与“特别立法”模式相比,“法典化”具有一种比较优势;但它不具有现实性。比较说来,中国当前应当制定一部《知识产权法通则》。     

Habermas Contra Foucault: Law, Power and the Forgotten Subject

The purpose of the present paper is to offer a Foucauldian critique of Habermas??s theory of law and democracy. Quite famously Habermas viciously attacked Foucault??s positions on law and power in modernity. Those attacks will be taken into consideration here in order to show some deficiencies in Habermas??s own reading of modern law and democracy. My suggestion is that the formal nature of Habermas??s communicative approach fails to take into adequate consideration the question of subjectivity formation. More precisely I will demonstrate that Habermas??s own works show a troublesome ambivalence with regards to the possibility that individuals can participate as ??unencumbered selves?? to the public life of their community. As a consequence his account turns a blind eye to certain dynamics of power in our society that a Foucauldian approach seems more apt to frame and explore.