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.