Between governance and discipline: the law and Michel Foucault

Abstract

This article attempts to re-establish the importance of Foucault's work for an understanding of the way in which modern law operates. This argument has two stages. Firstly, there is a critique of the interpretation of Foucault's work by legal and sociological thinkers. It is argued that by reading the term ‘juridical’ as synonymous with the term ‘law’ in Foucault, people miss the substance of Foucault's argument. The term juridical describes an arrangement and a representation of power rather than the law. This is made clear through a critique of J. S. Mill's On Liberty which is shown to make a juridical distinction between power and a free space of action which is unsustainable. Secondly, Foucault's genealogy of power relations is recast from the perspective of a legal theoretician. Foucault's history of power relations is constructed from historical differences in the mode of operation of power and discourse. By analysing these differences and their relationship to the mode of operation of law, an account of the place of modern law in Foucault's genealogy is established. Modern law operates between Foucault's concepts of government and discipline. It provides a key way in which government decisions can adjust the relationships between disciplinary institutions. This introduces the idea that law begins to operate in the perspective of the complete lives of individuals rather than just to prevent certain actions. Law, then, operates in accordance with what Foucault calls ‘bio-power’.