Framing Discipline with Law: Problems and Promises of the Liberal State

Abstract

AMONG THE VIRTUES OF LAURA ENGELSTEIN'S wide-ranging essay is its concision: a great deal of ground is covered in a very small compass. In fewer pages than are occupied by the usual journal article, Engelstein specifies Michel Foucault's position on both the logical and chronological relationships obtaining between law and discipline; provides a new conceptualization of Russian and Soviet history based on Foucauldian categories, whose standard, Western sequence she reshuffles to fit non-Western circumstances; criticizes Foucault's own critique of liberalism; and offers a capsule, post-Foucauldian definition of liberalism as replac[ing] the alliance between discipline and the administrative state with a configuration that frames the operation of discipline within the confines of the law.' It is a bold, adventurous, often dazzling, and always immensely thoughtprovoking performance-one whose style is (ironically) worthy of Foucault himself. As in a representative piece of Foucault's prose, the strands of Engelstein's argument are densely interwoven and can be teased apart only with difficulty. In these comments, I would like to separate out some of those strands for purposes of analysis and to suggest both what I regard as the debatable aspects of the argument and where, in my view, its most important contributions lie. Given my ignorance of things Russian-Soviet, I will accept Engelstein's assertions about her Russian-Soviet material on faith and will instead turn my critical attention to her first, third, and fourth points. The first point devolves on purely textual matters-that is, on what one takes to be a persuasive reading of Foucault. The third and fourth points, which concern the critique of Foucault's critique of liberalism, are, by contrast, amenable to empirical testing. Indeed, Engelstein seeks to demonstrate them by means of two brief cases from the Russian-Soviet setting, one concerning homosexuality and the other abortion.2 Here my approach will be to bring in empirical data from other countries-especially France