Please use this identifier to cite or link to this item: http://hdl.handle.net/1893/13067
Appears in Collections:Law and Philosophy Journal Articles
Peer Review Status: Refereed
Title: The Rule of Law: A Foucauldian Interpretation
Authors: Martire, Jacopo
Contact Email: jacopo.martire@stir.ac.uk
Keywords: Foucault
Rule of Law
Governmentality
Discipline
Foucauldian interpretation
Law
Issue Date: Dec-2011
Publisher: Keele University’s Research Institute for the Social Sciences
Citation: Martire J (2011) The Rule of Law: A Foucauldian Interpretation, In-Spire Journal of Law, Politics and Societies, 6 (2), pp. 19-33.
Abstract: Although Foucault can be rightly seen as one of the most influential thinkers of our times, his ideas have hardly been straightforwardly accepted. His vision of law in the modern era, in particular, has drawn some severe criticism. Scholar as diverse as Habermas and Poulantzas have expressed strong doubts with regards to Foucault’s approach to law, accusing him of downplaying the role of the legal phenomenon in modern society to an unacceptable extent and with a distorting result. Such attacks are far from unwarranted. Foucault’s argument appears almost counterfactual: How is it possible to claim that in the modern “age of rights” the individual, formally protected by a sphere of legal autonomy, is, in fact, subject to the continuous gaze of biopolitical forms of power? The present article is a contribution to the debate concerning this question. Focusing on the concept of the Rule of Law I will try to demonstrate that the basic tenets of the modern legal system are not incompatible with Foucault’s reconstructions of the dynamics of modern power. My claim is that the problematic relationship between biopolitics and law within Foucault’s theory is to be understood as the problem of the contemporary gendering of freedom. Building on Foucault’s suggestion that freedom and power should be seen as an almost co-extensive couplet (and not as oppositional poles) I suggest that modern law does indeed foster individual liberty but it does so in a way that also allows a deeper penetration of power within the social body. In this perspective, I argue that the Rule of Law, shifting the legal paradigm from that of Hobbesian commands to that of the norm, proved instrumental for the flourishing of normalising dynamics that rely on the freedom of the individual for their establishment and propagation. Law, analysed through a biopolitical prism, appears as a normalising apparatus both in the sense that it translates the person into the discrete entity of the legal subject and in the sense that it provides the structuring rules framing the general landscape and environment of social life.
Type: Journal Article
URI: http://hdl.handle.net/1893/13067
URL: http://inspirejournal.files.wordpress.com/2012/02/martire62.pdf
Rights: The publisher has not yet responded to our queries therefore this work cannot be made publicly available in this Repository. Please use the Request a Copy feature at the foot of the Repository record to request a copy directly from the author. You can only request a copy if you wish to use this work for your own research or private study.
Affiliation: Law

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