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How to do things with Foucault (legally)

Published online by Cambridge University Press:  20 May 2021

Ben Golder
Ben Golder*
Affiliation:
Associate Professor, Faculty of Law and Justice, University of New South Wales, Australia
*
*Corresponding author. E-mail: b.golder@unsw.edu.au
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Abstract

In this essay, I discuss the legal theorist, Peter Fitzpatrick's, reading of philosopher Michel Foucault. My intent is to show how and why Foucault was important to Fitzpatrick and what this reveals about the latter's practices of reading. I characterise this particular reading in three ways. First, against the disciplinary tendency to assume that Foucault is more useful to lawyers for how he approaches law (as method), Fitzpatrick takes seriously what Foucault has to say about law as a conceptual matter. Fitzpatrick hence reads Foucault as a legal thinker. Second, Fitzpatrick does not restrict himself to the conventional archive of Foucauldian texts that legal scholars routinely consult, but reads more widely and creatively in his search for law. Third, Fitzpatrick reads Foucault open-endedly and generously rather than instrumentally or dismissively – textual ambivalence and contradiction are always, in his hands, sources of creative possibility and insight. This leads into some concluding reflections about Fitzpatrick's practice of critically rereading thinkers – all thinkers, not simply Foucault.

Keywords

Peter FitzpatrickMichel Foucaultpractices of reading
Type
Article
Information
International Journal of Law in Context , Volume 17 , Special Issue 1: Celebration of Peter Fitzpatrick and his Scholarship , March 2021 , pp. 44 - 50
Copyright
Copyright © The Author(s) 2021. Published by Cambridge University Press

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References

Baxter, H (1996) Bringing Foucault into law and law into Foucault. Stanford Law Review 48, 449–479.CrossRefGoogle Scholar
Deleuze, G (1997) Letter to a harsh critic. In Deleuze, G (ed.), Negotiations: 1972–1990, Joughin, M (trans.). New York: Columbia University Press, pp. 3–12.Google Scholar
Derrida, J (1992) Force of law: the ‘mystical foundations of authority’. In Cornell, D et al. (eds), Deconstruction and the Possibility of Justice, Quaintance, M (trans.). New York: Routledge, pp. 3–67.Google Scholar
Fine, B (1984) Democracy and the Rule of Law: Liberal Ideals and Marxist Critiques. London/Sydney: Pluto Press.Google Scholar
Fitzpatrick, P (1983) Marxism and legal pluralism Australian Journal of Law and Society 1, 45–59.Google Scholar
Fitzpatrick, P (1992) The Mythology of Modern Law. London: Routledge.CrossRefGoogle Scholar
Fitzpatrick, P (1995) Foucault's case: subject and subjection in law. In Smart, B (ed.), Michel Foucault: Critical Perspectives, Vol. VII. London: Routledge, pp. 222–235.Google Scholar
Fitzpatrick, P (2001) Modernism and the Grounds of Law. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Fitzpatrick, P (2011) Reading slowly: the law of literature and the literature of law. In Buchanan, R, Motha, S and Pahuja, S (eds), Reading Modern Law: Critical Methodologies and Sovereign Formations. Abingdon: Routledge, pp. 193–210.Google Scholar
Fitzpatrick, P (2013) Foucault's other law. In Golder, B (ed.), Re-Reading Foucault: On Law, Power and Rights. Abingdon: Routledge, pp. 39–63.Google Scholar
Fitzpatrick, P (as completed by Mulqueen, Tara, Paliwala, Abdul and Tataryn, Anastasia) (2020) Ultimate legality: reading the community of law. Journal of Law and Society 47, 363–383.CrossRefGoogle Scholar
Foucault, M (1972) The Archaeology of Knowledge, Sheridan Smith AM (trans.). London: Routledge.Google Scholar
Foucault, M ([1963] 1977a) A preface to transgression. In Bouchard, DF (ed.), Language, Counter-Memory, Practice: Selected Essays and Interviews, Bouchard, DF and Simon, S (trans.). Ithaca: Cornell University Press, pp. 29–52.Google Scholar
Foucault, M (1977b) Intellectuals and power: a conversation between Michel Foucault and Gilles Deleuze. In Bouchard, DF (ed.), Language, Counter-Memory, Practice: Selected Essays and Interviews, Bouchard, DF and Simon, S (trans.). Ithaca: Cornell University Press, pp. 205–217.Google Scholar
Foucault, M (1978) The Will to Knowledge, Vol. 1 of The History of Sexuality, Hurley, R (trans.). Harmondsworth: Penguin.Google Scholar
Foucault, M (1980a) Powers and strategies. In Gordon, C (ed.), Power/Knowledge: Selected Interviews and Other Writings, 1972–1977, Gordon, C (trans.). Harlow: Longman, pp. 134–145.Google Scholar
Foucault, M (1980b) Truth and power. In Gordon, C (ed.), Power/Knowledge: Selected Interviews and Other Writings, 1972–1977, Gordon, C (trans.). Harlow: Longman, pp. 109–133.Google Scholar
Foucault, M ([1966] 1987) Maurice Blanchot: the thought from outside. In Foucault, M and Blanchot, M (eds), Foucault/Blanchot, Massumi, B (trans.). New York: Zone Books, pp. 9–58.Google Scholar
Foucault, M (1991) Discipline and Punish: The Birth of the Prison, Sheridan, A (trans.). Harmondsworth: Penguin.Google Scholar
Foucault, M ([1966] 1994) The Order of Things: An Archaeology of the Human Sciences, Sheridan, A (trans.). New York: Vintage Books.Google Scholar
Foucault, M (2000) Interview with Michel Foucault. In Faubion, JD (ed.), Power: Essential Works of Foucault, 1954–1984. New York: The New Press, pp. 239–297.Google Scholar
Foucault, M (2007) Security, Territory, Population: Lectures at the Collège de France 1977–78, Burchell, G (trans.). Basingstoke: Palgrave Macmillan.Google Scholar
Golder, B and Fitzpatrick, P (2009) Foucault's Law. Abingdon: Routledge.CrossRefGoogle Scholar
Golder, B and Fitzpatrick, P (2010) The laws of Michel Foucault. In Golder, B and Fitzpatrick, P (eds), Foucault and Law. Farnham: Ashgate, pp. xi–xxvi.Google Scholar
Gordon, C (2013) Expelled questions: Foucault, the left and the law. In Golder, B (ed.), Re-Reading Foucault: On Law, Power and Rights. Abingdon: Routledge, pp. 13–38.Google Scholar
Han, B (2002) Foucault's Critical Project: Between the Transcendental and the Historical, Pile, E (trans.). Stanford: Stanford University Press.Google Scholar
Hart, HLA ([1961] 2012) The Concept of Law. Oxford: Oxford University Press.CrossRefGoogle Scholar
Hirst, PQ (1986) Law, Socialism and Democracy. London: Allen & Unwin.Google Scholar
Hunt, A and Wickham, G (1994) Foucault and Law: Towards a Sociology of Law as Governance. London: Pluto.Google Scholar
Koopman, C and Matza, T (2013) Putting Foucault to work: analytic and concept in Foucaultian inquiry. Critical Inquiry 39, 817–840.CrossRefGoogle Scholar
Mulqueen, T (2017) Naturalising the myth: Hart, biopolitics, and the body corporate. Australian Feminist Law Journal 43, 251–272.CrossRefGoogle Scholar
Nealon, JT (2008) Foucault beyond Foucault: Power and Its Intensifications since 1984. Stanford: Stanford University Press.Google Scholar
Patton, P (1979) Of power and prisons. In Morris, M and Patton, P (eds), Michel Foucault: Power, Truth, Strategy. Sydney: Feral Publications, pp. 109–147.Google Scholar
Poulantzas, N (2000) State, Power, Socialism, Camiller, P (trans.). London: Verso.Google Scholar
Rose, N and Miller, P (1992) Political power beyond the state: problematics of government. British Journal of Sociology 43, 173–205.CrossRefGoogle Scholar
Rose, N and Valverde, M (1998) Governed by law? Social & Legal Studies 7, 541–551.CrossRefGoogle Scholar
Rose, N, O'Malley, P and Valverde, M (2006) Governmentality. Annual Review of Law and Social Science 2, 83–104.CrossRefGoogle Scholar
Sedgwick, EK (2003) Paranoid reading and reparative reading, or, you're so paranoid, you probably think this essay is about you. In Sedgwick, EK (ed.), Touching Feeling ‒ Affect, Pedagogy, Performativity. Durham: Duke University Press, pp. 123–151.CrossRefGoogle Scholar
Smith, C (2000) The sovereign state v Foucault: law and disciplinary power. The Sociological Review 48, 283–306.CrossRefGoogle Scholar
Unger, RM (1976) Law in Modern Society: Toward a Criticism of Social Theory. New York: The Free Press.Google Scholar
Walby, K (2007) Contributions to a post-sovereigntist understanding of law: Foucault, law as governance, and legal pluralism Social & Legal Studies 16, 551–571.CrossRefGoogle Scholar
Waldron, J (2012) How law protects dignity. Cambridge Law Journal 71, 200–222.CrossRefGoogle Scholar
Wickham, G (2002) Foucault and law. In Banakar, R and Travers, M (eds), An Introduction to Law and Social Theory. Oxford: Hart, pp. 249–265.Google Scholar