Abstract
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.
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Notes
Nevertheless, it is worth mentioning that Derrida and Foucault engaged in an intensive debate during their lives—a debate began with Derrida’s 1963 paper ‘Cogito and the History of Madness’, a critique of Madness and Civilization to which Foucault responded, nearly a decade later, in an appendix to the 1972 edition of that book called ‘My Body, This Paper, This Fire’. Foucault’s 1969 lecture ‘What is an Author?’ also includes a slanted attack on Derrida, in this case as a representative of the Tel Quel group [7, 17, 18]. And Derrida’s 1991 lecture ‘To Do Justice to Freud: The History of Madness in the Age of Psychoanalysis’ returns to the argument once again—this time after Foucault’s death, and as part of a celebration of the thirtieth anniversary of the publication of Madness and Civilization. In essence, Derrida and Foucault argue over the possibility of speaking reasonably about the irrational ‘other’, or writing a reasonable history of madness, on the one hand, and the relationship between reason and madness in Descrates’s Meditations, on the other. Or, to put it in the disciplinary terms that Foucault adopts at the beginning of ‘My Body, This Paper, This Fire’: Could there by anything anterior or exterior to philosophical discourse? Could its condition reside in an exclusion, a refusal, a risk avoided, and, why not, a fear?’ [18: 395]. As the editors of The Hermeneutics of the Subject, or Foucault’s Collége de France lectures for 1980-81 point out in a footnote, the same argument is still audible in Foucault’s challenge to what he calls the ‘Cartesian moment’ in philosophy, and his effort, in his later ethics, to replace the principle of ‘know thyself’ with that of ‘care of the self’—the ‘putting the self-evidence of the subject’s own existence at the very source of access to being’, on the one hand, and the notion that ‘[t]he truth is only given to the subject at a price that brings the subject’s being into play’ and that ‘as he is, the subject is not capable of truth’, on the other [23: 14–15].
Here I should clarify: what I find striking about the later lectures and books on ancient ethics is the overall paucity of explicit references to the principle of justice per se, and not to law in general. Foucault addresses the law extensively in the later work. But he rarely discusses justice. If this silence is, as it were, perfectly audible elsewhere, it is particularly boisterous in the work on the ancients. For, not only the ancient texts themselves, but a protracted history of scholarship on those texts clearly emphasises the theme of justice. As is always the case, there is an important exception—a text that is not yet widely available, that is just on the verge of being released as I am completing this paper, and that will likely open up these issues in unexpected ways. I am thinking of Wrong-Doing, Truth-Telling: The Function of Avowal in Justice, a series of lectures that Foucault delivered at the Catholic University of Louvain in 1981, and that are due to be published in translation for the first time in 2013. Having briefly considered the French original, I suspect these lectures will amplify rather than mollify many of the differences between Derrida and Foucault on the question of justice that I have gestured towards in this paper.
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