Beyond the confines of the law: Foucault’s intimations of a genealogy of the modern state

The general claim advanced in this article is that Foucault’s genealogy of the modern state traces two ideal-typically different power arrangements at the origin of the modern state, roughly referred to as ‘sovereign power’ and ‘governmentality’. They are ideal-typically different in that they operate according to a different logic, including different ends, means and modi operandi. The more specific claim, then, is that due to this different logic, their ever changing interpenetration on the level of the state is imbalanced. In order for ‘governmentality’ to operate according to the law, it must be backed by the juridical frameworks provided by sovereign power, but then again these juridical frameworks prove inadequate and insufficient to curb ‘governmentality’s’ operational procedures as well as the modalities and intensities of its implementation. In other words, in his genealogy of the modern state, Foucault tracks down ‘governmentality’ as a distinctive form of power which, although intertwined with the state, cannot juridically be contained by the state. It cannot be appropriately restrained by its legal regulations and, as such, constitutes an excess vis-à-vis those regulations.