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Rethinking Power and Law: Foucault’s Society must be Defended

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Abstract

Michel Foucault provides a radical challenge to the liberal approach to power and law, which is echoed by Jacques Derrida. Important differences exist between the analyses of Foucault and Derrida which should not be overlooked. This essay proceeds on the basis of an awareness of these differences, yet it at the same time attempts to bring these thinkers closer together, with reference specifically to the thinking of Freud. It is often said that Foucault does not offer an alternative to that which he criticises or that his analyses do not provide for a way in which to escape from the effects of power. By specifically focusing on Foucault’s reliance on the notion of ‘play’ in Society must be defended, it is submitted that an ‘escape’ is in fact provided for. The deconstructive reading of Foucault which is presented here attempts to ensure that Foucault does not remain trapped within metaphysics.

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Notes

  1. Later in the Lectures, Foucault [17, pp. 194–197] points out that the social contract is based on the idea of the savage as exchanger: “[T]he savage is essentially a man who exchanges. He is the exchanger: he exchanges rights and he exchanges goods. Insofar as he exchanges rights, he founds society and sovereignty. Insofar as he exchanges goods, he constitutes a social body which is, at the same time, an economic body.” (p. 194).

  2. In a footnote, the editors refer to The unconscious, The future of an illusion, and Civilization and its discontents; Freud [19, XIV pp. 159–215; XXI pp. 1–145].

  3. That is, that war “is a mere continuation of politics by other means”.

  4. Should one restrict Foucault’s analysis to public law? This is to be doubted. His analysis implies that the rights of subjects vis-à-vis each other, similarly find their justification in the sovereign whose courts have the function of judging these claims. Foucault [17, p. 27] also notes explicitly that the reciprocal relations between citizens in society are part and parcel of the domination that is exercised in society and which right (understood in the broad sense to be indicated) serves as a vehicle for.

  5. Foucault at times refers to the seventeenth and eighteenth centuries as the period in which this discourse commenced, but this seems to refer to the developments in France, whereas the reference to the sixteenth and seventeenth centuries refers to developments in England, [17, pp. 143, 271].

  6. Hobbes is criticised by Foucault [17, pp. 110–111] for attempting to eliminate this discourse. Hobbes’s analysis is more specifically based not on war as at the origin of the state, but on the avoidance of war. Here the sovereign is transferred all power in order to prevent war, to protect one’s life. Hobbes’s analysis, Foucault contends, makes it impossible to see that this war is still continuing.

  7. Medovoi [23, p. 61] contends that Foucault does not consider the impact which the relation between colonial powers and indigenous peoples may have had on the development of this discourse, but see Foucault [17, pp. 76–77, 103 and 257].

  8. We will return to Foucault’s apparent perspectivism below.

  9. See also Foucault [16, p. 139].

  10. For other, mostly critical evaluations of Foucault’s notion of a new form of right, see Litowitz [22, pp. 31–32]; Pickett [28, pp. 403–421]; Patton [27, pp. 282–283]; and Mourad [25]. The reading of the ‘new right’ proposed in the present article, ties in very closely with that of Keenan [20].

  11. The French ‘droit’ can be translated as both ‘right’ and ‘law’.

  12. It furthermore contrasts sharply with the perspectivist approach he seemingly adopts elsewhere in the lectures [17, p. 52]. This can now be read as simply a description of the war-repression schema, and not Foucault’s own position.

  13. The ‘problem’ Foucault refers to here seems to be “the problem of war, seen as a grid for understanding historical processes” [17, p. 239].

  14. See also Foucault [16, p. 144].

  15. Kelly [21, pp. 63–64] points out that even right-wing parties tend to make use more often of the discourse of the nation (the national interest) than that of conventional racism. This is usually in the form of economism.

  16. See also Foucault [16, pp. 149–150].

  17. “Of course, Nazism alone took the play between the sovereign right to kill and the mechanisms of biopower to this paroxysmal point. But this play is in fact inscribed in the workings of all states” [17, p. 260; 15, p. 232] (my italics).

  18. Foucault [17, pp. 260–261] raises some doubt as to whether this can indeed be said with certainty of all capitalist states.

  19. Foucault also explores this ‘law’ elsewhere, see [18], and De Ville [14].

  20. In relation to Freud (and Marx) Foucault remarks specifically on the need to “cut up, rip[] up, torn to shreds, turn[] inside out, displace[]” etc. the theoretical unity of these “all-encompassing and global theories” for purposes of providing a tool of ‘critique’ at the local level [17, p. 6].

  21. Derrida [5, pp. 257–409] explores the relation between the death drive and pleasure with reference to Freud’s Beyond the pleasure principle.

  22. See similarly, Derrida [7, p. 226] on Nietzsche’s Genealogy of morals: “When Nietzsche says that the strong have been made slaves by the weak, this means that the strong are weak, that Nietzsche comes to the rescue of the strong because they are weaker than the weak. In a certain sense, by coming to the aid of strength, Nietzsche is coming to the aid of weakness, of an essential weakness.” .

  23. See similarly Derrida [2, p. 148] where he remarks in explaining the ‘notion’ of différance that for Nietzsche “force itself is never present; it is only a play of differences and quantities”.

  24. Foucault [16, pp. 145–146] interestingly accords a similar role to sex, which as he notes “was at the pivot of the two axes along which developed the entire technology of life” (at 145); see also Foucault [17, pp. 252–253].

  25. Emphasis in each quotation added.

  26. Foucault [16, p. 156] makes a link between the death instinct and sex. He however seeks to restrict this coincidence to modernity; see also Miller [24, pp. 242–244].

  27. See in this regard Derrida [5, pp. 292–337; 3, pp. 50, 307]. From Freud [19, XV, p. 156] we have the observation in relation to dream symbols that “[s]atisfaction obtained from a person’s own genitals is indicated by all kinds of playing, including piano-playing.” See further Freud [19, XXI, pp. 190–194] for the link between play, gambling, masturbation and placing everything at risk.

  28. For a similar argument in a different context, see Derrida and Roudinesco [12, p. 12].

  29. Biopolitics is defined broadly by Agamben so as to include disciplinary control.

  30. Derrida [10, p. 330] confirms this stance of Agamben. He nevertheless notes that Agamben is himself ambivalent about whether biopower is a specifically modern phenomenon or whether it has always been associated with sovereign power.

  31. See above. The question of life and death is of course at the centre of the discourse on biopolitics, as Derrida [10, pp. 305–334] points out.

  32. See in this respect the insightful remark of Freud [19, XXI p. 90]: “With every tool man is perfecting his own organs, whether motor or sensory, or is removing the limits to their functioning.” Freud continues to give a number of examples of these, including ships, aircraft, the telescope, the microscope, the camera, the gramophone, the telephone, writing and the dwelling house. Modern science and technology, Freud (p. 91) furthermore notes, “are an actual fulfilment of every—or almost every—fairy-tale wish”.

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Acknowledgments

Funding for this research was generously provided by the University of the Western Cape and the South African National Research Foundation. Gratitude is expressed to the participants in the Roundtable for their insightful comments on the paper.

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    Jacques de Ville

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de Ville, J. Rethinking Power and Law: Foucault’s Society must be Defended . Int J Semiot Law 24, 211–226 (2011). https://doi.org/10.1007/s11196-010-9203-8

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