Foucault, Michel (1926–1984)

Michel Foucault was an influential French theoretician of power and subjectivity. His scattered elaborations on law gave new direction to the study of law and governance around the globe.

In Discipline and Punish (1977), Foucault analyzed the processes leading to transfiguration of the punishment economy during the late eighteenth century as a moment of epistemological breakdown, noting the gradual disappearance of torture as a public spectacle and showing that a new corrective, “scientifico-juridical complex,” had developed (1977: 19). This was concerned with establishing the truth of a crime and whether it was punishable under law, and with the nature of an act and its meaning, with rehabilitation techniques, and with a whole set of diagnostic measurements. Foucault analyzed the birth of modern prisons as sites where officials developed new “disciplinary” techniques. He perfected and extended this analysis to workshops, schools, hospitals, and other institutions engaged in the dissemination of new types of disciplinary power.

Conceiving this change in terms of an epistemic rupture, rather than as a rational progressive evolution, Foucault developed a distinction between law and discipline. For him, law is a sovereign's violent instrument, based on the power to “take life” and on a regime of prohibition. On the other side, discipline is an essentially nonviolent instrument, a corrective regime, based on the power to “take charge of life.” “It is no longer a matter of bringing death into play in the field of sovereignty, but of distributing the living in the domain of value and utility” (Foucault 1978: 144). In modernity, law tends to “fade into the background,” while disciplinary modes come to the fore. In fact, law itself increasingly adopts disciplinary techniques and methods. Foucault thus articulated a radically revisionist thesis that countered prevailing ideas about the “imperialism” of law in late modernity.

Foucault argued that modern constitutions and legislative activities were just visible forms of power that “made an essentially normalizing power acceptable.” This shift of the gaze stemmed from a methodology that insisted on the need to “cut off the head of the king,” that is, to avoid locating power only at the level of the state (1978: 91, 144).

Foucault also applied what he termed a genealogical approach in tracing the roots and directions of “governmentality,” namely the modern governmental preoccupation with its population's security and welfare. The genealogical analysis of governmentality provided Foucault with a method for exploring new techniques for governing subject populations and for shaping regimes of subjugation. Foucault's power-knowledge nexus informs many sociolegal studies that launch genealogical analyses of the emergence of particular governmentalities, detailed accounts of the surveillance and corrective techniques in criminal justice institutions, and various analyses of the minute policing regimes around which everyday life is structured and affirmed.