The Sovereign State v Foucault: Law and Disciplinary Power

Abstract

A Foucauldian analysis of discourse and power relations suggests that law and the juridical field have lost their pre-eminent role in government via the delegated exercise of sovereign power. According to Foucault, the government of a population is achieved through the wide dispersal of technologies of power which are relatively invisible and which function in discursive sites and practices throughout the social fabric. Expert knowledge occupies a privileged position in government and its essentially discretionary and norm-governed judgements infiltrate and colonise previous sites of power. This paper sets out to challenge a Foucauldian view that principled law has ceded its power and authority to the disciplinary sciences and their expert practitioners. It argues, with particular reference to case law on sterilisation and caesarean sections, that law and the juridical field operate to manipulate and control expert knowledge to their own ends. In so doing, law continually exercises and re-affirms its power as part of the sovereign state. Far from acting, as Foucault suggests, to provide a legitimating gloss on the subversive operations of technologies of power, law turns the tables and itself operates a form of surveillance over the norm-governed exercise of expert knowledge.