Foucault's Expulsion of Law: Toward a Retrieval

Abstract

This essay argues that there is an important sense in which Foucault gets law wrong—that the pursuit of Foucault's own objectives had the unintended consequence of inhibiting a fruitful interrogation of the place of law in modernity. His immediate concern was with the emergence of distinctive manifestations of modern power that constitute a new configuration, the disciplinary society. The most distinctive feature of his account of the historical emergence of modernity was his expulsion of law from modernity. This “expulsion of law” is found in his metahistorical thesis that law constituted the primary form of power in the premodern era, and that although law lingers on in the doctrine of sovereignty, it is supplanted by discipline and government as the key embodiments of modernity. The essay proposes an exercise in retrieval, a “retrieval of law,” to recuperate much in Foucault's thought that is suggestive for our understanding of law's role in the constitution of modern society. It rejects Foucault's opposition of law and discipline and makes use of his treatment of government and governmentality toward that end. It argues that a more adequate grasp of the place of law in modernity can be developed by establishing that law and discipline are complementary and characteristically combine in the ubiquitous presence of regulation as the mark of the modem condition.