This paper reconstructs Foucault's concept of illegalism and explores its significance for his genealogies of modern punishment and racial formation. The concept of illegalism, as distinct from illegality, plays a double role. It allows Foucault to describe a ruling class tactic for managing inequalities and also to characterize an important vein of resistant subjugated knowledges. The political project of the prison is linked to a new crime policy that does not so much aim to repress illegalisms as to manage them (...) differentially. This practice of differential management, which arises in the 18th century, produces a primary split along class lines between two types of illegalism—an insight that has a certain resonance with Edwin's Sutherland's concept of “white collar crime.” Foucault's investigation of a third category of “infralegal illegalism” sheds light not only on the genealogy of the category of delinquency but also on his genealogy of racial categorization. Finally, Foucault argues that a genuinely radical critique of modern society must address the “need” organized political power has for the illegalisms from which it purportedly seeks to protect society. Against this practice of differentially managing illegalisms, Foucault seeks to reactivate a subjugated problematic that might open up questions about the transformative possibilities of illegalism today. (shrink)

If, as Lefebvre argues, every society produces its own social space, then modernity might be characterized by that (anti-)social and instrumental space epitomized and idealized in Le Corbusier's writings. This repetitively patterned space consumes and regulates the differences between places and people; it encapsulates a normalizing morality that seeks to reduce all differences to an economic order of the Same. Lefebvre's dialectical conceptualization of 'difference' can both help explain the operation of this (im)moral landscape and offer the possibility of alternative (...) post-modern social spaces that might produce and respect Otherness. In this sense Lefebvre's work is an incipient 'difference ethics'. (shrink)

The rise of the idea of the Anthropocene is promoting multiple reflections on its meaning. As we consider entering this new geological epoch, we realize the pervasiveness of humankind’s deconstruction and reconstruction of the Earth, in both geophysical and discursive terms. As the body of the Earth is marked and reshaped, so is its idea. From a hostile territory to be subjugated and exploited through sovereign commands, the Earth is now reframed as a vulnerable domain in need of protection. The (...) mode of sovereignty, which has accompanied human and legal history and practice during modernity and its project of mastery, is no longer useful. Humanity’s control of the Earth is being reimagined and reconfigured along biopolitical coordinates of thought and action. Biopolitics shifts the focus of power, changes its modalities of interventions, and rearticulates its legitimacy on the idea of taking responsibility for the Earth, for nature. A biopolitical re-orientation of law captures the fundamental aim of caring for nature, of fostering its vital possibilities and of enhancing its productive potential. Yet, biopolitics engulfs nature in its entirety under its framework of control, where protection and subjugation, vulnerability and productivity, life and death are constantly entangled in a reciprocal and inevitable relation of indistinguishability. Sovereignty becomes thus a key modality of biopolitical intervention, when nature is recalcitrant, wild, spontaneous, unpredictable, violent, dangerous. Biopolitics, thus, remains caught in an undecidable dilemma, where in order to protect the Earth, it must subjugate it; to save it, it must condemn it. In this respect, biopolitics remains utterly modern, or as argued by Roberto Esposito, modernity has always been biopolitical, insofar as modernity has emerged as a framework for the protection of life against life’s own excesses. But how can we escape the biopolitical reframing and enframing of the Earth and its total subsumption under its matrix of control? How can we rethink the encounter between law and nature without remaining entangled in the aporetic dilemma of biopolitics? An aesthetics of wonder may offer a way. (shrink)

Foucault’s critique of early modern political theory aimed at displacing sovereignty as the principle of intelligibility of power. In the genealogical literature since Foucault, sovereignty has become a residual category lacking analytic specificity, largely displaced by governance, in turn equated with politics. We argue that Foucault and the Foucauldians have not understood that the flourishing of governance has presupposed a symbolic regime with a division of knowledge-power-law characteristic of the democratic sovereign. The conflation of governance with politics, together with the (...) sliding of sovereignty under governance, has left Foucauldians unable to diagnose the dangers present in varying possible sovereignty-governance configurations. (shrink)

As dominant liberal conceptions of the relationship between rights and freedom maintain, freedom is a property of the individual human subject and rights are a mechanism for protecting that freedom—whether it be the freedom to speak, to associate, to practise a certain religion or cultural way of life, and so forth. Rights according to these kinds of accounts are protective of a certain zone of permitted or valorised conduct and they function either as, for example, a ‘side-constraint’ on the actions (...) of others or as a ‘trump’ over governmental or community goals. In such accounts, of course, the emphasis is placed upon the forms of power against which rights protect the individual, whether that be the trespasses of others or the overweening attentions of the state. Such accounts famously do not themselves take much account of the multiple ways in which rights also function as forms of power, often delimiting the courses of action that a putative rights-holder can take and affecting the manner of its exercise, indeed often in the very name of freedom itself. Of course, there is a sizeable critical literature which does address itself to these kinds of question, most notably from the radical traditions of Marxism and critical legal theory, which see rights in terms of the relations of production, consumption and exploitation that they establish between legal subjects. For various reasons, Foucault has not figured as prominently in critical discussions of rights. Here I do not propose to enter into debates surrounding Foucault’s engagement with, or failure to engage with, law as an object of study, nor with the emergent literature on Foucault’s deployments of rights, indeed even of human rights. Rather, what I want to do in this paper is to articulate and defend the view that through a reading of Foucault’s work, both on rights and on power relations more broadly, we can discern an understanding of the political ambivalence of rights. For Foucault (and for some of the post-Foucaultian scholars whose work I shall address, below), rights are both political tools for the contestation and alteration of mechanisms of power and simultaneously mechanisms of inscription, both disciplinary and governmental, which work to conduct those who rely upon them. Far from being an unproblematic tool for the protection of the subject’s freedom, rights emerge in this account as conflicted and ambivalent mechanisms. In the first part of this paper I develop a Foucaultian account of rights along these lines and then hope to illustrate it by reference to several examples, from the constitution of gender and cultural identity via rights to the figure of the refugee, whilst in the final part of the paper I make a return to the idea of freedom in Foucault’s work and link the view of rights developed herein to a certain conception of freedom in his work. (shrink)

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. (shrink)

This investigation examines the discursive history and contemporary courtroom discourse of expert witnesses in Anglo-American courts, incorporating the methods of Michel Foucault into a Critical Discourse Analysis framework. The history of experts is marked by a profound discontinuity in the role of experts, during the late medieval period, with experts relegated to a witness role instead of a juror role - that of the privately knowledgeable investigator - they previously held. Examination of the discourse of contemporary experts in three high-profile (...) US trials documents a different witness status for experts along three parameters: amplification of question responses; the use of the contrastive discourse marker well to express professional disagreement with their interlocutors; and the embedding of professional practices into so clauses. These parameters stand in sharp contrast to ordinary witness discourse. The study concludes with a discussion of the stakes in legal control of expert witnesses including asymmetrical access to experts by economic status, the possible suppression of some expert testimony by recent US Supreme Court decisions, and the hierarchicalization of expert knowledge. (shrink)

This article analyses ‘performance government’ as an emergent form of rule in advanced liberal democracies. It discloses how teachers and school leaders in Australia are being governed by the practices of performance government which centre on the recently established Australian Institute for Teaching and School Leadership (AITSL) and are given direction by two major strategies implicit within the exercise of this form of power: activation and regulation. Through an ‘analytics of government’ of these practices, the article unravels the new configurations (...) of corporatized expert and academic knowledge—and their attendant methods of application—by which the self-governing capacities of teachers and school leaders are being activated and regulated in ways that seek to optimize the performance of these professionals. The article concludes by outlining some of the dangers of performance government for the professional freedom of educators and school leaders. (shrink)

This paper provides a queer critique of the European Court of Human Rights’ use of ‘European consensus’ as a method of interpretation in cases concerning sexuality rights. It argues that by routinely invoking the notion of ‘consensus’ in such cases, the Court (re)produces discourses and induces performances of sexuality and Europeanness that emphasise sameness and agreement, while simultaneously suppressing expressions of difference and dissent. As a result, this paper contends that the Court’s use of European consensus has ultimately functioned to (...) uphold and sustain the heteronormative order that underpins both the European Convention on Human Rights (ECHR) and European society more generally. This is so, despite the role that European consensus has played in the Court’s recognition of ‘new’ rights for lesbian, gay and bisexual people under the ECHR. Drawing on insights from queer theory, as well as the work of Rancière and Foucault, this discussion is carried out through a close reading of Strasbourg cases relating to sexuality. (shrink)

Inspired by the thinking of authors such as Andrew Feenberg, Tim Ingold and Richard Sennett, this article sets forth substantial criticism of the ‘social uprooting of technology’ paradigm, which deterministically considers modern technology an autonomous entity, independent and indifferent to the social world (practices, skills, experiences, cultures, etc.). In particular, the authors’ focus on demonstrating that the philosophy,methodology and experience linked to open source technological development represent an emblematic case of re-encapsulation of the technical code within social relations (reskilling practices). (...) Open source is discussed as a practice, albeit not unique, of community empowerment aimed at the participated and shared rehabilitation of technological production ex-ante. Furthermore, the article discusses the application of open source processes in the agro-biotechnological field, showing how they may support a more democratic endogenous development, capable of binding technological innovation to the objectives of social (reducing inequalities) and environmental sustainability to a greater degree. (shrink)

Michel Foucault’s analysis of pastoral power has generated a large body of work in many different disciplines. Much of it has considered the paradox of the power of “each and all” or has seen pastoral power as an extension of the disciplinary gaze into welfare state policy. The political economy of the pastorate and the mutual dependence of sovereign and pastoral power, by contrast, are both relatively neglected. This article focuses on the exercise of pastoral power in a moral and (...) political economy and examines the “arts of government” through which the Catholic Church attempted to claim that pastors lived from the flock only to live for it. While there is heuristic value in Foucault’s diagram of pastoral power, in practice that power cannot be separated from class relations and political sovereignty. Empirical material is drawn from the novel attempt of Britain to govern its Quebec colony through the Catholic Church. (shrink)

El presente artículo tiene como objetivo analizar la recepción argentina de los governmentality studies , particularmente con los denominados anglofoucauldians . En esta dirección, nos referimos, inicialmente a los “deslizamientos” y “sobreentendidos” implicados en la traducción local de la perspectiva que examinamos. En segundo lugar, en un nivel más teórico y general, abordamos las limitaciones que supone la analítica del gobierno entendida en términos de la descripción de unas racionalidades políticas. En este punto, proponemos un modo alternativo, aunque complementario, de (...) reflexión sobre las prácticas discursivas de gobierno. Para ello, nos nutrimos de las elaboraciones provenientes del análisis materialista del discurso. Finalmente, en las conclusiones reflexionamos acerca del Sur como posición enunciativa desde la cual contribuir al debate teórico-conceptual sobre el problema del gobierno y la gubernamentalidad. (shrink)

This article discusses the role of individual rights in the production of active citizenship. In recent years, the notion of ‘active citizenship’ has become an object of research in both political and social science. Studies that draw on the Foucaultian governmentality tradition have been particularly interested in various societal discourses and practices through which active citizenship is being produced. However, the role of law and rights has been neglected or even rejected in these studies. The aim of this article is (...) thus to show that certain procedural rights, the right to participate in particular, constitute an important legal technology in the production of active citizenship. The analysis is based on the recent developments in Finnish social and health care law. It will also be argued that despite the apparently convergent subject-matter, Jürgen Habermas’s normative theory of the ‘procedural paradigm of law’ does not offer a meaningful framework in which to address the relationship between active citizenship and procedural rights since it is based on an overly narrow conception of subjectivity. (shrink)

In the public interest: autonomy and resistance to methods of standardising nurses’ advice and practices from a health call centre in Perth, Western Australia The history of nursing is replete with examples of nurses battling for autonomy over their education, knowledge and work practices. The latest battleground is HealthDirect, Australia's first medial call centre, where nurses are required to meet externally imposed clinical standards while satisfying legal and financial obligations. These objectives are arguably achieved when nurses assess callers’ health problems (...) via computerised algorithms that determine an appropriate plan of action. That way, nurses’ subjective responses to callers are ruled out. To ensure nurses comply with the standard processes, calls are monitored randomly and surreptitiously in formal and informal ways. This paper explores how nurses respond to standard procedures and surveillance, in order to argue that nurses’ input partially drives reform processes. Nurses continue to seek autonomy over the advice they give and how their work is evaluated but are constrained by structural power relations. (shrink)

In this paper Foucault’s thought on monstrosity is explored. Monsters appear whenever and wherever knowledge/power assemblages emerge. That which eludes the latter, and which threatens to subvert them, is the monstrous. Foucault distinguished the production, throughout history, of juridical-natural monsters, moral monsters, and political monsters. In this paper it is argued that Foucault must have sensed that monstrosity eludes all notions of identity and difference, and therefore also the notion that places it ‘outside’. It is the space of emergence itself, (...) i.e. the location where sheer potentiality becomes the possible of and in the event. All monstrosity is therefore deeply, and inevitably, political. It is the promise of unsettling subversion. (shrink)

The article explores the regulatory aspect of the right to freedom of expression. It focuses on human rights case law to see how the guarantee of this right considers subjects, who are required to be free in specific ways in order to exercise their freedoms aptly.

In the general understanding, and also in scientific practice, technology and society are viewed as two distinct entities. Related to this view is the assumption that technology and human experience are quite different and unconnected and also the idea that modernity has uprooted, de-contextualized and disembodied technical rationality. Taking a contrary approach, this study represents a theoretical exploration aimed at showing that in the domain of technological development, there are significant margins for maneuver in which to recuperate and valorize human (...) and social action. As a work of theoretical sociology or social epistemology, this thesis approaches its subject from the theoretical background of the philosophy and sociology of technique. The historical and conventional assumptions of this theoretical background, it is argued, have been and continue to be characterized by a hegemonically defined essentialist paradigm. This paradigm has been fiercely counteracted by two opposed approaches, critical theory and pragmatism. The present work combines these approaches, usually considered mutually incompatible, for the development of a new theoretical gaze or perspective. The aim has been to engage in a theoretical research oriented to a new philosophy of praxis in order to instigate a critical and constructivist approach to technology. The main result expected of this work is the provision of a problematized and multifaceted semantic map leading to a multidimensional conceptual re-integration of skilled experience in human technical action. (shrink)

This article provides a critical evaluation of Ben Golder’s and Peter Fitzpatrick’s recent Foucault’s Law, which it characterizes as a decisive intervention into both legal theory and Foucault scholarship. It argues in favour of Golder’s and Fitzpatrick’s effort to affirm the multiplicity of Foucault’s work, rather than treat that work as either unified by a consistent position or broken into a series of relatively stable periods. But it also argues against Golder’s and Fitzpatrick’s analysis of Foucault’s understanding of the law (...) through a conceptual framework borrowed from Derrida, and especially Derrida’s distinction between law and justice. It shows how this approach to reading Foucault effectively transforms some of his more powerful criticisms of the law into defences of justice. In place of this interpretation, the second half of this paper initiates a reading of Foucault’s later work on ethics and the self in the ancient world. It develops the theme of an ethics, or a way of life, that takes shape at a distance from politics on the one side and law on the other. (shrink)