The Disciplinary Moment: Foucault, Law and the Reinscription of Rights

Abstract

Traditionally, the rule of law is differentiated into two domains: one in which it is created & another in which it is applied. Michel Foucault challenges this distinction by arguing that the rule of law is simultaneously implicated in the creation & maintenance of specific forms of political order. However, a close analysis of Foucault's later writings reveals that his views on the rule of law were more ambiguous than is commonly supposed. Instead of ruling out the possibility of law outside the exercise of political power, Foucault offers at least two notions, the practices of liberty & nonpolemical dialogue, which might form the foundations for law. It is suggested that, in such notions, Foucault implicitly agrees with the sense that something has to create the conditions for social order & social identity. Though that something for Foucault was not the state or civil society -- two liberal answers to the issue -- his later works indicate that he held out the possibility of some foundational basis for the law. D. Ryfe