Between Governance and Discipline:
The Law and Michel Foucault
The consequences of Foucault's work for the law have still to be effectively evaluated. I hope that I have shown how some of the current scholarship underestimates the complexity and rigour of Foucault's position as well as providing some new directions in which a Foucauldian analysis of law could be developed. The implications of Foucault's analysis for legal theory are difficult to evaluate. Foucault was not primarily concerned with law and offered little analysis of the role which was played by law in different epochs. Nevertheless we can reach a few tentative conclusions concerning these implications. By focusing on the question 'What is the Law?', Anglo-American legal theory has lost the richness of the historical differences in law's genealogy. By attempting to reduce the law to its ahistorical minimum conditions, Anglo-American scholarship has failed to engage with the question of the operation of modem law and its theoretical relationship to the institutions with which it interacts. Foucault, on the other hand, establishes the importance of historical difference in analysing phenomena. By examining the historical transformations of the institutions of power, Foucault shows how transgressive acts have, in general, begun to decline as the focus of power to be replaced by a field of lives. The institutions of power are no longer predominantly concerned with preventing the most disordered acts from occurring. Rather they are concerned with the direction of the lives of individuals, groups and the population as a whole. The rise of what Foucault calls 'bio-power' (that is, government and discipline) does not result in an annihilation of the law. It results in the at least partial transformation of its mode of operation. The criticism that Foucault sees the law according to the Austinian 'rules + sanctions' formula is misplaced. Foucault did indeed have a tendency to concentrate on the criminal law (as it was most closely associated with the institutions with which he was concerned) but even the criminal law, in Foucault's account, begins to respond to the complete lives of individuals in the Moder Age. As Foucault suggests in his article, The Dangerous Individual, there is a question which 'is essential in the Moder Tribunal, but which would have had a strange ring to it 150 years [previously]: "Who are You"'.28 Foucault's point is that even in the criminal law it is the life rather than the act to which the law responds. Whilst Foucault did not effectively consider the role of the other areas of law in his genealogy I believe that his account encourages rather than precludes an account of law which directs rather than forces. The modem law takes place within a field of powers for which it no longer provides the model but in which it plays an important part. Foucault's concept of governance seems to encapsulate something significant about the modem role of law. But this legal governance can only be effectively evaluated if it is seen as the result of a historical evolution in which the juridical structure of the State has been displaced by a mobile, flexible, and self-reproducing technology of power which responds to an entirely different field of knowledge; the field of lives as opposed to the field of acts. In this paper I have attempted to show how the law takes its place between the two poles of bio-power, allowing the governmental technology to adjust the disciplinary mechanisms. In doing so I have attempted to focus on the question 'How does law operate?' rather than the question 'What is law?' In doing so the law, in its moder form, appears in a new guise. Rather than the structure or fabric which constitutes our society, the law is a machine which oils the modem structures of domination, or which, at best achieves a tinkering on the side of justice.
Finally, an engagement with Foucault, displaces the liberal trend that opposes individual freedom to the law. By concentrating on the legal right to expression, the density of the moder operations of power and the creativity of its institutions is passed over. Mill's conception of power is too limited to be useful as a way of analysing modem society or moder law. Whilst, from Mill's perspective, we can construct a critique of the overextension of the criminal law into our private lives, we are incapable of understanding the way in which law regulates (and thus legitimates) the operations of discipline. It is these operations, rather than juridically imposed interdictions that constitute the fabric of the modem subject.
However, Mill's conception of power is stll widely accepted by many AngloAmerican jurisprudes (Hart and Dworkin to name but two of the most prominent) who fail to see that the opposition between freedom and the law is no longer adequate to ground jurisprudential thought. The law operates in a field of power relations within which it is only a directing force. Consequently, liberation from the blunt technology of the juridical does not prevent the individual being subjected to the loving force of bio-power.
Sumber : http://scholar.google.co.id/scholar_url?url=http://www.csun.edu/~snk1966/V.%2520Tadros%2520-%2520Between%2520Governance%2520and%2520Discipline%2520--%2520The%2520Law%2520and%2520Michel%2520Foucault.pdf&hl=id&sa=X&scisig=AAGBfm1xvVHKP38wlChq2caRy8Hwuz3bXw&nossl=1&oi=scholarr&ved=0ahUKEwjNpsqTo-XYAhUC5LwKHZfDALkQgAMICSgAMAA
Nama : Lidiana Tri C.
Kelas : 4EB27
NPM : 24212194
MK : Etika Profesi Akuntansi
Softskill
The Law and Michel Foucault
The consequences of Foucault's work for the law have still to be effectively evaluated. I hope that I have shown how some of the current scholarship underestimates the complexity and rigour of Foucault's position as well as providing some new directions in which a Foucauldian analysis of law could be developed. The implications of Foucault's analysis for legal theory are difficult to evaluate. Foucault was not primarily concerned with law and offered little analysis of the role which was played by law in different epochs. Nevertheless we can reach a few tentative conclusions concerning these implications. By focusing on the question 'What is the Law?', Anglo-American legal theory has lost the richness of the historical differences in law's genealogy. By attempting to reduce the law to its ahistorical minimum conditions, Anglo-American scholarship has failed to engage with the question of the operation of modem law and its theoretical relationship to the institutions with which it interacts. Foucault, on the other hand, establishes the importance of historical difference in analysing phenomena. By examining the historical transformations of the institutions of power, Foucault shows how transgressive acts have, in general, begun to decline as the focus of power to be replaced by a field of lives. The institutions of power are no longer predominantly concerned with preventing the most disordered acts from occurring. Rather they are concerned with the direction of the lives of individuals, groups and the population as a whole. The rise of what Foucault calls 'bio-power' (that is, government and discipline) does not result in an annihilation of the law. It results in the at least partial transformation of its mode of operation. The criticism that Foucault sees the law according to the Austinian 'rules + sanctions' formula is misplaced. Foucault did indeed have a tendency to concentrate on the criminal law (as it was most closely associated with the institutions with which he was concerned) but even the criminal law, in Foucault's account, begins to respond to the complete lives of individuals in the Moder Age. As Foucault suggests in his article, The Dangerous Individual, there is a question which 'is essential in the Moder Tribunal, but which would have had a strange ring to it 150 years [previously]: "Who are You"'.28 Foucault's point is that even in the criminal law it is the life rather than the act to which the law responds. Whilst Foucault did not effectively consider the role of the other areas of law in his genealogy I believe that his account encourages rather than precludes an account of law which directs rather than forces. The modem law takes place within a field of powers for which it no longer provides the model but in which it plays an important part. Foucault's concept of governance seems to encapsulate something significant about the modem role of law. But this legal governance can only be effectively evaluated if it is seen as the result of a historical evolution in which the juridical structure of the State has been displaced by a mobile, flexible, and self-reproducing technology of power which responds to an entirely different field of knowledge; the field of lives as opposed to the field of acts. In this paper I have attempted to show how the law takes its place between the two poles of bio-power, allowing the governmental technology to adjust the disciplinary mechanisms. In doing so I have attempted to focus on the question 'How does law operate?' rather than the question 'What is law?' In doing so the law, in its moder form, appears in a new guise. Rather than the structure or fabric which constitutes our society, the law is a machine which oils the modem structures of domination, or which, at best achieves a tinkering on the side of justice.
Finally, an engagement with Foucault, displaces the liberal trend that opposes individual freedom to the law. By concentrating on the legal right to expression, the density of the moder operations of power and the creativity of its institutions is passed over. Mill's conception of power is too limited to be useful as a way of analysing modem society or moder law. Whilst, from Mill's perspective, we can construct a critique of the overextension of the criminal law into our private lives, we are incapable of understanding the way in which law regulates (and thus legitimates) the operations of discipline. It is these operations, rather than juridically imposed interdictions that constitute the fabric of the modem subject.
However, Mill's conception of power is stll widely accepted by many AngloAmerican jurisprudes (Hart and Dworkin to name but two of the most prominent) who fail to see that the opposition between freedom and the law is no longer adequate to ground jurisprudential thought. The law operates in a field of power relations within which it is only a directing force. Consequently, liberation from the blunt technology of the juridical does not prevent the individual being subjected to the loving force of bio-power.
Sumber : http://scholar.google.co.id/scholar_url?url=http://www.csun.edu/~snk1966/V.%2520Tadros%2520-%2520Between%2520Governance%2520and%2520Discipline%2520--%2520The%2520Law%2520and%2520Michel%2520Foucault.pdf&hl=id&sa=X&scisig=AAGBfm1xvVHKP38wlChq2caRy8Hwuz3bXw&nossl=1&oi=scholarr&ved=0ahUKEwjNpsqTo-XYAhUC5LwKHZfDALkQgAMICSgAMAA
Nama : Lidiana Tri C.
Kelas : 4EB27
NPM : 24212194
MK : Etika Profesi Akuntansi
Softskill
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