Specters of Foucault in Law and Society Scholarship

To reflect on how we, in 2010, might make the best use of the analytical tools developed by Michel Foucault, we need first to go back to the 1970s and situate his work in the intellectual history of the European left. We then see that Foucault was extremely careful to avoid developing a new model, a grand social theory that might replace the Marxism that was dominant then. Instead, he cultivated more empirically grounded, historically specific habits of thought, in a series of books that did not follow a consistent plan. In Foucault's work, the basic terms are themselves tactical weapons, and hence do not have fixed meanings. That is, the terms are not concepts. This has gone largely unnoticed in the literature: Most of the scholars who use Foucault adopt the content but use it to prop up old forms. The governmentality literature has been particularly influential in many law and society circles, and it tends to use Foucault to produce an improved sociology of modernity—rather than to question our own desire to call ourselves modern and challenge our yearning for static models. This review examines one attempt to turn Foucault into a legal philosopher, a more novel but equally problematic effort to use Foucault to renovate old disciplines. The key argument of the review is that Foucault's work is most useful when, rather than attempt to “apply” it, we use it as inspiration to ourselves to examine the preconditions and foundations of our own present's intellectual habits.