Foucault, Law, and the Federal School Desegregation Cases

Gordon Hull, University of North Carolina, Charlotte, Department of Philosophy, has published Equitable Biopolitics: What Federal School Desegregation Cases Can Teach Us About Foucault, Law and Biopower. Here is the abstract.

The present paper looks at the intersection of juridical and biopower in the U.S. Supreme Court’s school desegregation cases. These cases generally deploy “equitable relief” as a relay between the juridicially-specified injury of segregation and the biopolitical mandates of integration. This strategy is evident in the line of cases running from Brown to Swann v. Mecklenburg, and has its antecedents in pre-war economic regulation. Later cases have attempted to close this relay, confining equality and rejecting claims of equitable relief. Study of the school desegregation cases thus both shows an example of the intersection of biopower and law (which has been difficult on Foucauldian grounds), as an example of the biopolitical race war that Foucault identifies in Society must be Defended.

Download the article from SSRN at the link.

Freedom, Power, and the Control of Women in "Vertigo"

John (Jay) Steinmetz, University of Oregon, has published 'They Had the Power and the Freedom': A Genealogy of Patriarchal Violence in Alfred Hitchcock's Vertigo as an APSA 2011 Annual Meeting Paper. Here is the abstract.

The control of women is at the center of Alfred Hitchcock's Vertigo, a misogyny of domination that is easily apparent. Less apparent in previous literature on Vertigo is the connection to a history of violence against women that threads through key scenes, where the expression "the freedom and the power" is spoken by the wife-murderer Gavin Elster, an authority on San Francisco history, and John "Scottie" Ferguson, who stalks and obsesses over what becomes three women: Madeleine Elster, Carlotta Valdez, and Judy Barton. The freedom and the power is something men once had, but they are slowly losing it, and there emerges the paranoia, the real vertigo. This phrase and its connotation, that of controlling women, connects both freedom and power to the mechanisms of patriarchy. One such mechanism in Vertigo is the deployment, in Foucaultian terms, of a myth: that Carlotta Valdez, thrown away by a rich man nearly 100 years ago, haunts Gavin Elster's wife Madeleine. This myth, the spurned woman, covers up the darker violence underneath, that of uxoricide. Foucault's repressive hypothesis, a deployment in discourse on the freedom and power of sexuality, can be mapped onto the myth of Carlotta Valdez and the killing of women that lies below its surface.

Download the paper from SSRN at the link.

Foucault's Footsteps

Mariana Valverde, University of Toronto Centre of Criminology, has published Specters of Foucault in Law and Society Scholarship at 6 Annual Review of Law and Social Science 45 (2010). Here is the abstract.

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.

The full text is not available from SSRN.

Looking For Like-ness

Bernard E. Harcourt, University of Chicago Law School, is publising Radical Thought from Marx, Nietzsche, and Freud, Through Foucault, to the Present: Comments on Steven Lukes’ ‘In Defense of False Consciousness’ in the University of Chicago Legal Forum. Here is the abstract.

In his essay “In Defense of ‘False Consciousness’” and book, Power: A Radical View, Steven Lukes mounts a forceful defense of the idea of false consciousness; however, Lukes presents false consciousness and the notion of truth regimes as mutually exclusive. In this essay, I suggest that there are important family resemblances between the theory of ideology in the Marxian tradition, especially as developed by the Frankfurt School, and the critique of truth regimes rooted in the Nietzschean tradition of genealogy, especially as developed by Foucault – family resemblances that make it counter-productive to argue that one theory would make us reject the other. The task is not to defend one theory at the expense of the other, but to explore the intricate relationship between the two in order to sharpen our own critical interventions. That is the goal of this essay, drawing on the radical thought of Marx, Nietzsche, Freud, and Foucault. In addition, I go further and call for resistance, not simply to this or that way of being governed, but resistance to truth. The task, as I see it, is to unmask and enlighten, but then to shed the tools we have used before those very beliefs become oppressive themselves.

Download the essay from SSRN at the link.

Some New Books From Routledge

Some new titles of interest from Routledge (abstracts from the publisher's catalog)

Jacques de Ville, Jacques Derrida: Law as Absolute Hospitality (due August 2011).

Jacques Derrida: Law as Absolute Hospitality presents a comprehensive account and understanding of Derrida’s approach to law and justice. Through a detailed reading of Derrida’s texts, Jacques de Ville contends that it is only by way of Derrida's deconstruction of the metaphysics of presence, and specifically in relation to the texts of Husserl, Levinas, Freud and Heidegger - that the reasoning behind his elusive works on law and justice can be grasped. Through detailed readings of texts such as To speculate – on Freud, Adieu, Declarations of Independence, Before the Law, Cogito and the history of madness, Given Time, Force of Law and Specters of Marx, De Ville contends that there is a continuity in Derrida’s thinking, and rejects the idea of an ‘ethical turn’. Derrida is shown to be neither a postmodernist nor a political liberal, but a radical revolutionary. De Ville also controversially contends that justice in Derrida’s thinking must be radically distinguished from Levinas’s reflections on ‘the other’. It is the notion of absolute hospitality - which Derrida derives from Levinas, but radically transforms - that provides the basis of this argument. Justice must on De Ville’s reading be understood in terms of a demand of absolute hospitality which is imposed on both the individual and the collective subject. A much needed account of Derrida's influential approach to law, Jacques Derrida: Law as Absolute Hospitality will be an invaluable resource for those with an interest in legal theory, and for those with an interest in the ethics and politics of deconstruction.

Law and Art: Ethics, Aesthetics, Justice (Ed. Oren Ben-Dor). (published March 2011).

The contributions to Law and Art address the interaction between law, justice, the ethical and the aesthetic. The exercise of the legal role and the scholarly understanding of legal texts were classically defined as ars iuris – an art of law – which drew on the panoply of humanist disciplines, from philology to fine art. That tradition has fallen by the wayside, particularly in the wake of modernism. But, as this book demonstrates, a
consideration of the relationship between law and art can still bring jurisprudence, and particularly critical
jurisprudence, to life. In its attention to the inexpressible, art can contribute to the liberation of legal doctrine from its own self-imposed limits. It can inform the ethics of a legal theory that is concerned to address how theoretical abstractions and concrete oppressions overlook the singularity and spontaneity to which art attests. The contributors to this volume – and their engagement with the full range of ’the arts’ – seek, therefore, to disturb and to supplement conventional accounts of justice: raising the difficulty, but also the promise, of that surplus which art reveals: of life over legal formalisation.

Deidre Pribram, Emotions, Genre, and Justice in Film and Television (published March, 2011).

Through their cultural meanings and uses, emotions enable social identities to be created and contested, to
become fixed or alter. Popular narratives often take on emotional significance, aiding groups of people in
recognizing or expressing what they feel and who they are. This book focuses on the justice genres – the generic network of film and television programs that are concerned with crime, law, and social order – to examine how fictional police, detective, and legal stories participate in collectively realized conceptions of emotion. A range of films (Crash, Man on Fire) and television series (Cold Case, Cagney and Lacey) serve as case studies to explore contemporarily relevant representations of anger, fear, loss and consolation, and compassion.

Michael Salter, Carl Schmitt: Law as Politics, Ideology and Strategic Myth (due October 2011).

There has been and continues to be a remarkable revival in academic interest in Carl Schmitt's thought within politics, but this is the first book to address his thought from an explicitly legal theoretical perspective. Transcending the prevailing one-sided and purely historical focus on Schmitt’s significance for debates that took place in the Weimar Republic 1919-1933, this book addresses the actual and potential significance of Schmitt's thought for debates within contemporary Anglo-American legal theory that have emerged during the past three decades. These include: the critique of legal positivism; the ‘indeterminacy thesis’ of American Critical Legal Studies; the reinterpretation of law as a form of strategically disguised politics by the contemporary sociology of law movement; the emphasis upon law as implicated in, and as aspect of, a network of mobile yet dispersed power relationships irreducible to a central state; the legal theoretical critique of human rights and liberalism more generally; Schmitt’s critique of innovations within international criminal law: the inhumanity and hypocrisy of supposedly universalistic ‘crimes against humanity’; and the retrospective criminalisation of ‘aggressive war’ as part of the Nuremberg trials process. In these respects, therefore, Michael Salter provides an overview and assessment of Schmitt's thought, as well as a consideration of its relevance for contemporary legal thought.

Veronique Voruz, Foucault and Criminology: An Introduction (due April, 2011).

[p]rovides an introduction to Michel Foucault, written from the perspective of criminology’s engagement with his work. Foucault’s writing has become a central reference in theoretical and sociological criminology generally and, more specifically, in what Jock Young has called ‘control theory’. The main purpose of this book is to offer a better, clearer and deeper understanding of ongoing criminological debates to both undergraduate and research students in criminology by outlining the theoretical framework which criminologists have taken from Foucault. Its second purpose is to trace the evolution of Foucault’s political project and to counterpose the thrust of his elaborations to the more pedestrian applications of his critical analyses of the present in the field of criminology. In these respects, Foucault and Criminology offers a ’map’ to guide students and practitioners of criminology: both through Foucault’s own writings and those of contemporary criminologists whose work may be characterised as Foucauldian. In so doing, it also pursues the argument that Foucault’s historical and theoretical analyses of discipline, power and governance must be understood in the context of his overall project if criminologists are to avoid reducing Foucault’s radicality, and to reclaim the critical, and resistive, potential of his work.

Kafka, Foucault, and Writing as Resistance

Nicholas Dungey has published Franz Kafka and Michele Foucault: Writing as Resistance as a Western Political Science Association 2010 Annual Meeting Paper. Here is the abstract.

One of the most pressing challenges to Foucault's notion of the self and disciplinary power concerns the issue of resistance. If, as Foucault argues, the self is wholly constituted by disciplinary power and practices, then what possibility exists for resistance to such power and practices? While this is a difficult challenge, Foucault insists that resistance is part and parcel with the happening of disciplinary power. In order to illuminate Foucault's observations about resistance I turn to Kafka' letters and diaries. I contend that Kafka wrote as a way of resisting the influence of disciplinary power and practices. Kafka wrote in order to do battle with the forces he found himself constituted by, and in the process, redefine the field of battle, and re-describe the terms and discourse in which the battle was fought. Kafka wrote, and struggled to write, as a way of resisting the domination of disciplinary power operating on him. I contend that Kafka might have been aware, like Foucault, that there was no final victory, no heroic escape or triumph from the battle. Therefore, Kafka wrote not to overcome the battle, but rather as the only legitimate response to the forces of 'isciplinary (sic) power. Writing was Kafka's way of struggling valiantly.

The full text is not available on SSRN.

Turner on Nietzsche, Foucault, and Scalia

William Turner (Emory Law School) has posted his paper, Nietzsche, Foucault, Scalia, on SSRN. From the abstract:

This paper explores the narrative strategies of majority and dissenting opinions in Lawrence v. Texas, Romer v. Evans, and Bowers v. Hardwick, all major lesbian/gay civil rights decisions. It demonstrates that the story of U.S. history - increasing protection for individual rights, or decreasing respect for moral and constitutional tradition - explains as much about the legal outcome as the doctrinal arguments that the opinions contain. In particular, it places these opinions into a discussion about the relationship between narrative and identity, individual and national. From this perspective, Justice Antonin Scalia shares with French philosopher Michel Foucault the belief that narrative is closely related to identity, with the important difference that Foucault celebrates the fragility of this connection while Scalia deplores it.