1. Foucault and Legal theory
Kitpatchara Somanawat
Faculty of Law, CMU

2. “Law” in modernity Europe: since 17 century;
Contract theory: State is established by consent of the people via contract
Weber: law represents rational power, core source of modern power
Austin : law is positive, law is command of the sovereign
Savigny : essence of law is the spirit of the people
Marx : law is apparatus for exploitation; superstructure
All of these believe in essence of the grand theory/grand narrative

3. The GRAND THEORY
Set of explanations which could cover any situation
Positivists believe in objectivity of ‘science’
Naturalists trust the rationality
Marxists believe in economy as base structure, and revolution
Nationalists think of entity and essence of their nation
‘science’ ‘rationality’ ‘structure’ ‘entity’ or ‘essence’ are some kind of the grand theory

4. And everyone want to be normal
Problems of the grand
Grand theories in modernity transformed into grand theory as such in medieval era
Supremacy of ‘science’ is not different from supremacy of the god of the old day
‘Theory’ (for both natural and social science ) became the ‘Truth’
The ‘truth’ became rigid dominant power
Making the outsider of the truth abnormal
And everyone want to be normal

5. Typical lady

6. Typical ‘gentleman’

7. Quest for being AN ABNORMAL
In the modern time, there is no room for the ‘abnormal’
Development of ‘Art & Science’ has made the claim to be ‘rights’ things
Economic : right thing to do in resource management
Medical science : right things to do about the body, sexuality
Psychology : right thing to do about mind
Etc.
What if some are different or wanna be different?

8. Atypical ones

9. Price of Being an abnormal
“Gay men were commonly seen by society as perverts who had chosen their sexuality, or as diseased individuals whose sexuality was caused by their upbringing and biology, and not something they were born with. Doctors and psychologists, believing that homosexuality could be cured, tried methods such as hypnosis and aversion therapy.”

10. Hydrotherapy in Asylum

11. Why modern civilization has less freedom?
Do we have right to be different?

12. Michael Foucault Michael Foucault (1926-1984)
Former French Communist Party member (1950s)
An homosexual
The First Professor of the System of Thought of College de France
Died of AIDS
He tried to define modernity and its power

13. Key concepts of Foucault
Discipline and punishment
Bio-power-Governmentality
Power/Knowledge and Discourse
Genealogy of Knowledge

14. Discipline and punishment
We used to think that power came from the sovereign, or something big, powerful and centralized such the state
Weber : the state is monopoly of the used of force
Foucault offers the characteristic of power in modern day is ‘self-control’ or discipline
True, there is directly use of physical force, but that for some minorities
Most people were controlling themselves, thank to the technologies of self/power

15. Make them decided bodies
How?
Disciplinary power employs surveillance, organization, and training to make its object (the human body) more useful and productive
Disciplinary power is micro power, it has been inserted to each individual
Make them decided bodies
Foucault does his research about disciplinary technologies in the military, school, workshop, factories, orphanages, hospitals and prison
He found the technology which making us controlling ourselves to be meaningful, useful, and productive for the authority

16. Panopticon
"A building circular... The prisoners in their cells, occupying the circumference—The officers in the centre. By blinds and other contrivances, the Inspectors concealed... from the observation of the prisoners: hence the sentiment of a sort of omnipresence—The whole circuit reviewable with little, or... without any, change of place. One station in the inspection part affording the most perfect view of every cell." Jeremy Bentham

17. Ergonomic

18. Disciplinary power
Hierarchical observation
Continuous surveillance
Qualify, classify and punish
Small penalties and reward to encourage norm-conforming behavior
Examination and documentary record establish the ‘normal’
Our body as individual is reality fabricated by this technology of power
An essential part of the technology
We are both subject and object of power within ourselves

19. Bio-Power
Foucault developed the concept of bio-power after the disciplinary power
Bio-power or “power over life” includes the disciplinary power over individual and also a bio political of the population
Disciplinary is about self-controlling, but bio-power mentioned about more global issues
Such as the birthrate, longevity, public health, housing, and migration
He found that ‘sex’ is important strategic terrain of bio-power

20. History of sexuality Concepts of sex, gender and sexuality
Sexuality is the typical way of sexual life, taste etc. which society expect for
Sex issues bring together two leg of bio-power
Sex is a personal matter, controlling way of sex is controlling over individual in deep
Sex relates with regulation of population
Bio-power makes disciplinary power in individual level more powerful, because it seems more to be ‘normal’

21. Master of sex

22. Power/knowledge Exercise of power and production of knowledge
Power is productive; one thing it produces is knowledge
“Perhaps, too, we should abandon a whole tradition that allows us to imagine that knowledge can exist only where the power relations are suspended and that knowledge can develop only outside its injunctions, its demand and its interest… We should admit rather that power produce knowledge… that power and knowledge directly imply one another; that there is no power relation without the correlative constitution of a field of knowledge, nor any knowledge that does not presuppose and constitute at the same time power relation”
Human science such as psychology, psychiatry, and criminology were developed in disciplinary power

23. Discourse
When main factors of power are not any military, economic etc., but knowledge can construct power
Power become fluid, it could be pass to one another without knowing. (micro physic of power)
Power is free from the author, just like text free from the author
No one can completely hold the power of discourse within their hand
By this characteristic, power produce knowledge; knowledge generate power
For which who want interact with power, they just construct some knowledge

24. Any knowledge in da world?
According to previous concept of Foucault; discipline, bio-power, these kinds of power can operate because they seem to be ‘normal’
Only the truth can make our feel comfortable of the normal
Not every knowledge can became discourse, not every knowledge can generate disciplinary or bio-power
Not every knowledge could be the ‘discourse’

25. Developed afican?

26. Using discourse in resistance
No one can hold the fluid of micro physic of power
State can be able to have it; commoner can also have it
Knowledge of resistance
Orientalism-post colonialism
Weapon of the weak
Legal consciousness
New social movement and deconstruction academic movement

27. Genealogy
Knowledge is source and outcome of power
Challenge power is to challenge the truth
As Foucault thought, truth has been construct though the technology of discipline, bio power, governmentality etc.
These are technique to transform knowledge into discourse and into the truth
Searching for the origin of the truth will display the nonsense essence of the truth
In Foucault term, it call genealogy

28. How to?
Genealogy is mapping the polyvalence of discourse and tracing the transformation of regimes of truth
It not searching for the present in the past, nor investigation the past for it own sake, but it is the history of the present
Critic the core of discourse will effect the core of power as well
When the power/knowledge collapse, the new discourse could be stand as the new power

29. Example
The prison is discourse which people think it is the only function of punishment
Foucault discover that the imprisonment is the new technology of power in modern time to get rid of the criminal, and to avoid the torture in public space which is unhealthy
Prison is birth because of separation just like the asylum, hospital etc. which believed that they not be able to live with civilization
From the discourse of rights, hygiene, criminology etc.

30. Bringing law into Foucault
Foucault did not directly mentions much about any legal theory
But his critic of grand theory has attacked major legal doctrines
From Power/Sovereign/the Rule of Law/law
To Power/knowledge
From old understanding of power such as Weber, Marx, Austin, Hobbs
To micro-physic of power, discipline, bio-power
Moreover it provoke new generation of legal scholarship

31. Francios Ewald French historian and philosopher
An assistant to Michel Foucault in the 1970s
Author of “Insurance and risk”
Author of “Norms, Discipline and the Law”
The “Right Foucaultian”

32. Insurance
We used to think that the Workman Compensation Act, The Social Security Act etc. could be benefit of the working class.
Insurance is the system in which organize the risk of capitalist
Risk was commodifying into insurance in Private fund.
Risk was organized to be acceptable for State fund.
Risk was discourse which can governmentality us to feel insecure
Then insurance programs were created as the commodity for sale

33. Effects of Foucault on law
Rights of marginal people
New social movement
New issues in legal studies
Sexuality, Madness, Discipline, Imprisonment
New approach in legal studies
Critical legal studies, Legal consciousness, Genealogy, Legal orientalism

34. Many Rights movements

35. New social movement
Culture Jamming

36. Conclusions
Michael Foucault was the well-known intellectuals in twenty century
His thoughts impact many areas of studies from Art to Science
Transforms the pattern of power studies from elite subject to everyday life
Power used to centralized at the state, decentralized to marginal issues
The subaltern issue were emerged in academic arena
Hence, power/knowledge, appearing in academic means emerge in politics

37. Conclusions Foucault has never directly wrote about law
But his theory of power still attack the core value of law
Impact of marginalized art and science, effects the legal scholarship
Legal scholar target new area of study due to Foucaultian
LGBT, madness, criminology, patience rights, risk, insurance, orientalism, grand theory in legal area never be the same when taught with Foucaultian
Foucault open the new road, his follower expanded it into new area of studies