Although Foucault is certainly one of most influential scholars of our age, law is for Foucauldian scholarship akin to an “undigestable meal”. This is due to a seemingly unresolvable dilemma: how is it possible to analyse law through Foucauldian lenses if Foucault himself claimed (albeit cursorily) that law, in modernity, has been colonised by other disciplines and ousted from the locus of power? Building on Foucault’s ideas about power, freedom, and subjectivity, the present book tackles this problem through a critical genealogy of the philosophico-political ideas at the basis of modern law, ... More

Although Foucault is certainly one of most influential scholars of our age, law is for Foucauldian scholarship akin to an “undigestable meal”. This is due to a seemingly unresolvable dilemma: how is it possible to analyse law through Foucauldian lenses if Foucault himself claimed (albeit cursorily) that law, in modernity, has been colonised by other disciplines and ousted from the locus of power? Building on Foucault’s ideas about power, freedom, and subjectivity, the present book tackles this problem through a critical genealogy of the philosophico-political ideas at the basis of modern law, delineating the historical emergence of the implicit regulative conditions of our legal present. The book proposes that modern law and modern forms of power – which Foucault termed biopolitical because they sort, train, and tame persons and populations with the aim of normalizing society – developed symbiotically and that, to the extent that modern law establishes the existence of a universal legal subject, law’s functioning is made possible by the homogenization of society through normalising practices. We are however fast moving towards the absolute limit of this normalizing complex. As normalising strategies are progressively unable to homogenise a social body which is increasingly composed by “fluid” subjects, modern law faces two interconnected challenges – a normative one (how can normalizing laws properly reflect the wills of a mass of differentiated fluid individuals?) and a functional one (how can normalizing laws effectively regulate such new protean social body?) – which put into question the very foundations of our legal discourse.