E_RAI_052_0039

Michel Foucault: Visionary Insight into Contemporary Law
Antoine Garapon
In Raisons politiques Volume 52, Issue 4, 2013, pages 39 to 49
Publishers Presses de Sciences Po
ISSN 1291-1941
ISBN 9782724633207
DOI 10.3917/rai.052.0039
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special issue
Antoine Garapon
Michel Foucault: Visionary

Insight into Contemporary Law
M
ichel Foucault showed himself to be a visionary
in the course he gave in 1979: indeed, he saw
a law that was only in an embryonic stage (the
course was given several months before Margaret Thatcher came to

power), but that would develop and become established, especially after
the turn of the twenty-first century. This ability to anticipate is without
a doubt due to the particular attention that the author of Discipline and
Punish paid to social practices, and more particularly to juridical prac-
tices. He maintains that social practices lead to “domains of knowledge
that not only bring new objects, new concepts, and new techniques to
light, but also give rise to totally new forms of subjects and subjects of
knowledge. [. . .] Among the social practices whose historical analysis
enables one to locate the emergence of new forms of subjectivity, it
seemed to me that the most important ones are juridical practices.”1
Armed with this encouragement from Foucault, we propose to under-
stand the major changes in law, both internal and worldwide, through
practices—practices that are disconcerting because, as we shall see, they
are not truly juridical but para-juridical because they involve settling
“in the shadow of the law.” Examining practices allows us to capture a
1 Michel Foucault, Power: The Essential Works of Foucault, 1954–1984: Volume Three,
trans. Robert Hurley (New York: The New Press, 2001).
II – Antoine Garapon
new legal reasoning that appears to be paradoxical because it organizes

an exit from law.
The Law of Exiting the Law
Today we are witnessing an extraordinary surge in the transactional

settlement as observed in family law (divorce by mutual consent, or
no-fault divorce), employment law (the end of an employment contract
via agreement, and still more recently the “historic” agreement between
employers and unions), criminal matters (the French version of plea
bargaining called comparution sur reconnaissance préalable de culpabilité
[CRPC]) and in global law (settlements between the Department of
Justice [DOJ] and companies in the fight against corruption or in mar-
ket regulation). Although they appear unrelated, in all of these sectors
there appears the same concern for efficiency, as well as a new role for
the law that is now no longer conceived of as the architect that guaran
tees fundamental rights but as the engineer of social relations.
From Fundamental Rights to the Arming of Subjects


Take for example French employment law, which offers a good
illustration of a general trend in the other areas. The law regarding
job termination in France gradually led to an increase in private-law
guaran tees to employees to shelter them from wrongful termina-
tion of the employment contract by the employer. Until the end of
the nineteenth century, these guarantees were almost nonexistent.
In a February 5, 1872, decision,2 the Cour de cassation (the French
Supreme Court for ordinary jurisdiction) for the first time recognized
the right of an employee to indemnification for damages caused by
wrongful termination. Nevertheless, compensation was only owed
when the employee could prove the wrong committed by his or her
employer. However, the law of July 13, 1973, discharged the employee
from the burden of proving the wrong committed by the employer.
It then accorded two basic guarantees to employees by first requiring
that the termination be preceded by a specific, formal procedure (a pre-
liminary interview during which the employee could be assisted by a
person of his or her choice, and notification of termination providing
2 Chemin de fer de Lyon c/Falcoz, Dalloz périodique, 1873, I, 63 (Cour de cassation,

February 5, 1872).
Michel Foucault: Visionary Insight into Contemporary Law – III
specific reasons), then by requiring that the termination be justified by

just cause subject to judicial review.
These measures are rather restrictive to business owners and ulti-
mately detrimental to job creation. In an attempt to remedy these disad-
vantages, whether real or imagined, a controversial new law3 introduced
the New Employment Contract (Contrat nouvelles embauches [CNE]).
Designed for businesses with fewer than twenty employees, this con-
tract permitted a departure from the guarantees accorded to employees.
For CNEs of less than two years, it deprives employees of the principal
guarantees granted by the 1973 law, namely the summons by registered
mail, the preliminary interview with the employer, the mandatory pro-
vision in writing of the reasons for dismissal, and, last but not least, the
requirement to have established just cause for the dismissal.
A June 25, 2008, law structured a new way to terminate an
employment contract: the amicable agreement by which the employer
and employee may agree together on the conditions of the termina-
tion of the employment contract that binds them. Naturally, this can-
not be imposed unilaterally by one of the parties, and it results in an
agreement signed after one or more interviews during which the parties
may receive assistance. The agreement defines the specific amount of
compensation offered for the termination of the contract, which can-

not be less than the statutory severance pay or the amount established
by collective agreement. Lastly, an authorization from the French
Labor Inspectorate is required if the termination concerns a protected
employee.
This “no-fault divorce for the business world” has been a resound-
ing success4—proof that these measures respond to a need to give busi-
nesses more room to maneuver. But the unions accuse some businesses
of using the arrangement to avoid carrying out a plan to save jobs,
which is more restrictive and costly, or they suspect that it allows busi-
nesses to circumvent the measures governing resignation or dismissal.
It also seems to have facilitated the removal of elderly employees. Note
that this form of dismissal has led to very little litigation (which con-
firms that it has led to a decrease in conflict). Finally, it should be noted
that money is the real mediator of this conflict.
One can find multiple illustrations of this tendency to exit the
law in other sectors. First of all, in family law all reforms tend toward
3 Ordinance no. 2005-893 relative to new employment contracts (contrat de travail “nou-
velles embauches”), August 2, 2005.
4 Christophe Dejours, “Sortir de la souffrance au travail,” Le Monde, February 22, 2011.
IV – Antoine Garapon
mutual consent, therefore giving priority to agreements protected by

the guarantee of a third party. Some object that all agreements must be
approved by a judge, but this is not the problem, because the risks occur
earlier on in the form of the pressure to consent, which is therefore
invisible to the third party. In collaborative law, it is also recommended
that parties give up the idea of defending their rights at all costs in order
to focus on their interests.
Criminal law also favors settlement by means of plea bargaining,5
which is becoming increasingly widespread. We had a lively debate in
France regarding custody because the legislature considered adding to
measures to protect the rights of the person in custody a statute for a
true “open hearing”: an informal interview between the person ques-
tioned (but not formally arrested), and the police. The legality of this
administrative act is based on a freedom that is not exactly very spon-
taneous. This is in the same spirit as the termination agreement or col-
laborative law.
From Observance of a Rule to Cooperation with Authority
The relationship of large global companies to regulatory authori-

ties presents a similar picture. When one of the companies is suspected

of committing an irregularity (civil or criminal), a choice is given
between “classic” legal proceedings, which are based on repression, and
a collaborative route based on a shorter, more controlled track. The
authorities avoid a formal and adversarial procedure, which is neces
sarily cumbersome, costly, and unpredictable, and in a more or less
explicit manner present this offer to the company as a much simpler
solution that is above all less unfavorable to them than a formal inves-
tigation. The strict application of the law and possible economic sanc-
tions have value as means of applying pressure or blackmail (this is the
same logic as subpoenas 6). But, one objects, is not all power necessarily
backed by a threat? Where is the innovation? It is in this: the threat
is not eventual repatriation under American law, but to settle and to
remain outside of the law. The purpose of the pressure is not to respect
the law but, on the contrary, to oblige the party to give it up. The appli-
cation of the law, and above all the economic sanctions it entails, is no
5 A procedure that allows the prosecutor to suggest a sentence to the defendant that, if
accepted, becomes effective after approval by a judge.
6 An order issued by a judge to do something or produce a document under financial
penalty in the form of fine.
Michel Foucault: Visionary Insight into Contemporary Law – V
longer seen as protective but rather as devastating, even apocalyptic, so

that avoiding it justifies settlement.
The pressure is not directly aimed at normalization, that is, con-
formity with an order, but rather cooperation with power. It is there-
fore a relation with power that must be analyzed as such, i.e., in politi-
cal terms.
The fact is that this mechanism of self-denunciation, strongly
encouraged by a partial or total avoidance of sanctions, is found in
other sectors, such as transitional justice. One thinks of the Truth
and Reconciliation Commissions that followed a relatively identical
scheme: come, confess, and get amnesty. Thus, the offending company
is recruited to serve the authority; it must be the active and zealous
auxiliary for promoting values that yesterday it flouted. The pressure
to cooperate does not only concern the offenders but also extends to a
number of professions that impose an obligation to report not only that
which appears suspect, but also what might be suspect.
If the jurisdictional model seeks to directly normalize a behavior,
the new “relational” model is based on forcing consent. It is freedom
that is placed under pressure, and not the body. In one case, the source
of the pressure is the collective ego; in the other it is the individual ego.
It is a question of control by freedom, but a guided freedom under pres-

sure. The first model is based in the impersonal universe of rules; the
other takes the form of a relationship between two parties, passing from
a jurisdictional paradigm to a relational paradigm. There is pressure
in both cases, but it takes different forms: in the first it is external and
direct, and in the second it is indirect and internal. This corresponds
to an internalization of a sovereign function, a privatization of a public
function of redressing offenses and crimes (or at least some of them, like
financial offenses).
This pressure not to conform to a moral or political order, but to
cooperate, is illuminated by a partner/pariah way of thinking that is a
very specific mode of connection. It refers to a primary logic of “us ver-
sus them,” of “if you are not for us then you are against us.” It may have
been described in more elegant terms, such as “the fight against non-
cooperative jurisdictions,” but in essence this is what it is about. The
same philosophy is seen in the listing mechanism, or the blacklist, or
in naming and shaming, that is, public stigmatization,7 or if preferred,
shame—not an ethical shame, but a threat to reputation (which today
is the primary capital of a commercial enterprise).
7 See the campaigns by certain NGOs against large companies.

VI – Antoine Garapon
The partner/pariah relationship offers no middle way, which is

why it is oppressive. There is no room for freedom, understood as the
possibility of difference without dissidence, because this position only
has meaning when all parties belong to the same political community.
These measures testify to a remote government that handles exclusion,
banishment, and suspension, but not the right distance—because the
right distance can be found in the context of a public space, that is, a
space where each is bound by a profound underlying political pact,
which is lacking here.
The system thus constructed is highly effective, but without pas
sing via the public space; it does not allow for the possibility of neutra
lity, of remaining independent from power; it has no choice other than
to accept the proposed deal. While a long historical process achieved
the introduction of space between the sovereign and the subjects, the
trend described here seems to work in the opposite direction, drawing
them into a closer relationship that, although certainly less confronta-
tional, is possibly more oppressive.
A One-Dimensional Subject
These practices lead to a new subjectivization: the subject is in


effect conceived of as a power to act rather than as a holder of rights.
This power to act has a positive side that we have just developed—
empowerment, meaning literally “to enable”—and a negative side in
the form of there being a victim. The increased power of victims, which
is undoubtedly one of the great phenomena of recent decades, impli
citly demonstrates this new subjectivization. To be a victim is to see the
power of assertion illegitimately reduced—hence the return of revenge.
The emphasis on responsibility that is part of this new creed is in this
spirit: first comes action, then justice.
In this new model, the juridical forms (for example the require-
ment of proving fault in divorce or reasons for dismissal in an employ-
ment relationship) are enhanced in the name of a new conception of
individual freedom. They engage fundamental freedoms less than free-
dom singular, understood as the right to negotiate one’s rights. The
individual is less considered in terms of a holder of rights than as a
rational actor, that is, as a subject capable of making choices, of know-
ing where his or her interests lie in order to negotiate and compromise.
The purpose of law is not to abandon the subjects to a power
struggle, but to relieve those who want it (we will see that the incentives
are legion) from being the juridical ward of the State, who wants the
Michel Foucault: Visionary Insight into Contemporary Law – VII
best for them despite themselves. The legal form must be in service to
individual action. The purpose of neoliberal law is to lift restrictions on
individual action: like economics, it relies on the individual capacity to
act and to make settlements. In the term “rational actor,” the reference
to action is as important as the reference to reason. What counts above
all is that one acts.
Today we talk a little too easily of “contractualization” of rela-
tionships between citizens and public authority, or between economic
actors and regulatory authorities. It is, in our view, missing the essen-
tial phenomenon that is the profound transformation of government
practices. When a regulatory authority acts as a direct interlocutor of
its subjects, it is no longer in the position of a third party, but in a new
type of dual position: neither exactly a party, nor truly a third party. It
has not lost its power, of course, but it has deliberately distanced itself
in order to act indirectly; it has not disarmed itself but has chosen as its
enforcer the regulated party itself.
These changes reflect a new conception of the subject, where the
calculation of its interest tends to substitute the defense of its rights.
Rights are now considered to be capital, and therefore alienable, that
the individual or business must use to its advantage in an optimal man-
ner, and no longer as a part of an inalienable universality placed in

it. A further step was taken when the subject was asked to volunta
rily renounce enforcement of its formal rights (as large corporations
do when negotiating with the United States Department of Justice as
a demonstration of good faith). The pressure is displaced: it is now
placed less on behavior than on consent. Law has become an option
for the relationship, and no longer a condition for it; the relationship is
reversed. And if the law only depends on the will of each, it is conside
rably weakened, and through it the rule of law as a whole.
The waiver of legal privilege (or invocation of protection in a form
that obstructs the direct exercise of power) broke down the barrier that
protected the individual or business (who are both affected by the same
issue). The pressure exerted on the subject becomes against the subject’s
rights, such that the interested subject itself causes its interests to take
precedence over its guarantees.
We thus see the emergence of a curious configuration where free-
dom is coerced by a forced choice. The means by which domination
is achieved is the interest to which the subject becomes enslaved. This
new governmentality crushes a distance within the subject that sepa-
rates its will from its interests. In losing this internal distance, the sub-
ject risks collapsing in on itself. We find the same oppression in the
VIII – Antoine Garapon
biologization: reducing the ipse identity to the idem identity, to use Paul
Ricoeur’s distinction.8
It is tempting to establish a kind of homotheticity between the
new form of power and the conformation of the subject. The State
delegates part of its sovereign functions to independent administrative
authorities, including regulatory authorities who combine regulatory,
executive, and enforcement functions. The absence of a separation of
powers within them indicates a major interior transformation shared
by the structure of power and of subjectification. The confusion of the
powers with these regulatory authorities is reflected in the construction
of a one-dimensional subject, without a heart or conscience, reduced to
the ability to calculate.
A Law “Connected” to the Economy
Whether concerning the conflicts of our daily life (work, family,

petty crimes) or litigation on a global scale, each time power does not
directly impose prohibitions in order to assign a behavior to matching
constraints: it prefers to put the subjects in a position to act themselves
and controls them by this action. Hence the paradoxical movement by

a power that never ceases to reassign or suspend its prerogatives. We
consider the possibility offered to citizens to let down their country by
authorizing tax havens, which is reminiscent of the legal suspension of
the law that is a state of emergency. Saskia Sassen9 points out that States
were the chief architects of globalization, which is why it would be false
to believe that globalization has overrun them. The State relinquishes
its own power, the judge his or her jurisdiction, as shown by the move-
ment outside of the law by the judge him- or herself through various
mediation programs. The Department of Justice presents its justice as
a foil to force negotiation outside of the law. And, last but not least,
the telluric movement a number of sovereign functions and the mana
gement of common property are transferred to firms. Hence also the
unconfirmed trend to make them take responsibility for crimes and
serious violations of human rights committed by States that they sup-
port, or more simply whose prosperity they secure.
8 Paul Ricoeur, Oneself as Another, trans. Kathleen Blamey (Chicago, IL: University of
Chicago Press, 1995).
9 Saskia Sassen, La globalization: Une sociologie (Paris: Gallimard, 2009).
Michel Foucault: Visionary Insight into Contemporary Law – IX
These new legal practices show the convergence between the regu-
lation of economic globalization and the organization of coexistence
in democratic societies. Both are in effect faced with an almost identi-
cal problem: how can one direct persons or businesses to whom one
simultaneously guarantees the freedom to govern themselves? How can
increasingly weak States control increasingly strong businesses? The
neoliberal solution is to control men using their freedom, by placing
them in perpetual competition with one another and instilling in them
the taste for achievement, and acting on them via the intermediary
of incentives or imposed choices. The juridical form is considered an
obstacle to the free flow of trade, and to the mobility of persons and the
circulation of goods. Must we deduce, as many do today, that the law
has entrusted the administration of persons and things to the market?
Once again, Foucault’s analysis is more subtle.
Foucault indeed notes the radical difference between the represen-
tations on which classical law is based—the law of human rights—and
these new representations. In the first model, the law is the expression
of political will (which he calls the system of “will-law,” while in the
empowerment model, the law is “the effect of a transaction that sepa-
rates the sphere of intervention of public authorities from that of the
individual’s independence.”10 In one case, freedom is granted, while in
the other it exists in itself, independently of the law purely by merit of

its economic power. In opposition to the legal conception of freedom
is a freedom understood as independence of the governed from those
who govern. In one case, law is the fruit of internal self-limitation of a
power instituted by the State by means of a will that establishes it, while
in the other the limit comes from economics, and is therefore external.
The relationship between law and the economics cannot be reduced to
a transition, a simple transmission from one to the other, with the State
becoming the servant of capital (to frame it in radical terms), but rather
in the coexistence of “two ways of constituting the regulation of public
authorities by law, two conceptions of the law, and two conceptions of
freedom.”11
Michel Foucault thus invites us to envision the relationships
between law and economics from a strategic point of view and not a dia-
lectic one, that is, not as contradictory terms in a homogeneous whole,
but as disparate terms between which connections are possible. In this
10 Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France, 1978-1979,
trans. Graham Burchell, ed. Michel Senellart (Basingstoke, UK/New York: Palgrave
Macmillan, 2008), 41.
11 Foucault, The Birth of Biopolitics, 42.
X – Antoine Garapon
new model, the law no longer acts as a referee between the dialectic of
individual rights and the collective will; it no longer has the function
of directly organizing society, and the judge is no longer charged with
applying the “will-law.” Judges and the legislature authorize the passage
from the legal sphere to the domain of economic action; in effect they
find themselves at the heart of this connection between two heteroge
neous domains—this is why their new role is so difficult to define. This
connection is established in the form of delegation, incentives, ratifica-
tion, approval, or validation.
This voluntary abandonment by the holder of power that we have
briefly described is done in response to the imperative of efficiency.
People are in the best position to manage their own affairs. In the
name of an economic principle at their disposal: it is the incentives or
“leverage” that allow them to achieve big results with a minimal ini-
tial investment. Hence the substitution of the criterion of success for
that of legitimacy: “Success or failure, rather than legitimacy or illegi
timacy, now become the criteria of governmental action. So, success
replaces [legitimacy].”12 While the law bases its legitimacy on the origin
of the rule, what matters now is its effect.13 France reforms its system
of accounting norms, Europe enacts another, but the one applied by
all companies of a certain size around the world is the one proposed by
the International Accounting Standards Board (IASB), i.e., by a private

organization that has no political legitimacy, but which has proved itself
(or at least so it is claimed). Thus we better understand this assessment:
at a global level, the institutions that prove themselves to be effective are
not legitimate, and the legitimate institutions do not work. It is obvious
which has the most influence.
Institutions are too ponderous, encumbered by a formalism that
obstructs the efficacy of action. The perception of the role of the State
is now completely the opposite to what it used to be: “While in the
modern age national standardization and centralization were conducive
to growth, in the second half of the twentieth century the differences
between States became tangible barriers to transactions and therefore
to growth.”14 The firm is a form of power much more adapted to our
world and our relation to modern times, because it has an infinitely
greater capacity for response because it is not encumbered by proce-
dures, nor by various obligations to consult.

14 Hartmut Rosa, Accélération. Une critique sociale du temps (Paris: La Découverte, 2010),
248 (back-translated from the French).
Michel Foucault: Visionary Insight into Contemporary Law – XI
A Workable Law
How can we conceive of a legal system whose unity and cohe

rence are no longer assured internally? How can the law preserve its
nature while “connecting” to exterior and independent spheres? In the
old model, the law defines itself in relation to a shared law that guaran
tees the homogeneity of a whole relative to the center. What does it
become when the content of obligations is not decided a priori, but is
de facto largely left up to the individuals themselves? What should we
call these new legal obligations, these divorce protocols, these agree-
ments between global companies and the Department of Justice, these
agreements of contractual termination or these individual plans for
reintegration? Indeed, behavior must conform to the content of these
extra-legal agreements, and no longer to an abstract and general law.
The norm they enact is particular and specific to a situation; it is no
longer general. This is why its contents may vary infinitely, while being
no less a sum of juridical obligations whose performance can demand
the cooperation of law enforcement. This hypothesis is largely theore
tical, however, since these obligations will be spontaneously executed
as they have received the support of those concerned. This explains the
importance of what Michel Foucault calls “enforcement.”15 Practices

must be respected because we are certain that they “work,” that is to
say, that they are workable. The primary merit of these agreements and
practices is that they are effective; they gain in efficacy what they lose
in generality.
Moreover, the best practices or rules of conduct prescribe ways of
doing things without being presented as actual rules. The rule of law,
the standard, the method, and the reality are all different normative
levels. There is an intrinsic legitimacy to doing something in the sense
of producing it, which is moreover very strong in the United States.
A manner of doing is inseparable from behavior, from conduct: best
practices are norms of conduct that do not necessarily need to be inter-
nalized.
Speaking in terms of behavior implies a little reflexivity. Nowhere
are these practices articulated: “This is just how we do it!” These best
practices are established by time, by regularity, by a habit that has
slowly transformed into a rule. This is the rule of subsidiarity in action:
first let the professionals do it and then, when the time comes, we will
appropriate these practices when suitable to make a rule. This is the

XII – Antoine Garapon
way of the Common Law. It is not only an intellectual approach but

also of following the way the law is made: it begins with practices that
are lived legal realities and that will then be accepted or repudiated by
judges. This explains the importance of judges today in globalization.
There is a connection between deregulation, liberalization of practices,
and justiciability of practices.
Negotiation between a business and an agency is not assimilable
with deliberation according to a rule. One of the difficulties of a settle-
ment, which ends a conflict by payment of a certain sum of money, is
that it most often says nothing about the facts; it is only explained in
terms of strategic, economic, and reputational motivations, rather than
legal or political motivations. Jon Elster opposed the paradigm of the
market and the bargaining process, as well as that of the forum, argu-
mentation, and the voting procedure.16 Unlike a court decision, these
settlements or individual agreements are purely functional and do not
refer to any “judicial accounting.” This is in any case the reason why
these settlements make so little mention of public opinion: they are not
visible and confine themselves to streamlining social relations.
The difference between the impersonal order of the law and the
constraint contingent upon a relationship is that one is mediated by a
rule, and the other is not. A legal rule demands to be interpreted, and

hence offers flexibility, while the relational constraint does not. Even
though the territory produced a type of relation characterized by “con-
ditional reciprocity,” this caused relations and settlements not to be
based on “bilateral relations between agents, but on rules.”17 Citizens
accept the general rules of cooperation because they have certainty that
others are also willing to bow to them because they belong to the same
political collective. It is therefore a rule that constrains behavior from
outside. This is quite different from the settlement that must find its
reason for being carried out in its internal economy, “which thus esta
blishes the rule that it is not the agreement of the other to respect it,
but the intrinsic rationality of the rule. This displacement eliminates
conditionality and transforms a reciprocal rule into a value that subsists
in and of itself: the ‘reasonable’ or ‘equitable.’”18 Note that these are
the same terms used in international commercial arbitration or invest-
ments.
16 Jon Elster, “Le marché et le forum,” in La Démocratie délibérative. Anthologie des textes
fondamentaux, eds. Charles Girard and Alice Le Goff (Paris: Hermann, 2010).
17 Paul Dumouchel, Le Sacrifice inutile: Essai sur la violence politique (Paris: Flammarion,
2011), 276.
18 Dumouchel, Le Sacrifice inutile, 277.
Michel Foucault: Visionary Insight into Contemporary Law – XIII
Practices without Legislature?
We saw the benefit of following this recommendation by Michel

Foucault from the introduction. This attention to practices shows that
it is not a real departure from the law, but the end of a certain juridical
discourse based on thinking in terms of prohibition, understood as an
injunction emanating from the center with the aim of ensuring exter-
nal domination of the subjects; in short, the end of a governmentality
linked to a sovereign will struggling with rebellious wills. To repeat:
the new model outlined here no longer refers to a moral point of refe
rence, but to the capacity and, ultimately, the life conceived of as an
infinite, uninterrupted circulation of energy (that must therefore not
be obstructed); no longer does it refer to the center, but to a multipli
city of proceedings that arise spontaneously, to multiple incomparable
legitimacies; no longer in a direct, top-down manner like the law, but in
a “surrounding” manner; no longer in reference to a law that organizes,
but to juridical practices that make transactions effective; no longer by
the intermediation of juridical texts, but by realities canonized under
the label of “best practices” or “rules of conduct”; no longer in refe
rence to will, but to a desire or fear that both seize an individual and do
not to proceed from a deliberation followed by a verdict; no longer in

reference to the idea of subjective law, but to that of empowerment as a
way of asserting one’s power; no longer a relationship between wills but
a relationship of power to power.
Foucault says, “In political thought and analysis, we still have not
cut off the head of the king. Hence the importance that the theory of
power gives to the problem of right and violence, law and illegality,
freedom and will, and especially the State and sovereignty (even if the
latter is questioned insofar as it is personified in a collective being and
no longer a sovereign individual).”19 And further: “What we need is a
political philosophy that is not built around a problem of sovereignty,
and hence around the law and prohibition; the king’s head must be
cut off and we have not yet done it in political theory.”20 Foucault,
although visionary, did not think we would go that far—although it
was thanks to him that we did. ◆
19 Michel Foucault, History of Sexuality, Volume 1: An Introduction (New York: Vintage

Books, 1990), 88.
20 Michel Foucault, “Entretien avec Michel Foucault” in Dit et écrits II, 1976-1988, eds.
Daniel Defert and François Ewald (Paris: Gallimard, 2001), 150.
XIV – Antoine Garapon
Antoine Garapon is a magistrate, Doctor of Law, Secretary General

of the Institut des Hautes Études sur la Justice, and a former juvenile court
judge. He is the author of numerous works on law and justice, including:
Peut-on réparer l’histoire? Colonisation, esclavage, Shoah (Paris: Odile Jacob,
2008); La raison du moindre État. Le néolibéralisme et la justice (Paris: Odile
Jacob, 2010); and Bien juger. Essai sur le rituel judiciaire (Paris: Odile Jacob,
2010). He hosts the radio program “Le bien commun” (“The Common
Good”) on France Culture, and directs the Le bien commun collection for
Éditions Michalon. He is also a member of the editorial board for the jour-
nal of philosophy Esprit.
ABSTRACT
Michel Foucault: Visionary Insight into Contemporary Law

This article focuses on contemporary changes in the field of law. It underscores a
paradoxical evolution in neoliberal juridical practices that occur “in the shadow of
the law,” namely the tendency of finding a solution for legal controversies outside
of courts of law by way of agreements and compensation. The application of the
law is perceived as a threat and a danger (especially in an economic sense) and not

as a guarantee of protection. A new form of juridical subjectivity, the immediate
capacity to calculate and negotiate, is gradually replacing that of the subject who
holds inalienable rights and freedoms. But this also exposes individuals and busi-
nesses to the risk of being pressured into renouncing the defense of their rights, all
in their own best interest.
RÉSUMÉ
Michel Foucault, visionnaire du droit contemporain

Cet article analyse les mutations contemporaines du droit. Il constate une évolution
paradoxale des pratiques juridiques néolibérales « à l’ombre du droit » : une tendance
à chercher une solution aux controverses juridiques en dehors des tribunaux, à travers
des modalités d’accord et de compensation. L’application de la loi est perçue comme
une menace et un danger (notamment sur le plan économique), plutôt que comme une
garantie de protection. Une nouvelle forme de subjectivité juridique comme capacité
immédiate de calcul et de négociation se substitue progressivement au sujet titulaire
de droits et de libertés inaliénables, exposant pourtant les individus et les entreprises
au risque de subir des pressions les incitant à renoncer à défendre leurs droits, au nom
même de leur intérêt.

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Michel Foucault: Visionary Insight into Contemporary Law

© Presses de Sciences Po | Téléchargé le 11/06/2024 sur www.cairn.info (IP: 186.158.236.164)

Article available online at

Electronic distribution Cairn.info for Presses de Sciences Po.

Michel Foucault: Visionary

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new legal reasoning that appears to be paradoxical because it organizes

The Law of Exiting the Law

Today we are witnessing an extraordinary surge in the transactional

From Fundamental Rights to the Arming of Subjects

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2 Chemin de fer de Lyon c/Falcoz, Dalloz périodique, 1873, I, 63 (Cour de cassation,

specific reasons), then by requiring that the termination be justified by

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mutual consent, therefore giving priority to agreements protected by

From Observance of a Rule to Cooperation with Authority

The relationship of large global companies to regulatory authori-

© Presses de Sciences Po | Téléchargé le 11/06/2024 sur www.cairn.info (IP: 186.158.236.164)

longer seen as protective but rather as devastating, even apocalyptic, so

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7 See the campaigns by certain NGOs against large companies.

The partner/pariah relationship offers no middle way, which is

These practices lead to a new subjectivization: the subject is in

© Presses de Sciences Po | Téléchargé le 11/06/2024 sur www.cairn.info (IP: 186.158.236.164)

© Presses de Sciences Po | Téléchargé le 11/06/2024 sur www.cairn.info (IP: 186.158.236.164)

A Law “Connected” to the Economy

Whether concerning the conflicts of our daily life (work, family,

© Presses de Sciences Po | Téléchargé le 11/06/2024 sur www.cairn.info (IP: 186.158.236.164)

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12 Foucault, The Birth of Biopolitics, 16.

How can we conceive of a legal system whose unity and cohe­

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15 Foucault, The Birth of Biopolitics, 254.

way of the Common Law. It is not only an intellectual approach but

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Practices without Legislature?

We saw the benefit of following this recommendation by Michel

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19 Michel Foucault, History of Sexuality, Volume 1: An Introduction (New York: Vintage

Antoine Garapon is a magistrate, Doctor of Law, Secretary General

Michel Foucault: Visionary Insight into Contemporary Law

© Presses de Sciences Po | Téléchargé le 11/06/2024 sur www.cairn.info (IP: 186.158.236.164)

Michel Foucault, visionnaire du droit contemporain

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How can we conceive of a legal system whose unity and cohe