Law and Philosophical Theory: Critical Intersections

Law and Philosophical Theory: Critical Intersections

by Thanos Zartaloudis (Editor)


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This important collection explores contemporary legal thought (and thought about the law more generally) in relation to its interdisciplinary critical engagement with philosophy, in particular continental philosophy. Over the last 25 years, many legal thinkers have increasingly and critically engaged with philosophical thought in ever explorative and innovative interdisciplinary ways. This book represents this rich and continuously developing interdisciplinary tradition within legal thought and legal study more generally.

Featuring both established and new voices, the volume explores a range of topics including: the relationship between law, philosophy and political theology; law and ecology; matter and legal technologies; contemporary governmentality; law's relationship to violence; the so-called anti-juradicalism of post-1968 French theory; the normativity of social images; and responses to a time of perpetual crisis management. The approaches represented in this volume pose both long-standing and new questions in a genuinely critical manner in relation to contemporary legal (and associated political, social, economic and ethical) thinking.

Product Details

ISBN-13: 9781786602657
Publisher: Rowman & Littlefield Publishers, Inc.
Publication date: 10/16/2018
Edition description: Critical
Pages: 276
Product dimensions: 5.93(w) x 8.72(h) x 0.90(d)
Age Range: 18 Years

About the Author

Thanos Zartaloudis is a Reader in Legal Theory and History at Kent Law School, University of Kent. He is also a Lecturer and Doctoral Advisor at the School of Architecture of the Architectural Association in London. He has published widely in philosophy and law and legal history. His most recent book is The Birth of Nomos (Edinburgh University Press, 2018).

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Illegalisms and the Law of Civil Society

From Foucault to Marx

Mikhaïl Xifaras

This chapter engages with the question of how to theorize the relation between disciplines and the structure of the capitalist economy and focuses on the particular role played by the invention of a legal fictitious 'thing' called patrimony. It aims to show that although Michel Foucault brilliantly unveiled the productivity of a whole set of norms at a micro level (the disciplines), he was not able to accurately articulate this set of norms to the legal structures of capitalism and therefore failed to give an account of the relation between the fostering of free markets and the development of mass incarceration. The careful attention the young Karl Marx gave to the analysis of legal regimes might offer, at this point, an alternative way to theorize law and the disciplines. Thus, this chapter discusses the role of the 'theory of patrimony' in the understanding of the relation between private law and the invention of illégalismes (illegalisms).

We know, thanks to Foucault, that the birth of the human sciences corresponds with the arrival of a 'certain modern manner of knowing empiricities' (Foucault 1994, 249). The human sciences are addressed to man 'in so far as he lives, speaks, and produces' (ibid., 350). We also know the crucial role played by 'social relations' in the development of modes of knowledge about productive activity. The invention of the concept of social relations comes from a theoretical shift dismissing as ideological the 'juridical vision of the world', which was carried by natural law theories. According to these theories the relations that lace the fabric of real life are first and foremost jural relations (e.g. legal personality, property, contracts). Once this vision is repudiated, however, something appears both behind and before the law, which cannot be sufficiently expressed in legal discourse alone, because it is deeper and more real than that. This something is 'the social', understood as an autonomous ontological order and an independent domain of inquiry.

Once this shift to the social occurred, in the work of many authors, 'the Spirit of the Law' and, more generally, the different stages of history of 'civilization' are no longer to be searched for in legal regimes of property (as in, e.g., Simon N. H. Linguet and Adam Ferguson) but in the 'social relations of production'. These relations are understood as real, organic connections. The right to property is just a tool for their reproduction, and it does not take part in their constitution. First, property law faithfully reproduces social relations by inadequately reflecting them, providing an 'inversed vision' that shrouds the relationships of domination that are, in fact, structuring them (e.g. by re presenting employer and employee as freely acting and fully equal co-contractors). Second, property law reproduces social relations by punishing, with all the brutality and violence of public authority, any opposition to these relationships of domination (as manifested in theft or in a strike). According to that perspective, law is seen as an ideology and as a repressive apparatus, or following Louis Althusser, as an 'ideological state apparatus'. In freeing us of the 'juridical view of the world', the human sciences thus often, at least in France, refuse law a major role in the constitution of society and are sometimes, then as now, largely indifferent to legal phenomena and their productivity.

This indifference rests on a misunderstanding that is hard to make sense of: one can very well dismiss the theoretical juris-centrism of modern natural law theories, try to think outside of any statist storytelling, reckon that all the relations in real life are not necessarily legal, and, nevertheless, stay alert to the role of law in the constitution and functioning of our societies. One can raise the criticism that the juridical vision of the world is ideological, without necessarily relegating legal relations to the dustbin, deeming them secondary to or even outside the social. Foucault's first lecture at the Collège de France in 1972–1973, recently published under the French title La société punitive, offers exactly this lesson, thanks in large part to the careful work on these lectures accomplished by François Ewald, Alessandro Fontana and Bernard Harcourt.

As Harcourt argues in his superb commentary, the intuitive notion of illégalismes (illegalisms) shows that the establishment of a given legal regime does not simply observe and sanction deviations or transgressions within an already-constituted social order but participates in its very definition by delineating the boundary between the 'legal' and the 'illegal'. The figure of the criminal is not that of a person outside of society. Rather, society constructs him or her, at least in negative terms, by defending itself against its 'enemies'. Thus, law asserts a constitutive role, and the analysis of legal regimes reintroduces itself to the study of human being and society. Generally, this lesson has been applied. Thanks to Foucault, we now know that to understand madness, citizenship or housing one must pay close attention to the internal regulation of psychiatric hospitals, the administrative status of alien residents and legal regimes regulating homelessness.

This is an important and welcome lesson. However, it remains limited. Foucault recognizes that the law is productive, but the law remains only negatively so. The notion of illegalisms does not take us further than the context in which it was developed: a study of repressive tools whose function is mainly to enforce and sanction what the law itself is establishing as illegal. Law participates in the production of social relations but still only by the way of repression and sanction. That is undoubtedly the reason why most frequently law appears in Discipline and Punish in the guise of criminal law and is generally associated with the state's sovereignty.

The law also appears in the writings of 1972 that Foucault pulled as a set of learned discourse from treatises, pamphlets, dissertations, sometimes the travaux préparatoires for legislation, or the dicta of court decisions (les motifs), that is to say all that which, in the mass of legal discourse, falls within what might be called 'secondary literature'. Foucault was less frequently interested with the holdings (les dispositifs) and, in general, with the texts carrying concretely enforceable legal provisions. Foucault understood the law as a narrative on society (which it is) more than as an ensemble of speech acts productive of social facts (which it also is). In Foucault's view, the law is linked exclusively to repression and ideology. This limitation self-manifests more clearly when one juxtaposes Foucault's analysis of illegalisms with one of his sources, the young Marx in Theft of Wood. Foucault probably evokes this text because he sees in it a striking example of manufactured illegalisms, in this case the criminalization of wood gathering and the transformation of the poor peasant into a delinquent (Foucault 2015, 62). But our interest in Marx's analysis does not end here.


Marx's text comprises a series of newspaper commentaries on the legislation adopted in October 1842 by the Rhine Province Assembly in connection with the pickup of fallen wood in forest. Prior to that bill, peasant communities could collect fallen wood through something like a customary right of use. The French-inspired legal overhaul was meant to introduce into the Rhenan Civil Code the notion of absolute property, according to which a forest owner would also own the fallen wood. The legislation targeted fallen wood gatherers by criminalizing fallen wood collection. The young Marx roared with indignation at these provisions, especially since any wrongdoer, beyond reimbursing the forest owner of the value of the stolen wood, would also have to pay a fine to the owner (and not to the state). For Marx, this flagrant privatization of even the fine in question demonstrated that the Rhine Province Assembly was not a public legislator but merely an authority working in the exclusive interest of the private owners who composed it.

Yet the wood theft provisions were not just criminal. They included an important civil law component that transformed the conception of property in force at that time. Without entering too much into the details, for Marx, customary property rules were necessarily undecided in their scope (i.e. it is not clear who owns which aspects of the thing in question) and were natural hybrids (i.e. simultaneously public and private), because they were linking the private property interests of monasteries and lords with the collective rights of use of peasant communities. In Marx's view, hybrid property rules contrasted with modern property rules like the wood theft provisions (modelled on Article 544 of the Napoleonic Code)12 that drew together in the owner's hands, and to the exclusion of all others, an absolute right regarding every potential utility of the thing, enforceable against a third party. In uniting rights that were once diffuse, modern property claimed to 'free' peasant communities from having to fulfil their feudal duties to forest owners (i.e. monasteries and lords). As a result, the same wood – cut wood as well as fallen wood – would also be free: that is, free to be sold by the owner. In this way, Marx explained, the law put into place the necessary conditions for a capitalist timber market. The French-inspired law hoped to expunge feudal hybrids and the relations of personal domination that accompanied them and, at the same time, to cancel the traditional entitlements from which peasants profited, in this instance, the legal privilege to collect fallen wood from forests for personal use (i.e. heating) or local sale.

Marx's analysis remains relevant because it highlights the link between the criminal regime's interdiction of wood theft and the civil regime's transformation of property, or in the terms of our purposes, the link between the production of illegalisms and the transformation of civil society. Marx shows that the Rhine Province Assembly criminalized deadwood collection and invented the figure of the 'criminal peasant' because the law of property took the modern shape of an absolute subjective law. The assembly did so because a capitalist timber market would be formed, because the formation of this market would dispossess peasant communities of customary usage rights, which they had enjoyed until then, and because the German courts had dismissed the claims of civil owners, forcing those owners to the means of criminal legislation to get their way. For Marx, the Province Assembly embraced with such fervour the interests of forest owners, because it was dominated by feudal property owners who dreamed of becoming modern businessmen in order to participate in the emergent timber market. The assembly, based on an estate system of representation, gave a monopoly to land owners, and this monopoly led, inevitably, to the muddling of private and general interests, of which the transfer from public to private ownership (of even criminal fines) was both a galling symptom and the prime example.

Marx's argument can also be understood as an effort to describe the interaction of the constitutional system (i.e. the composition of the assembly), the civilian regime (i.e. property protection) and penal law (i.e. criminalization) as implicated in the establishment of this novel illegalism: 'wood theft'. His analysis also aims to show how the adopted provisions themselves sometimes openly contradict the theories and justifications advanced by parliamentarians in the preamble (exposé des motifs) of the legislation. He reveals these contradictions by exploiting all possible opportunities for attack available, due to the many inconsistencies between the various registers of legal discourse.

Marx's insights usefully supplement Foucault's lesson. The contrivance of illegalisms is a process that does not take us out of or beyond law but rather extends the law's reach. One cannot fully analyse the outcomes of a new criminal regime without imbuing that analysis with a perspective on the evolution of the legal system as a whole (in this case, a perspective on the transformations of the civilian property regime). Law does not just negatively produce repression and ideology. It is, instead, the place where new micro-political spaces of domination, freedom and resistance are positively invented and constituted.

The limits of the Foucauldian approach, however, do not diminish the force of Foucault's central thesis that the modern penitentiary reintroduced morality to the heart of an old system, which up to then was content to index each infraction with an equivalent somatic chastisement, just in order to purge the sin through punishment. But when it comes to explaining this, the reasons advanced are less clear. Capitalism and the penal system would be homologous, or, to be more precise, the 'wage form' (forme-salaire) and the 'prison form' (forme-prison) would be homologous to each other, because they both need the 'overall hold of power on time' (Foucault 2015, 72). Certainly, in order to both imprison and provide wages, it is necessary to frame time 'in order to control it' (ibid.), but criminal sentences with both fixed time and work actually predate the disciplinary phenomena that Foucault describes. Yet the invention of the various ways of 'framing time', both in the factory and in the prison, neither explains the eventual link between the penitentiary regime and the wage regime nor does it more generally explain the eventual link between the invention of 'disciplinary power' and the putting into place of what Foucault calls the 'capitalist system'. Foucault, who in a stunning manner considers that the 'wage form' is 'not at all legalistic', actually admits that:

I do not mean that the wage imposed its form; that the socio-economic model was taken up by penal practice. Nothing in the history of institutions or in the texts allows us to say that this model was transferred into the penal system. I mean simply that the prison-form and the wage-form are historically twin forms, without us being able to say yet what their exact relationship is. (Ibid.)

Foucault makes 'this overall hold of power on time' a necessary condition for the possibility of the functioning of the wage system and of the imprisonment system (ibid.), without however imputing a causal or any other relationship between the two, beyond a merely vague homology. On the other hand, in Discipline and Punish the similarity between the accumulation of capital and the accumulation of 'men' is described as due to a relationship of mutual 'necessity', but this is a question as to the growth of the production apparatus rather than legal structure.

Perhaps these difficulties relate to what Foucault conceives as disciplinary powers (prison form and wage form), which are described as a kind of 'anti-law', meaning we should rather dismiss jural relations to render these powers self-manifest as social objects and, indeed, as objects of knowledge. Foucault may conceive law's productivity as just something negative, that is, as producing only illegalisms, deviances or marginalities. However, it is tempting to apply to the law the few lines that Foucault dedicated to 'power' in Discipline and Punish, when he invites us to 'stop describing [power] in negative terms' because '[power] produces the real' (1995, 194).

The broader rejection of the juridical view of the world has revealed the existence of disciplinary technologies (understood as a multiplication of power relations, both concrete and diffuse) proliferating in the shadow of 'sovereign law' (understood as legislation, both formal and abstract). This revelation is a powerful critique of legal ideology, because it unveils how the legal backyard is abuzz with micro-political relations of domination and resistance that legal ideologies ignore or pretend to ignore.


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Table of Contents

Introduction, Thanos Zartaloudis / 1. Illegalisms and the Law of Civil Society: From Foucault to Marx, Mikhaïl Xifaras / 2. Foucault’s ‘Distrust of Legalism’: On Human Rights and the Revolution in Iran, Jessica Whyte / 3. Actor-Network Theory and the Critique of Law, Kyle McGee / 4. Reopening the Archive: From Hypomnesis to the Ontology of Law, Hayley Gibson / 5. Notes on the Person and the Anthropological Machine of Law, Gian Giacomo Fusco / 6. Immanentism and Incorporation: How Law Makes Corporations, Tara Mulqueen / 7. Icons of Control: Deleuze, Signs, and Law, Nathan Moore / 8. Iconic Norms: A Theory of the Normative Nature of Images, Emanuele Coccia / 9. If Law Speaks, It Speaks of Enjoyment: Psychoanalysis and Desire, Justin Clemens / 10. Love, Law, Anarchism, Elena Loizidou / 11. Law as Myth – On the Young Walter Benjamin, Emanuele Castrucci / 12. The Being of the Volk: State, Führer and ‘The Political’ In Heidegger’s Seminars During the Kairos, Matthew Sharpe / 13. The Migration of Frontiers, William Watkin / 14. Elements of a Theology of Secularization, Anton Schütz / Notes on the Contributors / Index

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