Michel Foucault’s theory of law – overemphasis on the role of power?
While power is the main focus of Foucault’s inquiries, law appears to be mentioned sparingly and hardly given a sustained analysis in his works, leading some scholars such as Hunt and Wickham to conclude that he has overemphasised power in relation to law. This essay, however, seeks to show the contrary, i.e. that power is not given more relative importance to law than it ought to receive, by investigating the inadequacies of two arguments of Hunt and Wickham. Foucault focuses on how disciplinary power gives rise to norms and how norms work, rather than how laws are formed and work. From this, Hunt and Wickham observe overemphasis on power and its relation to norms; here, however, this will be discussed alongside the arguments of Ehrlich, Teubner, Fitzpatrick and Golder, which together show that norms and laws, despite their labels, may not really be distinguishable – hence Foucault’s reference to norms might rather be considered an investigation of law, and in this way the emphasis on power in relation to law may not be disproportionate. Hunt and Wickham also read that Foucault characterises power as all-encompassing, which they deny; on the other hand, this essay will point out that Foucault has appropriately highlighted the importance of power to law, especially through individual subjectivity, and acknowledged power’s limits, interpreted through a rhetorical approach by Burgess, and thus has not given power undue status with reference to law.