Foucault’s Mistake. Biopolitics, Scientism and the Rule of Law
"I we trace the branches of the law back to its trunk, we always come to the question that informs them all: that of the preservation of human life. The covid pandemic has reminded us of this, since the measures taken to deal with it have affected every country, domestic as well as international law, public as well as private or social law. Some commentators have seen this as illustrating the sway of biopower, which, according to Foucault, characterizes the modern age.Without much concern for consistency, the same commentators have often noted the "medieval" character of the covid lockdowns and quarantine measures, to which political leaders had recourse many centuries before the supposed epiphany of "biopower". Summed up in Roman law by the formula of vitam instituere, the preservation of a properly human life through successive generations is not, therefore, the distinguishing mark of contemporary forms of government, but rather a constitutive fact of the institutional phenomenon in general, and of law in particular. In order to grasp this anthropological function, it is necessary that law and institutions not be reduced to mere techniques of power, nor life to its biological dimension alone".
Cet article est la version anglaise d'une contribution publiée en français dans les « Mélanges en l’honneur du Professeur Catherine Labrusse-Riou », Paris, Éditions de l'Institut de recherche juridique de la Sorbonne (IRJS), 2022, p. 395-413.
Supiot A., "Foucault’s Mistake. Biopolitics, Scientism and the Rule of Law", New Left Review, Nov-Dec 2021, 132, p. 125-139.