Law·Discipline·Governance

This paper is an interpretation of Foucault’s The Birth of Biopolitics. From ’law todisciplines’ to ’law and governance’, this is a significant transition in Foucault’s wholeideological system. The root of this change is the basic and important point that ’society’ is anentity. Actually, society is a complex and independent reality, which has its own laws andcannot be acted upon simply. Society necessitates ’good government’, getting it right.However, undesired results and unintended consequences will make things worse. Foucaultdidn’t point out this transition in his works. But, the study of ’rule of law’ in his works canmake people understand the consistency of his ideological system, and then be inspired.The Birth of Biopolitics is more related to liberalistic ’art of governance’ as rationalframe of biopolitics, rather than merely making an interpretation of bioplitics. So, that is themeaning of ’birth’ in the title. From the Liberalism, Foucault came to the conclusion that whatis the rationalization of governance: in order to achieve the best effect of governance with theminimum economical and political costs. Break through the shackles of constitutionalism,thesis of biopolitics is not based on how to construct the state, but focus on limitation andrationality of governance. Being put before legitimacy, rationality is the first thing to considerby governance practices, when richness replaces equity and justice, becoming the standard ofsocial regulation. Thus, it is clear that the object of governance has changed from individualto population. It means that governance steps into a different territory: the market, the placefor trading merchandise. Market gives state legitimacy, and state ensure market functioningwell. Meanwhile, liberalistic ’art of governance’ doesn’t oppose rule of law, it just does notagree with legalism.The thesis of biopolitics focuses on the invisible and micro slavery. Discipline, as a kindof art of governance, is one of the forms of the operation of the state power. Studing the modes of discipline in different periods, can understand this invisible slavery much better. Theprimary reason of the change in different periods is that power has changed from repressive toproductive. On the one hand, it caters to the capitalistic request for producing. On the otherhand, it makes people to join the game of producing, laying down regulations and obey it.Thus, life and population give full play to producing for capitalistic production. In theperspective of new art of governance, there is an idea of regarding society as market, with it,governance is no longer an art of politics, but of regulating market. From then on, market hassociological and political meaning. However, the problem, which new art of governancecannot solve, is that when governance makes mistake, the consequence may be successful butunjust. This is the exact understanding about Foucault’s anti-law. Foucault didn’t repel law.He said, if law itself turns into discipline, it’s time to expulses law.The contributions of Foucault’s sociological view of law are his distinctive angle ofvision and critical spirit, in other words, his profoundly rethinking of pattern and logic of ruleof law. With the awareness of crisis of disciplinary society, Foucault started to experienceultimate feelings and study aesthetics of existence. Although, Foucault did not construct a realprospect for technique of governance of a country under the rule of law, his thesis ofbiopolitics emphasizes the significant part of governance: the limitation of governance, inother words, what is the best and most efficient way to govern. So, to establish a countryunder the rule of law, it is necessary to consider the limitation of governance, avoiding lawbecoming tool of disciplinary power. This is an admonition to a country under the rule of lawby thesis of biopolitics, and a contribution of Foucault’s sociological legal view.