Conclusions

On the basis of the preceding argument, the author posits that the emergence of a new emergent virtual understanding of the individual, has brought us to the absolute limit of the normalizing complex. This vision of the subject as a virtual entity indicates a growing awareness of the presence of an existential uniqueness, or Otherness (born out of normalization’s inherent allusion to the Other as what lies beyond the norms), in everyone’s life that challenges the attempts at conceiving the social body in terms of normality. This has implications that are as yet undefined for our current legal system that has developed thus far in relation to the dynamics of normalization. Faced with the expansion of Otherness in our society, the author intimates that we may be forced to rethink the structure of our legal discourse, and imagine new foundations for the future of democracy and politics.

An Outline for a Foucauldian Interpretation of Modern Law

In the first chapter, the author provides a picture of the current state of contemporary Foucauldian interpretations of law. The author claims that Foucauldian scholars – notwithstanding recent important contributions – have not been able to properly debunk the thesis that Foucault “expelled” law from the locus of power. The author proposes to overcome this impasse by considering law as a proper sui generis apparatus of subjectivation and by undertaking a geneaology of the modern discourse of law in order to discover its generative syntax. The author’s goal is to demonstrate that in developing towards its modern form, law moved from being an order based upon the paradigm of sovereign commands to one based on the paradigm of socially constructed norms (understood in a Foucauldian way). The author identifies the formal features of generality, abstraction, and the substantive features of equality and freedom as key for this purpose.

The Normalising Complex and the Challenges of Virtualisation

In the present chapter, the author, drawing from his genealogical account, argues that modern law and biopolitical strategies of normalization are not to be conflated but came to work in a symbiotic fashion. Modern law itself functions as a normalizing apparatus, insofar as practices of normalization are capable of creating a seemingly homogeneous social body upon which the discourse of law can legitimately inscribe the universalism of the modern legal subject. Modern law and discipline/governmentality thus form a normalizing complex. Building on Bauman and Deleuze’s theories, the author indicates that this picture is changing as we are moving towards an understanding of the individual as a “virtual” entity, which is at odds with the normalizing paradigm that informs modern law and is unhinging the normalizing complex. The discourse of modern law in contemporary societies, faced with virtual individuals which increasingly challenge categories of normalization, is therefore caught into a double crisis: a normative one (how can normalizing laws properly reflect the wills of a mass of differentiates virtual individuals?), and a functional one (how can normalizing laws effectively regulate a new protean social body?).

A Genealogy of Modern Law II: The Political Truth of Society

In the present chapter the author analyses the development of modern law as a system of formalized interconnected rules. The author focuses on three historical events that ushered in the modern constitutional horizon: the English, American, and French revolutions. By scrutinizing how the features of generality, abstraction, equality, and freedom, were differently addressed in the various constitutional debates, the author demonstrates that these features were key in establishing a constitutional system that was both the expression as well as the limit of the social order, while at the same time reflective of diverging socio-political histories and traditions. The author suggests that, beyond their differences, the three revolutions share a common underlying constitutional discourse, which conceives law along the paradigm of the norm and the logic of normalization.

A Genealogy of Modern Law I: The Political Truth of the Individual

In the present chapter the author develops his genealogy by taking in consideration law as a means of political legitimation. Developing his thesis that the discourse of law moved from the paradigm of the command to that of the norm, the author analyses various key scholars ranging from Aquinas to Rousseau, Kant and Hegel. By tracing the evolving meanings of generality, abstraction, equality, and freedom, he demonstrates that the discourse on the nature of law shifted from being focused on law as a metaphysical system – reflective of the paradigm of command – to the idea of law conceived as a legitimizing force only if formed by secular, socially generated rules – reflective of the paradigm of the norm. Building on his analysis, the author claims that modern law came to be structured like a (Foucauldian) norm: it is, at the same time, both the product and the ordaining principle of the rational societal order.