Foucault’s functional justice and its relationship to legislators and popular illegalism
Keywords:Foucault, functional justice, catch-all strategy, spatial turn, police discretion, Federal Restricted Buildings and Grounds Improvement Act of 2011 (HR 347), UK Public Order Act
This article presents two of Foucault’s lesser known notions, “justice fonctionnelle" (functional justice) and “stratégie du pourtour” (strategy of the perimeter), in order to interrogate the role of legislators in regard to the policing of political dissent. This article contains three parts. First, I present the two lesser known notions referred to above. Then, I provide my understanding of the role of law for Foucault. Finally, in the third part, I explain how a consensual relationship between the police and legislators is established. I present briefly the work of Avrom Sherr (1989) and outline the contents of a recent U.S. anti-protest law (H.R. 347, or "Anti-Occupy Wall Street Law") which gives the police greater powers to redefine the legal nature of public space and to make arrests without having to show criminal intent (mens rea) on the part of protesters. My aim is to further think through the paradox that Foucault mentioned in his lectures on security societies: non-judicial methods used in security processes undermine the primacy of law but also lead to the overproduction of laws (inflation législative).
• Avrom Sherr. Freedom of Protest, Public Order and the Law, (Oxford: Basil Blackwell, 1989).
• Ben Golder & Peter Fitzpatrick, Foucault’s Law (New York: Routledge, 2009): 71.
• Gate Rottman, “How Big a Deal is H.R. 347, that 'Criminalizing Protest' Bill?" ACLU Blog: https://www.aclu.org/blog/how-big-deal-hr-347-criminalizing-protest-bill.
• Government of the United States of America. “Federal Restricted Buildings and Grounds Im-provement Act of 2011” (subsequently cited as HR347): https://www.govtrack.us/congress/bills/112/hr347/text
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• Michel Foucault. "La stratégie du pourtour", in Dits et écrits II, 1976-1988 (Paris: Gallimard, 2001b), 794-797. [An English translation is available as "The Catch-all Strategy", International journal of the sociology of law16 (1988): 159-162. Translated by Neil Duxbury.]
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