Foucault’s functional justice and its relationship to legislators and popular illegalism

Abstract

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).