迈向生命政治的法律观——福柯法律思想解读

Towards a Biopolitical Law:On Foucault's Legal Thoughts

福柯对传统主权、规训权力、生命权力的历史变迁进行研究后隐含地提出了独具特色的生命政治法律观,具体表现为:在生命权力主导的现代社会,法律不再简单地对"人之行为"加以调整,而是对"人之生活"加以规训;法律不再简单地对"人之行为"做出合法或非法、可为或不可为的二元划分,而是将人置于社会生活,以内生于社会中的规范加以治理;法律不再更多地依赖于强制,而更多地依赖于个人和社会组织的自由来运作;法律不再过多地关注个体行为,而要引导个体,将其人生经营融入社会整体治理之中,以实现多样化的生命政治目的。在这个治理过程中,由于立法者、执法者和司法者理性的有限性,法律运作更多地依赖于对关涉生命的各种知识、信息、档案的收集、统计与分析,形成了法律与知识合作乃至合谋的现象。此外,法律的运作还遵循成本与收益的经济学逻辑,从而使生命政治的法律也具有效益最大化的结果取向。这种近似革命性的法律观因福柯在多种意义上使用法律一词而被某些学者误读,产生所谓福柯将法律排除出现代社会的"驱逐论"一说,造成一些学术偏见。

Foucault has never been regarded as a jurist in the traditional sense, although he has made a huge contribution to jurisprudence. Following the historical path from pre-modern sovereign power to modern power, which includes both disciplinary power and biopower, he implicitly presents a unique biopolitical view on law. According to Foucault, in an age of biopolitics, on the one hand the disciplinary power and biopower have gradually changed the power foundation of law, which is the pre-modern sovereign power, and made law a tool of biopolitics, on the other hand law has covered, supported and subsumed modern disciplinary power and biopower, giving them legitimacy. Therefore, disciplinary power and biopower do not reduce the importance of law in modern society, make it disappear, instead all the three are increasingly interacting and subsuming each other, and make law grow greatly in the governance of modern society towards a biopolical state. According to Foucault＇s logic between law and modern power, the law in modern society, which is dominated by biopower, takes on the following features. First of all, it no longer simply uses ＂legal＂ or ＂illegal,＂ ＂permissible＂ or ＂forbidden＂ to classify human behavior, on the contrary it puts individuals into social life or the continuum between the normal and the abnormal, to guide them by the rules indigenized in the society, with the aim to realize the diversified biopolitical goals. Second, it abides by cost-benefit analysis of economics, and stresses the principle of ＂frugal government＂ in the process of biopolitics. Third, it often transgresses the boundaries of formal rational law, and tends to be pragmatical, which meas it is more political and instrumentalism. Fourth, due to the rational limits of the legislators, executors and judges, modern law relies more on the collection, statistics and analysis of all kinds of knowledge, information and documents about life, and makes the governance legitimate by the league of law and knowledge. Last but not the least, modern law is often implemented through freedom instead of constraints, contradicting the logic of traditional law. It is such a revolutionary view on law that it has been misunderstood as an ejection of law from modern society by some scholars, which is also partially because of Foucault＇s using of the term ＂law＂ in many senses. Thus, Fouault＇s biopolitical view holds that law is no longer a weapon for the protection of civil liberties and civil rights, but a normalizing apparatus to bring individuals into the power realm of explicit calculations. It not only challenges the traditional liberalist jurisprudence, but also criticizes that the governance of modern state, which regards law as a tool to realize liberty, will inevitably lead to biopoliticalization, and make people, who are no rational agents any longer, subject to the ＂soft totalitarianism. ＂ From the biopolitical perspective, we can have a critical analysis of governmental practice of legal fields, which include birth, immigration, war, environment, public health and so forth. However, in order to effectively assess the value and significance of this approach, we not only need to explore it in depth at the theoretical level, but also need to test its feasibility and usefulness at the empirical level in the future as well.