High Court judge takes on Foucault

An Australian High Court judge recently gave a speech in which she took on and even endorsed some ideas from the work of Foucault.

Susan Crennan, a High Court justice in Australia, made the remarks during a recent presentation in Chicago.

More below.

She starts off by raising the problem of truth:

Foucault’s most challenging ideas in relation to the law are: (1) the idea that a person is a rational individual is a figment of Enlightenment thinking; (2) the idea that truth is relative – that is, ‘truth’ is truth for someone or some group, but it is never objective in the empirical sense; and (3) his idea that legal prohibitions on certain human conduct, particularly sexual conduct, reflected nothing more complicated than a repressive assertion of majoritarian views.  As one critic said of postmodern theories generally, ‘what is under assault here is the normative’.

As she notes, this might cause some problems for the judiciary:

That conception of truth cannot easily be reconciled with a judge’s sworn duty to ‘do justice according to law’, which is predicated upon findings of by the trier of fact about the truth of past events.  However, a sceptical attitude to truth encourages some reconsideration of the institutional and other limitations on judging.

Doesn’t she miss the point here? Being skeptical about the truth is not the issue (one could say that being skeptical is the sign of high modernism, in that it accepts the need to sort out the really true from the seemingly true).

She comes back to truth in a later characterization of Foucault’s conception of truth:

He emphasised when referring to truth he was not referring to facts to be discovered and accepted, as in science; rather he said he was speaking about ‘truth’ as a system of ordered procedures for the production, regulation, distribution, circulation and operation of statements.’  He described his intellectual enterprise as being about ‘detaching the power of truth from the forms of hegemony, social, economic, and cultural, within which it operates at the present time’, law being in his view a form or expression of hegemony.

She concludes by taking some pointers from Foucault and the use of a simple example:

There is no doubt law is a discourse or construct if not quite in the Foucauldian sense, or at least with the Foucauldian consequences.  It is a practical human institution which is not aimed at perfectibility and may not even pretend to it.   It must also be conceded that words and concepts familiar to the law, ‘the liberty of the subject’, ‘equality’, ‘rights’, ‘obligations’ may change in content and that statutory semantic language may be ambiguous.  The judge’s role is often to determine content in the face of multiple meanings and to select a meaning for normative purposes.

It should also be conceded that what may be ‘true’, in the sense of correct at one time, may change and even be completely reversed as a result of social change. A simple example is the now inapplicable legal notion that because a husband and wife were ‘one’, neither could commit a tort against the other.

So it is obviously unusual for a senior judge to take on Foucault and furthermore to find something useful in his work. If finally she says arbitrariness and nihilism would result if norms are obviated (“By comparison, the type of scepticism I have discussed today has its own nihilistic logic and capacity for a new form of arbitrariness if normative standards are undermined”) and if these are common–if mistaken?–views of Foucault’s implications (I don’t believe he said that norms should be or could be eliminated), then credit is still due to her for addressing these problems.

One Response

  1. […] the Australian High Court justice Crennan and her attempts to deal with postmodernism and Foucault (see here). Now Foucault-l has the same post: sorry guys, I was there […]

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