From Gerhard Struck's 'Law as "tohu‐bohu" and as a dream of humankind - Or: Is there a concept of law?' ('Recht als Tohuwabohu und als Menschheitstraum - Oder: Gibt es einen Begriff des Rechts?') in
Ancilla Iuris (2009) 99-117 -
Foucault's classic passage [in 3 Dits et Écrits, 1954-1988 on Law as an 'apparatus'] states: What I'm trying to pick out with this term is, firstly, a thoroughly heterogenous ensemble consisting of discourses, institutions, architectural forms, regulatory decisions, laws, administrative measures, scientific
statements, philosophical, moral and philanthropic propositions – in short, the said as much as the unsaid. Such are the elements of the apparatus. The apparatus itself is the system of relations that can be established between these elements. Secondly, what I am trying to identify in this apparatus is precisely the nature of the connection that can exist between these heterogenous elements. ... Thirdly, I understand by the term 'apparatus' a sort of – shall we say – formation which has as its major function at a given historical moment that of responding to an urgent need. The apparatus thus has a dominant strategic function. This may have been, for example, the assimilation of a floating population found to be burdensome for an essentially mercantilist economy
Struck comments that -
The science of Foucault could try to subsume the properties of law under one definition that would capture Foucault's quoted remarks. The abundance of the aspects addressed would easily fill a book; however, this book could then be subject to just the same criticism as any other piece of secondary literature. Such a book, according to one critic, "also belongs in the bad bank of historical theory, along with numerous other sections of Foucault's writings". Indeed, it can be doubted whether Foucault's capricious train of thought and the self-love of his rhetoric can be translated into plain text.
My thesis here is that the major positive effect of Foucault's thinking and writing is based on its clearly observable stimulating effect. Thus the discussion on security in our current society has profited from Foucault, even though the term "security apparatus" is sometimes used in the singular and sometimes in the plural. Foucault, unlike German authors, does not write with the intention that his text be understood by the reader in the German sense. The reader who engages himself in the process of searching and attempting, and is in the process of succumbing to temptations, is being addressed. Foucault was a – very! – French intellectual. For German academic discussions around a concept of law, this means that Foucault has different effects in different disciplines. In jurisprudence, the discrepancy between Foucault's remarks, for all their stimulating and intelligent qualities, and the comprehensibility and generalisation of his trains of thought concerning law, is simply too great. If we wanted to substantiate this view more clearly, we could point to how many of Foucault's statements on law only make sense in relation to criminal law.
