JOURNAL OF LAW AND SOCIETY VOLUME 33, NUMBER 4, DECEMBER 2006 ISSN: 0263-323X, pp. 596±614 Foucault, Law, and Power: A Reassessment Gary Wickham* After raising doubts about Foucault's approach to law-power, in the light of various acts of religion-inspired violence on and after 11 September 2001, a case is made against this approach, based on the charge that Foucault ties law far too tightly to what he calls negative power. He makes law part of juridico-sovereignty power, a form of power he regards as outmoded, with an outmoded commitment to sovereigntyandthestate.Itisarguedthatinattemptingtoseparatelaw from what he sees as the positive power of modern governmentality, Foucaultneverunderstandslaw'sroleasapartofacrucialbalance± between political power, military power, the social, the cultural, the legal,andtheeconomic±abalancethattriestoachievebothindividual freedom and the security to enjoy that freedom. An alternative way of understandinglaw,andofunderstandingsovereigntyandthestate±the state under the rule of law ± is presented as a much better route to an appreciation of law's part in the balance. INTRODUCTION While there are extensive discussions of law in the translations of those of Michel Foucault's works from his `power-government' period mid-1970s to early 1980s), 1 he has never been regarded as a legal scholar as such, or even 596 ß 2006 The Author. Journal Compilation ß 2006 Cardiff University Law School. Published by Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA * Sociology Programme, Murdoch University, Murdoch, Western Australia 6150, Australia email: wickham@murdoch.edu.au I am indebted to Liam Stone for his research assistance and to Trish Harris, Stephen Turner, and three anonymous referees for their helpful comments and suggestions on earlier drafts. I also acknowledge the assistance of a grant from Murdoch University's Research Excellence Grants Scheme. 1 For example, in M. Foucault, Discipline and Punish 1979), in his oft-quoted `Two Lectures' 1980), in the first volume of the History of Sexuality project The Will to Knowledge 1998) tr. R Hurley), and in a number of interviews, especially those given after 1975; see, especially, L.D. Kritzman ed.), Michel Foucault: Politics, Philosophy, Culture 1988).