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Utilitarian Biopolitics, by Anne Brunon-Ernst

Horatia Muir-Watt
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Anne Brunon-Ernst, Utilitarian Biopolitics, London, Pickering & Chatto, 2012 ISSN : 1848931697 224p., 80 euros

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1Filling a gap in the existing literature on the relationship between Foucault  and Bentham with respect to governmentality and biopolitics, this highly interesting book on “utilitarian biopolitics” offers a double reading: that of Bentham’s philosophical brand of liberalism seen through the prism of Foucault’s biopolitics, and that of Foucault’s own theorization seen in the light of Bentham’s utilitarianism. While the insights thus garnered are certainly of considerable interest to philosophers, linguists and political economics alike, this review is written from the perspective of legal thought, which, at least in France, tends to dismiss both Bentham and Foucault as either unworthy of further attention or indeed dangerous (and this is at best – that is, when they are both not simply ignored).  Thus, on the one hand, utilitarianism tends to be disqualified by legal scholars inasmuch as it is perceived as the intellectual foundation for economic analysis of the law, which runs counter to the civilian legal tradition; and, on the other hand, Foucault is dismissed for his leftist politics, his own perceived ignorance of the law, or, in the latest vocabulary of establishment academic homophobia, the threat he represents to the “anthropological foundations of the law”.

2This extraordinary paradox of French legal thought, source of understandable wonder from across the Atlantic, is now doubly underscored in the context of emerging theorizations of “global law”, which all appeal variously to concepts of norms, the function of language, the weight of market calculus and the discourses of power in order to make sense of the paradigmatic changes wrought by the decline of the Westphalian state and rise of a neo-liberal political economy in a world scale. Hence the real value of the analysis proposed by Anne Brunon-Ernst, on at least three points which are crucial to making sense of the way in which the law takes form and works out in a global context.

31. In this respect, the first fascinating insight to be found in this study concerns the concept of norm, used both by Bentham and Foucault, and its uncertain relationship to the law, defined as state-based (public or private) law laid down by the sovereign (however defined). Foucault had apparently little interest for the latter within the sphere of biopolitics, since governmentality in the later context takes the form of a control of populations through the economic calculus rather than criminal discipline through public law. Bentham himself, on the other hand, was interested in norms as forms of “indirect legislation”, that is, means of control other than sovereign injunctions, designed to nudge individual conduct towards the ends of collective welfare. Here, the comparison leads to an initial conceptual clarification: “What Foucault takes out of the realm of the law, Bentham includes within a specific type of legal operation which he calls indirect legislation” (p. 126). Both, in other words, subscribe to a similar analysis of government as the conduct of conducts, but under different (legal and non-legal) labels and following the (not entirely) dissimilar rationales of utility and market. For a lawyer engaged in rethinking the phenomenon of law and legal process beyond the state, the biopolitical norm is of course of the utmost interest, since it is identifiable outside traditional references to the will of the sovereign, and promotes “interests” as much as policy.

42. A second equally fruitful contribution of the comparison of utilitarianism and biopolitics directs attention to the shared conviction of Bentham and Foucault that language, or discourse, is a representation which is both produced by and furthers power relations within society. Bentham undertook to hunt out and denounce law’s use of fiction, including and principally, through the language of rights. He famously dismissed the contemporary French idealization of human rights as “Nonsense on Stilts”, and offered a counter-definition of obligation as the imposition of a burden of which it is understood that the non-fulfillment will entail an experience of pain or loss of pleasure. On the other hand, Foucault’s own interest in language as archive (p. 133) led him to track the linguistic chasm which followed the dissolution of representation in the late nineteenth century, pathing the way for the realm of the psychoanalytic, “leaping over representation”, with the arrival of Lacan. For both, language was eminently normative, relying on and reproducing collective and individual symbolic meanings. It would hardly be necessary to point out here the extent to which the role of language is therefore crucial to understanding legal thought, if there were not such a remarkable dearth of interest for linguistics among lawyers. However, the most interesting comparative legal theory focuses today upon the use of, and variations in, language in the emergence of the modern state, and the ways in which varying legislative style (meaning not the way in which law is drafted, but the aesthetics of the law’s ontology, or its presence-in-the-world) is both reflected through, and has been instrumental in forging, the different modes of relationship of the law to politics in Western legal consciousness. The comparative exploration of biopolitical theorization of language cannot but enhance this vein of research.

53. Finally, the comparative analysis of power relations from the perspective of utilitarian biopolitics also holds rich promise for the agenda of legal research today. Indeed, biopolitical power, expressed through normative discourse, is at the heart of the creation of informal global empire through the law. Succeeding to forms of colonial rule, imperial law can be seen as diffuse, private corporate biopower, in which economic calculus is dominant and the “sinister” interests of religious, political economic and social élites tend to prevail in any struggle with competing normative claims. This perspective ties in with most novel contributions relating to the processes of private power beyond the state, which now link legal research to science and technology studies – and are very helpful to the understanding the workings of discourse described above. The question now is of course how the populations managed in many aspects of their life are to resist forms of governmentality which, while mandated by the unregulated market, run nevertheless contrary to the principle of utility, at least as understood as global welfare.  The answer may lie in Bentham’s Tribunal of Public Opinion, that is, in the creation of a properly designed public space as an adequate counterweight. Once again, the double reading of utilitarian biopolitics proposed by Anne Brunon-Ernst can only encourage this line of exploration.

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Horatia Muir-Watt, « Utilitarian Biopolitics, by Anne Brunon-Ernst », Revue d’études benthamiennes [En ligne], 12 | 2013, mis en ligne le 01 septembre 2013, consulté le 27 mars 2017. URL :

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Horatia Muir-Watt

Ecole de droit de Sciences-Po

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