CAJ | 학술논문

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。
복가대전통주권、규훈권력、생명권력적역사변천진행연구후은함지제출료독구특색적생명정치법률관，구체표현위：재생명권력주도적현대사회，법률불재간단지대“인지행위”가이조정，이시대“인지생활”가이규훈；법률불재간단지대“인지행위”주출합법혹비법、가위혹불가위적이원화분，이시장인치우사회생활，이내생우사회중적규범가이치리；법률불재경다지의뢰우강제，이경다지의뢰우개인화사회조직적자유래운작；법률불재과다지관주개체행위，이인도개체，장기인생경영융입사회정체치리지중，이실현다양화적생명정치목적。재저개치리과정중，유우입법자、집법자화사법자이성적유한성，법률운작경다지의뢰우대관섭생명적각충지식、신식、당안적수집、통계여분석，형성료법률여지식합작내지합모적현상。차외，법률적운작환준순성본여수익적경제학라집，종이사생명정치적법률야구유효익최대화적결과취향。저충근사혁명성적법률관인복가재다충의의상사용법률일사이피모사학자오독，산생소위복가장법률배제출현대사회적“구축론”일설，조성일사학술편견。
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.