<p>Foucault and Ricoeur are two authors whose positions on law are antagonistic. This antagonism is evident from the outset in their respective perspectives on the “para-legal” conditions of law. From Ricoeur’s perspective, the subject constitutes itself through a self-attestation as capable and as directed toward another, which makes the subject responsible and imputable before the law. From Foucault’s perspective, however, this constitution does not occur in an institutional vacuum, but rather in moments when the self is profoundly at stake—namely, in confession before the court—and through a speech that is articulated by a qualified, and not abstract, other, particularly the human sciences of criminology. It will be argued that the constitution of the self in an ethical relationship of alterity, as Ricoeur describes it, tends to be more truthful the more the “self” is at risk precisely because of what it can say—i.e., in places of power such as the courtroom, according to Foucault. Furthermore, it will also be argued that the risk of the correct application of the law upon a subject who confesses guilt is that it may contribute to the constitution of a self made to fit the law, to hear a confession that has been ventriloquized—i.e., a self simply commensurate with the judicial decision and criminological analysis. The confrontation of these two claims suggests that the self finds in the courtroom an opportunity, even if risky and without guarantees, to tell the truth.</p>

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Between Foucault and Ricoeur: The Para-Legal Conditions of Law

  • Adalberto Fernandes

摘要

Foucault and Ricoeur are two authors whose positions on law are antagonistic. This antagonism is evident from the outset in their respective perspectives on the “para-legal” conditions of law. From Ricoeur’s perspective, the subject constitutes itself through a self-attestation as capable and as directed toward another, which makes the subject responsible and imputable before the law. From Foucault’s perspective, however, this constitution does not occur in an institutional vacuum, but rather in moments when the self is profoundly at stake—namely, in confession before the court—and through a speech that is articulated by a qualified, and not abstract, other, particularly the human sciences of criminology. It will be argued that the constitution of the self in an ethical relationship of alterity, as Ricoeur describes it, tends to be more truthful the more the “self” is at risk precisely because of what it can say—i.e., in places of power such as the courtroom, according to Foucault. Furthermore, it will also be argued that the risk of the correct application of the law upon a subject who confesses guilt is that it may contribute to the constitution of a self made to fit the law, to hear a confession that has been ventriloquized—i.e., a self simply commensurate with the judicial decision and criminological analysis. The confrontation of these two claims suggests that the self finds in the courtroom an opportunity, even if risky and without guarantees, to tell the truth.