When I teach Comparative Law, I like to try to bring students full-circle to where we began the course, as a way to try to get them to realize how a lot of what we have talked about of the course of the semester fits together (or can be made to fit together). Previously, at SLU Law, I have done that by showing the documentary that I begin with on the first day (the excellent “Divorce Iranian Style”) on the very last day, having students then spend time thinking and talking about how the course has made them view the events covered in the documentary differently.
This semester, at LUMS in Lahore, I decided to bring students back by returning to one of the theorists, Foucault, that they seemed to very much enjoy reading and talking about at the beginning of the course. At the beginning of the semester, we read Foucault’s “Lecture Two: 14 January 1976” (contained in the edited Power/Knowledge volume) together. As the semester is winding down here, we have returned to Foucault in our unit on comparative judicial institutions, reading an interview with him—“On Popular Justice: A Discussion of Maoists”—also contained in the Power/Knowledge volume.
In this interview, Foucault engages in a critique of courts, expressing much skepticism in their ability to deliver justice to the people, especially in post-revolutionary moments. In Foucault’s own words:
In my view one shouldn’t start with the court as a particular form, and then go on to ask how and on what conditions there could be a people’s court; one should start with popular justice, with acts of justice by the people, and go on to ask what place a court could have within this. . . . Now my hypothesis is not so much that the court is the natural expression of popular justice, but rather that its historical function is to ensnare it, to control it and to strangle it, by re-inscribing it within institutions which are typical of a state apparatus.
Reading Foucault again was not only revelatory for my students here in Pakistan—where the courts are taking a major role in prosecuting the former dictator, Pervez Musharraf, and his accomplices, for treason—but also, as I explained to them, for me watching the events in Ferguson from afar. Within Saint Louis, my SLU Law colleague Monica Eppinger has also commented, comparatively, on the role of courts in forestalling or precipitating deep social critique—viewing Ferguson through the lens of recent developments in Ukraine.
Ferguson is about a lot of things, but the intense interest not only in a grand jury process but also income-generating courts, makes it partly a commentary on states’ judicial institutions. I hope that more comparativists will bring their perspectives to this important discussion.
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