This article addresses two questions related to the discrimination of homosexuals in the British Armed Forces as illuminated in the judgments of the European Court of Human Rights in the cases Smith and Grady v. the United Kingdom and Beck, Copp and Bazeley v. the United Kingdom. First, how does the military organization obtain knowledge about its subjects? Two works by Michel Foucault concerning the thematic of confession—The Will to Knowledge and About the Beginning of the Hermeneutics of the Self: Two Lectures at Dartmouth—provide a foundation for answering this question. Second, what happens when this knowledge obtained by the military organization comes into contact with the legal system? In relation to this question, Foucauldian theories of law are discussed, namely the so-called ‘expulsion thesis’ and ‘polyvalence theory’. It is argued that the production of knowledge in the context of these cases is intertwined with the technique of confession. However, the confession does not only operate at the level of the military organization but also as an internal practice of the individual. When this knowledge then encounters the legal system, it appears that the law puts up a certain resistance towards other forms of power, e.g. disciplinary power. It is argued that this resistance is due to the law’s ‘strategic openness’, i.e. the possibility to harness the law to different strategic purposes, due to which law can never be fully subordinated by external powers.
- European Court of Human Rights
- Expulsion thesis
- Knowledge-based power
- Michel Foucault