Foucault – The Punitive Society

Michel Foucault – The Punitive Society: Lectures at the Collège de France 1972-1973. [EN 2015]

UT Foucault PS LDC

A lettre de cachet, ordering incarceration at the Bastille. Source: Frantz Funck-Brentano, Les lettres de cachet à Paris. Étude suivie d’une liste des prisonniers de la Bastille (1659-1789).

 

The Punitive Society sees work with many of the themes and problems he would raise with the publication of Discipline & Punish in 1975. But, as usual, Foucault is not building his conceptual apparatus brick by brick; he is switching out words, cases, designs, trying them on in an asymmetric journey that is ultimately made fruitful.

For me, particularly notable in these lectures are his discussions of (1) moralisation, where particular rationalities often borne out inbetween technical affordances, political exigencies and ideological pressures are glossed into a value in itself – and a value that, more often that not, subjects are told is good for them. We might think of the historical development of clock-time, which involved both the employer’s interest in standardising worker output, but also the moralising narrative that a clocklike worker is a diligent and honest fellow. (2) illegalisms, or the little transgressions, technically irregular activities, that are not simply things forgiven by the authorities, but help fill in the kinds of social functions, needs, desires, that are not being addressed by official means. Illegalisms thus form a symbiotic relationship with by-the-book activities: we might think of North Korea’s encouragement of black markets in times of severe economic downturn (and then cracking down on them again when the situation has changed). Both are themes clearly present in Discipline & Punish – but here they are laid out with a clear specificity.


Methods

Foucault begins, as he often does in these lectures, with methodological notes. How to think through the ways in which people are marked out for punishment, identified as criminal, separated, contained, targeted?

One obvious reference point is the concept of exclusion, but it may be a limited one. Exclusion’s force and appearance occurs within society’s system of representations. The concept therefore handles the level of representations, and not the power relations that make the act and its lines possible in the first place. (3) Foucault says, remember: a mental hospital isn’t simply the means for excluding the mad; the mad is not erased, but rather is inscribed into a heightened system of social rules, such that the hospital is the centre of a certain rationality rather than its fringes. (4) The hospital is not where the mad go to disappear, where they become excluded from the reason of the state and of subject formation; rather, it is the place where they are shaped most strongly by those forces. So, the question: what is the underlying power relation that a certain kind of punishment, e.g. the penitentiary forms emerging over the 17th and 18th centuries, becomes considered as the rational response? (12)

Foucault locates ideas of penality that describe a kind of civil war: a ‘permanent state’ and not an exceptional one, in which the criminal is the enemy of society. (13) It is no temporary opioid epidemic, but an indefinite conflict between good society and its incompatible nemeses. (Or rather, we might say, the opioid epidemic is simply one of many rotating figures – the terrorist, the robber, the gang member – that keeps the seat warm.) In contrast to Hobbes, for whom civil war is a non-sovereign free for all preceding society, the civil war Foucault speaks of here is a normal mechanism for the formation and reorganisation of collective elements. (28-29) Hence a market riot in the 18th century, triggered by grain scarcity, is not a refusal of collective regulation or for anarchistic and violent seizure, but a demand for the re-establishment of certain rules and norms. (29) Within this framework, the 18th century onwards, the criminal is “someone who wages war on society” (33), who harms society as a whole.

 

Criminality

How does this criminal appear? Physiocrats designated vagabondage as the essential crime: the failure to be accountable in the system of production, to wander without one’s rightful place, is a fundamental threat. (46-7) Notably, Le Trosne’s text describes vagabonds in the way that we would also recognise of the feudal nobility: a refusal to work, the evasion of taxes. (51) So, top or bottom, there is the refusal of such exceptions, and the idea that “everyone must belong to the State.” (52)

Other appearances. The prison and wage-labour are both the appearance of a standardised time-unit – into systems of both power and penality. (73) The idea of the penitentiary was quite new in the early 19th century, and established a new mode of Christian moralisation not necessarily inherited from monastic traditions. (92)

Or consider the famed lettre de cachet – letters carrying the royal seal of the King of France, and an imperious order of, say, incarceration or liberation that could not be contested. Yet, Foucault says, these letters did not constitute a direct downward transfer of royal power unto every crevice of the nation. Rather, they were a means by which local and lower networks of clerical and administrative power could invoke the mark of royal authority. (128) The letters also became an archive of ordinary deviance – a textualisation of evidence of individual irregularity that didn’t exist in such forms before. (131)

This moralisation e.g. 18c England is provoked by population movements that precipit a search for new modes of organisation and control. The strategy that emerges is “not so much to detect and punish crime as first to attack moral faults”, e.g. drinking and gambling, then an educational trajectory that is ‘positive and continuous’. (105) Morality here “does not exist in people’s heads; it is inscribed in power relations and only the modification of these power relations can bring about the modification of morality.” (113)

 

Illegalism

“Why did this slow shift towards the State apparatus accelerate” and eventually complete? (140) It had provided opportune means for the bourgeoisie to quash lower-class/popular illegalism that threatened production (illégalisme populaire). (140)

Now, illegalism had existed for a long time. Foucault describe it as, in effect: the extra-legal, informal, tacit agreements by which participants profit from or cope with the demands of regulated, official relations. He cites an example of 18th century Maine weavers. Formally, their trade was controlled via ordinances on the quality of cloth, identifying markers, and other typical bureaucratic requirements. To gain wiggle room, the weavers gradually established understandings with their merchants and distributers, forming business contracts outside the confines of official process. The point here is that such illegalism serves a regular and structural need.

Illegalism is thus ‘functional and systematic’, and often develops a certain relationship with official relations & official regulators. They may let certain things go, while still seeking to contain the boundaries of illegalistic activity somewhat. The legal and illegal is here not strictly separated, but ‘oscillating’. The representatives of state power can work as ‘arbitrators of illegalism’, and “respect for legality is [itself] only a strategy in this game of illegalism” that exceeds the former. (144)

We might think of the role of leaks from the government. In the American case, there exist longstanding norms that tacitly tolerate a certain regular level of leaks – about classified military or intelligence operations, for example – from government personnel to the media. It is well understood that such leakers will exercise discretion as to not reveal anything truly damaging (for example, information that might jeopardise American soldiers and agents on foreign soil), and that the function of these leaks is often to test public opinion or even to influence internal politics.

Of course, such symbiosis is never complete or permanent. Foucault describes moments where there emerge incompatibility in interests, and consequently a reorganisation of both legal and illegal activities; e.g. a point in nineteenth century France when the working classes’ illegalism is not a tolerable and functional accompaniment for elites, but regarded as a threat. (156) When you have vast fortunes traded in the docks through masses of labourers, the primary threat is not external thievery, but internal. Laziness and other means of sabotage on productivity become singled out as criminal threats. Spies and infiltrators are used systematically to break down this working class illegality – and yes, the worker becomes moralised as well, in an effort to purge their interest in such illegalism. (149) (So the morality here is very much Nietzschean, an artificial means by which the subject comes to desire against his/her own desire.) And finally, the penitentiary becomes a means of physical separation of delinquents towards this fostering of well moralised workers.

All this was accompanied by widespread social fear typically pegged to urbanisation and floating populations, and today described as a fantasy. But if that is true for, say, 1840-45, the beginning of the century saw an entirely concrete fear of the daily intrusion of the interested worker and his body into the production system. (172-3) The problem is now the dissipation of productivity, and the vice is “anything that smacks of irregularity.” (188) The object is to “subject the time of life to the time of production.” (211)

The result was a codification of a punitive society. Foucault cites France’s 1810 Penal Code: it seeks to absorb the scenes of lower-class illegalism, to provide a comprehensive range of penalties matching the system of moral conditioning, and with the objective of correction. (176-7)

 

[To be continued…]