Foucault’s Lectures on the Punitive Society IV.ii

According to Foucault, the language of the enemy-criminal comes into conflict with the language of the prison, which is more scientific in aim and which leads towards criminology. The problem appears in a text from the Minister of the Interior to the King in 1818, which refers to the prison as the place where the law stops. In this case imprisonment cannot be derived from penal theory or judicial practice, because it is the place where they do not exist. In previous judicial practice, prison was a means of assuring the availability of the prisoner to the courts rather than a punishment in itself. The influential criminal-enemy idea in the late eighteenth century does not lead to imprisonment, it just justifies the penal system as protecting society rather engaging in vengeance, reparation, punishment, or penitence. The new way of thinking about criminality means the punishment is more oriented to the usefulness to society of the punishment, rather than the seriousness of the crime. The idea develops that a society less vulnerable to crime can have less serious punishments. At this point the discussion moves from sovereignty to Utilitarianism.

Four principles appear at this time.

The first is that the punishment of crime should be carefully related to the state of society. In this way of thinking there is less wish for harsh punishment than if punishment is based on an idea of penitence, and the harsh punishment can be seen as a an abuse of power.

The second is that the punishment of crime must be carefully graduated as counter-attacks against attacks on society.

The third principle is the surveillance of the individual throughout the punishment and throughout the time of reeducation.

The fourth principle is that if the punishment is for the protection of society, it must not encourage new enemies. It must be exemplary, public, and infallible.

Three models of punishment are possible other than prison as a result of the principles above, and which appear in juridical reformist discourse.

One. The model of infamy. Society judges immediately by its reaction to the crime, so there is no need for a judicial instance. This is the dissolve of judicial power into the collective judgement of individuals. It is a theme reactivated in the idea of popular justice. There is no tribunal or legal code by completely gradated reactions which allow for reconciliation. There is no physical trace of the punishment. It is transparent, immediate, and constant.

Two. The model of the Talion (early Roman law). Punishment in complete proposition to the nature and force of the crime. Society turns the criminal’s attack back on the criminal. There is complete gradation of the crime and no excess. The idea is proposed in 1791, but at the same time as the prison.

Third. The model of slavery. This refers to the social contract between individual and society, resting on the idea of a repayment to society, which itself creates a gradation of punishment. The idea of slavery creates a powerful fear in the public.

Prison, the dominant tactic of punishment, lacks the collective aspect of infamy, the proportionality of the Talion, and the reformist aspect of slavery. It is a monotonous, rigid, abstract system. Time is the only variable for imprisonment as the dominant mode of the penal system. It has the logic of salaried work, time is the basis of the exchange. The relation with salaried work is not a necessary connection, but is a strong relation, which cannot be admitted to in the public discourse about prison. The time for no money in the prison is the inverse of how the official discourse likes to think of the relation between money and time in paid work, but rests on the dominance of measurement through time.

There is an implicit reference to Marx’s understanding of the relation between labour and capital, though for Marx the fundamental aspect of this is not time, but the labour theory of value and the exchange of labour power for wages. The regimented control of time in the factory is one consequence of the wage labour situation as one which transfers labour value to the employer while directing labour power. Marx’s account in the chapter on the working day, in Capital, volume I, refers to the purchase of labour power, and the need for the worker to work sufficient hours to reproduce that labour power (that is be generate the wealth necessary for the worker to purchase the means of life, and therefore to continue to have labour power to offer). Marx defines labour after this period is over as the extraction of surplus value, adding to the time the worker must spend in the place of work. This is the mechanism by which labour both reproduces itself and transfers value to the capitalist employer. The labour theory of value is not endorsed by Foucault, as can be seen in Archeology of Knowledge, where he assumes the superiority of the marginal theory of value developed by Jevons, Walras, and Menger, and which is fundamental to economics as it exists now. Marx’s social and phenomenological account of labour and the factory is important to Foucault, not the theory of value, which underlies that account for Marx. The labour theory of value of course precedes Marx, though it is Marx who makes it part of a theory of exploitation as inherent to capitalism, rather than as part of a largely desirable commercial society, as understood by John Locke, Adam Smith, and the other classical economists. Concern for the human affects of the division of labour in factory conditions can already be found in Adam Smith’s well known account of the match factory, so anticipating some part of what Marx has to say about factory labour, though not suggesting the same political solutions.

 

Foucault’s Lectures on the Punitive Society IV.i

Lecture of twenty-fourth January, 1973

As my notes and comments on this expanded beyond the length of what I posted for previous lectures, I posting on this lecture in two parts.

Foucault sets up this lecture in such as way as to emphasise the political context of debates around criminality. Though some of this can be found in his book of 1975 Discipline and Punish, much of it is more taken up in the lectures of 1975 to 1976, Society Must be Defended, and the lectures of 1976 to 1977, Security, Territory, Population. Here he suggests that look at attitudes to towards criminality and the penal code in the context of the upheavals and debates regarding sovereignty, institutions, and the use of violence to change or preserve these things, which make up the French Revolution.

In the debates of 1791, Maximilien Robespierre opposed the idea that the criminal was the enemy of society and therefore should be given the death penalty. On this point Robespierre was opposing an idea taken from Rousseau, but still following Rousseauesque presumptions about the status of a criminal as the enemy of society. For Robespierre, it was barbarous to kill the prisoner who is the enemy of society in the same way that it is barbarous to kill a prisoner of war, or a child. This discussion of the social criminal-enemy is picked up later by Karl Marx talking about firewood. Foucault here is presumably referring to Marx’s journalism of 1842 regarding the loss of the rights of peasants to gather firewood on the land of lords, who had succeeded in defining land as purely their private property, with no recognition of customary communal rights. This discussion is carried on in Capital, volume one, in the chapter on primitive accumulation of capital, which describes the long late Medieval and early Modern process in which new laws undermined communal customary rights in land to the advantage of lords and the disadvantage of peasants.

It is worth noting here that this critical attitude towards replacing  evolved customary law with newly invented statutes is shared by some very non-Marxist thinkers, such as Wilhelm von Humboldt in Limits of State Action (written in the 1790s) Nietzsche, Carl Schmitt, and Friedrich Hayek. The disadvantage to those lacking in political influence where customs accepted by communities over centuries are replaced by laws imposed from above are part of those arguments, particularly in Hayek, though are not as dominant as for Marx.

Foucault says he is concerned with the relation between the theory of criminality and the tactics of punishment at that time. The tactic of imprisonment appears with the penal institution, in relation to the discourse of the social criminal-enemy at that time, though as we shall see Foucault thinks that other theories justify imprisonment and take over the discussion of punishment.

Imprisonment only becomes a normal form of punishment in the early nineteenth century. The public discourse during the Orléanist July monarchy (1830-48) emphasises the status of forced labour as a variation on prison, and does not mention the death penalty much, which has become the defining outer limit of the system, rather than the centre of the struggle of sovereignty with crime.

Foucault refers to the rise of imprisonment as the basis of the penal system in British practice at the end of the eighteenth century in reaction to the American War of Independence. The thinking was that isolating criminals in prison rather than transporting them would reduce the risk of others imitating criminals. The growing dominance of the prison as core means of punishment appears at the more theoretical level in Jeremy Bentham’s design for the panopticon became the matrix for the architecture of the European prison, which is something that Foucault famously discusses further in Discipline and Punish .

The prison became dominant in France later and the discourse can be see in 179, during those debates in which Robespierre participated, when the punishment is thought to be justified by liberty itself (presumably because the criminal attacks the liberty of others, the laws the criminal breaks are established by liberty and guarantee liberty, the use of imprisonment is itself a recognition of the importance of liberty and the enjoyment of nature).

There is no automatic connection between the normalisation of imprisonment and the idea of the enemy-criminal, they are heterogeneous phenomena. The relation between them included contradiction and historical sedimentation, but cannot be said to be from either one. Foucault’s language of historical sedimentation has strong overtones of Husserl’s Phenomenology, when Husserl suggests that the ideas of consciousness in the past forma  layer within the mind, so that the mind is not engaged in a pure introspection of itself at any one moment.

Foucault’s Lectures on the Punitive Society III

Lecture of seventeenth January 1973

Foucault starts this lecture by reference to a speech delivered in the constituent assembly in October 1789, which defended the legal practices of the Old Regime (the monarchy before the French Revolution) in new language. This confirms Foucault’s suggestion of a shift from a Medieval understanding in which crime refers to a private injury, and individual pursuit of the guilty party to a modern belief that the criminal is the enemy of the community, and that it is the job of public officials to apprehend and punish criminals from the point of view of the public good. The suggestion is the French Revolution carried on the work of the absolute monarchy in centralising sovereignty as a legal-political concepts and in matters of administrative, including penal, practice. There is a possible connection in Foucault’s analysis here with Alexis de Tocqueville’s famous argument in The Old Regime and the Revolution

Before the eighteenth century there was already a critique of the cost of delinquency with regard to private money, ecclesiastical money, and the legislation designed to relieve poverty and reduced mendicancy (Foucault mentions this back in History of Madness).  This was not however the same as a political economy analysis. The first political economy analysis was undertaken by the Physiocrats (French writers on political economy, often working in state employment) in the eighteenth century, referring to delinquents and on the topic of production rather than consumption. This analysis also defines the delinquent as the enemy of society (so taking us back to a widely shared analysis of the criminal as enemy of society, the social contract itself, which can be found in Rousseau).

Foucault looks at the ways in which vagabondage is linked with more general criminality, as its starting point, or as the matrices of all delinquency or as a part of that matrix. The vagabond’s status as basic to crime comes from lack of work and lack of a firm identity in the community. The vagabond is supposed to follow a vice of laziness, which leads to living from the incomes of others, and a lack of location that makes the vagabond outside the system of responsibility for crimes.

The vagabond becomes worse than just the Medieval image of someone who consumes, but does not produce. The vagabond disturbs the whole system of production and consumption, since the vagabond does not pay taxes so does not contribute to any increase in productivity of the land financed by taxes. The vagabond raises the price of labour by not contributing to competition for work, raises prices for consumers due or the higher price of labour, and this increases overall poverty. The vagabond abandons children to nature leading to another increased demand on consumption. Vagabonds stand outside society, threatening it with individualised unauthorised violence. They are savages outside the civil society of laws, police, and courts (the image of vagabond seems like a negative version of Rousseau’s largely positive image of savage humans).

These analyses come from Le Trosne, a Physiocrat who became a royal advocate in the 1750s and a published author in the 1760s. La Trosne thought that laws on vagabondage went wrong, starting with laws on mendicancy. Mendicants were forced to leave their home district, which turned them into vagabonds with all the threats that posed. The problem of unemployment came not from lack of work, but from unwillingness to work, which had to be cured through forced labour. Forced labour would mean slavery, sending slaves to the mines and galleys, and then to the colonies. The slaves would have no civil rights and would be branded, so everyone could punish a slave who was in the wrong place. Local police and gendarmerie would be supplemented by peasants allowed to arm themselves, which included a vision of a mass army ready to take on the threat of vagabonds with systematic violence (Foucault seems to be hinting here at a liaison between the idea of the people rising agains the inner enemy, vagabonds, and the levée en masse, the mass conscription organised by the Committee for Public Safety in 1793 to create a nation in arms, as they saw it, against invasion by monarchist powers).

There is a kind of overlap of feudalism and capitalism in which feudal remnants are implicitly criticised by La Trosne, who is appealing to a more centralised system of law, and the possibility of a peasant insurrection against insufficient law, directed agains the anti-production and enemy of society status of vagabonds. The idea of the delinquent becomes universally threatening, anyone could become such a person who was previously honest, as Foucault suggest is thematised in the widely read novel Gil Blas. Foucault suggests that the novels of Ann Radcliffe (best known as the author of The Mysteries of Udolpho) present another version of the delinquent threat, closed communities of those cut off from previous society by a previous crime. In both cases delinquency is a kind of war with society, analysed by La Trosne.

Foucault’s Lectures on the Punitive Society II

Lecture of tenth January 1973

Foucault announces he is studying early 19th century changes to the penal system until 1848, based on Napoleonic legal changes. The context Foucault deploys is the idea of civil war as a constant in society. Not the war of all against all, but of the rich against the poor, of property owners against the propertyless, of employers against proletarians.

Foucault quotes a deputy speaking in the chamber in 1831, so during the relatively liberal Orléanist monarchy of 1830-48, explicitly recognising that their laws mostly affected those who were not represented in the legislature, so that the legislator should make an effort to think of the people for who he works, thought not to think of himself affected under these laws (presumably because a deputy is thought of as someone who would just not commit certain crimes). Workers’ literature of the kind recognises the same point, laws are not made for everyone. Adding some context to Foucault, the period is well known as a time when the top one hundred thousand only formed the ‘political nation’, that is those with voting rights.

The judicial apparatus established at this time was entirely commanded by the principle of universal and constant surveillance. The idea of a society based on spectacle was taken up and turned on itself so that the spectacle becomes the surveillance of the spectators. Foucault quotes a Berlin jurist who sees the state growing into a role of total surveillance. Surveillance as observing, controlling and intervening in the details of social life. The jurist in question, Julius, was taking up the Napoleonic Criminal Code, which thinks of the Empire as equally under the complete vision and control of these laws, and of the Imperial officials who must act instantaneously against crime to prevent degeneration. As Julius notes, the best form of punishment within surveillance is the prison which is an opportunity for surveillance.

Foucault asserts four basic points in his analysis on the basis of the above.

War within society as constant and universal.

A penal system which is not universal or unequivocal, because it established by some to be applied to others.

Universal surveillance.

Confinement.

Foucault investigates the problem of the war of all against all, as not the same as civil war. There is a tradition in political theory which makes the equation between war of all against all and civil war, for example Hobbes. Foucault notes that for Hobbes, the war of all against all is something absolutely primitive and archaic, so not present in his own society, but supposedly to be observed amongst American savages. Hobbes tends to equate civil war and the war of all against all, and make that general war something that is part of the state of nature, so that the essence of civil war exists before civil associations have been formed.

The Hobbesian idea of the war of all against all presumes the equality of individuals, the equality of their desires, and the intersubstitutability of desires and individuals (again the reading of The Sacred and the Violence by René Girard seems very relevant). It is the possibility of substitution which creates fear of others substituting themselves for us. The solution to this anxiety is to create a power greater than anyone else to prevent substitution with regard to our enjoyment. The growing power requires a system of marks, referred to by Hobbes as glory. This glory is the imposition of respect from those who might wish to substitute themselves. Hobbes does not think the problem of war is solved by forming families or larger groups, because these acts towards each other in the same way as individuals. The exit from war rests on elevating the power of one over many, and it that power is lost, there is war in which everyone is entitled to defend themselves.

 

Against Hobbes, Foucault argues that civil war is not a war of all against all. It is war between groups constituted by family relations, client-patron relations, religion, ethnicity, class, linguistic community and so on. Civil war does not just establish a staging for collective elements, it constitutes them. We can see this in the emergence of peasants as a group in the late Middle Ages in war until the eighteenth century when the sans-coulottes emerge in the war like condition of the French Revolution (which itself encountered guerrilla war in localities and intervention by European monarchies) . Civil war is a not a weakening or abolition of power, it is a theatre of power. Rebellions against power tend to reconstitute power, often in the hands of those remote from the original rebels, which Foucault discusses with regard to grain markets in England and France. Rebellion during the French Revolution can take the form of instituting new tribunals, so a form of power similar to the old forms, or may try to speed up the justice of tribunals against enemies (which seems like Foucault’s compressed account of the road from constitutional revolution in 1789 to the Terror of the Committee of Public Safety in 1793). Rebellion can also take a legitimist form as in peasant rebellions against the French Revolution. Rebellions of the poor can be decentralised and lacking in a leader, but are still influence by the myths of power, so invent a leader as with need Ludd, mythical leader of the English Luddites.

 

Power does not repress civil war, it continues it, in the form of penal practices, and in general everyday activities. Civil war is the fear of something external to power and is not the collapse into unconnected individuals imagined in Hobbes’s account of the war of all against all.

The 18th century shows a tendency to define the criminal as the enemy of the community, not as someone who has harmed someone. Foucault quotes William Paley on this and Cesare Beccaria is mentioned in this respect as well. Again Rousseau is left as an implicit reference. William Paley was a Christian Utilitarian thinker and natural theologian, whom Quentin Skinner gives a significant role to in Liberty before Liberalism in the emergence of   liberalism as opposed to Roman liberty. I do not find Skinner’s account entirely convincing,  for example John Stuart Mill does not fit well into the suppose split between Neo-Roman liberty and liberalism based on Utilitarianism. Foucault’s account of penal theory, penal practice, and political theory, is much more concerned with the heterogeneity of dioceses and there lack of automatic unity, than is Skinner’s account of political concepts, though Skinner claims to be following Foucault.

Foucault traces the concern with the criminal as enemy of society back to an usurpation of punishment by the monarchy in the late Middle Ages, which turns justice into the business of the central state, defining the criminal as the enemy of the sovereign, and pushing aside earlier ways of thinking about crime more in terms of very particular harms. The institutionalisation of criminal justice by the monarchical state itself opens the way for a professionalisation and sociological take over of the penal system, so producing heterogeneous outcomes.

Foucault’s Lectures on the Punitive Society I

Last month EHESS/Gallimard/Seuil Paris published Michel Foucault’s lectures at the Collège de France in the 1972-73 academic session, in fact they all date from 1973. The edition has been prepared by Bernard Harcourt under the direction of François Ewald and Alessandro Fontana. I believe that a translation from Palgrave can be expected about two years from now. I will be posting my notes, slightly tidied up and shaped into essay form, lecture by lecture. This week we begin with the lecture of third January 1973.

Foucault picks up on a distinction made by the anthropologist Claude Lévi-Strauss between incorporation and exclusion of those who are awkward in some way. Foucault describes the distinction as playful, but also significantly implies that the second option is the option of the scapegoat (the religious sacrifice) while the first is as Lévi-Strauss appears to suggest, an example of cannibalism. Foucault may be thinking of René Giard’s analysis of scapegoating in Violence and the Sacred here. (Anyway, I have started reading Girard’s volume to check this.

Foucault suggests that the idea of exclusion (presumably the second pole of the Lévi-Strauss distinction) be applied to minorities in out societies, and then more particularly to those who are outside production and consumption, those considered abnormal or delinquents. We have to understand exclusion beyond and behind the way the social sciences intervene, and the masking affect of those social sciences, which Foucault refers to as invading the human sciences. The exclusion has to be understood not through a general representation, but through a variety of strategies of power. It is important to distinguish those strategies of exclusion and the illusion of a social consensus behind exclusion.

This distinguishes Foucault from Lévi-Strauss and he offers a second area of difference, which is that he rejects Lévi-Strauss’ distinction between inclusion and exclusion. The psychiatric hospital is a place of inclusion and exclusion of the mad. The mad are treated with regard to integration to the institution itself and to the outside world. This comprise a combination of surveillance/discipline and supposedly scientific treatment. It is the medical-scientific discourse that is more oriented to the outside world. Foucault announces a critique of ‘transgression’ which has played a role similar to that of ‘exclusion’. It can have negative and positive interpretations as with ‘exclusion’, but it refers to ‘limit’ rather than ‘law’. The critique should be directed at power and knowledge rather than at law and representation.

There are four major tactics of punishment. 1. Exclusion. 2. Reparation. 3. Marking. 4. Confinement. 1. Exclusion means exiling. An individual is banned from communal or sacred places. Hospitality is forbidden. The home of the exile is burned, or in a practice prolonged from the Middle Ages into modern revolutions, the home of someone you wish to exile is burned. Foucault mentions the privilege of such a penalty in ancient Greece, resumable referring to Ostracism. 2. Tactics of reparation and compensation identify an individual or a group who should receive compensation. It is the opposite of exclusion, in that the punishment ties the perpetrator into the community through ties of obligation and compensation. 3. Marking can include a shameful change in someone’s name, but largely refers to physical marking through scars, amputations, and injuries in the stocks. It shows shame and also the power of the sovereign. It is not about compensation, but about memory of the shame. It was the dominant means of punishment in the west from the end of the High Middle Ages to the 18th century. 4. Confinement is the means of punishment dominant from the late 18th/early 19th century.

There are many hints of Montesquieu’s account of the appearance of customary Frankish-German law in post-Roman Gaul, what became the kingdom of France in the Middle Ages,  the evolution of that law and the erosion of customary German law by Roman law, at the instigation of the monarchy in the High Middle Ages, imposing its own sovereignty. I doubt that it is possible to fully appreciate Foucault’s comments in this area without some knowledge of the later books of The Spirit of the Laws, which deal with this historical process. A knowledge of Essay II of Nietzsche’s On the Genealogy of Morals is also rather important here.

The most extreme form of exile is to throw someone from the cliffs into the sea, which removes them from the territory where the crime was committed. The criminal is deprived of appeal and removed from the homeland. In a system of reparation, the most extreme punishment is death of a relative of the criminal, which shows that this is a system concerned with debt. The system of marking has a variety of torture and ways of marking the body connected with the nature of the crime.

The execution of Damiens for attempted regicide in the eighteenth century shows the sovereignty of political power at the centre of the penal system. Foucault has a full description of the prolonger and brutal execution as the opening of Discipline and Punish.  Death appears in the system of imprisonment as the life sentence, the link between death and enclosure, and is something more obviously linked to political sovereignty than other forms of punishment .

The emphasis on penal tactics in this analysis cuts across the distinction between general functions and different roles, undermining the apparent permanence of customs. The basic object is the operations of power not the ethical-legal justifications and representations with regard to punishment. The aim is not to unmask ideology either, as the analysis of delinquency in normal law is to some degree an analysis of political struggle, but they are not the same. Foucault’s implication is that though we can look at ideological political aspects of the penal system, we cannot think of the system as conceptually saturated in this way.

Civil war is an important and misunderstood term for discussing penal practices. Rousseau and Hobbes imagined it as something that belongs to the state of nature and that is ended by the social contract. Foucault seems a bit vague about the distinction between Hobbes and Rousseau here. For Rousseau the violence comes after the earliest stages of human society rather than in nature, but for Foucault there may not be much difference if they both emphasise the possibility of complete violence at the beginning of society.  After the stage of the social contract, war becomes understood as something external to the state. Civil war is then understood as the monstrous intrusion of something external into the state. However, we can understand penal practice, particularly of confinement, through the strategies of power in a generalised civil war.

Nietzsche’s Influence on Political Thought II

As with Nietzsche, there is a mixture of horror at past cruelties, and a suggestion that human Enlightenment values may have produced as much cruelty in more dispersed less dramatic ways. The whole critique of the understanding of theories of legal sovereignty is clearly a taking up of Nietzsche, and while it is directed against a large current of ‘liberal’ theory, it is articulated in the service of a critique of unrestrained state and social power. Liberalism since the Enlightenment is portrayed as deeply complicit with a power of control through visibility and rationalisation, but in the service of a resistance to the cruelty of power which extends liberal sensibilities. The book that made Foucault famous, History of Madness (also know as Madness and Civilisation), has a Nietzsche influenced respect for the insights of madness, as something connected with tragedy, as opposed to the confinement, constraints and rational controls placed on it later.

 

The world of the early seventeenth century is strangely hospitable to madness. Madness is there, in the hearts of men and at the heart of things, an ironic sign blurring the distinction between the real and the chimerical, but with barely a memory of great tragic threat.

(Foucault 2006, p. 42-43)

 

As with the critical attitude to modern punishment, there is a both a challenge to liberalism, taken up in the more left wing interpretations of Foucault, and a suggestion of how liberalism can be deepened, expanded and pluralised, taken up in liberal encounters with Foucault. Foucault’s own political engagements included a period of participation in the Maoist left, but he denies that he was a Marxist in any of his writings. Other periods of his life include engagement with a wide range of protests against power, and towards the end of his writing career a growing engagement with liberal, or liberal related, concepts.

 

Gilles Deleuze wrote one of his earlier books about Nietzsche (reference) and had an enduring interest in Nietzsche’s thought. In his Nietzsche study, he does not present a Nietzschean political philosophy, or deny that Netzsche might favour some Caesarist or Platonist form of government, but his way of writing about power and force in Nietzsche takes the reader’s attention from such approaches to Nietzsche to an idea of Nietzsche as philosopher of pluralism, difference and becoming, with regard to forces. Deleuze’s later work suggests that such metaphysical or naturalist pluralism is a model for social and political action and ways of thinking.

 

Thus reactive force is: 1) utilitarian force of adaptation and partial limitation; 2) force which separates active force from what it can do, which denies or turns against itself (reign of the weak or of slaves). And, analogously, active force is :1) plastic, dominant and subjugating force; 2) force which goes to the limit of what it can; 3) force which affirms its difference, which makes its difference an object of enjoyment and affirmation. Forces are only concretely and completely determined if these three pairs of characteristics are taken into account simultaneously.

(Deleuze 1983, p. 61)

It is no surprise, therefore, to find that every Nietzschean concept lies at the crossing of two unequal genetic lines. Not only the eternal return and the Overman, but laughter, play and dance. In relation to Zarathustra laughter, play and dance are affirmative powers of transmutation: dance transmutes heavy into light, laughter transmutes suffering into joy and the play of throwing (the dice) transmutes low into high. But in relation to Dionysus dance, laughter and play are affirmative powers of reflection and development. Dance affirms becoming and the being of becoming; laughter, roars of laughter, affirms multiplicity and the unity of multiplicity; play affirms chance and the necessity of chance.

(Deleuze 1983, p. 193-194)

 

From the political point of view, Deleuze’s emphasis on limits, difference, affirmation, laughter, play, dance, becoming, multiplicity, chance, enjoyment, and transmutation, can be taken against authority, hierarchy, sovereignty, rationalism and elitism in the state and in political life. Society can be seen as something conditioned by the multiplicity of constantly transforming forces in which hierarchies and sovereignty relations can only be temporary, and are always under challenge. So whatever Nietzsche may have sometimes advocated in the way of Platonist politics or Caesarism can be seen as itself challenged by the Nietzschean emphasis on difference, becoming and multiplicity. Forces flow through social organisations in ways which constantly disorder them, and suggest a politics of anti-authoritarian self-transformation along with existential challenges to authority. That understanding of social and political thought can be seen in Deleuze in a series of texts beginning with Anti-Oedipus (1984), which he co-authored with Félix Guattari. These texts use references to Nietzsche, amongst references to Freud, Marx and many others. The overall effect is that of a form of libertarianism strongly influenced by Marxist theory and revolutionary politics, confirmed by Deleuze’s own political interests.

To be continued

Nietzsche and the Politics of his Time IV/Nietzsche’s Influence on Political Thought I

 On the side of intellectual influences, Nietzsche took a great interest in Ralph Waldo Emerson an inspiration to the Abolitionist movement in America, and strongly associated with a democratic form of veneration of the individual and the individual search for perfection (Melville’s Moby-Dick takes a great deal of inspiration from Emerson, in this area and others, though he was not an enthusiast for democracy himself. Emersonian transcendentalism was an inspiration to enthusiasts for democratic progress in 19th centıry America. This way of taking Emerson in a democratic direction parallels what happens when Nietzsche is taken up politically, in a way that goes beyond a focus, however scholarly, on his gestures towards a version of Platonic elitism. 

 Nietzsche’s Influence on Political Thought 

The influence of Nietzsche on political theory has not been towards Platonic elitism on the whole, largely the influence has been the opposite direction. Nietzsche’s name was used by Fascist and Nazi totalitarians, but there is no reason to believe that Nietzsche would have approved of mass political movements based on extreme nationalism, belief in racially pure populations and militarism, all things condemned by Nietzsche. In addition Fascism and Naziism were mass movements appealing to a extreme manipulation of mass democratic politics. The best known Nazi leaning commentator on Nietzsche, Adolf Baeumler has  not become a central reference in Nietzsche studies since his work of the 20s and 30s. Thomas Mann was very attached to Nietzsche during his ultra-conservative years, but the influence is still clear in his later more liberal years. Some similar comments apply to W.B. Yeats who had rather ‘traditionalist’ esoteric-authoritarian-elitist interests in combination with hi appreciation for Nietzsche. Links can be made between Nietzsche and ‘Traditionalist’ ultra-conservative thought, but this has not not resulted in any great academic study of Nietzsche’s work, and the esotericist aspects of Traditionalism are at odds with the materialism and empiricism of Nietzsche’s thought. Since Traditionalism is the closest thing in the modern world to a movement for the Platonist dominance of an intellectual-aristocratic elite, it’s lack of fit with Nietzsche studies must have a qualifying effect on how we regard the Platonist form of elitism in Nietzsche. Another qualification is that the Platonist politics is at odds with Caesarism and Bonapartism, as the later phenomena refer to rule by someone of political and military strength, not rulers blessed with access to higher truths. In general Nietzsche is not arguing for a modified Platonism, but for a dissolve of Platonism, and the metaphysical assumptions which underly any belief in a guiding intellectual aristocracy with access to pure truths. This complete distance from Platonism is expressed most succinctly by Nietzsche in ‘How the Real World Became a Myth’ in Twilight of the Idols (GD Wie die “wahre Welt” endlich zur Fabel wurde), and passages of those kind should lead us to heavily qualify any assertion of a Platonist politics in Nietzsche. It is not so much that we should deny any leanings in that direction from Nietzsche, but that we must be very conscious of how it does not fit well with much of his thought, that he did not publish the text most often referred to in ‘Platonist’ readings of Nietzsche’s politics, ‘The Greek State’ (GSt), and that he did not even try to develop it into a more lengthy and full argument. 

One way of thinking about Nietzsche’s politics is how it influences the political thought of the most important of those thinkers who have been deeply concerned with Nietzsche. The class of those who have much to say about Nietzsche, and about political thought in ways that have much influence most notably include Foucault, Derrida and Deleuze. While it is not a straight forward matter to classify the political thought of these three, they are all in someway democratic and egalitarian in questions of political rights, and are far from Platonic aristocratic-elitism. They all take from Nietzsche a concern with difference, pluralism, conflict and change in the sphere of politics, so that in their thinking Nietzsche becomes the source of critique of fixed forms, rigid hierarchies, and submission to political sovereignty of any kind. Nietzsche is the source of the most persistent critique of authoritarianism in despotism in a mode of a joyful celebration of multiplying differences and dissolving identities. Foucault’s more politically significant texts include Discipline and Punish, which has many overtones of On the Genealogy of Morality, which as explained above is full of ‘liberal’ sounding horror at legalised cruelty, particularly in the second essay. 

[....] the notions of institutions of repression, rejection, exclusion, marginalization, are not adequate to describe, at the very centre of the carceral city, the formation of the insidious leniencies, unavowable petty cruelties, small acts of cunning, calculated methods, techniques, ‘sciences’ that permit the fabrication of the disciplinary individual. In this central and centralized humanity, the effect and instruments of complex power relations, bodies and forces subjected by multiple mechanisms of ‘incarceration’, objects for discourses that are themselves elements for this strategy, we must hear the distant roar of battle.

(Foucault, 308)

The Political aspect of the Law-Legislation Distinction

There is a law-legislation distinction in Friedrich Hayek and Carl Schmitt, in which there is an argument for the value of law in comparison to legislation. A distinction is made between law and legislation, with law to be accorded high value and legislation to be accorded a lower, and even negative value. We can call this the law over legislation claim.  The law over legislation claim with regard to law is that it states commonly accepted principles, and so is in essence a repetition, refinement and confirmation of already existing codes of rules and punishment for breaking of rules. The law over legislation claim with regard to legislation is that legislation is an essence an edict issued by whatever institution has political power. Since the rise of elected law making bodies, edicts have taken the form of laws passed by consent and can therefore be easily mistaken for law properly speaking. The term for this is legislation. This term is required because ‘laws’ passed by the majority vote of an elected assembly are increasing administrative rules, which award arbitrary power to the state to administer society. These do not describe existing codes of custom and conduct, but instead involve new rules expanding the scope of state action, and the unaccountability of action to law properly speaking. The majoritarian principle in the election to national assemblies, and then in the making of legislation by that assembly, is a deviation from the consensual basis of law, and a means for coercion of the minority, which is likely to undermine law, in the proper sense of that word. The law over legislation claim makes a distinction between: what comes from the will of the political sovereign and what comes from the shared values of a society.  A major issue here is where is that moment of law before legislation or edicts of power? Is not ‘law’ always embedded in political power? Power exercised by judges, and maybe juries, and which is relatively independent of the persons who have governmental power at that moment, but it is still a form of power. The law over legislation claim was directed against the danger of the degeneration of an apparent state of law into a state of the edicts of government, in which any edict is considered a law if it is passed by a national assembly, with some superficial adherence to principles of universality and recognisability. Some discussion of the problem can be found in those who are not adherents of the law over legislation thesis. Examples include Jürgen Habermas and Michel Foucault. For Habermas , the welfare state does tend to become an administrative state outside the real control of law and the national assembly (1986, 225; 232; 235, 241; 242; 250) though Habermas approves of egalitarian welfarism as a foundation for politics, and seeks ways of incorporating the regulation of welfare in law as a whole. For Foucault, Medieval juridification undermined the art of self government as known in antiquity (Hermeneutics of the Self, Wrong-Doing, Truth-Telling). Government of the self becomes tutelage of the Church, with regard to conscience, which itself becomes a source of ‘disciplinarity’ (Discipline and Punish), Foucault’s way of understanding the administered nature of modern life. Foucault is also far from the more conservative aspects of the law over legislation argument, though he is less associated with a a consensual welfarist egalitarian rationalist position than Habermas.

The law over legislation claim has an anti-political impulse within it, which is  that law is above politics. Legislation is held to be illegitimate, so that the law making function of any legislative assembly is restricted to law, which is apparently already in existence as what is accepted in common custom. There is not much on this account for assemblies to do, except perhaps concern themselves with refining existing law. Even that function is maybe understood as exercised  by judges who ‘discover’ law when they work out the best way to apply existing principles to new cases. This kind of account is based on a very ideal picture of law, before the legislating impulse took hold in the late nineteenth century, as the role of elected assemblies in deciding on laws, as well as holding government to account. Even on this ideal account, governmental bodies have always had a tendency to issue decrees, commands, which are based on the will of the political sovereign, rather than considerations of what law is and how it evolves in relation to cases.         Laws have to be ordered, systematise and harmonised and this is work done by sovereign bodies, therefore on the basis of political will.We can see historically that law may change dramatically as a result of invasion and forcible changes in the identity of the sovereign, what Hobbes calls ‘commonwealth by acquisition’. Law in pre-modern times had an aura of divine origins, of cosmic order and beginnings in customs assumed to have existed for time immemorial. However, there are political aspects to this. Godly origins are an ideal way of presenting the monarchy and aristocracy which conceive of themselves as godlike. Back in the 18th century Vico discussed this in the New Science, where unwritten law is associated with the Heroic Age, which is Vico’s way of referring to the aristocratic domination found in societies like the Bronze Age Mycenaean Greeks depicted by Homer. Fundamental issues of debt and property rights were the source of constant political conflict in antiquity. It is an issue long discussed with reference to the late Roman Republic and which was part of the making and execution of law in that time. This might lead us to question how far we can distinguish the making of statute laws from the exercise of political will. It is a statement of the obvious that law as something that can be enforced by the state, is made by the state and that this is a political process. Since laws constrain the state and often survive changes in the identity of those with power, there is a whole sphere of constitutional law which defines the political system, and at least to some degree law refers to widely held beliefs about what actions are so wrong they should be punished, it is inevitable that law is seen as something distinct from the commands of those in power at any one time. We should not see this as making law distinct from, and outside the political process. It is a constraint on uses of power, but also a product of power.                                The advocates of the law over legislation claim do not necessarily oppose any individual suggestion politics entering law, but their  approach is to prefer an idealised law outside the contamination of politics, and to think of law as an extension of natural, or at least deeply embedded, self organising processes which do not rest on conscious design. The idealisation aspect and the self-organising process aspects are not completely compatible. The idealisation of law assumes a monolithic unchanging nature which does not not adapt to the changeable nature of self-organising processes. Self-organising economic and social processes require frameworks of rules, which do provide some stability and predictability, but also require  changes in the nature of those frameworks as the process goes though major changes of self-organisations. Attitudes to property which put inheritable land holdings at the centre may need substantial adaptation to a world of rising and declining industrial enterprises. Changes in law has serious consequences for the beneficiaries of old laws, and creates new beneficiaries. There are inevitable struggles between these groups, who are necessarily drawn towards political ideas which happen to suit their interests. This is politics embedded deeply in law.  The law-legislation distinction is very valuable as a diagnostic tool in certain circumstances, but taken beyond that impedes an understanding of the relation between politics and law, including that way different legal forms interact with political forms.

Montaigne, Hayek and Schmitt on Law

The last post suggested looking at the distinction in Friedrich Hayek and Carl Schmitt between Law and Legislation, and the accompanying claim that Law should be placed above Legislation; and suggested that the claims could be usefully looked at in the context of that legal and political theory which emphasises political contestation. The Law over Legislation claim in Hayek and Schmitt involves some anti-political elements, which undermine their best thought about politics, and that can best be corrected by using that legal theory current, Critical Legal Studies, which seems most remote from their way of thinking. To put it rather crudely, the right wing of Critical Legal Studies overlaps with the left wing of Hayek-Schmitt interpretation. The ‘right wing’ of CLS includes most obviously Max Weber and Hannah Arendt. As I pointed out in the last post, this fits with a reading of Foucault which has appeared in various posts over time, though Foucault is of course a major figure of reference for the ‘left wing’ of CLS. I will add to Foucault, another figure generally placed in  avery left leaning context, Jacques Derrida. Derrida’s contribution to legal theory is most associated with his long paper ‘Force of Law: “The Mystical Foundation of Authority”‘. The idea of the mystical foundation goes back to Blaise Pascal and then to Michel Montaigne. Pascal’s Pensées has close relationship with Montaigne’s Essays, often paraphrasing and transforming passages. Derrida notes such an occasion when Pascal discusses the lack of foundation for law. Pascal refers to the arbitrariness of law, so that it is different on one side of the river from another, where the river coincides with a national frontier. State law has no foundations except in the force that the state can use to enforce law. That arbitrariness itself leads us to perceive the role of the mystical, that is of divine authority. The only real law is the law that comes from God, since that is the only law that can be absolute and free from the arbitrariness of state law. This line of thought is not put forward by Pascal as legal theory, or jurisprudence in the normal sense. Pascal does not mean to deny the authority of human laws, or the need for judges to follow the rules of the legal institution to which they belong. The argument is more designed to lead us to thoughts of the greatness God in comparison to fallen humanity, which has lost something Godlike in itself. Nevertheless Pascal’s thoughts do relate to political and legal thought, corresponding with the weakening of a belief in the unity of human, divine and natural sources of law. Pascal’s discussion draws on Montaigne’s essay on ‘Experience’ which reflects on Montaigne’s time as a judge in Bordeaux. The law cannot be just in his account, as there is always conflict between general judicial principles and the context of any individual case. Montaigne notes the need for consistency in judgement, and the following of previous judgements. Concerns with the stability of the institution of law, and the unity of legal principles place barriers ,n the way of fully accommodating the particular facts of particular cases. The consequence is that the judge has to knowingly make unjust judgements. These tend to particularly affect the poor and lowly who are always treated badly by institutions. As with other sceptical moments in his considerations of the mores, ethics and law of the society in which he lives, Montaigne is more inclined to melancholic resignation than radical change. His own writing might be regarded as an attempt to spread greater sympathy for the unfortunate, and awareness of the harsh consequences for individuals of the operation of power; and it had some success from that point of view, forming a major part of the growing cultural emphasis on human sentiments directed at all individuals since then. We should also consider the possibility of a more radical political reading of Montaigne. His Essays discuss his friend Etienne de La Boétie, who died young, and is most famous as the essay on voluntary servitude, that is on the willingness of the many to serve one man who has power. La Boétie advocates rebellion in contrast with the apparently conservative and moderate Montaigne. Montaigne says that he considered including La Boétie’s essay in his own Essays, but did not do so because it might be misunderstood as a challenge to royal state authority of the time. This does at least raise the possibility that Montaigne is repressing his own more  radical thoughts out of fear of royal censorship, rather than expressing a deep going moderation and respect for authority at that time. These reflections on the contradictory  and unjust  nature of law in Montaigne, suggest a starting point for Derrida and Foucault’s thoughts on similar lines, and suggests that such a way of thinking cannot be limited to left wing anti-capitalist thought. Both Foucault and Derrida have brief, but significant moments of identification with Montaigne: for Derrida that is in relation to the interpretation of interpretation which Montaigne sees as an endless necessity in the discussion of legal and sacred texts; for Foucault that is in relation to awareness of the possibilities of the stylisation of life, and the nature of the self as self-relating. So we can apply to Hayek and Schmitt, those two great believes in the unity, authority and continuity of Law, the scepticism of the Renaissance humanist with regard to those claims about law, and contextualise CLS in that way.

Bringing Politics into Hayek and Schmitt’s Sublime Conception of Law

The last post finished with some sketches of positions in legal theory. The Hayek-Schmitt position in which Law is above Legislation (Laws emerging from social consensus about basic rules of justice is above the changeable often administrative concerns of a sovereign political body in its legislative acts) seems closest to a traditionalist natural law theory, usually traced back to Thomas Aquinas, and most associated amongst current writers on law with John Finnis. Hayek himself notes that his view of law might be taken for natural law theory, but complains that tradition is too rigid. There are two notable things about Hayek’s comments: 1. he does not completely distinguish himself from natural law tradition; 2. he emphasises the need for openness in legal institutions. So perhaps Hayek’s position is one of natural law modified to tae account of the evolution and Law, and by evolution of generally accepted principles of justice.

This can sound like Ronald Dworkin or even Jürgen Habermas. Dworkin (who died very recently) was a left liberal committed to centrally designed schemes of income redistribution, in the context of a large public sector and a highly regulated economy, so not in line with Hayek’s thinking. Habermas might seem even worse from a Hayekian point of view since he emerged from the Marxist Frankfurt School, but in reality his thought fits more with an egalitarian liberal way of thinking than with Marxism of any kind, except for ‘revisionist’ forms which in effect turn Marxist gaols into ideals pursued through political liberalism rather than class struggle, and which are general ethical goals rather than concrete proposals for social reinvention. Both Dworkin and Habermas think of law as formulated, revised and interpreted through an evolving political consensus, which they expect to have an increasingly egalitarian impetus.

The consensual-rationalist way this is framed leaves their theories ill equipped, or so I contend, to deal with individual and social action which does not fit in with their hopes for an egalitarian society based on rational reflection about how to increase individual autonomy through increasing equality. What they have  difficulty in dealing with individualistic action and resistance to state promotion of equality in a society integrated under state guidance. Anti-tax, deregulatory, state shrinking movements look like irrational populism to those of a Dworkin-Habermas frame of mind. The wish to preserve one’s property from increasing state demands to treat private  property as a bit of a public sum of welfare, which the state can dispose of if it so wishes, seems irrationally selfish within that framework, as does the wish of business to reduce regulatory burdens, or  any individual inclination to resist state led attempts to mould individual choices.

The Hayekian approach to social knowledge, on the model of economic action, as dispersed between all actors  and as something that never be aggregated as a guide to state action, does far better as a way of thinking about the ways that political attitudes may emerge from the constant reinvention of the economy and society. It suggests that irrationality comes more from state attempts to define maximum welfare for everyone than from individual resistance to such state activity. It is not that Habermas, Dworkin and the like are completely unaware of such issues, or the need to accommodate them, but that their way of thinking just does not allow for much weight for such considerations, which are always likely to be regard as secondary phenomena.

I outlined major legal theories in the last post. Though I mentioned Critical Legal Studies as the most left leaning stream, and as even disdained by those of other political leaning, at its best and least politically gestural, CLS provides a better fit for Hayek’s understanding of markets as decentralised, self-innovating and challenging to all attempts at top down control. It provides a better fit than Hayek’s own inclination to Law as an institution looming over the economy as the highest representative of mores and shared principles of justice. This elevation of Law to sublime and monumental status can be too easily taken up in the Carl Schmitt tendency to ultra-conservative sacramentalisation of the Order of orders in society, embedded in nationalist and traditional religious ways of thinking.

The CLS approach, like connected work in political and social theory, does draw on thinkers like Max Weber and Hannah Arendt who certainly do not belong on the Marxist or post-Marxist left. Michel Foucault is a frequent reference. I’ve discussed Foucault’s thought, including its political implications, in a large number of previous posts, so I will not go over that again. I will just note that Foucault is often brought together with Weber and Arendt as a theorist of political and social community in the modern world. Framing those three with regard to Hayek and market liberal thought could bring considerable benefits, and would frequently just very obviously be closer to their world view.

As far as CLS takes a position on the standard distinctions in legal theory it leans towards positivism-realism rather than natural law in its more evolutionary or more conservative forms. CLS does this because concern with politics leads it to consider law as expression of power. At its best CLS brings an appreciation of political conflict to positivism-realism correcting a tendency to a reductive view of the role of political power. From this point of view, CLS may bridge the gap between positivism-realism and the more evolutionary forms of natural law, with regard to a concrete detailed investigation of politics, and of political conflict.