Kierkegaard on Politics, posting extracts from my new book V

Kierkegaard on Politics (Palgrave 2014, ISBN 97811337372314) Extract from Chapter 4 ‘Kierkegaard and the Danish Political Community’. I’ve selected a passage from the end of the first section ‘Kierkegaard and the Danish Political Community’. These paragraphs join the historical political context in Denmark with an outline of republican and liberal views regarding political institutions, contract, evolution, and liberty. The suggestion is that Kierkegaard brings together a kind of skeptical conservatism towards change with the same attitude towards original contracts, combining some slightly utopian tendencies about the possibilities of politics with awareness of the constant need to adjust imperfect political institutions.  I haven’t included full bibliographical information on the texts mentioned, but it’s very easy to get that online from the information provided.

 

There were reformist and reactionary periods in the progress towards democracy, and its institutionalisation, in Kierkegaard’s lifetime and later. Frederik VI who started off as a reformer was later seen as a reactionary, his successor Christian VIII recognised the principle of constitutional monarchy, but procrastinated through the whole of his reign in the application of that principle. Nevertheless, the time of Frederik VI and Christian VIII saw the abolition of serfdom, a land reform program which led to Denmark becoming the European country with the broadest distribution of land ownership, erosion of economic monopolies, regional representative assemblies, and other measures to establish equal rights of citizens.

We can see the successful development of liberal democracy and a culture of civic values, which Kierkegaard did not eulogise, but when he did refer to it, he did so in terms of a cautious welcome, as we see in ‘Armed Neutrality’ [Den væbnede Neutralitat, 1849]:

[M]y view is that the essentially Christian, unchanged, at times may need by way of new modifications to secure itself against the new, the new nonsense that is now in vogue. Let me clarify this relation by reference to another circumstance. In the far, far distant past, in times more simple than these, it was of course also the custom to draw up legal documents, contracts, etc. But if we take such a contract from olden times and compare it with a contract of the same kind from 1848, we certainly find the latter considerably modified. We must not, however, be in a hurry to say that this one is therefore better than the former, ironically it might turn out that it is still a question whether it would not have been better that all these modifications have become necessary. But since those simple times there have been so many rogues and swindlers that modifications have become necessary.

(Kierkegaard 1998b, 131-132/X B107 291)

This is the most minimal and indirect possible endorsement of a liberal constitution.  Kierkegaard does not even refer to the 1849 constitution in this text finished on the nineteenth of May 1849 (Kierkegaard 1998b, xxv), just before the constitution was signed by the King on the fifth of June.  Frederick VII conceded that the monarchy would become limited by a constitution in February 1848, and the  1849 constitution was the results of the deliberations of a constitutional assembly appointed afterwards. Maybe it is mere coincidence that Kierkegaard wrote about contracts days before the Constitution came into force, but it is a particularly propitious coincidence if so. The idea that the state and its laws is based on contract goes back to Hobbes, who was referring to a covenant to establish the sovereign, itself following up on Grotius, and we can keep going back in the history of philosophy and political thought to find precedents. We can take from this passage in Kierkegaard, the idea that political contracts have to be revised to adapt to the imperfect nature of humans. The first contract may have been the best one, but it had to be surpassed to adapt to deceptive and dishonest behaviour. Change is inevitable and law, therefore presumably constitutions, both become better and worse over time. Better because more resistant to dishonest, but worse because lacking in the original simplicity.  Extrapolating further, early constitutions may give power to kings, but their simplicity must later give way to the complexity of a contract, or constitution, designed by representative institutions. Kierkegaard’s liking for original simplicity connects him with both the monarchism of Humboldt and the republicanism of Montesquieu and Rousseau.  As we have already seen, in The Limits of State Action (1993, 39-40), Humboldt states a preference for the simplicity of royal government, the choice of early free people which avoids the multitude of demands for state action which follow from other governmental regimes, as the monarchy clearly only serves in the functions of army commander and chief judge. For  Montesquieu, simple democratic republics in which there is little inequality, and laws are indistinguishable from customs, have an elevated role, though that is certainly not the end of his discussion of liberty (The Spirit of the Laws, Part 1). For Rousseau, the ideal republic will be simple, poor and equal, and laws will be accepted as part of customs (Social Contract, II.12). Rousseau accepts that modern states are mostly larger in territory, and more complex in function. Hume had argued that the original contract completely disappears in history, so we are constrained by general respect for laws and political institutions and the recognition that they are generally beneficial (‘Of the Original Contract’ in Hume 1987). Applying Kierkegaard’s argument in context, we can say that political systems which have more laws and more representation are worse than pure kingship, but necessary as more functional in the face of human limitations

Kierkegaard on Politics, posting extracts from my new book IV

Kierkegaard on Politics (Palgrave 2014, ISBN 97811337372314) Extract from Chapter 3 ‘Previous Perspectives on Kierkegaard and Politics’ There are some difficulties in selecting a passage from a chapter concerned with a large number of commentators on Kierkegaard, which does not lend itself to extracts which read well on their own.  The passage below stands up reasonably as self-contained writing not too dominated by an argument with the commentators concerned. I haven’t included full bibliographical information on the texts mentioned, but it’s very easy to get that online from the information provided.  Themes covered include pre-political and anti-political attitudes, Antique republicanism, Hegel, liberalism and conservatism.

A big issue in thinking about Kierkegaard on politics is his attitude to democratic tendencies of his own time, particularly with regard to the 1848 constitutional revolution in Denmark. Too many commentators on Kierkegaard mistake scepticism and reserve about democracy for rejection, as in Jon Stewart’s preface to Kierkegaard’s Influence on Social-Political Thought (Stewart 2011). It is true that the default assumption about Kierkegaard’s political attitudes has been that he was both apolitical and conservative, and this is broadly correct, going back to his student days (Kierkegaard 1990, 34). There are reasons to qualify that claim though. The harshness of Kierkegaard’s conservatism has been exaggerated, and the liberal side understated. That is we should see Kierkegaard more as a liberal or at least a constitutional conservative, and less as a reactionary ultra-conservative monarchist absolutist. The apolitical side should not be confused with the claim that Kierkegaard’s writings have nothing important to say about politics. The apolitical way of reading Kierkegaard is most obviously linked with a conservative reading, but has also been linked with a moralistic anti-political leftism, which shows how difficult it is to stop talking about politics in Kierkegaard. What is being argued for here is a contextualisation of apolitical and conservative Kierkegaard, looking at how there are political implications in his work, how they are on the liberal side of  conservatism, or even radical liberal, and arguing that he makes significant contributions to political thought in those directions.

There are some political interpretations which capture some aspect of Kierkegaard’s thought, even if they go to far in attributing reactionary conservatism of Kierkegaard, and which do contain evidence for political richness of his work. A good example of the very conservative, even reactionary, reading of Kierkegaard can be found in Robert Perkins’ ‘Kierkegaard’s Critique of the Bourgeois State’ (1984). Some similar points are made in Bruce Kirmmse’s ‘Kierkegaard and MacIntyre’ (in Davenport and Rudd, 2001). Perkins quotes from Two Ages [En Literair Anmeldelse, 1846], and elsewhere to establish, correctly to some degree, Kierkegaard’s criticism of bourgeois liberalism. What Perkins focuses on is a lack of absolute foundations to bourgeois politics, though that that is also a positive claim from the point of view of the liberal, who is trying to define the political rules of a society where there are different values.

This fits with a correct appreciation of the tension between the pluralist goal of liberalism and the need to have a starting point, which is supplied by utilitarianism, deliberative reflection on norms, natural law, or something which is presented as pre-political, as far as that is possible. However, recognising that is not the same as the rejection of liberalism, since we could consider such efforts of liberal thinkers as the best that come be done in a world of plural values. Certainly attempts at radical alternatives from the authoritarian right, Marxist left, and allied phenomena have tended to be folded back into liberalism, in a general tendency for political thought in all traditions to be pulled towards liberalism. Going back to Perkins’ argument, he does not explain what Kierkegaard’s alternative to liberalism is, nor does he he provide any evidence of a longing  on the part of Kierkegaard for a lost paradise of monarchical absolutism. Perkins thinks of Kierkegaard as thinking in a Hegelian way about the inevitability of the unfolding of new political forms over history, which surely does not lead inevitably to a reactionary form of conservatism, as Perkins recognises. Hegel’s views were certainly not reactionary conservative by the standards of the Prussia of his time. Perkins interprets Hegel as mourning the loss of Periclean Athens, which has some truth to it, but then every moment in Hegel’s arguments about history and politics is a loss of some unity, never to be regained. Clearly Hegel thinks Periclean Athens lacks advantages which result from Roman law, Christianity, Protestant Christianity, civil society and other outcomes of the movement of history since the time of Pericles.  As Perkins notes, Kierkegaard was displeased by the fate of Socrates under Athenian democracy, but then so are all modern liberals.  Anyway, like Hegel, Kierkegaard sees that modern liberalism has some origins in Christianity, and his own views of subjectivity and individuality cannot be understood without the model of liberalism, however much Kierkegaard may sometimes write as if he is just returning to the Bible. In addition, the fact is he does not always write like that.  Perkins tries to draw too sharp a distinction between: a Hegelian position, which he defines in terms which are both progressivistic and nostalgic; and a Kierkegaardian position, which he defines as a religious scepticism about political community. While it is right to say that Kierkegaard had more an individualistic-religious scepticism about political communities than Hegel, there is much common ground in accepting that the progress of liberty is apparent in history, as well as seeing antique polities as allowing a kind of connectedness between individual and political community lost in the modern world.

 

Kierkegaard on Politics, posting extracts from my new book III

Kierkegaard on Politics (Palgrave 2014, ISBN 97811337372314) Extract from Chapter 2 ‘Tarquinius and Brutus: Political Fear and Trembling’. This is the very end of the chapter, the concluding section ‘The political meaning of fear and trembling’ together with a few preceding paragraphs. It tends to be easy when extracting to take the end of chapters, but I am not doing that in an automatic way I went through the chapter to see what might work best as an isolated excerpt and will do so for subsequent chapters.

Kierkegaard is certainly concerned with death and the attempt to overcome death, which from his Christian point of view is part of the struggle with sin, because it is the original sin which led humans to face death. Obedience to God also means that we have to contemplate the possibility of taking the lives of others, if God so commands. As the sermon which finishes Either/Or, the ‘Utimatum’ suggests, we cannot question God’s acts in bringing mass death in some passages of the Bible.  That is the central problem of Fear and Trembling, applied to a father commanded to kill his own son.  The problem for ethics, including politics, is that it cannot deal with these issues, without going beyond the terms of ethics strictly speaking. There is no ethical term which can explain why we should obey God, which in part means obeying our own subjectivity in its absolute relation with the absolute; and there is no ethical term which explains why we should follow ethical laws, leaving us to refer to our power of choice, which means our subjectivity, and that is real subjectivity in its absolute relation with the absolute. War has the same function within ethics as politics, inescapable but disruptive as part of politics. Killing people in war is necessary to defend the political community, or at least the willingness to carry out such acts, but can never be justified by justificatory political concepts alone. Principled pacifism is one reaction to that, it is a reaction which necessarily reduces the scope of politics, of the decisions the political community makes, and fits best with anti-political moral absolutism.

What unifies all these discussions of law, sovereignty, the state and war, is an interest in the moments where consensus and consent breaks down, or has not even appeared yet. Laws conflict, individuals confront each other outside the context of established laws and institutions, individuals refuse to accept the authority of established laws and institutions, revolutionary governments try to implement ideals, law following people observe revolutions in other countries that try to implement their own values, states take it upon themselves to go to war and therefore oblige citizens to sacrifice themselves in war. These are all moments where the idea that the state, political institutions, and laws are based on rationality, consent and on social consensus come under strain. Kant, Fichte, Humboldt, and Hegel are all concerned to give the state, political institutions and laws normative foundations.  Unlike what goes on in ‘normative theory’, i.e. Analytic political philosophy now, they feel obliged to deal with the difficult moments, with the moments where individuals are faced with the naked capacity for arbitrary violence at the heart of the state, or the arbitrary violence of individuals who have different norms. There is a recognition in Kant, Fichte, Humboldt  and Hegel, shared by Kierkegaard, that the norms at the basis of the political community are never completely consensual, are never completely consented to by those are under that state.  That is why Kierkegaard can make such a powerful analogy between the arbitrary violence of a king, and the arbitrary violence of God, or the individual who takes individuality, and the subjectivity of the distinct individual seriously.  There is no law, or norms, of any kind without the moment of choice, that is arbitrariness; and without the capacity to defend and enforce those choices, that is the necessary possibility of violence.

Returning to the quotation at the head of the chapter, Kierkegaard accepts the supremacy of existing political order, though it is significant that he feels the need to distinguish himself from those most radically in opposition to the government.  Presumably Kierkegaard found that his devotion to the single individual over conformity to existing ethical standards made him of interest to radical opponents of government. He did have that kind of effect in Denmark and his funeral is a good example. Kierkegaard who claims devotion to established political order refused the services of an established church priest, during his death struggle. The funeral service was attended by those who wished to make an oppositional gesture, including his nephew, who made a speech protesting at the involvement of the established church.  Kierkegaard rejected the transformation of his thought into political opposition, but was himself well known for criticism of the established church, including two succeeding primates of the Danish national church (Mynster and Martensen). The criticism of the crowd is one way in which Kierkegaard separates himself from organised radical politics. That raises the question of how far we can take Kierkegaard as apolitical conservative and how far as the radical creator of a form of individualism and anti-conformism which must be corrosive in relation to any religious and political order. Kierkegaard accepts order but has an unsettling sense of the violence which inhere in the preservation of order. That is something he is conscious of in monarchical authority (Tarquin) and the republican order (Brutus), even if it did originate in revolt against an older order.  The hope he expresses in Point of View for an establishment devoted to promoting good can have a very radical outcome.  Any government is open to criticism on the grounds that public good is sacrificed to the private benefits of people in government, individuals close to the government, and parts of society from which the government seeks support.  Kierkegaard wishes to be associated with political conformism, but his view of the single individual, his understanding of the dark side of power, and his questioning of authority all point towards a politics of radical individualistic non-conformism.

 

Kierkegaard on Politics, posting extracts from my new book II.

(second half of the Introduction)

The idea of God as model of political government is just one part of how Christian themes in Kierkegaard have a political aspect. The other major part is the status of the single individual, just one word in Danish, Enkelte, and a word that Kierkegaard often uses, as essentially in relation to God, but with less directly religious aspects of the single individual also coming into his writing. Further references to Ekelte will be in English as ‘the Single Individual’ or in Danish with the definite article ‘den Enkelte’. The Single Individual is defined by a relationship with God, but the connections with political understandings of individuality are unavoidable (Kierkegaard 1998a, 76), and further connect with Kierkegaard’s more direct  social and political comments.

Questions of how we can have a relation with God, know of God, have faith and communicate with the absolute being, are central to Kierkegaard, and connect with questions of the existence of societies as unified political entities under some supreme agency of sovereignty. We come to two political theory issues now. First the issue of what the individual is who has political interests and rights, and why the individuality of that single individual is important in politics. Second the issue of the relation between the single individual and the state, or the political world as a whole. The individual is a particular compared with the universal nature of the political sphere and of civil laws; the individual is a particular compares with the absolute nature of sovereignty, wherever it is we locate sovereignty, the people, the ruler, the state and so on.  The issues of the relation of subjective particularity to ethical universality and to the absolute sovereignty of God are at the heart of Kierkegaard’s writing.  The nature of that subjectivity, that moral agency, raises issues about political liberty; the history of subjectivity’s understanding of itself in relation to its social world in Pagan and Christian worlds is intertwined with the history of political liberty, of the changes the concept of that liberty in ancient and modern times.

Kierkegaard’s own references to the political events, and conflicts, of his time are brief, but no less significant for their brevity. He lived through the one really successful transition to constitutionalism and representative government, amongst the many European revolutions of 1848. Kierkegaard was sensitive to this drama, and the underlying tension it exposed in modern politics: the tension between revolutionary idealism and mundane pragmatism, a tension which parallels his view of Christian life. He was critical of democracy as a political movement and as a social tendency towards equality, but much of his criticism is similar to that of those recognised as thinkers about liberal democracy, who wished to protect it against its own negative tendencies.  Our understanding of thinkers like Tocqueville and Mill will be enriched by comparison with Kierkegaard, as will our understanding of Kierkegaard.

The reading of Kierkegaard that follows is one that rejects any idea that philosophical texts can, or should be, identified as only pertaining to some one very well defined and delimited branch of philosophy.  Kierkegaard is a particularly strong example of a philosopher, whose work does not even try to divide itself between discrete branches and sub-branches of philosophy, in different texts, and which does not engage in well ordered steps of pure deduction, within texts. Kierkegaard certainly makes arguments that are well ordered and deserve reconstruction and reflection, but he is not purely engaging with one step at any moment. His works demand to be read in a dialectical or interactive way, with regard of interaction of ideas, interaction of texts, interaction between the parts and the whole of his thought.  Furthermore his thought cannot be defined as just philosophy, as it also compasses theology, literary writing, religious sermons, and journalism.  These are not all equally present at all times, but Kierkegaard’s work as a whole is conditioned by their interaction. That interaction provides a rich context for Kierkegaard’s relatively limited explicit comments on politics.

The approach taken to Kierkegaard here is the extension of a very broad movement over some decades to look at political theory, not just as about a series of isolated classics studied in connection with each other, but in a larger context including minor classics and forgotten works of theory, everyday political culture and texts, linguistic and rhetorical analysis, religious background, and so on. This development has various sources, but Cambridge School of political thought is the most recognisable label for this current. Certainly reading ‘Cambridge School’ writers like Quentin Skinner and J.G.A. Pocock has had some influence on the approach of this book. Skinner, himself, refers to the influence of Michel Foucault on his work (1998,112), and that influence is very present for the current book, as is indicated in some of the scholarly apparatus. The more direct influence is not so much the very total approach Foucault takes to discourse in the book referenced by Skinner, Archaeology of Knowledge (1989), or in Discipline and Punish (1977), and more the texts referenced during the book which develop overarching historical understanding of the development of ethical, legal and political concepts. Writing on Kierkegaard as a political theorist builds on the Cambridge School and Foucauldian approaches by looking at how an apparently non-political thinker is sometimes directly concerned with political themes, and is very often indirectly concerned, something that become clearer by looking at Kierkegaard’s work as a whole, and its context in Danish history.

This Introduction is not the only introduction the book has. Inevitably Chapter One has some introductory characteristics in setting up the ways of looking at Kierkegaard and the frames that can be used. Even Chapter Two has introductory characteristics, because a large part of it is literature review. Rather than follow one classic scholarly pattern in which the literature review precedes exposition of an argument, the present book reviews literature where this is useful in the exposition of the general argument. The literature review is most concentrated in Chapter Two, where it helps to further build up the approach to Kierkegaard presented in Chapter One, but is also dispersed across the book according to where discussions of literature are most necessary.

Kierkegaard on Politics, my author copies have arrived, posting extracts. I

The author copies of my new short monograph Kierkegaard on Politics (Palgrave 2014, ISBN 97811337372314) arrived in my department at Istanbul Technical University yesterday. It went into print in November last year, but the author copies were held up in customs at Istanbul’s Atatürk airport. In order to commemorate the happy event in which an author gets to hold the physical product of his work for the first time, I’m posting a few extracts over the next few days. Firstly today the Introduction (part I), which can also be read through Amazon’s ‘look inside’ feature. After that the Introduction part II, followed by one extract from each chapter, day by day. After that I will finish with a post on where I might go with the ideas developed in the book  in later work. 

So read on for the approximate first half of the Introduction 

This book addresses political thought in a writer who was not attempting to make a contribution to political thought. Such a seemingly perverse enterprise is justified, and necessary, because political thought does not only exist in texts explicitly devoted to expounding a position in political theory. For example, understanding of political thought is clearly enhanced by knowledge of Homer, Greek tragedy, Shakespearean tragedy and the masterpieces of the ‘realist’ nineteenth century novel. This arbitrary list, which is by no means a complete selection, refers us to literary works which give an archaic view of kingship, a classical antique view of law and monarchy, a Renaissance view of government and  tyranny, and some more recent explorations of individual freedom and democracy. We can imagine someone engaging in political theory without knowledge of literature, but that theorist would have lost a lot in terms of understanding the different possibilities of thinking about politics. 

Equally the more epistemological and metaphysical parts of philosophy may use, or even depend on political ideas. Descartes partly explains the benefits of his attempt to reconstruct philosophy from first principles, in Discourse on Method 2 as like the creation of the best possible state through the laws of a single wise legislator, so that laws have a unified end(Descartes 1968, 36). In ‘Discourse on Metaphysics’ 36, Leibniz compares the metaphysical relation of God to the world with that of a Prince to his people in a law governed state (Leibniz 1998, 88-89). John Stuart Mill thought that knowledge benefits from the liberty of speech in general, in On Liberty 2 ‘Of the liberty of thought and discussion,’ and liberty is partly justified by that benefit (Mill 1991 52). Kant sets up his Critique of Pure Reason, in the Preface to the first edition, with reference to the model of government through law, as opposed to despotism or anarchy (Kant 1997, 99-100/Prussian Academy Edition A IX).  

One indirect, but significant, justification for thinking about Kierkegaard as a political thinker is then that he was a literary writer and narrative literature at least contains a good deal of material of political and social interest, by virtue of representing action over time in a properly formed social world. That argument is only going to have limited force if there is some more direct political content to Kierkegaard’s writing, whether taking him both as a literary and philosophical figure, and there is in two senses. One sense is that on occasion political issues are at the centre of his writing; the other sense is that  much of what Kierkegaard writes has  distinctly political implications. We can look at Kierkegaard as a political thinker in his literary and philosophical aspect; and taking into account  both explicit and implicit meanings. That is the program for the present book. 

It is not only that the literary nature of Kierkegaard’s writing suggests that we look for political thought there in the way we do for literary fiction, but also his philosophical discussions of literature which suggests that we look for implicit views about politics. Either/Or [Enten-Eller], Repetition [Gjentagelsen] and Stages on Life’s Way [Stadier paa Livets Vei] provide good examples of the former aspect; Either/Or also provides good examples of the second aspect as does The Concept of Irony [Om Begrebet Ironi]. The major example of Kierkegaard as political thinker through discussion of literature take place in his discussion of tragedy, a literary genre very directly engaged with political issues of law, kingship, justice, power, and tyranny; and his discussion of Romantic Irony, which touches on the politics of Romanticism. There is another way in which politics enters into Kierkegaard’s thought, in relation to the religious aspect of his writing. That is the role of God in Kierkegaard, which is clearly a major theme for this deeply Christian thinker, though it is not the constant object of direct attention. The idea of God and the idea of government have always been intertwined. The Leibniz reference above is an illustration of a connection that has always been made. The idea of just rule of the other world, or of the universe of the whole is never going to be completely separable from the idea of the just rule of a state in this world. Divine and secular governance can never be completely distinguished, and the idea of divine governance is a frequent point of reference for Kierkegaard, though most obviously from how it I distinct from political power rather than the long tradition of seeing a model. 

Teaching Montesquieu. A classic in danger of genteel decline

(cross posted at New APPS, a group blog I strongly recommend in ‘Art, Politics, Philosophy, Science’)

This has been a semester of not just one but two courses based on a a big classic. As I explained recently, I gave a course on the whole of Montaigne’s Essays. I also gave a course on the whole of The Spirit of the Laws, by Charles de Secondat, better known as Montesquieu. I won’t go so far as to suggest that Montesquieu should be given a central role in introduction level courses. Rousseau is just too obvious an alternative for dealing with Enlightenment political theory, and himself follows on from Machiavelli or Hobbes as the standard opening figures for introductions to modern political theory. 

I will only go so far as to say that Montesquieu deserves to feature more frequently, though preferably with some attempt, which does creates difficulty, at incorporating passages   that represent the different aspects of The Spirit of the Laws properly. A course devoted to Montesquieu is a great way of getting deeply into questions such as: the relation between history and theory, the relation between political concepts in antiquity and modernity, and not forgetting the Medieval concepts;  development of law as key to concepts of sovereignty, and therefore the basic concepts of political philosophy, as well as key to political economy; the multiplicity of different political forms and examples; the role of physical geography in history, political economy, and political life; the importance of gender relations and desire as key to social and political forms; comparisons between European political systems and those of the rest of the world; the role of colonialism in the politics of the European metropolis; the importance both of classical models and of states on the periphery of the Greek and Roman worlds; the place of war, invasion, force, and ethnic domination in the formation of modern European states.

On the more negative side, Montesquieu’s understanding of gender relations does include an excess of fascination with the harem in ‘despotic’ countries and the social role of female flirtation in ‘monarchies’, his understanding of the ‘south’ is bursting with negative stereotypes, and he certainly misunderstands the Ottoman polity as a pure naked personal despotism, with no restraints on the power of the Sultan apart from religion. Nevertheless, Montesquieu is no worse than we would expect from his time in these kinds of leanings, and even where he looks obnoxious now he is often advanced in at least raising issues that expand the range of historical and political thought, pushing towards what we now understand as the social sciences.

Montesquieu’s work seems in danger of relegation to antiquarian curio in comparison with some other eighteenth century classics, particularly when we can see a rise in interest for some other figures from that time, most notably Adam Smith. However, The Spirit of the Laws is clearly a very  large part of the pre-history of German Idealist philosophy of history, Marxist ‘historical materialism’, nineteenth century liberalism, and early sociological theory. His approach to history anticipates a long period of French work in social and geographical approaches to that discipline, culminating in Fernand Braudel and the Annales School. Even with regard to recent work in social science and political theory we can see foreshadowings in Montesquieu. James Scott’s discussion of hill peoples in southern Asia escaping state power can be taken back to the links Montesquieu makes between mountain communities and liberty. John Rawls’ arguments for the veil of ignorance in the original position is anticipated by Montesquieu when he argues against French aristocrats who advocate slavery that they should imagine a lottery in which they might end up as slaves. His thoughts about antiquity, free speech and political liberty, feudalism, the modern state and law, certainly anticipate Foucault, and to some degree influenced him. As with Montaigne, Foucault simply prefers to avoid getting lost in commentary on a Great Thinker and keeps the encounter indirect.

The difficulties and apparent incoherencies of The Spirt of the Laws come in general from Montesquieu’s attempts to incorporate all theoretical and historical elements in a unified system, with very creative results. Montesquieu’s notorious difficulty in applying antique concepts to the modern world is productive in its consequences, and I do not think he does such a bad job of comprehending the France and Britain of his time. It helps to study the later sections of The Spirit of the Laws and see how Montesquieu examines what comes from the republics of the ancient German tribes both conflicting and converging with post-Roman societies to create the new form of feudalism, and then examines that Germanic-Roman convergence transformed again through the revival of Roman law. Taking that fully into account, it seems to me that Montesquieu looks less like a classicist blundering about in the modern world. Equally he should not be taken as a Romantic-Gothic nostalgic advocate for ‘Germanic’ liberty and feudal customs, which is the danger of giving those later sections too much weight in relation to his antique republican inclinations, and his analyses of his own world.

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.