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.