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.
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.