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.

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