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.