Foucault’s Lectures on the Punitive Society X

Lecture of March 7th 1973

Foucault continues a discussion from the last lecture of the lawyer Guy-Jean-Baptiste Target, he refers to there in connection with the dehumanised account of peasant rebels against the regime of the French Revolution. Foucault goes on to say that Target defines a difference between classes in moral terms, so that one is characterised by virtues and the other by vices. The morally bad class is like a stranger within the social body. Foucault suggests a convergence with the (Anglo-American) Quaker view (discussed in earlier lectures) according to which the state is a necessity for absorbing evil with an order of goodness. In both cases the state is necessary to correct the moral delinquency of the lower class, which is the class of the economically poor as well as the morally deficient.

Foucault goes onto discuss the role of fear in organising penalty in the nineteenth century. This comes from urbanisation as a population arrives in tons from the countryside that appears rootless, marginal, unemployed and dangerous, so opposed to the population that works. He mentions the novels of Eugène Sue, a nineteenth century novelist of enormous popular appeal, who was republican-socialist in politics, though Foucault does not mention that. What he does mention is the relation between the dangerous class and virtuosi workers. Foucault links the treatment of this issue in Sue’s 1844 novel, Wandering Jew with a religious sermon expressing panic about the threat coming from the dangerous class beyond the understanding of the more respectable. The dangerous class is thought of as hiding in the shadows planning violent revenge on the rich.

The issue by this time is not urbanisation, but a new mode of production, in which accumulated capital is invested visibly in stocks (presumably of goods needed in industrial processes), machines, primary materials, merchandise. Propertyless workers are now in contact with wealth. The body of the worker is physically present, desiring that wealth. The bourgeois fear is quite realistic as there is now a constant daily risk of theft and the sabotage of machines. Now it is the class that works that is dangerous rather than the beggars and vagabonds. The working class is now the dangerous class, and there is literature about there immorality and danger, which included medical reports.

The fear of illegality now shifts to laziness and drunkenness, the self-inflicted harm of workers who fail to respect property that belongs to their employer, that is the body that performs the work to earn a salary. Foucault links this kind of moralising wish to control the body of the worker with a drive to keep salaries down to the edge of survival (perhaps thinking of the pessimistic assumptions about wages and over-population discussed by Ricardo and Malthus, the fatalistic element of the British government reaction to the Irish potato famine of the 1840s, or at least these are relevant to Foucault’s thoughts here about the industrial revolution and urbanisation in the early nineteenth century when it was possible to think in terms of mass and possibly unavoidable immiseration, ‘unavoidable’ within the capitalist economy or the ‘natural’ market, depending on one’s point of view). Foucault very briefly suggests that the limit reactions of capitalism to control of workers’ salaries comes through corporatism (presumably co-operation between unions, employers and government) and military force. Both are joined in fascism (which is accurate in that fascism and related ultra-conservative movements, tended to rest on corporatist cross-class co-operation ideologies, backed up by military force against those unwilling to work with that structure).

The idea of a voluntary social bond at the basis of law was used in the eighteenth century to condemn the criminal as against the social contract, as an enemy of society. The idea does not disappear in the nineteenth century, but becomes more directed towards the immorality of a worker who does not have a health-moral life of a kind that supposedly maximises production. Surveillance and moralisation enter more into nineteenth century attitudes. Even before that the criminological writings of Cesare Beccaria in the eighteenth century refer both to a purely positive view of law (law is what the state says it is through the appropriate law making procedures, so does not rest on morality or any sense of ‘natural law’) and to an interest in moral reform. The moral aspect becomes medicalised in the nineteenth century, and that extends to psychiatric medicine and a concern with ‘monomania’. Foucault is suggesting that the discourses of moral condemnation, fear, and purist application of law, are all part of the drive towards psychiatric medicine.

(Referring to La société punitive: Cours au Collège de France. 1972-1973. Ed. by Bernard E. Harcourt under the direction of François Ewald and Alessandro Fontana. Paris: Seuil, 2013)

Foucault’s Lectures on the Punitive Society IX

Lecture of 28th February, 1973

Rural illegality went under the same transformation as the urban illegality described in the last lecture. It was a part of the survival strategies of the poorest peasants who were using common and uncultivated land. Goods taxed by the office of the ‘régie’, salt and tobacco, were smuggled. There was a change in the second half of the eighteenth century due firstly to growing population, and then from 1730 an increase in tax revenues which made land more economically interesting, and finally a great demand to invest in land. The abolition of feudal rights and and large scale transfer of property during the Revolution contributed to the change. Landed property became a part of simple contract (presumably because of the abolition of feudal constraints).

This had negative effects on peasant who lost traditional de facto rights of ‘illegality’ and communal rights through the increasingly consistent and properly enforced juridical framework, and through the land they were working being bought and sold in large packets. The most extreme example was the exploitation and surveillance of forests, which lost their status as refuge due to exploitation of stronger property rights. Old illegalities intensified before the revolution in the for of vagabondage, uprisings to seize wheat, spontaneous (presumably violent mass action) taxation to the benefit of the poorest. The contractual rights already widespread in towns were popular with peasants as a way of reducing the feudal rights of rich proprietors, however there was also a reaction against the constraints on peasants through illegalities. Civil marriage was one such constraint, which might be entered into by peasants in order to avoid military conscription.

The great armies of the Eighteenth century armies had a large part to play in illegalities. That was partly because they soaked up those engaged in illegality as soldiers or were used to repress the most extreme illegalities It was also because of the impunity of soldiers, habits of pillage and vagabondage picked up in the army, o because they provoked increasing illegalities such as the refusal to be conscripted into them, which was increasing issue from year II. Year II is a reference to the calendar adopted by the French Revolution and refers to 1793. Foucault is referring to the wars of Revolutionary France with the European monarchies and the great enlistment of a citizens’ army in France, which itself provoked greater efforts at recruitment in enemy countries. The recruitment of those who had been engaged in illegalities led to exchange between the illegality of the town and the countryside and an intensification of illegality amongst discharged soldiers.

The reaction from the bourgeoisie (Foucault here seems to be largely referring to writers and officials associated with the French Revolution as a way of defining the emergence of an economic, if state linked bourgeoisie, with notions of respectability rooted in political notions of proper citizenship and support for the new public authorities). The bourgeois-official attitude to the illegality of peasants turned to a view of them as brutal, cruel, cannibals, barbaric and so on. Foucault points to the role of peasant revolts in the Vendée, (a major aspect of counter-revolutionary violence, defining a highly violent opposition between revolutionary-republican and conservative-royalist France, one of the deepest traumas of modern  French history).

Comments 

Foucault takes a sceptical view of the French Revolution in terms which are partly Marxist influenced, but also oppose a view of the French Revolution taken by many Marxist historians. Again Foucault is closer to anarchists of a rather spontaneous tendency than to organised Marxist party politics, and the version of Marxism in which heroic bourgeois revolution provide a model for heroic proletarian revolution. The references to peasant resistance to revolutionary have very obvious application to conflicts between the Russian Bolshevik-Communist state and land holding peasants. In what seems like a relatively sympathetic view of the conservative rebels of the Vendée.

(Referring to La société punitive: Cours au Collège de France. 1972-1973. Ed. by Bernard E. Harcourt under the direction of François Ewald and Alessandro Fontana. Paris: Seuil, 2013)

Foucault’s Lectures on the Punitive Society VIII.2

Lecture of 21st February, 1973
Part Two (of my summary and  comments, the lecture was delivered as a unified entity)

After the Revolution, the bourgeoisie constructed a judicial system directed against popular illegality. Capitalism separated workers from products more than the artisanal production system so allowing a stronger protection of bourgeois property from depredations. Depredations which had also come from state agents in the money taken by customs officers. This was mixed in with the appropriation of property by workers in the chaotic circumstance in large commercial ports. The bourgeoise created two kinds of justice one for itself and one for the proletarianised plebeians. It did so in order to permit some kinds of fraud and criminalise others. The permitted frauds were the use of spies, informers, and provocateurs, against working class groups and delinquents. The forbidden frauds were all those forms of plebeian illegality mentioned.

The construction of bourgeois legality was the time of the definition of the delinquent as the enemy of society, as the destroyer of the social contract (discussed by Foucault in earlier lectures in this series). It was also the time of the moralisation of crime and the isolation of the criminal as a category, for which prisons was at the centre, along with the development of police forces, the use of armies to soak up delinquency, and colonisation (presumably with regard to deportation or transportation of criminals).

The development of bourgeois legality also gives new legal rights to workers with regard to the contractual definition of employment and the receipt of salary. The implication is such regularisation of the status of employee with a right to wages was part of the bourgeois world along with criminalisation of forms of illegality previously tolerated and even welcomed by the bourgeoisie. The plebeian resistance to legality through autonomous organisation, smashing of machines, ignoring civil marriage, and political resistance carried on in anarchist ideology.

Comments on the above.

Compared with the previous lecture, Foucault seems a bit closer to Marxism and a bit further from the classical liberal analysis of state parasitic class power. One mode can be sussed to expand upon and reinforce the other in any case, but whichever way round, the process tends to change both. From the Marxist point of view, a focus on the illegality of the capitalist class before its political triumph and its politicised use of law for appropriative purposes is a bit of a deviation from the analysis of the pure capitalist model. Exposing the non-pure behaviour of the bourgeoisie evidently has its appeal for Marxists, who have a tradition of criticising the bourgeoisie for ‘betrayal’ of its purest ideals, but the more one concentrates on the non-pure bourgeois behaviour and the less on the pure capitalist model, the more one is in the same territory as the classical liberals mentioned in comments I added to notes on the last lecture. The alternative is the popular illegality and anarchism, which has some points of contact with bourgeois suspicion of the state, as Foucault himself mentions with regard to the alliance with popular illegalities during the statist-feudal era. Anarchism also has Marxist elements, but Marx himself was in titanic conflict with anarchists, particularly Bukunin, and the kind of anarchism-popular illegality mentioned by Foucault here is difficult to accommodate to any kind of well organised Marxist movement with an ideology and a political structure. The popular illegality is itself prone to compromise with power as Foucault acknowledges, so we have a very ambiguous set of suggestions here. As with Marx , there is sometimes a hint of nostalgia for the pre-capitalist world. Though this can also be seen in some anarcho-capitalist and anarcho-conservative thinking which regards the interventionist regulatory state of the capitalist era with horror. On might think of David Friedman’s anarcho-capitalist endorsement of Medieval Iceland as known through the Eddas and the anarcho-conservative Tolkein’s Mediaevalist-Archaic world of the Lord of The Rings. The aestheticising poetic vision is significant here, as that is one way of expressing dislike of rationalist-statist modernity in which capitalists and elites have become parts of what Weber calls the ironic cage of rationality, Adorno calls an administered society, what Nozick calls demoktesis,  and what Foucault calls bio-politics.

(Referring to La société punitive: Cours au Collège de France. 1972-1973. Ed. by Bernard E. Harcourt under the direction of François Ewald and Alessandro Fontana. Paris: Seuil, 2013)

Foucault’s Lectures on the Punitive Society VIII.1

Lecture of 21st February, 1973

Part One (of my summary and  comments, the lecture was delivered as a unified entity)

In the early nineteenth century, the penal system became a penitentiary system for the first time, was more unified, and was much more under  the control of the state than before. At the end of the eighteenth century there was a growth in the capitalist mode of product, which provoked political crises. The plebeians were proletarianised requiring a new repressive apparatus. There was a series of movements of popular sedition in response to the growth of capitalism. Bourgeois power replied to the seditions with a new judicial and penitential system. There is more behind the new system than control of plebeian sedition, it was a control of popular illegality. Until the end of the eighteenth century some popular illegality was compatible with the development of the economic bourgeoise and even useful to it. However, the illegality became incompatible with economic development.

The illegality suited the bourgeois class where artisans and merchants evaded state regulation to trade with each other according to something like laws of the market. This kind of illegality was functional from the point of view of capitalist profit, replacing charges to the feudal seigneur, which had been taken up by the state at that time. It was not an attack on material property, but on particular rights. It was an anti-feudal fraud rather than a theft, which looked towards a new bourgeois legality. The movement towards bourgeois legality comes out of  popular illegality of exceptions, which was not consistently opposed to the power of the time (which Foucault seems to regard as a form of feudalism centralised by the state). The nobility and the great proprietors were not themselves insisting on all their rights against the lower orders as they also wished to seek exemptions from the monarchical state.

There were three kinds of illegality in the eighteenth century: popular, business, privileged. A fourth should be add, which made the system function: the illegality of power. The direct representatives of power (the police chiefs and ‘intendants’ described in the last lecture  were the arbitrators of illegality, rather than agents of arbitrary power or pure legality. Royal power often intervened to reduce punishment of artisans, in a game of playing off illegalities against each other. The illegality of power was political and economic at the same time. It was possible to say that a breach of regulation was economic illegality rather than an attack on political sovereignty, but there was a continuum between the economic and the political in which it can’t really be said that a breach of economic power was not political. There were two poles of (popular) illegality: first the illegality close to legal delinquency as in smuggling, vagabondage, and begging; second the illegality which was more political and collective as in tax payer strikes, the theft of official revenues, and sedition. The bourgeoisie accepted illegalities that served it, but rejected what might be defined ad criminality of political struggle. It accepted smuggling, but rejected brigandage. It accepted tax resistance but rejected theft of property.

The illegality of power oscillated between popular illegality and law, in which respect for law was a strategy in the game of illegality between the popular level, the bourgeoise and the privileged. When old market regulations were abandoned prices might go up to much for previous purchasers to keep purchasing. In this case, the judicial apparatus might be reconstituted in a mixture of theatre and violence. At the limit of this reactivation of old legal forms, a popular tribunal might appear so reactivating legality at the heart of illegality. Foucault criticises the idea that illegality only arises because of law and instead suggests that law exists in the middle of illegalities, which it requires in order to exist, in order to be applied in the regulation of what continues to exist.

The popular illegality served as a kind of forward line in the war of the bourgeoisie to change and take over judicial forms. Since the Middle Ages the bourgeoisie had used three means to take over the state judicial system: taking over the apparatus for corrupt purposes (presumably the purchase of offices for the purposes of making money from them beyond any official income), entering the state apparatus, illegality as a way of pushing back law. The 1789 Revolution brought bourgeois uses  of illegality to an end after they served the purpose of strengthening the bourgeoisie.

(Referring to La société punitive: Cours au Collège de France. 1972-1973. Ed. by Bernard E. Harcourt under the direction of François Ewald and Alessandro Fontana. Paris: Seuil, 2013)

Foucault’s Lectures on the Punitive Society VII.2

Lecture of 14th February 1973

(The rest of the of summary and some remarks by way of commentary)

Most of the ‘lettre de chachet’ led to confinement, but not always in prisons. Religious residences, private residences, and houses of correction could also be used. The origin of clinics for mental illness is in these buildings. Detention in these houses was not punishment for a fault, inhabitants were kept in them until a change in behaviour or attitude was detected. These places moved away from the emphasis of the classical economy of the penal system on deterrence towards the dispositions of the detained purpose, leading onto the moralisation and psychologisation of punishment in the nineteenth century. The ‘lettre de chachet’ was not an intervention by absolute pows but of a moral consensus based in families and localities. Mentally disturbed behaviour offensive to the Catholic church was punished through the ‘lettre de cachet’ because of the lack of conscious rational intention and in order to avoid pretexts for criticisms by libertines and badly converted Protestants.

Regular behaviour was a very important issue and religious communities seemed ideal for imposing regularity on the irregular through the strict routine observed. The ‘lettre de chachet’ are part of a circulation and exchange of power between top and bottom. They define what become taken as signs of psychological disturbance. They produce a kind of anti-Plutarch [as in the Graeco-Roman author of a series of parallel lives of exemplary Greeks and Romans], which create narratives and causal explanations of infamy. Knowledge emerges that integrates biography into itself as it struggles with irregularity. This biography-knowledge is a major influence on the penal system, along with psychiatry, sociology, and criminology. Politics,sexuality, and mental disturbance all enter here, along with syphilitic paralysis [joining sexual delinquency with irregular physical functioning]. It also leads to the study of hysteria on this model, which itself leads the way to psychoanalysis and the study of desire, from the the ways in which rule breaking had been understood in the ‘lettre de cachet’.

In England social control was imposed by a gradualist movement of the state using religious redemption. In France the social control came from a state that was already centralised. In England, moral exhortation and exclusion from the group was important, in France it was imprisonment that was important. There was a common movement of control of the same elements, reenforcing family, religious community, and work. In both cases the  state was strengthened. The ‘lettre de cachet’ fell into discuss in the late eighteenth century, but not in a weakening of central state power, but because central state power had constructed places of correction for beggars, vagabonds, and the deliberately unemployed. The new state institutions create a system of the power of the class that is in the state, over the lower class, in contrast with the more interactive form of power in the ‘lettre de cachet’. This process was continued and intensified by the French Revolution, as we see in Adrien Duport’s belief that it is a sign of despotism for public order to be different from state justice, so that with liberty there must be an integration of public order within state justice.

A few remarks on the summary of Foucault above. Foucault uses a language of class power at some points, but it does not necessarily fit with Marxism in every sense. The presence of class power in the state is decisive rather than the economic class relations, though the intervention of the state in strikes and the confinement of those who do not participate in work is an issue as well. The analysis of economic classes was not invented by Marx, who was drawing on the work of Montesquieu, Physiocrats; the Scottish Enlightenment, and early political economy as it developed from Smith to Mill in his understanding. Alexis de Tocqueville and Hippolyte Taine continued to develop these analyses, in a classical liberal or some might prefer to say liberal-conservative direction, just before and contemporaneously with Marx. It continues further in the German speaking world through Nietzsche (who corresponded with Taine) and Nietzsche’s colleague at Basel, the historian Jacob Burckhardt (particularly with regard to the emergence of the ancient city).  It is hard not to see  large part of these sources present in Foucault’s discussion above, and in other places in Foucault.

There are some elements of Marxist class and economic analysis in Foucault, but not in a teleological assumption of the development of a politically unified revolutionary class. The direction of thought is more that of identifying outsiders and marginals and their struggles, which are just as much the struggle with forms of moralism and communal pressure present in the lower classes, as with the synthesis of state and dominant class power, which often acts in symbiosis with lower class defences of what they understand as honest regular behaviour. Sometimes as Foucault suggests the local aristocracy and lower bureaucracy, in some forms, are the most effective barrier to central state power and the power of the class that dominates the state. The discussion of the continuity of centralising monarchical power with the French Revolution is very much in the tradition of Alexis de Tocqueville, as is the scepticism of the use of Enlightenment language to mask growth of state power in the Revolution, the point on which Foucault finishes the  above lecture.

(Referring to La société punitive: Cours au Collège de France. 1972-1973. Ed. by Bernard E. Harcourt under the direction of François Ewald and Alessandro Fontana. Paris: Seuil, 2013)

Foucault’s Lectures on the Punitive Society VII.1

Lecture of 14th February 1973

Foucault says he has just analysed control in England made necessary by two things: 1. the movement of individuals; new places where wealth is located. As the 19th century comes closer the people in charge of the control are now petit bourgeois people in religious groups. The control is wit those closer to power: merchants and aristocrats. There is also a change in the target of control. The target is not so much those at the margins, and more the whole working class, it is the control of one class over another.

 

The form of the process of different in France. Economic depression and social crises in the seventeenth century do not lead to an English style bourgeois revolution [the seventeenth century was of course the age of the English Civil War leading to the republican revolution of 1649, and then after an intervening restoration of monarchy the parliamentary-limited monarchy revolution of 1688, the Glorious Revolution], but a counting monarchy trying to deal with these problems. It only has the army and the judicial system as methods of control and repression. From the close of the Middle Ages [the fifteenth century?] to the seventeenth century, corruption meant the judicial system was a method of private accumulation wealth, in which functions were inherited and were a means of benefitting financially from the money making possibilities of the system. Those working in this system had interests in common with the major financiers. The growth of royal taxation combined with economic depression made those in the judicial system more restless than the population as a whole [presumably because they lost out both from royal taxation and the decline of money available to bribe them through the judicial system].

The judicial system showed itself to be inadequate to the royal state for purposes of repression and the use of army was expensive both for the state and the population where it was sent, so that both costs to the state and sources of rebellion were increased. It was cheaper, and more politically advisable, to take pre-emptive action including imprisonment of dangerous elements. This required two other apparatuses of power other than the judiciary and the army: an apparatus that was both administrative and para-judicial, a system of ‘intendants’ of justice, police and finance; a police apparatus directly controlled by the monarch, through police chiefs. Both had the right to intervene in judicial areas. So police officials could made judicial decisions with regard to vagabonds.

These two powers could also use administrative powers as a substitute for judicial powers, as with regard to extradition and banishment from districts and the use of imprisonment. The system had some lasting success so that there were those who wanted it introduced into England. It remained in place in France, despite and apparent breakup after the 1789 Revolution, as was apparent in Thermidor [that is the 1794 reaction both against the Terror of the Committee of Public Safety and all of the more radical-democratic aspects of the Revolution). It was  means of raising taxes on all classes and dispossessed those living from feudalism [that is the remaining traces of feudal obligations at at that time] and the ‘parlements’ [local assembles of local judges drawn from the aristocracy, which administered the court system, and which also claimed some representative function with regard to local reactions to royal laws].

In nineteenth century historical writing the ‘lettre de cachet’ [royal document commanding imprisonment] was seen as the symbol of royal autocracy and arbitrary power. It was a way in which the king was present i the everyday life of individuals. Most of the ‘lettre de cachet’ did not originate with the monarch, but with requests from individuals, families, religious groups, notables, legal professionals, and corporate bodies. Some of the requests came from a lower social level that included villagers, small traders, and artisans. Requests were directed to an ‘intendant’ in the provinces and a police chief in Paris. The requests were an expression of local opinion. They came from the lower level and were authenticated at the level with regard to actions which can only from above authenticated by the king.

A ‘lettre de cachet’ was usually revoked by administrators rather than by the king. The ‘lettre de cachet’ referred to to acts that were not illegal but were considered disturbing by individuals and local micro powers including: marital infidelity, debauchery, waste of an inheritance, irregularity, disturbance. The major categories were disorder and violence. It could ask be applied in cases where the law had been broken but it was not convenient to use the law, as with regard to sorcery. The ‘lettre de cachet’ could be used in new situations were law and legal procedures did not yet apply. This is case for workers’ strikes of the 1720s.

(Referring to La société punitive: Cours au Collège de France. 1972-1973. Ed. by Bernard E. Harcourt under the direction of François Ewald and Alessandro Fontana. Paris: Seuil, 2013)