Lecture of 7th February, 1973
The growth of societies of moral order (Foucault shifts the emphasis from militant Protestants outside the state church to general moral order) respond to a growth and displacement of population (presumably to the cities from the countryside). This apparently undermines the old territorial organisation of parishes, burgs (provincial towns), and justices of the peace. The non-British reader may lack the information that a parish is the basic unit of state administration in the English countryside (taking full account of Britain outside England becomes complicated, largely speaking these things apply in Wales but often not in Scotland), which have parish councils, and which significantly for Foucault were at the heart of the early 17th century Poor Law. Justices of the Peace are the lowest level of judge, volunteer or ‘lay’ magistrates, who preside over minor cases, with the advice of a professional legal clerk. The title JP still has a social status attached to it, and was strongly associated with the gentry, that is the lower or more local aristocracy, in the period Foucault is discussing.
The notoriously harsh punishments of the time, including the death penalty for minor property crimes, led to pious perjury, that is members of a jury pretending to believe that property crime was just below the threshold of the death penalty even when it was obviously above the relevant threshold. The context is the changes in capitalism, which makes wealth more obvious in parts of London, and in which investment moves from labour into new techniques promoting the displacement of population. The micro-nature of the administration of justice in the old style is inadequate. The reaction can be clarified through the life and writing of Jeremy Bentham’s friend Patrick Colquhoun, who worked with Bentham on founding a Thames police. Colquhoun broke with the criminology of Beccaria and Brissot in that he rejoined law and morality. He did not regard the practical social functions of law as distinct from its moral basis. In this, he uses a rhetoric similar to that Edmund Burke of the importance of promoting patience, work, sobriety, religion, and frugality. This is an everyday morality coinciding with the concerns of the militant Protestants. The comparison with Burke is presumably a way for Foucault to suggest a connection wit conservative political and social attitudes. In general he connects Colquhouns attitude to law and police with a defence of sovereignty, securing the unity of the state, and maintaining order amongst the lower classes. The moralising nature of Colquhoun’s writing on this is more important than Kant’s Metaphysics of Morals, as Foucault suggests though perhaps not in an entirely serious tone, not where philosophical ethics is concerned anyway. Colquhoun’s vision and administrative initiatives, combine with the tendencies of the societies to promote constant surveillance as the basis of enforcing law and morality.
There is a genealogical question of what joins two ensembles. Imprisonment as an archeological outcome of Medieval attitudes to protecting sovereignty is one ensemble and that is joined with the capitalist ensemble, the mode of production which uses instruments of political power. The answer at this point is largely in a switch to France and the status of laws forbidding abortion. The rhetoric of the time time shows that this is considered to be a prohibition outside the capacity of legislators to change, and the same even applies to voters. It is not conceivable that the national will could be allowed to, or want to, legalise abortion. It could only be legalised by a descent from pure law to power, in which morality is shown to be the product of power. Foucault seems to be getting into discussion about changing ideas of law, laws, legislation, and power here.
(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)