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)