Blogging Foucault’s most recently published lectures, Théories et institutions pénales. XI 1972

(Commentary on Theories et institutions pénale. Cours au Collège de France, 1971-1972. Paris: Seuil/Gallimard, 2015)

16th February, 1972

Another embarrassingly large gap between posts. I really am hoping to get the rest of these lectures done very soon and then that the summer will be a good time to build up a good blogging rhythm.


At it’s heart penal practice (the exercise of criminal law) is a translation of wealth, the circulation of goods, and all movement of property. The penal mobilises and displaces wealth.

The results obtained through punishment: fines and confiscations

The results obtained through redemptions: redemption/reduction of fines and confiscations which threaten the hierarchy of social relations; the remissions purchased from superiors, particularly the king.


The results obtain through judicial charges: the guarantees left in the hands of judicial officials, purchases of judicial complaisance, soon when written procedures allow the proper judicial expenses.

These are all ways in which the movement of wealth is channeled by the judicial system.

Penal measures are inscribed between civil litigation and violent seizure. (Foucault emphasises that legal measures are not far from both arbitrary confiscation and civil law procedures, penal must then refer to criminal law which is of course what ‘code pénal’ refers to in France).

Foucault suggests that penality/the criminal code restrained arbitrary state seizures, but is also rooted in the most violent arbitrary acts of medieval kings. He mentions the persecution of Jewish and lombard (north Italian) lenders by Louis IX in the thirteenth century. That is Saint Louis, the Crusader king. This emphasis on the violence present in the rule one of the most sacral figures in the history of the French state, and even the modern European state is presumably no accident. Not only was Louis a canonised crusader, he appears in Montesquieu’s Spirit of the Laws with regard to the revival of Roman law and the formation of the modern French monarchy.

There is a brief indication in the text that Foucault mentioned Philip IV’s persecution of the Knights Templars. This was a notoriously bloody use of state power by someone who was label ‘le Bel’ (handsome) and was a major figure in consolidating the French state as a major European presence. Philip reacted to the power and the wealth of this order of crusader knights which also acted as a trans-European and Mediterranean bank with a explosion of torture and tortuous death, destroying the Templars on the pretext of heresy and seizing their considerable wealth. Foucault it seems thinks these should be remembered when thinking of the consolidation of the legalistic  and centralising French state in the seventeenth century.

Foucault continues these reflections on the French state in the high Middle Ages, with some oblique but recognisable references to the consolidation of southern France as part of the French state in the anti-Cathar (Albigensian) crusades of the early thirteenth century in which the autonomy of southern lords was crushed and property was transferred to new lords. The background to this is that southern lords protected both Jews and Cathar (Gnostic leaning) ‘heretics’ from the power of the Catholic Church. Under the leadership of the northern lord, Simon de Montfort, the political and religious autonomy of these areas were destroyed and the Cathars were persecuted into non-existence. De Montfort and his followers were greatly enriched. It should also be mentioned here that de Montfort was Earl of Leicester (in the east of the English Midlands) as well as a French territorial lord. His son, who had the same name, lead a baronial rebellion in England against the crown, called the first Parliament while in practice holding autocratic powers and was an aggressive anti-semite.

As Foucault points out in relation to France, usury was illegal but tolerated for Jewish financiers until kings found it convenient to cancel their own debts and expel Jews while seising their debts. This could create peasant support for the crown since the peasants ofter borrowed from Jews. There is a pattern here of tolerate illegality followed by violent arbitrary confiscation in the behaviour of the state which Foucault wants us to associate with the emergence of the early modern state.

Foucault’s suggestion for the early modern state is that ‘penality’ be seen as the development of state violence and an ambiguous relation with law into a regular system for circulating wealth at a time when there was not much circulation through an exchange economy. Wealth locked in landed property reaches other parts of society through a legal system of fines and confiscations accompanied by bribes and negotiated remissions of a kind which reinforce the authority of the royal state.

Foucault proceeds to give a background to seventeenth century penality going back even further into the Middle Ages. He sketches the process in which eleventh century nobles began to accept institutions of peace, that is limits on their personal and family struggles for land and wealth, so the constant wars between nobles. First families reached voluntary agreements. Then courts of mediation established peace agreements. Then the church imposed peace agreements. Finally the monarchy, Philippe Le Bel returns here, enforces peace particularly when it goes to war. This tension between aristocrats who assumed a right to pursue private wars and a monarchy which thought it should decide when there was a war, and that should only be against an enemy of the kind, therefore the state, went on until the seventeenth century. Foucault does not mention this prolongation of the medieval feuds, but presumably expected a French audience at least to have some idea about this.

Seventeenth century penality then emerges from a long process of regularisation of violence, now regulated by the state, primarily exercised by the state, as an instrument of state power and of a national economy with circulation wealth throughout all the land under the king.



Blogging Foucault’s most recently published lectures, Théories et institutions pénales. IX 1972

(Commentary on Theories et institutions pénale. Cours au Collège de France, 1971-1972. Paris: Seuil/Gallimard, 2015)

I’m picking up on this after an unintended break since November last year. I should now be able to keep going at a regular pace (at least on post a week) until I reach the end.

26th January 1972

Foucault refers to the role of the royal official Philippe Séguir in putting down a popular rebellion in seventeenth century Normandy, which he describes in the previous lectures.

He lists three aspects of the process:

  1. The use of the central state and the impossibility of using local authority.
  2. The central state lack its own means of repression
  3. He has to use old means which were not adapted to the repression

These problems led to the creation of three new institutions.

  1. Intendants of justice forming a centralised system under the king.
  2. The use of the police for repression rather than the army, less expensive and more preventative than the army.
  3. The use of deportation or imprisonment as a means of punishment not involving destruction of wealth.

This new system reacted to new forms of popular struggle and was reacting to popular struggle against power rather than simple law breaking. Delinquency itself is a product of this system. The system created constant surveillance. The newness of the system was concealed in the form of laws and customs for bans and threats. It defines the nature of delinquency. It allowed the prevention of popular sedition through through the punishment of delinquency. of penal-delinquency is an effect of the duality repressive-seditious. In this case effect is to be taken as product, condition of maintaining in existence, displacement and concealment.

The new institutions were juxtaposed with the old localised forms of justice, so that they were contained but not eliminated. The new system of justice and power protected the old system of feudal rents. The feudal system had judicial institutions appropriate both to direct feudal fees or in the indirect feudal system of sale and purchase of offices. The justice system within feudalism itself generated profits protected by the new system. However, the new system pushed the old system to become one purely concerned with profits from land and commerce, so reduced what it was protecting.

The new system was not a means of raising money as the feudal system of justice was. Unlike the feudal system of justice (in which offices were bought and sold for the fine collection possibilities), it was not a form of private property. The new system increased the separation between justice and political power, since local notables had less power as

judges and the monarchy was appointing judges, not making judgements.

The new system was tied to the birth of capitalism. The old system privileged the land owners and took money from the bourgeoisie. The new system was more favourable to capitalism as it reduced the importance of local feudal courts and gave the bourgeoise new opportunities for investment. The reduction of local sedition created favourable conditions for the growth of capitalism. Decisions were more favourable to capitalism. The system was more oriented towards the mobile productive capital of the bourgeoisie. It formed an essential part of the bourgeois nineteenth century state.

This system progressed through the Maupeou Conciliation (reducing the power of traditional courts, parlements in favour of the monarchy, 1768), the measures of the 1789 Revolution) and the Imperial Reaction (presumably Napoleon Bonaparte’s rule as Emperor of the French from 1804 to 1814, perhaps to be taken to cover the entire period of his supremacy which goes back to 1798). These completed the work of separating justice from the local raising of revenue and making it part of state administration rather than the property of landowners.


Kierkegaard’s Subjectivity and Foucault’s Style of Life-Juridification Distinction

My latest post at the New APPS group blog

Continuing from my last post on ‘Style of Living versus Juridification in Foucault’, there seems to be me to be something to be gained by thinking about Kierkegaard’s ethics here, even if Kierkegaard’s Christianity and Foucault’s aesthetic self seem rather distinct. The emphasis in Foucault on style or aesthetics of life or existence seems to be be already the object of criticism, in Kierkegaard’s account of the aesthetic (as a mode of life rather than with regard to the appreciation of art and beauty). However, Foucault does refer on occasion to the self as acting on itself in Kierkegaard. So Kierkegaard has a particular importance in suggesting that the self is not just an observing consciousness.

Kierkegaard’s attitude to the self , and modes of living, is in some degree structured by an understanding of the relation between individuality and the state as a political entity. It is an understanding that draws on Hegel, but which tries to resist what Kierkegaard takes to be an absorption of the self into history and communal morality in Hegel’s philosophy. That continuation of aspects of Hegel includes a distinction between antique and modern communities, which itself draws on an enormous amount of earlier thought going back to the Renaissance regarding the distinction between antiquity and the present. [Read on here]



Style of Living versus Juridification in Foucault (my latest post at the group blog New APPS)

I’m making a brief exploration of one of the most significant oppositions in Foucaut’s thought, which has not been discussed that much in my experience, but I may well have overlooked some vast bibliography. In any case, there is a major polarity in Foucault between the style of living in antiquity, related to care of the self, and in which ‘style’ can be replaced by ‘aesthetics’ or ‘techne’, while ‘living’ can be replaced by ‘existence’, in ways I do not think make much difference to the current discussion. There is also a relation with the discussions of the government of the self and the use of pleasure.  I am not getting into references and precise context, but outlining the general field.

The most obvious opposition to ‘style of living’ is the emergence of ‘subjectivty’ in the sense of some deep subject behind speech and action. Foucault’s understanding of this refers in large part to the development of the confessional in Christianity, with the standard Catholic confession in private to a priest taken as the end point. There is a suggestion in this historical discussion of a historical preparation for the development of assumptions about the sıbject that come to inform Descartes, and what follows Descartes with regard to consciousness and subjectivity.

Continue reading “Style of Living versus Juridification in Foucault ” »

Answer to a Question on Foucault and the Invisible Hand

I was responding recently to a query from a graduate student back in Britain about Foucault and liberalism, focused around he famous ‘invisible hand’ in Adam Smith, in which self-interest in the market place promotes a general welfare. There is some debate about how important the idea of the ‘invisible hand’ is in Smith, but it is widely used and understood as shorthand for his view that a more ‘liberal’ form of political organisation, with more free trade allows general economic improvements that do some extend flow from self-interest rather than charitable intentions or a public plan, and I levee aside questions about the meaning of the ‘invisible hand’.

I’m  not going to reproduce a private message and a private response as a post, but my response was about the right length for a post, and after some revision, will convey some of my current thoughts on Foucault.

In his treatment of David Hume and Adam Smith, Foucault is connecting them with a model of art of government in which governemnt limits itself, so that the lower level can flourish. That lower level was seen by Smith, Hume, and others, in terms of nature, of a kind of spontaneity that owes nothing to state action (including the invisible hand) , invented laws, or designed institutions, because natural processes make them redundant, or create such designs through the development of human co-operation, without a conscious overall plan. There is some ambiguity in these authors, as assumptions about the dominance and desirability of  ‘natural order’ as the basis of social institutions, are undercut by discussion of the value of institutions and the right kind of state action, but not to the extent that eliminates the natural order aspect.

Foucault is wary of any idea of a natural social order independent of human design, but is also highly wary of rationalistic total designs or constructions that claim to be neutral with regard to power and various kinds of discourse. In his writing on neoliberalism’, he displays some sympathy for the way that a non-moralistic view of economic efficiency, or value, can challenge the impositions of moralistically justified state power, or other expressions of power. One of the things he thinks characterises ‘neoberalism’, at least in its Freiburg University Ordo liberal manifestation. That is in the group of free market Austrian influenced economists in Germany from the 20s, 30s, and 40’s who had some influence on post-war German reconstruction, as Foucault notes, through their ideas on the need for a less statist more market based economic model for post-National Socialist Germany.

The Freiburg/Ordoliberalismus current recognises the role of institutions and rules, which to some extent are designed, in promoting markets.  This is different from the ways totalitarianism might try t encourage economic activity, because it is more rules based and less based on direct forms of intervention. That is basis of  the ‘Ordo’ in Ordoliberalismus. Foucault further emphasises the Husserlian phenomenological influence on Ordoliberalismus and linked the ‘anti-naturalism’ in Husserl’s account of conscciousness with the critique of naturalism in Smith and Hume. That is Foucault looks at Husserl’s criticisms of taking ‘natural’ psychological states as the basis for the philosophy of pure ideas and structures of consciousness  and sees that as entering into ways in which ‘Neoliberalism’ distances itself from that natural order aspects of Hume and Smith.

Foucault’s relationship with liberalism, in all its forms, is shaped by his resistance to idendeifying power with just the legalistic sovereigty of the central state.  ‘Disciplinarity’, as discussed in Discipline and Punish, is emergent or spontaenous in its totality, rather than the product of the design of a sovereign. In that sense it is an example of spontaneous or emergent order in Hayek. For Hayek, generally speaking the spontaneous order formed over time through co-operation between individuals is preferable to state designs and the products of a sovereign political will. However, this must be balanced with Hayek’s acceptance that there are significant areas of legitimate stare activity, which can include income maintenance, basic public services, administrative courts, and stabilisation of the economy, though the total of such activities should be less than what the state stated to take on after about 1870.

‘Disciplinarity’ is not pure spontaneous order, it includes elements that are the consequence of design, as in the prison reforms plans of the Enlightenment and later, even if they always fail to achieve their goal of moral, human, or religious reform and rehabilitation. Disciplinarity is I believe rather ambigouous in the evaluation Foucault gives to it. To some degree it is an expression of the creativity of power, and the formation of a kind of individualism which has some benefits from Foucault’s point of view, but he is certainly arguing for arguing for a critical renewal, as he finds the individuality of disciplinarity too isolating and inclined to rigid internalisaiton of norms.

Foucault was not a complete rejectionist with regard to disciplinarity, or all the other forms of power including biothetics, which is tied up with his account of disciplinarily and neoliberalism,  as he was not  an anarchist, which seems to be the inevitable conclusion of total rejection of power.  Nevertheless, he did certainly the currents of localist and workerist anarchism in French history as a corrective to political and economic power concentrations; and regarded the anarchocapitalism he connected with America, as also offering a challenge to the administrative (disciplinary or bioethical)  power of the state.

Like Foucault, Smith and Hume also had critical attitudes to concentrations of economic power backed by the state, whether feudal-monarchist remnants or more recent developments. They were also very ambiguous between being radical critics of the Whig (I take this to cover Tories as well, who had really accepted the classic Whig agenda by the late 18th century) mercantile-aristocratic liberal leaning British state and being intellectual pillars of it. There is plenty of ambiguity in Foucault, but I think his ambiguity leaned further towards a Tom Paine style radicalism than Smith and Hume tended towards. Though there are some elements of Foucault’s thinning sympathetic to Hayek, consciously or unconsciously, including his account of Ordoliberalismus, the strong sense of opositionism, the wish to be with the marginals and the lower orders (some of the time anyway, no need to pretend that Foucault was not a privileged academic of upper middle class origin, with some very bourgeois and intellectualist aspects to his life style), removes him from the Burkean element in Hayek, the preference for the evolution of traditions and old hierarchies in a more inclusive and open direction over radical challenge.

I should finish by emphasising that there is an element in Hayek, as in Smith and Hume, which is challenging of tradition and sceptical of the self-justification of old elites, so that there is no clean neat line between Hayek or the Scottish Enlightenment thinkers on the one side, and radical anti-conformist, egalitarian challenges to power and tradition, of a kind which clearly motivate Foucault, motivated him so thoroughly he could see the power interests embedded in various forms of state encouraged, or imposed, welfare he labelled as ‘bioethics’, and which have become central to ‘progressive’ politics.



Michel Foucault, La société punitive: an editorial curiosity (2014)

This post from the Foucault News blog provides an interesting supplement to my recent blogging on Foucault’s Collège de France lectures on the punitive society, from Graham Burchell, who is translating these lectures and has translated many others.

Foucault News

Michel Foucault, La société punitive: an editorial curiosity

by Graham Burchell, 2014

Graham Burchell is the translator into English of the lectures Foucault delivered at the Collège de France. With thanks to Graham Burchell for sending this note to Foucault News.

Translating Foucault’s Collège de France lectures, La société punitive, I have come across the following curiosity, which, unless I am mistaken, no one has commented on before now. In the “Résumé du cours”, p. 261, discussing the model of talion (lex talionis, an eye for an eye), Foucault remarks that this model was never proposed in a detailed way, but that it did enable different types of punishment to be defined. He then gives, apparently, two examples from Beccaria’s Dei delitti e delle pene. The first is: “Les attentats contre les personnes doivent être punis de peines corporelles (the penalty for violence against…

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