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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Foucault’s Lectures on the Punitive Society XIII (concluding here)

Lecture of March 28th, 1973

The last lecture. Coming soon, summaries of the lectures in Subjectivité et Vérité: Cours au Collège de France. 1980-1981, published a few weeks ago.

Foucault refers to the role of the prison, as the dominant form of the punishment of criminality, having a history of 150 years. It has been a failure from the beginning in that criminals and recidivists did not decline in number, while the coherence of delinquents as a group increased. The architecture of the prison is discussed in relation to the development of the state. The prison has a particular kind of space, in a star shape. The centre of the star is an observation tower which is the place of constant and universal surveillance of prisoners. The arms of the start shaped prison contain the life and work of the prisoners, pushed towards complete regularity and order.

The architectural problem of the prison is the reverse of a theatre, since the centre is the place for watching and must be protected from those watched. The form of the prison is a social form as well as an architectural form. Foucault takes the idea of the relation between architectural and social form back to ancient Greece. The Greek city had a an agora (central space), which was the condition for the institutional possibility of logos (which Foucault seems to be thinking of here with regard to knowledge, but the senses of language and speech should not be ignored either). The star-prison, with its power of surveillance, is just as much a form of knowledge.  The prison is at the heart of society as the source of orders and prescriptions.

Foucault suggests a connection with the images of power in the medieval throne, as the magisterial form of power, or the (early modern) image of the sovereign in the frontispiece of Thomas Hobbes’s classic of political theory, and other issues, Leviathan (1651). The famous frontispiece of a kingly figure towering over his land, composed of many people, presumably his subjects, wearing a crown and carrying other symbols of royal power, can be found easily with an internet image search for ‘Hobbes Leviathan’. Hobbes’ image is that of power through control and surveillance as the king figure is looking out over his domains. Foucault suggests that the institution of the prison is best understood through its place in the system of power, rather than in the history of delinquency.

The idea of power cannot be understood as something possessed by a class. Power is not possessed because: power exists in a dispersed way so that it exercises itself; power is not appropriation, it is a bellicose set of relations existing as changing immediate strategies between individuals, in the manner of chance or a game; power is never entirely on one side, power never follows a single scheme given once by the totality of oppression, it is never used completely by a few individuals, but exists in little singularities where there are localised defeats as well as victories. Power can never be reduced to the property of  a few people, it is a permanent strategy resting on civil war.

Power in the form of surveillance and control in the nineteenth century is connected with a mode of production for Foucault, that is the capitalist mode of production which he defines with regard to the accumulation of capital and the control of time in order to maximise the wealth created by workers. This is opposed to the feudal model, which Foucault thinks of as lasting until the eighteenth century, right up to the 1789 Revolution, in which wealth comes from the rents generated from the land. Space, control of land, is at the heart of feudalism; time, control of the hours at the disposal of worker, is at the heart of capitalism.

It is important to be careful about how far one takes these references to modes of production as a Marxist foundation. Foucault is just as much saying that Marxist thought rests on the surveillance-control power system and is just a part of it. Foucault suggests here that the model for that system is not economics, he refers to the limited influence of the eighteenth century physiocrats, that is the early economists whose ideas overlap with those of Adam Smith to some degree. Foucault suggests that the model for surveillance power is medicine and let us not forget that Foucault’s father was a doctor. I believe there is at least one interview in which Foucault suggests that his own work is a continuation of his father’s professional activities. So it is the difference between the normal and the pathological which is the key to power in the nineteenth century.

Foucault understands power and knowledge to be intimately connected, so that power generates knowledge, structures the kinds of knowledge that appears through the habits if produces. The habits produced by surveillance-control give rise to norms, very regularised rules of behaviour, which themselves become the object of Durkheimian sociology, a key moment in the formation of sociology as a disciple. Disciplines and forms of knowledge exist because of the kind of knowledge existing in the networks of power, the productive nature of power in which objects of power and necessarily the objects of knowledge.

Returning to Foucault’s brief reference to ancient Geek cities, we can take it that he is largely thinking of Athens and that he is implicitly opposing Athenian democracy, with the place of public speaking at the centre, to the surveillance society, with the prison at the centre. The prison architecture is defined as the opposite of the architecture of a theatre and that should lead us to think of Athenian drama since ancient Greece is mentioned in the subsequent paragraph. It is probably tragedy that Foucault is thinking of, something he often refers to in his writing while comedy features rather less. We can think of the texts of Foucault’s last years on free speaking (parrhesia) in ancient Greek democracy here, which he partly discusses in relation tragedy, and conclude that these ideas are already in earlier texts. The sense of a democratic and tragic world that flourished briefly and was lost has a lost of resonances, which I won’t go into right now, as that would drift away from the lectures summarised 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)

Foucault’s Lectures on the Punitive Society XII (should be XI)

Lecture of March 14th 1973

In my last post on Foucault I referred to my mistake in dates and orders of the lectures I am summarising. I have had to correct my own correction and have finally worked out the problem. I wrote notes for today’s post a few days ago but forget them when posting again and put later notes in there. Everything is now corrected in previous notes, so just remember that this should been XI in this series, and XI should be XII. That is swap this post with the last post in your imagination, and remember that references to the previous lecture, refer to material I covered in post X .

Foucault begins by saying that when he referred in the previous lecture to accumulated wealth, he was misleading in suggesting that that the wealth was in the form of goods ready to consume, or elements of wealth in circulation which could be used by the worker or redistributed. The correct thing to say is that the wealth was in the form of an apparatus of production, in relation to which the body of the wirier is not just a body that desires, but a force of work, which must become productive force.

There is a new illegality in the relation between bodily force and a force of work in a system of production, which integrates the force of work into a productive force. The illegality is in the refusal of the worker to apply the force of the body to the apparatus.

There are 4 aspects to this: the worker refuses to sell labour to an employer; the workers only works at times decide by the worker; the worker dissipate energies in holidays and celebrations; the refusal of the family to regulate itself in such a way as to promote work and bring up children who work. These aspects are denounced by authors who moralise the working class. Such literature is presented as helping the working class to escape poverty, but is also explicitly in the interests of the employer who wants workers who apply themselves tı the apparatus of production. The morally bad habits of the working class in this kind of literature include: intemperance, early marriage, anarchic passions, lack of economy, refusal to become educated and perfect force of work, lac of hygiene, bad use of leisure.

The illegality now is of dissipation rather than depredation. It is contested through the emergence of disciplinary and surveillance. They are formed by the universalisation of some judicial methods and laws, which reach into the non-judicial sphere so that there a power going beyond pure legality, though using it. The implication in Foucault is that the state itself promotes a kind of illegality, which contests attitudes and actions of works themselves in this ambiguous area. The ambiguity extends to the ways in which surveillance tends to reinforce some forms of worker ‘illegality’. Attempts to reinforce surveillance can encourage worker ‘mobility’ in the sense of a kind of ‘nomadism’, which evades the labour market. Laziness, nomadism, lateness, absenteeism, debauchery, holidays all become moralised as and an therefore as ‘illegality’.

In nineteenth century France, the general ‘illegality’ is made more strictly illegal by a system ıf identity papers in which workers have to show am employer in order to avoid punishment for vagabondage. This system of papers confirming official status also encourage loads to workers from employers, which has the effect of making workers permanently indebted to employers, so unable to leave employment without the risk of arrest for bad debts as well as not having a recognised employer. Foucault describes this as the penalisation of existence, since just to live can be crime is not ‘excused’ by documents to confirm employment.

Deliberately, or not, this seems to allude to nihilistic philosophy, such as that of Schopenhauer, focused on the idea of the excess and superfluity of existence. It’s a big jump from the surveillance of workers to the philosophical work of a philosopher living from inherited wealth, but the sense that the state defines some lives as illegitimate could be seen as part of the context for Schopenhauer’s thought. Such a ‘genealogy’ or ‘archeology’ of Schopenhauer’s philosophy seems in the spirit of Foucault.

The penalisation of existence in Foucault’s account of surveillance includes punishments for drunkenness in which a worker şis kept away from the workshop. Foucault links the growth of surveillance with the early nineteenth century institution of ‘conseils de prud’hommes’. This is a French institution, which still exists. The name defies direct transition and the institution does not have any direct equivalent in British law of which I am aware. It is body with some kind of administrative law function with regard to employment contracts. Currently they include elected union representatives, but I don’t think that is the case for their origin, which I have not been able to research, but I presume that in the beginning they were composed of state approved notables.

This brings up another theme, which is that on this issue, and others, such as the status of corporatism, Foucault hints that welfarist measures end institutions that include employee representatives, are part of surveillance and disciplinarity, the moral regulation the working class, elements which find a limit expression in Fascism, which combines corporatism, so maybe the other regulatory elements, with military force to use them in a nakedly violent repressive apparatus.

In the political context, it should also be noted that Foucault has very little to say in this lecture , and others, about the political changes in France, though he does sometimes deal with them. The period he is covering goes from weakening Bourbon absolutism, through the French Revolution, a constitutional monarchy in the revolutionary period, followed by an increasingly radical republic, which then becomes an increasing oligarchic conservative republic, then taken over by Napoleon Bonaparte who becomes Emperor. The First Empire is followed by a restored Bourbon monarchy with a very conservative constitution. A revolution in 1830 leads to the relatively liberal, but still oligarchic July or Orleanist monarchy. Another revolution in 1848 leads to a second republic, which experiences an attempt at socialist revolution, followed by the rise of Louis Napoleon Bonaparte, who becomes President and them establishes a Second Empire. The Franco-Prussian war of 1870 leads to the formation of the Third Republic, which put down an attempted revolution in Paris, the Paris Commune. Foucault does not go beyond the mid years of the nineteenth century, but it is important to note that he does not see a break in the phenomena he describes around the political change of the fall of Napoleon III.

Foucault’s Lectures on the Punitive Society XI

Lecture of March 21st 1973

Foucault begins by referring to a factory regulated liked a monastery in the 1840s. He describes the monastic routine before revealing that he is describing a place of manufacture and not a religious order. Such plans, which are ‘utopian’ from the point of view of employers were popular into the 1860s. Foucault refers more than in some previous lectures to change over time in the legality, regulation and surveillance of institutions, than in some previous lectures. It is also notable that in referring a transformation of the 1860s, Foucault is referring to a period within the reign of Napoleon III, the Second Empire, which came to an end in 1870, so it is change on a time scale distinct from that in change of government, or regime, which counts.

The monastic style of regulation becomes the model of a regulatory model, war Foucault refers to as surveillance that can be found in hospitals, prison, schools, psychiatric hospitals, kindergartens, agricultural colonies, orphanages and factories. There is even the fantasy in circulation of a working class, which is like a religious order, and which seeks utility rather than opulence, which satisfies the new needs of society. These utopias require an architecture suitable for surveillance, an activity itself requiring research into how the fewest individuals can observe the greatest number. This is micro-sociological research before the term exists. Foucault here indicates links between the practice of surveillance and the emergence of social science.

Foucault discusses the connections between nineteenth century surveillance and the great confinement of the seventeenth and eighteenth centuries, also referred to by Foucault as the classical age. The great confinement is the idea he developed in History of Madness/Madness and Civilisation  of the removal of madness from public view but confining it within the walls of institutions. In the classical age the control and limitation of individuals was through belonging to communities, corporations, trades and other forms of collective life. The suggestion is that the control in that time was through existing, and historically embedded ways in which society was organised through bodies, with which individuals have some significant social connection. This could include trade guilds, town corporations, and other forms of economic association. Control was endogenous, it was within and through these associations.

Surveillance is exogenous referring to a society in which young children spend time away from family in a crèche and institutions outside the older forms of association are growing, including school, workshop, savings institution, and  hospice. The spatial organisation of these institutions is very distinct, the implication is that they are spatially separate from the environment in a way that does not apply to older institutions. These are new zones in the social body. They are more than the confining institutions more than the body attached to the productive apparatus. They are zones of the multiplication and intensification of power.

The use of the comments of employers on the official papers concerning borrowings and debts from employers was enough to push the employee into the penal system, suggesting that surveillance was not a completely integrated top to bottom form of power. The appearance of this kind of power looked to workers like the return of feudalism, so that the factory was a new castle outside direct state power like the castle of a feudal baron. The place of correction seemed like a new Bastille (place of royally authorised correction), because the prison direct was a lie a sovereign magistrate within that institution.

The second transformation that took place was that marginal groups were marginalised and sustained as marginal in the confinement of the classical age. The surveillance of the nineteenth century did not allow marginalisation, it fixed everyone on the apparatus starting with the care and education of children. There were some marks of marginalisation within surveillance as in the uniforms of children brought up in state institutions, but overall the marginals were incorporated into the system.

The sequestration in institutions founds in surveillance is concerned with the maximum control of the time of individuals. feudalism was concerned with keeping peasants within the locality, the domain, of the lord, while capitalism is concerned with the organisation of time. Individual time is subordinated to the time of production. This applies as much to the school that educates and the hospital that cares as the prison that punishes. The institutions of surveillance went beyond the gaol of production maximisation, in their control of time, which also appeared in their control of leisure (limitations on going out for leisure purposes), and in their control of sexuality. They were mono-sexual, keeping members of the institutions from members of the other sex (Foucault mentions colleges specifically here, readers of Thomas Hardy may remember Jude the Obscure as containing an English example), which was tied up with an extreme denial of homosexuality.

The institution created a heterosexual norm, by restricting the possibilities of heterosexual relations, so pushing individuals towards homosexual relations which then had to be strictly prohibited to keep up the control of time, including time spent on intimate liaisons. The discourse around institutions and surveillance is then a discourse of norms, which surveillance is indirectly concerned with as part of its direct concern with productively useful time. The discourse of norms includes the positive norm of heterosexuality and the strict prohibition of homosexuality, which Foucault implies is a greater control of sexuality than previously existed. He is also indirectly suggesting that the sociology of norms going back to Emil Durkheim, who started writing his classics of sociology in the 1890s, itself emerges from the discourse of norms in a society of surveillance.

(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 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).


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)