By Bernard E. Harcourt
[This article draws on a longer essay titled “The ’73 Graft: Punishment, Political Economy, and the Genealogy of Morals”]
In their fascinating and provocative articles on The Punitive Society, Didier Fassin, Axel Honneth, and Nadia Urbinati raise a set of critical questions about Foucault’s 1973 lectures, concerning:
- the idea of civil war as a model for relations of power in society, and the related notion of the “criminal as social enemy” as a specific instantiation of the matrix of war;
- the concept of “illegalisms” as the basis for a political economy of punishment that criminalizes the poor and minorities;
- the relation of that particular political-economic theory to a Weberian-inspired, genealogical analysis of the protestant roots of the wage- and prison-form;
- the contemporary reflections of all this in our present condition of massive and racialized over-incarceration, or what has come to be known as the New Jim Crow; and
- the role and method for militant specific intellectuals to intervene in our present, drawing on The Punitive Society as a political text.
The three articles push hard on Foucault’s marriage of a political economy of punishment and a genealogy of morals in these 1973 lectures. Didier Fassin suggests that “the political and moral economies of punishment are somewhat disjointed” and may not really reflect the reality of how prisons worked. Axel Honneth discusses how they produce a tension—a dual focus, on the one hand, on the body, on the other, on the soul—that leads to a “biopolitics and psychopolitics” that are hard to reconcile.
Following Nadia Urbinati‘s proposal to treat these 1973 lectures as a “political text”—and in the vein of her provocative statement that reading these lectures shows that “Foucault is not Foucault-ism”—I propose to explore here this problem of the marriage of political economy and the genealogy of morals in relation to our present political condition of massive racialized over-incarceration. I will leave for the Foucault 3/13 seminar, which will be live-streamed here, the other critical issues, including the model of civil war, raised in these three powerful articles.
I intend this post to specifically address Didier Fassin’s urgent call, after having spent four years in a French prison as an ethnographer, to come to terms with “the singularity of imprisonment, the specific violence of confinement and the particular consequences—social, political, ethical—of the generalization of its use,” as well as Kendall Thomas’s intervention from the last seminar, Foucault 2/13 on Penal Theories and Institutions, to focus us on the stakes of the conversations we are having in #Foucault1313.
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In order to do so, though, I will need to take a step back and begin with at least once version of a political economy of punishment. In previous research on The Illusion of Free Markets, I tried to demonstrate how the emergence of liberal economic ideas in the eighteenth century was inextricably linked to the idea of a strong police state, and how this relation has influenced our current political condition of massive, racialized over-incarceration. In that work, I tried to document simultaneously, first, the diachronic evolution of two historical ideas—namely, that of the free market on the one hand (represented by the left column in the diagram below) and of the police state on the other (the right column)—and, second, the synchronic linkage at each historical stage of these two necessarily imbricated notions:
The analysis explored, on the one hand, how the concept of the free market emerged from eighteenth-century notions of “natural order.” The analysis traced the transformations and variations from an early divine notion of orderliness tied to natural law in the work of François Quesnay and the Physiocrats, through Jeremy Bentham’s (admittedly complicated and messy) maxim that the government should “Be Quiet” in economic affairs, through the more secular ideas of self-interest, expertise, and informational advantage reflected in conventional 19th century laissez-faire ideas, to the cybernetic notions of “spontaneous order” elaborated by Friedrich Hayek, and finally to the more scientific and highly technical economic theories of the Chicago School of Economics regarding the efficiency of competitive markets. This is the left column.
On the other hand, the analysis demonstrated how these varying notions of economic orderliness have been linked, since their inception and at each stage, with a paradoxical trust in governmental competence when it comes to policing and punishing. This latter concept of the police state, just like the idea of the free market, evolved over time, from early notions of “legal despotism” in Quesnay’s writings and in the policing practices of Le Mercier de la Rivière when he was Intendant of Martinique (paradoxically, his parting gift to the island was a police force); through the omnipresent, pervasive intervention of the state in Bentham’s panopticon prison and criminal law writings (recall that Bentham viewed the penal code as a “grand menu of prices” and invented the panopticon for all sorts of institutions of social control, including penitentiaries, asylums, workhouses, etc.); to the conventional nineteenth century notion of the state as “nightwatchman” in the classical laissez-faire approach (the metaphor had never struck me, in fact, until I hit upon this genealogy); to the symbiotic function of the criminal law to efficient competitive markets in Chicago School theory. As my colleague Richard Posner would write, in 1985, precisely capturing this symbiotic relationship:
“The major function of criminal law in a capitalist society is to prevent people from bypassing the system of voluntary, compensated exchange—the “market,” explicit or implicit—in situations where, because transaction costs are low, the market is a more efficient method of allocating resources than forced exchange… When transaction costs are low, the market is, virtually by definition, the most efficient method of allocating resources. Attempts to bypass the market will therefore be discouraged by a legal system bent on promoting efficiency.”
In fact, Posner would define crime as inefficient behavior or market bypassing in 1985. Just like legal despotism in Physiocratic thought, the criminal law represents the outer boundary of the free market and natural order. Penal law is its diametrical other, where the state must intervene through punitive practices in order to sustain and guarantee the natural orderliness of the economic domain or free market. This is the right column.
Throughout, the analysis sought to demonstrate the paradoxical linkage of the notion of orderliness in economics with the need for a Big Brother state when it comes to policing and punishing. This is the series of synchronic arrows relating the two diachronic series. In contrast to other critical thinkers who also study what has been called “neoliberal penality” today—namely, the paradox of a supposedly hands-off government and a massive prison apparatus—I argue that the symbiotic relationship preceded the neoliberal turn in the 1970s and was itself inscribed in early liberal thought in the eighteenth century. I trace our present political condition back to the eighteenth century and argue that this paradoxical set of beliefs—on the one hand, in the incompetence of government in the economic domain and, on the other hand, in the competence and legitimacy of government in the penal sphere—has facilitated the exponential growth of the prison and jail populations in the United States, not only with mass incarceration in the twenty-first century, but also at the birth of the penitentiary during the “Market Revolution” of the Jacksonian era.
An undercurrent in that political economy of punishment—perhaps one that was too far under the surface, but one that I would like to explore here—concerns the mechanisms and devices by which these concepts of natural order and policing would become accepted, tolerated, and so pervasive. And one critical way to address this question—one to which we often do not pay sufficient attention—is precisely the issue of moral economies, of the moralization of social relations and behaviors. This is a topic that Didier Fassin has explored in depth.
The place to start is with E. P. Thompson, whose work on “The Moral Economy of the English Crowd in the Eighteenth Century,” or more generally, on the notion of moral economies, would make us rethink seemingly spontaneous and spasmodic food riots as fully-coherent resistance to new forms of economic relations and ideas. Thompson highlighted the extent to which the resistance was itself a moralized resistance, grounded in notions of moral fault, responsibility, and blame, of right and wrong, of good and evil. The riots were not merely irregular, spasmodic responses to shortage and hunger; rather, they represented a righteous indignation, a moralistic and thus political response to the shift away from a paternalistic rationality of custom, intended to protect the people, to a purportedly amoral and abstract force of the market. For Thompson, the most compelling proof of the moral underpinnings, you will recall, was that the seditious crowd did not simply steal food, but rather, against their own interests, destroyed the mills, the very instruments that would have provided them with food. The riots, Thompson showed, were aimed at dismantling the instruments of the new political economy.
It may be surprising to start with Thompson because he was moralizing—and justifying—resistance, whereas the task here is rather to show how these new political economies became acceptable and tolerated, in other words to enlist a genealogy of morals as a key element in the eventual acceptance of new economic regimes. This is where Max Weber—the Nietzschian Weber, the Weber of the Protestant Ethic in its original, not Parsonian version—would be so important. The spirit of capitalism would feel so natural to many because it had been, for many, a calling, as Weber suggested. Weber’s genealogy of capitalism passed through morals—producing new political economies and processes, such as “machine production,” that would govern our lives. The soil has to be tilled, it does not bear the fruit of capitalism spontaneously.
So we have, then, Thompson on the moral economies of resistance, and a Nietzschian Weber on the moral economies of acceptance. Foucault would marry the two in his Collège de France lectures on The Punitive Society in the winter of 1973. Foucault would graft a genealogy of morals on a political economy by means of what he called “illégalismes.” But here again, we will have to take a step back to start with Foucault’s political economy.
The core concept of illégalismes is a term that has somewhat erroneously been translated as “illegalities” in the English edition of Discipline and Punish. It would be more appropriate to use a neologism, such as illegalisms, because “illegalities” is actually the end state, that which, in some sense, resolves the struggle. Illegalities is what represents the culmination of a power struggle that operates through illegalisms.
The idea of illegalisms, then, is that the law itself is a struggle, a negotiation, agonistic combat, a competition over the very question of defining the line of illegality—the line that divides deviations, disorderliness, rule-breaking, rule-interpretation, from illegality and the sanction.
Foucault elaborated in 1973 a political economy based on this notion of illegalisms—a theory in three steps. As you realize, I am giving you the theory and not the historical details.
Foucault starts, first, with the idea that illegalisms were widespread throughout the eighteenth century and well distributed across the different strata of society: the different classes practiced strategic games at the borders and interstices of the law. “[I]n every system, different social groups, different classes, different castes each have their illegalisms,” Foucault would declare. In the eighteenth century, he would identify not only the popular illegalisms—the illegalisms of the popular classes—but illegalisms of merchants and men of commerce, as well as “illegalisms of the privileged who escape by status, tolerance, as an exception to the law,” and even illegalisms of power—of the lieutenant de police, of the commissaires, etc. These illegalisms were nested, sometimes in conflict, often in symbiosis, both working together and in tension. But for the most part, the privileged in the eighteenth century tolerated popular illegalisms because they also practiced their own forms of deviance against the monarchy, and the relationship “worked” in a certain way. “It seems to me that in the late eighteenth century,” Foucault said in February 1973, “a popular illegalism was not only compatible with, but useful to the development of the bourgeois economy. [But] there came a time when these popular illegalisms that had meshed with the development of the economy became incompatible with it.”
Second, then, Foucault identifies a break, toward the end of the ancient régime. As the nineteenth century approached, the popular illegalisms began to be perceived as a threat, a danger by the more privileged in society, the merchants, aristocrats, and bourgeois in France, but also in England, Russia (where Bentham’s brother, Samuel, was inventing the panopticon). The new forms of wealth accumulation, of moveable goods, of stocks and supplies—as opposed to landed wealth—exposed massive amounts of chattel property to the workers who came in direct contact with this new commercial wealth. The accumulation of wealth began to make popular illegalisms less useful—even dangerous—to the interests of the privileged. “These illegalisms ceased, at a certain time, to be tolerable to the class coming to power, because wealth, in its materiality, was spatialized in new forms …”
Foucault then identifies, in a third moment, a turn to the penal sanction. In the late eighteenth century, the commercial class seized the mechanisms of criminal justice to put an end to these popular illegalisms—not only the depredation of material property and private wealth, but also the “dissipation” of their own time and bodies, of the strength of the workers themselves, of their human capital (dissipation that took “the form of absenteeism, delay, laziness, parties, debauchery, nomadism.”) In this way, , the privileged would seize the administrative and police apparatus of the late eighteenth century to crack down on popular illegalisms. The result would be a turn to the penitentiary and the prison-form—which was not so much a model of confinement for violations of a statute, so much as imprisonment for irregular behavior.
So far, though, we are still at the level of an explanation in political economy. But a genealogy of morals would come next. For it was only through the moralization of those acts of debaucherie and absenteeism that the managerial classes would be able to transform formerly tolerated behaviors, even encouraged behaviors, into illegal acts.
Foucault would excavate and discover this move first in the writings of the Quakers and other dissenters. He located there a moralized discourse that would introduce the idea of the penitentiary, of penitence, into the sphere of punishment. He found echoes of this discourse among the more privileged classes of the early nineteenth century, echoes revealing how certain writers in France and England—Colquhoun in London, for instance—would use moral notions of fault, guilt, and penance to facilitate the construction of the capitalist enterprise.
This is so important, it is precisely why Foucault’s remarkable excerpt about Colquhoun figures on the jacket of the 1973 lectures, an utterly riveting passage:
Unfortunately, when we teach morality, when we study the history of morals, we always analyze the Groundwork of the Metaphysics of Morals and do not read [Colquhoun], this character who is fundamental for our morality. The inventor of the English police, this Glasgow merchant … settles in London where, in 1792, shipping companies ask him to solve the problem of the superintendence of the docks and the protection of bourgeois wealth. [This is a] basic problem …; to understand a society’s system of morality we have to ask the question: Where is the wealth? The history of morality should be organized entirely by this question of the location and movement of wealth.
Now, the transformation of popular illegalisms into illegalities operates first by means of their conversion into morally reprehensible acts that deserve penance, into moral failings and failures. Foucault unearths these brutal passages, written by early nineteenth century reformers, about the moral inadequacies and failings of the working class—here, for instance, he minutely dissects this text by a jurist and reformer from the Napoleonic era regarding revisions to the penal code, a brutal text referring to the popular classes as that “bastardized race”:
There, hard souls, dry, fierce, devoid of moral ideas, will only obey their gross sensations; laziness, immorality, greed, envy will prove the irreconcilable enemies of wisdom and labor, of the economy and of property. There will thrive misdemeanors and crimes of all kinds, less in the masses of the nation than in the dregs of the foreign tribe in general, which is formed next to the real people by the force of circumstances and habits accumulated for centuries. Almost always, for such a nation, the punishments must be measured against the nature of this bastardized race, which is the source of crimes, and the regeneration of which can barely be glimpsed, after many years of the wisest government.
Foucault would unearth and dissect this other, equally violent passage from the rural context:
The peasant is an evil, cunning, ferocious beast, half-civilized; he has neither heart nor integrity, nor honor; he lets himself be led to ferocity, were it not that the other two states crushed him mercilessly and reduced him to not being able to commit the crime he would want to commit.
And in a fictitious dialogue between the popular class and the privileged, Foucault asks on behalf of the workers: “What has changed? Didn’t we together violate the law, and circumvent the rules?” To which the privileged respond, “under the ancien régime, we were all together fighting power, unjustifiable abuses of the monarchy, we were taking on sovereign power. But now, you are just attacking private property. Formerly, we fought together against abuse of power. Now, you are violating the law. And it manifests a complete lack of morals.” And in his manuscript, Foucault ends this dialogue with a marvelous exclamation: “Allez et faites pénitence.”
“Go, and do your penance”: this is the moment where Foucault would turn from an archeological method, which had been inadequate to explain the generalization of the prison-form, to the genealogical method. For Foucault, the prison-form could not be derived from an archaeological examination of the penal theories of the great reformers of the eighteenth century. It traced instead to the moralized notion of penitence.
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It is precisely this marriage of political economy and a genealogy of morals that might help us to visualize our current political condition. The Illusion of Free Markets may not have paid sufficient attention to this dimension, namely to the moralization that is necessary for so many of us to swallow neoliberal penality. But it is certainly present. The traces of a moral struggle, of a battle, of what Foucault described in The Punitive Society as a civil war, the idea of the criminal as social enemy, these are all over the texts, from the eighteenth to the twentieth centuries.
Beginning with François Quesnay, who referred to “les hommes pervers,” “les voleurs et les méchants.” Quesnay would write:
The natural and fundamental laws of societies . . . imprint themselves on men’s hearts, they are the light that illuminates and masters their conscience: this light can only be weakened or obscured by their disordered passions [leurs passions déréglées]. The principle object of positive laws is this very disorderliness [dérèglement], to which they oppose a severe punishment to those perverse men [une sanction redoubtable aux hommes pervers]. For, on the whole, what is it that is truly necessary for the prosperity of a nation? To cultivate the land as successfully as possible and to keep society safe from thieves and evil people [des voleurs et des méchans]. The first part is governed by self-interest, the second is entrusted to the civil government.
Quesnay’s writing is truffled with demoralization of the “perverse men” who are “out of order” and need to be punished. Dupont de Neumours as well would moralize his discourse. In response to a discussion in Beccaria’s little tract from 1764, On Crimes and Punishments, advocating severe penalties, including the galleys, for smuggling, Du Pont would viscerally write about the moral righteousness of private property. To Du Pont, the real criminals are not those who smuggle contraband, but those who regulate commerce: “If there is, then, a true offense that deserves prison and penal servitude, it’s not that of the smugglers, but that of the Regulators who have proposed and still propose, who have compelled and still compel the adoption of royal edicts that hamper trade, of fiscal inquisitions, and of monopolistic threats to the natural rights of citizens, to their property, to their civil liberty, deterring useful work, and as fearsome for public as for private wealth.” The notion of the “real” criminal, of the “real enemy of society”—this moralization of crime infuses Dupont’s response to Beccaria.
Fast forward to the present. The moralization of criminality and of delinquents has a long, storied, and troubled history in the twentieth century in this country. Katherine Beckett, David Garland, and others have demonstrated how the very category of crime was produced as a political category in the 1960s—in both a racialized and moralized way—as a political response to the Civil Rights gains, and we see reflections of that even today with renewed claims about a supposed “Ferguson Effect.” Dorothy Roberts has explored the production of a moralized discourse over “Black criminality” and its role in justifying the massive incarceration of young black men. Others have analyzed the moralized tropes of the “welfare queen” in relation to the evisceration of the welfare state and the shift from welfare to workfare; of the “disorderly” in relation to the Broken-Windows Theory; of the “ne’er-do-well” in relation to parole prediction instruments; or of the “present oriented” in the writings of Edward Banfield—a category that overlapped squarely with race and poverty. The 1960s especially were scarred by a moralized discourse that linked race, poverty, and liberalism to violence, crime and immorality. Richard Nixon’s acceptance speech in 1968 captures that well:
For the past five years we have been deluged by Government programs for the unemployed, programs for the cities, programs for the poor, and we have reaped from these programs an ugly harvest of frustrations, violence and failure across the land. And now our opponents will be offering more of the same—more billions for Government jobs, Government housing, Government welfare. I say it’s time to quit pouring billions of dollars into programs that have failed in the United States of America.
One need only think back to John DiIulio’s earlier interventions in the 1990s—a time when he developed (and would later regret) the theory of “superpredator youths,” what he referred to as that “new generation of street criminals” who are “upon us”: “the youngest, biggest and baddest generation any society has ever known.” “Based on all that we have witnessed, researched and heard from people who are close to the action,” DiIulio wrote with two co-authors, “here is what we believe: America is now home to thickening ranks of juvenile ‘superpredators’—radically impulsive, brutally remorseless youngsters, including ever more preteenage boys, who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun-toting gangs and create serious communal disorders.”
These are some of the moralizations that make us tolerate the paradoxes of neoliberal penality and blind us to the reality and devastating consequences of mass incarcaretion today.
Let me close with this. The importance of moralization should not be underestimated. The idea of “the criminal as social enemy,” the notion of perverted men, of brutally remorseless youngsters, of the righteous hatred of the criminal—these must alert us to the seriousness of the struggle. So I will end with a particularly striking passage from Foucault’s lesson of February 28, 1973. After having engaged the ruthlessly brutal texts about the “bastardized races” of rural peasants and unearthed their violent premises, Foucault tells his audience at the Collège de France:
We’re always used to talking about the “stupidity” of the bourgeoisie. I wonder if the theme of bourgeois stupidity is not a theme for [artists, for intellectuals, for philosophers]: those who think that merchants are dim-witted, that financiers are obtuse, that those in power are simply blind. Sheltered by these caricatures, in fact the bourgeoisie is remarkable in intelligence. The lucidity and intelligence this class, which has captured and retained power under the conditions that we know, produces many effects of stupidity and blindness, but where? – if not exactly among intellectuals. We might be able to define intellectuals as those upon whom the intelligence of the bourgeoisie produces an effect of blindness and stupidity.
And then he adds in the margin of his manuscript: « Ceux qui le nient sont des amuseurs publics. Ils méconnaissent le sérieux de la lutte.” “Those who deny this are public entertainers. They don’t recognize the seriousness of the fight.”
One gets a sense of this when one rereads Dilulio or Banfield, or when one goes all the way back to Quesnay and Dupont. Our understanding of the political economy of punishment today must be twined to a genealogy of morals: it is the only way to understand how the new political economies of mass incarceration become normalized. How, in effect, the intolerable becomes tolerable.