A Dispatch from Rio: Reframing The Punitive Society as a Critique of Capitalism

By Antonio Pele, Pontifical Catholic University of Rio de Janeiro

Let me add a few thoughts to the rich discussion on the blog and at the Foucault 3/13 seminar on The Punitive Society (TPS), which I have been watching from Rio.

To begin with, I feel that there are two very consistent themes running throughout TPS—the changing nature of capitalism and the notion of strategies. Those two elements may be beneath the surface, but they constitute the very texture and context of Foucault’s analyses.

First, beyond the hidden influence of Marx and the “silent” dialogue with Althusser (and certain Maoists), this course is about the evolution of capitalist society. When Foucault joins the prison-form with the wage-form, it is not so much to establish a Weberian kind of “elective affinity”—I differ here from the persuasive interpretation of Axel Honneth—but rather to detect a genealogy of power that has enabled the veritable control of time (Lecture 5 p. 86; I will refer to the French edition of TPS; all translations into English are my own). Foucault insists that he does not want to show that the wage-form was the model for the prison-form (this would have been an elective affinity, for instance). In the last lecture, he underscores that it is inside the capitalist form of production that he has studied the relations of power that subjugate (through time) specific groups and individuals. I believe it is important to reframe the entire subsequent debate within this particular critique of capitalism.

In connection with this “capitalist power” (using the very words of Foucault), two important features also appear. First, and as Bernard Harcourt wrote in the epilogue, the question of subjectivity is close to the surface of TPS. The discussion surrounding the moral and political economies of punishment is obviously related to this question. Foucault is clear about this in the last lecture when he refers to the power of sequestration: “capitalism, indeed, does not find the working force just like this” (p. 236). Second: biopolitics. The notion does not appear in TPS, but it is sometimes implicit when Foucault shows, for instance, how the working force depends on the health care of living bodies (lecture 12, p. 216). In October 1974, in a conference titled “The Birth of Social Medicine,” held in the State University of Rio de Janeiro (UERJ), Foucault will introduce this very idea.

The first element I want to stress, then, is that the historical development of capitalism is at the heart of the 1973 lectures—especially in relation to those two notions of subjectivity and biopolitics.

My second point is that the concept of “strategy,” as a ruling social category, is at the heart of the penal system described by Foucault. This idea appears consistently and throughout the lectures of TPS, being sometimes a “tactic” (lectures 4 and 6, p. 67 and 115) or sometimes something “perfectly planned” (lecture 9, p. 165). Foucault refers to strategies that are perfectly concerted and regulated (lecture 9, p. 167 and lecture 11, p. 196). The closing lecture will concentrate even more on this notion, discussed in terms for instance of a “general strategy of worker’s sequestration by the managerial class” (p. 232). This idea of strategy is closely connected to the need to produce knowledge in order to perform these tactics, but also to the reality of waging a war, a civil war, which has been the object of lengthy discussion during the Foucault 3/13 seminar. (As I am writing this, Partha Chatterjee has posted a comment on a similar theme).

The observations of Didier Fassin concerning TPS are also instructive. When he points out that the political and moral economies of punishment are disjointed in Foucault’s work, he rightly insists on, for instance, the relevance of a public sphere in order to make the necessary moral and political adjustments: persuading people of the legitimacy of wealth inequality and constructing the illegalisms of the powerless, for instance. It is true that Foucault does not address those questions directly, but only very briefly when he describes, in Lecture 7 for instance, the mechanisms that have made acceptable State repressive apparatuses (using an Althusserian vocabulary). Foucault identifies a first mechanism, which consists in entrusting the marginalized social categories (unemployed, ruined bourgeoisie) with the mission of control and repression. This is the technique of Fascism and of the Second Empire. The second mechanism is associated with the lettres de cachet; in this case, the State apparatus is used “laterally” to serve some interests differently from the interest of the dominant class. It is a moral and parapenal regulation of society by itself.

It is true that Foucault may not describe in detail those processes of mediation, but he seems to be aware of them. Thus, it is particularly interesting to read the footnotes of TPS containing the written words of Foucault from his manuscripts (as opposed to what he said during the lectures), where he very often seems to correct himself, or try to prod and push his own reflection. Lecture 8 is a good example: after writing that the judiciary State apparatus is taking on more corrective and penitentiary functions, Foucault writes in the manuscript (footnote a, p. 143) “this is not an explanation”, and he insists on the need to resolve other issues such as: “Why the State has become this great “penitentiary”? “Society carrying all the social and moral values”. As (a partial) response to Didier Fassin, it seems that Foucault was aware of the tension between the political and moral economies of punishment.

I also agree that the idea of coercion as the condition of acceptability of the prison (in the relevant and “strategic” lecture 6, p. 114) resembles a “little-documented intuition”. The coercitif in Foucault has been defended by Frédéric Gros as a way to understand how the prison-form has been naturalized within our societies; but it has also been previously criticized by Legrand as an abstracting methodology that allows Foucault to concede a general value to elements that only make sense within concrete relations. Taking this debate  into account, what strikes me is the possibility of drawing some intersections between the properties of coercion (jointing the punitive with the penal) and Foucault’s definition of the criminal-enemy as an “exchanger” (échangeur), a “transcriber” (transcripteur), that circulates in the theories, the discourses, and the practices (see the last manuscript excerpt at the end of the second lecture).

Fassin also insists on the fact that this dual functionality of the prison—economic productivity and moral reform—belongs more to the imagination of those who conceived the system than to the actual reality of how prisons worked. Again, Foucault seems to agree with this idea, but, once again, in some very brief passages. For instance, at the end of Lecture 8 (p. 153-154), he states that as soon as the prison was born, we already know that its property was to put back in prison those who are released (“la prison comme bouclage des délinquants”). At the beginning of the last lecture, Foucault insists on the early dysfunction of the prison system, since it was already immediately perceived as leading to recidivism (pp. 229-230).

This confusion between the imagination and reality also appears in how beggars should be treated in the interesting essay of 1777, Les moyens de détruire la mendicité, en rendant les mendiants utiles à l’Etat sans les rendre malheureux, (On the means to destroy beggary, making beggars useful for State, without making them unhappy). I do not know if it is quoted in TPS. It is fascinating to see how this treatise embraces both a moralization (through a proper moral and religious education) and the hygienization (reforms of the hospitals) of the beggars: they only can be useful to society if they are able and want to work, and society must instill this idea into their mind. At the end of the book, prison appears as the best means “to force them to become honest men” (p. 463).

This last example might represent a precedent to the link between penitence and the prison within capitalist society, and from which Foucault will build his genealogy. In the last lecture, he insists on the “trick” (astuce), the “stroke of genius” of industrial society to take over the old technique of the imprisonment of the poor (p. 236). At the same time, and since the beginning, this “old technique” has never really worked, and I wonder if it is not this very distance between the moral and economic ideals of the prison-form and its (failed) reality that might also foster the process of legitimation of the imprisonment of the poor, the racially and socially marginalized. This is clear in the United States, as Bernard Harcourt has demonstrated repeatedly. It is also clear in Brazil, the third country after the United States and China in terms of prison populations. In parallel, to this, and as statement sur le vif, one might wonder, with (or against) Foucault, whether the production of useless and infective truths might be part precisely of the relations and exercise of power.

I would like to come back now to the comment of Axel Honneth deducing from Foucault’s ideas the definition of a criminal one who undermines the existing order of time. Honneth considers that it would have been more interesting and obvious instead to define the criminal as a social enemy because he was attacking negative liberties, the normative basis of the new social contract after the French Revolution. The comments of Honneth are challenging, and I might not be able to respond completely.

What is at stake here for Foucault (in this lecture 4) is much more the “relationship of the time of life to the political power” than the criminal as an enemy of the “existing order of time”. In other words, the fact that power relies on the variable “time” as a retribution (wage/time of work) and as a punishment (prison/time of freedom) does not necessarily mean that the criminal is now defined as an enemy of the “existing order of time” because he is subtracting a quantity of time from this order. Concerning the social contract theories, Foucault mentions the social contract of Rousseau (in the beginning of this lecture 4), where the criminal is not defined as taking away those liberal liberties, but as social enemy that must be banished or killed. Locke would also prefer to imprisonment alternate forms of punishment. The move of Foucault is precisely to establish a connection between capitalist organization and political economy in order to demonstrate how the prison got naturalized when its very form was not included (or very partially) among the punishments identified by classical political theories. Thus if we look at a French Circular of 1796 (under the Directoire), the reorganization of the carceral system is justified in order to prevent disorder and social turmoil.

Finally, as Bernard Harcourt sums up (third moment), the turn to the penal sanction in the late XVIII century and the beginning of the XIX century can be understood as legal and political strategies of the bourgeoisie to put an end to the popular illegalisms. According to Foucault, those illegalisms could not be tolerated anymore as they endangered, through dissipation and depredation, the productive forces that have to sustain capitalism and the new forms of wealth, that were getting more visible, materialized and disseminated (raw materials, merchandise, stocks, machines). As we have seen, the comments and the debate around the political and moral economies of punishment mainly focused on dissipation, on the issues concerning the possibility of moralization of the working force (penitence/prison). This focus is legitimate as it is one of the main objects of TPS. It allows us to understand the relevance of the process of moralization in order to turn illegalisms into illegalities. Following Harcourt, Max Weber might be read throughout TPS, and in particular in lecture 11 (p. 197), where Foucault insists on the “moral quality of the worker”. However, we might come back briefly to this idea of depredation. It might be interesting to actually see those forms of capital and the trends during the period in which Foucault deploys his analysis (1825-1848, introduction lecture #2).

Luckily for us, Thomas Piketty has provided some interesting insights in Chapter III of his book, with two basic graphs dealing with capital in Britain and in France, two countries that are precisely analysed by Foucault in TPS. My focus here is not to present a deep analysis of those graphs, but rather to highlight some possible linkages and even tensions with the premises of Foucault. First, foreign capital is getting significant: Britain and France are (respectively) the first and second colonial empires. Thus, in 1802, slavery was indeed legalized by Napoleon (in relation to Kendall Thomas’ remarks on slavery around 118:00 in the video of the seminar). Second, and still at the beginning of the XIXth century, it seems that half of the capital is represented by land, and the other half by the three other forms (foreign capital, housing, and what interests us, the “other domestic capital,” such as, precisely, stocks, machines, building, etc.). Agricultural lands were representing two-third of the capital at the beginning of the XVIIIth century, and represented in France half of the capital till the middle of the XIXth century. The French Revolution was indeed a revolution of bourgeois landowners. Thus, even during a good part of the XIXth century, wealth was still structured in France around land ownership and the break with the Ancien régime will be more progressive than Foucault suggests (see, footnote 1 of Lesson 9). At the same time, there is a striking contemporaneity (around 1810) between, on one hand, the fall of this “other domestic capital” in the national income and, on the other, the criminal and penal measures introduced to allegedly protect it from depredation. This fall that will continue till the beginning of the XIXth century (and even more after), may have generated a feeling of vulnerability for this capital among the commercial classes who might have resolved to strengthen its protection. This is a very partial assumption, but it may corroborate Foucault’s insight concerning the penal/depredation linkage.

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