A Brief Summary of The Punitive Society

By a graduate student in the seminar

Why on earth are there prisons? An anachronistic question, one may reply, given that prisons have already been so prevalent and accepted in our society, but Michel Foucault’s lectures at the Collège de France in 1973, collected in The Punitive Society, convincingly demonstrate how warranted, rich and meaningful this question is. In thirteen lectures, Foucault justified the question, explained how prisons became acceptable in Europe, illustrated the transformation from the acceptance of prisons to a punitive, or disciplinary, society (p. 237) and offered an analysis of disciplinary power.

Foucault first justified the question of “Why prisons?” on practical, historical and theoretical grounds. Practically, prisons were “dysfunctional from the start” (p. 226). The institution’s property of “taking back into prison those who have left it” was not a hidden attribute of the institution that took long to discover (p. 150). Other criticisms against the institution include “prevent[ing] judicial power from checking and verifying the application of penalties,” “producing a veritable army of internal enemies,” and “encouraging delinquency” by offering conditions preferrable to that of workers (p. 250).

Historically, the punitive tactic of imprisonment, despite its appearance as an old punishment, is a late invention. Imprisonment “was never really a punishment within the penal system” until the end of the eighteenth century (p. 7). Indeed, something like prisons had existed in judicial practice before, but such prison “by itself is not at all a penalty,” but “a necessary precaution in order to secure the accused, and to have him at one’s disposal.” (p. 66). Neither can the birth of prisons be traced to monastic enclosure, since monastic enclosure keeps the world outside for an individual’s repentance, whereas prison keeps the individual inside as a punishment. In any event, punitive confinement was not a “general ecclesiastical practice.” (p. 85).

Furthermore, on theoretical grounds, the prison-form was not derivable from penal theories during the same period which saw criminals as social enemies. The idea of individual crimes as harms to the society at large was developed by criminologists such as Cesare Beccaria relying on the Hobbesian conception of the war of all against all, the social contract and civil war, arguing that criminals “break[] the social pact binding him to others and goes to war against his own society” and reactivate the war of all against all, one against the society (p. 32). Based on this first principle, four principles of penalties emerge: “society can modulate the scale of its penalties according to its needs”; “there needs to be a fine gradation of counter-attack commensurate with the attacks on society”; the individual should be supervised and re-educated through punishment to “reintroduce him into the social contract”; and penalty must be public so as to be “exemplary” and “dissuade those who might arise as enemies.” (p. 67-68).  The three model penalties these penalty principles produce are “infamy,” “talion” and “slavery,” none of which are homogeneous with imprisonment (p.70).  A question on the origin of prisons is, therefore, a very well justified and warranted question.

Foucault’s answer to the question started with a description of the moralization of crimes and the organization of prisons in the US, which was based on the Quaker conception of religion, morality, and power. For the Quakers, the sole function of political power is to practice moral divisions and curb evil (p. 87). Given that “the ways of salvation are open everywhere and at every moment” and to everyone directly, the responsibility of the political powers is to provide individuals with retreat and teaching to help them rectify their minds (p. 88). Relying on these principles the Philadelphia prison was developed, and with regard to such an institution, the phrase “penitentiary” (penance) was used.  Contrary to the suggestion of some historians that the penitentiary element (penance) was added to the prison later as a type of reform, Foucault argued that prison was born with this element (p. 99).

From the Quaker prisons, Foucault proceeded to explain the emergence of prisons on the other side of the Atlantic. Noting the early exchange between America and Europe regarding prisons, Foucault focused on “what [it is] that made the prison-form acceptable in countries like France and England,” which is what he believed made the transfer of prison from America to Europe possible (p. 101).

According to Foucault, in England, capitalist economic development not only displaced people from their lands, but also exposed capital, in the form of goods, machinery and stock, to the new risk of depredation by those who handle such wealth (p. 104). A new order was therefore required to replace, or at least supplement, the unwieldy and strict penal law to control populations and reduce depredation. Moral societies hence emerged to, to a lesser extent, “detect and punish crime” and, more importantly, “attack moral faults, and  . . . psychological propensities, habits, manners, and behavior such as idleness, gambling, and debauchery” by “teaching [and] inculcating conduct”(p. 105). From organizations of petit bourgeois focusing on controlling “marginal, dubious, restless [and] wandering elements” of themselves or their immediate neighbours at the beginning of the eighteenth century, these moral societies had become organizations of aristocrats focusing on controlling the “’lower class’ as such” by campaigning for judicial intervention by the century’s end (p. 106-107). “Ethical-juridical control,” “a State control to the advantage of a class,” and “everyday constraints” “focus[ing] on ways of being” and “seek[ing] to bring about a certain correction of individuals” were hence installed into the society (p. 110). These last everyday constraints, called the coercive factor, were, according to Foucault, the condition of the prison’s acceptability, as “prison is the intensification, in the form of the penitentiary, of the system of coercion.” (p. 111).

As to France, the situation was quite different. At the end of the seventeenth century, neither army nor justice allowed the monarchy to deal with large-scale popular movements effectively (p. 123). Hence, a new tactic of removing dangerous people from the population in advance was developed to replace the tactic of repression (p. 124). Police and intendants of justice, police and finance were correspondingly established. Notable about these non-judicial apparatuses was the fact that they could serve local and particular interests (p. 126). This was achieved by lettres de cachet, where local intendants make decisions on private individuals’, organizations’ or corporation’s requests after conducting an inquiry in the circle of people around the solicitor (p. 127). When punishment was concerned, the matter was usually one of behaviours unacceptable to the individual or locally but beyond the law’s reach, such as “conjugal infidelity, debauchery, squandering a patrimony, a dissolute life, agitation” (p. 128), and the punishment requested was usually confinement (p. 129). Through these letters, “a certain moral consensus located in families, in localities” was expressed (p. 130), and the coercive factor was installed (p. 139).

Now that the coercive factor had been installed and prisons had become acceptable, the question becomes why we ended up with the punitive society, where the state took control over the non-legal coercive system, grafted the system into the legal, penal system, and had a penal system that is a penitentiary system by the end of the first twenty years of the nineteenth century (p. 140). Foucault’s answer to this question was the bourgeoisie’s demand on State to control lower-class or popular illegalism  (p. 140). Whereas certain lower-class illegalism had been useful to the development of bourgeois economy until the end of the eighteenth century (p. 140-146), bourgeois economy became intolerant of lower-class illegalism since then, which, in urban areas, took the form of an underground but coherent scheme of depredation of bourgeois wealth by agents responsible for handling the wealth (p. 147). Bourgeois thus started to denounce such illegalism, denounce those who practiced the illegalism as social enemies, and moralize workers and separate delinquents from non-delinquents (p. 149). For this last purpose prisons were used to, first of all, “lock up delinquents,” and second, “pit[] delinquents and non-delinquents against each other.” (p. 150).

After explaining how this same illegalism of depredation analysis applies to rural illegalism as well (p. 155-160), Foucault described another form of illegalism that the bourgeois disapproved of at the beginning of the nineteenth century. This is the illegalism of dissipation, which stands for workers’ refusal to apply their bodies to work (p. 187). Such illegalism took various forms, including the decision of idleness, worker irregularity, festive revelry, and refusal of family (p. 187). Worker immorality regarding their own bodies, or moral nomadisim, thus became the next target of bourgeois and capitalism repression (p. 193). Whereas such illegalism cannot be directly criminalized due to the bourgeois economy’s demand for the freedom of the labour market (p. 191), penal law was defined to discreetly incorporate moral control and coercion and establish institutions with a moralization function (p. 177). Para-penal, pre-judicial mechanisms of rewards and punishments were also introduced to implement diffuse, everyday disciplines to control such immorality (p. 193), and accumulation of these little warnings and punishments would push the workers into the penal system (p. 194). Through such general surveillance and the accompanying punishment, the perfect continuity of the disciplinary and the penal was established for the first time in Western history (p. 194). Here we are in a disciplinary society, which had “a means of ethical and political coercion that is necessary for the body, time, life, and men to be integrated, in the form of labor, in the interplay of productive forces.” (p. 196).

One more question needs to be resolved, however, which is “[b]y what instruments [] the disciplinary system that is established [was] actually able to be assured.” (p. 196). Foucault’s answer was instruments of sequestration (p. 208), whereby workers were attached to productive and non-productive institutions such as factories, schools and hospitals (p. 203) and were subject to the almost controlled power of their employers (p. 206), so that they could be normalized and be prepared for production (p. 208). These instruments serve the capitalist society, first, by subjecting “the time of people’s existence” to “the temporal system of the cycle of production” (p. 211); second, by controlling people’s non-productive existence such as sexuality and relationships between individuals under guises such as education or treatment (p. 212); and third, through judgment and general surveillance, by fabricating a social norm (p. 215).

According to Foucault, we have been living in such a disciplinary society since the eighteenth century, “a society equipped with apparatuses whose form is sequestration, whose purpose is the formation of a labor force, and whose instrument is the acquisition of disciplines or habits.” (p. 237). In this society, power no longer takes the “solemn, visible, ritual form of sovereignty,” but is exercised through habit and discipline, through the discourse of normalization (p. 240).

Now we can return to the “why prison” question posed at the beginning. Here is Foucault’s answer: “prison has the advantage that it produces delinquency, an instrument for controlling and putting pressure on illegalism, a not insignificant component in the exercise of power on bodies, an element of that physics of power that gave rise to the psychology of the subject.” (p. 263).

Fonda Shen