Daniele Lorenzini | Dismantling the Political Economy of Illegality

By Daniele Lorenzini

Michel Foucault’s interest in disciplinary power was never limited to the analysis and critique of specific institutions such as the prison, the factory, the hospital, or the school. His overarching aim was to explore the concrete functioning of power in society at large. If it is not surprising that “prisons resemble factories, schools, barracks, hospitals, which all resemble prisons” (DP, 228), it is because each of these institutions is but an element (or an “island”) in a “carceral archipelago” that is coextensive with society itself (DP, 298). Therefore, as Foucault claims in a lecture from 1976, “the critique of the prison […] would be politically naive were it not suspicious of this rediffusion of the mechanisms of the prison at the level of the social body” (AP, 24).

Foucault’s analysis of our disciplinary or punitive society, however, does not aim to make us more resigned to its supposed inevitability. It rather pushes us to ask a crucial question: Is this the way in which we want to punish and be punished? Do we actually want to punish and be punished at all? According to Foucault, changes in the way in which punishment is conceptualized and administered necessarily entail changes in the way in which power functions in society, and vice versa. Consequently, it would be a mistake to think that the prison can just be “reformed,” or that it is possible to actually change the way in which we punish without at the same time radically transforming society at large. The “alternatives” to the prison (e.g. imposing a debt on someone, cancelling a number of their freedoms, binding them to an obligation of labor, etc.) are just “so many more ways of diffusing outside of prisons the functions of surveillance that will henceforth be exercised not on the individual confined to [their] cell but dispersed across [their] apparent life of freedom” (AP, 17). They are ways of repeating and reinforcing the carceral function, not of replacing it.

Thus, the question that Foucault wants us to ask is not: How can we make prisons better, more efficient, more humane? But: Can we build a society without prisons? To be able to do that, we would need to imagine a completely different way for power relations to be organized and to function throughout the entire social body.

Bringing the Punitive Society into View

Foucault’s lectures at the Collège de France from 1971–72 on Penal Theories and Institutions and from 1972–73 on The Punitive Society constitute the first moment of elaboration of the conceptual framework that would also characterize, a few years later, his most famous and celebrated book, Discipline and Punish. The conditions of possibility for such an elaboration can be found in three conceptual shifts that took place in Foucault’s thought between 1971 and 1973, and which allowed him to develop his original analysis of the disciplinary or punitive society. Three notions that play an important role in Penal Theories and Institutions are radically called into question and criticized in The Punitive Society: the notions of repression, exclusion, and transgression.

  1.  In Penal Theories and Institutions, Foucault’s discourse is entirely organized around the notion of repression. Through a detailed analysis of medieval and modern judicial institutions, his aim is to retrace the birth of a centralized penal justice apparatus that works as a repressive system whose main devices to punish crime and social deviance are the police and the prison. Thus, in 1971–72, Foucault defines the criminal justice system as a “repressive State apparatus,” that is, as a system whose main function, at least at the beginning, consisted in the repression of popular seditions through the segregation of people (PTI, 96). By contrast, The Punitive Society develops a critique of the very notion of repression—one that would characterize Foucault’s work on power until the end of his life. In 1973, Foucault insists on the productive (rather than repressive) function of the penal system: the latter, according to him, is in charge of a differential management of illegalisms that is instrumental for the formation of a labor force. A few years later, in Discipline and Punish, the critique of the notion of repression would more explicitly take the form of a critique of the “juridical” model of power: “We must cease once and for all to describe the effects of power in negative terms: it ‘excludes,’ it ‘represses,’ it ‘censors,’ it ‘abstracts,’ it ‘masks,’ it ‘conceals.’ In fact, power produces; it produces reality; it produces domains of objects and rituals of truth” (DP, 194).
  2. In the manuscript of the 9 February 1972 lecture of Penal Theories and Institutions, Foucault explores the differences between the medieval penal system and “our” penal system, arguing that while the former had its main effects at the level of “the levy on goods,” the latter has its greatest effects at the level of “the exclusion of individuals” (PTI, 138). The modern system of penality is “carceral” because it has an “anti-seditious” social function—this is why, according to Foucault, the analysis of modern penal practices should focus on the problem of the exclusion (the internment or imprisonment) of those individuals who do not fit social and economic norms (PTI, 139). By contrast, in the inaugural lecture of The Punitive Society, Foucault emphatically declares that he wants to get rid of the notion of exclusion as it has been used to designate the status given in our society to delinquents, to the mentally ill, to ethnic, religious, and sexual minorities—in short, to all the people who are considered “abnormal” or “deviant” (PS, 2–3). Foucault does acknowledge that the notion of exclusion has been helpful and that it can sometimes exercise a critical function. However, he now considers it to be flawed because it renders more difficult the analysis of the specific mechanisms of power through which each form of exclusion is concretely instantiated. In particular, the inclusion-exclusion dichotomy masks the fact that procedures of exclusion are not at all opposed to techniques of assimilation. The two kinds of procedures are rather in a relation of mutual reinforcement: “There is no exile, no confinement that does not include, along with what is generally described as expulsion, a transfer, a reactivation of the very power that imposes, constrains, and expels” (PS, 4).
  3. The notion of transgression underlies most of the analyses developed by Foucault in Penal Theories and Institutions, and in particular his analysis of the popular struggles, revolts, and seditions that triggered the formation of the criminal justice system as a repressive State apparatus. Foucault argues that “if the public power suffers injury through the crime, then crime is always, in at least one of its dimensions, an attack on the public power, a struggle against it, the temporary suspension of its laws” (PTI, 190). Therefore, crime is here explicitly conceived of in terms of transgression, i.e. of that which “for a person, in a place, for a moment” renders “the law unreal and powerless” (PS, 112). By contrast, in The Punitive Society, Foucault argues that the critique of the notion of exclusion necessarily entails the critique of the notion of transgression. On the one hand, the notion of transgression is but an “intellectual prejudice” [préjugé d’intellectuel] according to which there are first of all prohibitions and then transgressions, whereas “we cannot analyze something like a law and a prohibition without situating it within the real field of illegalism within which it functions” (PS, 145). On the other hand, the notion of transgression points to a binary opposition between struggles and power, resistances and domination, whereas power has no inside or outside: it consists in temporary tactical configurations in which localized resistances rely on power relations to reverse their direction while power relations are modified in order to respond to practices of resistance, to bend them to different objectives, or to make them ineffective.

These three conceptual shifts open up the space necessary for Foucault to elaborate a new definition of power and explore the concrete workings of our disciplinary or punitive society. In the final lecture of The Punitive Society, Foucault defines the latter through a fourfold critique:

  1. Critique of the schema of the appropriation of power: power is not something that one “possesses” but something that “takes place, is effectuated, exercised” in the depths of the social field, according to “a whole system of relays, connections, [and] points of support” (PS, 228).
  2. Critique of the schema of the localization of power: power is not exclusively located in State apparatuses, which should rather be conceived as “concentrated” structures supporting “a system of power that goes much further and deeper” (PS, 229).
  3. Critique of the schema of subordination of power to a mode of production: power is not just the “guarantee of a mode of production” but one of its constitutive elements that “functions at its [very] heart” (PS, 231).
  4. Critique of the schema of ideology: power does not function either as (silent) violence or by producing ideological effects in the discursive realm of knowledge-connaissance. Every point at which power is exercised is at the same time “a site of formation, not of ideology, but of knowledge-savoir,” and every knowledge-savoir thus formed enables in turn the exercise of power. In other words, knowledge-savoir and power are concretely bound up with each other in a complex interplay that should be analyzed in detail (PS, 233).

Within this framework, Foucault defines the prison as a specific “social form” that should not be addressed through the analysis of penal theories or conceptions of law, nor on the basis of a historical sociology of delinquency, but by asking the question of the “system of power” in which it functions (PS, 227). In other words, as Foucault argues in Discipline and Punish, we can only speak of the formation of a disciplinary or punitive society “in this movement that stretches from the enclosed disciplines, a sort of social ‘quarantine,’ to an indefinitely generalizable mechanism of ‘panopticism’” (DP, 216). In fact, it is the same political rationality, the same mechanisms of power that operate inside the prison and throughout society as a whole. Disciplinary power consists in a complex set of practices of control, surveillance, and punishment that are responsible for the production not only of (subjugated or disciplined) individuals but also of social norms (PS, 237).

Alternatives to the Prison?

In our introduction to “Abolition Democracy 7/13,” Bernard Harcourt and I emphasize the tight link between abolitionist struggles and the need to create a new society. In 1976, Foucault himself argued that “there can be no reform of the prison without the search for a new society” (AP, 24). Yet, as I already suggested, when trying to imagine a new society, one should not ask what form of punishment would be more gentle, efficient, or humane. The quality of life in prison can certainly be improved: prisons can be made more “democratic” (e.g. through the creation of prisoners’ councils), more alone time with family members can be granted, the inmates’ labor can be made more meaningful, etc. Although these improvements are important, they risk masking a far more crucial and urgent question. As Foucault aptly remarks, the issue of an alternative to the prison—or of an alternative prison—guiltily takes for granted “the existence of a penal regime that grants to particular individuals the right to punish people for particular things” (AP, 13). The broader, more fundamental issue should instead be about our penal regime and punitive society themselves. Why do we punish? Do we really need to punish? How can society be transformed in order to diminish, and possibly eliminate, the supposedly universal and trans-historical need to punish?

Although there certainly are aspects of our punitive practices that have to do with society’s ancestral need to get vengeance on the individual who transgresses the rules of the group and with the victim’s (or their family’s) psychological need for reparation, the public discourse is still centered on the idea that we punish for two main reasons—and therefore that punishment is justified if it serves two main aims. On the one hand, we punish in order to prevent an individual from harming others in the future (a preventive principle linked to the idea that criminal acts reveal the “dangerous nature” of the individual); on the other hand, we punish in order to rehabilitate the individual, to transform and remove the “dangerous” aspects of their “nature.” These two reasons and aims are correlative and clearly connected to the main function of the prison (and the police): social control.

However, as Foucault convincingly argues, if the real aim of the prison was to rehabilitate individuals, thereby diminishing crime by preventing its repetition, the prison would be a clear failure. Foucault thus suggests that for the conclusion that prison fails to eliminate crime, we should substitute the hypothesis that prison succeeds in producing and managing delinquency, i.e. a specific, politically and economically less dangerous and even useful form of illegality (DP, 277): “I think one can find in the very functioning of prisons the evidence for this idea that the penal system, in spite of the orders it assigns to itself, is not really an apparatus for suppressing crime but is in fact a mechanism for the management, the differential intensification, the dispersal of illegalisms—a mechanism for the control and distribution of different illegalities” (AP, 19). This means that the prison creates its own conditions of acceptability—that it incessantly fabricates its own justification. Therefore, the fact that the prison “has been a factory for producing criminals,” far from being a mark of its failure, is a sign of its success (AP, 21). The “criminal subject,” this individual that is regarded as both dangerous for society and susceptible to be rehabilitated, is the necessary correlative of the prison and of our alleged need for it—one that the prison itself is in charge of producing. At the same time, the existence of criminals makes “more acceptable the permanent presence of the police,” as well as of many other forms of control and surveillance of individual behavior, “at the very heart of the population” (AP, 21).

However, if Foucault’s description of our disciplinary or punitive society is accurate, we should emphasize that the creation of the “criminal subject” is a complex process that can only be carried out by society as a whole—by its different institutions and apparatuses, by its rules and norms, by its forms of (explicit and explicit) violence and discrimination, by the socio-economic inequalities that it produces and that sustain its existence. This is why (our) society is the problem, not the solution. As Rahsaan Thomas suggests in his powerful blog post, the question that we should ask is not how to reform/transform individuals in order to make them “fit” society, but how to reform/transform society in order for it to no longer need delinquency and illegalities as ways to preserve and incessantly recreate its most violent, unjust, and discriminatory structures of power. Society, not individuals, needs to be made responsible for the existence of crime and “criminals,” for the multiple ways in which it produces and profits from them, using them as tactical elements in the defense of the status quo.

“What should we have done differently?”—this is the question that we need to ask to those who we are so keen to punish and imprison. And we should realize that actual social change depends on our capacity to listen carefully to their answers rather than on the prison’s (in)capacity to “rehabilitate” them. As Bernard Harcourt argues in “A World Without Punishment,” our contemporary punitive society relies on imprisonment and a variety of other penal practices to preserve and reactivate social, economic, and racial hierarchies. Fighting against the generalized acceptance of those hierarchies and actively engaging in their dismantlement is a precondition for diminishing, and possibly eliminating, our need to punish and imprison—not vice versa.

Foucault concludes his 1976 lecture at the University of Montreal by claiming that “the question of the prison cannot be resolved or even posed in terms of a simple penal theory. Neither can it be posed in terms of a psychology or sociology of crime. The question of the role and possible disappearance of the prison can only be posed in terms of an economy and a politics, that is, a political economy of illegality” (AP, 24). To dismantle our political economy of illegality and “conceptualize a society in which power has no need for illegalities” (AP, 24), we should probably start by undoing “the connection: morality-capitalist power-the State” (PS, 113). In other words, we should get rid of all the socio-economic mechanisms that work towards a “penalization of [our] existence” (PS, 193); most importantly, we should stop moralizing punishment and start politicizing it instead—regarding it as a major obstacle in the struggle to create an other society.


Foucault, Michel (1995) Discipline and Punish: The Birth of the Prison [1975]. New York: Vintage Books. [DP]

—— (2009) “Alternatives to the Prison: Dissemination or Decline of Social Control?” [1976]. Theory, Culture & Society 26(6): 12–24. [AP]

—— (2015) The Punitive Society: Lectures at the Collège de France, 1972–1973. Basingstoke: Palgrave Macmillan. [PS]

—— (2019) Penal Theories and Institutions: Lectures at the Collège de France, 1971–1972. Basingstoke: Palgrave Macmillan. [PTI]

Fonda Shen