To re-imagine our political economy and the legal order revolving around a punitive society, we should also re-imagine its morality. In order to re-imagine morality beyond the one of the punitive society, however, it is necessary to unpack and question its underpinning dualism between the criminal as social enemy and the good or responsible citizen. My suggestion is that we need a better account of the latter, as the notion of citizenship has been traditionally overlooked in post-structuralist scholarship. As I will briefly outline in the continuation of this contribution, in The Punitive Society Foucault provides us with two conceptual tools which can help us unpack and problematise the morality of a punitive society and this dualism: on the one hand, the State as an agent of morality and, on the other, the ‘partisanship’ or not-neutrality of the law.
The best way to engage with the morality of a punitive society and the notion of good or virtuous citizen is to look at the other term of the above-mentioned dualism, the criminal as social enemy. According to Foucault, the emergence of the punitive society requires a “new system of control […] situated on the border of morality and penality” (Foucault 2015, 105). In this new political economy and legal order, the State becomes an agent of morality. In other words, it is responsible for the ethical training of the population, which is possible through the rise of a coercive system supervising, controlling and correcting individuals’ behaviours. As is well known, one of the consequences of this moralisation of the State and of the penal system is the definition of the criminal as a social enemy, whose actions are an attack on society and on its productive imperative. Criminals are ‘bad’ and dangerous because, by breaking the social contract, they harm the entire social body. For this reason, some institutions should discipline and correct their behaviours. But, as Foucault argues, the social laws regulating and enforcing this disciplinary mechanism “are made by some for others” (e.g. the working class) (Foucault 2015, 22). By de-bunking the apparent universality of the penal system, Foucault shows how criminality and the moral stigmatisation of the criminal are a politically produced and regulated phenomenon (e.g. systematic illegalism).
Far from being universal and objective, in fact, the legal order is an instrument by which a class can conduct a sort of war against members of another class. While the actions of the latter are subject to legal sanctions and moral reproach (Foucault 2015, 21-36), individuals complying with those norms and laws made by one class become the virtuous and responsible citizens, whose life, in biopolitical terms, should be protected and whose actions are exemplary. Therefore, as Foucault did with the notion of criminality, we could apply the de-naturalisation of the juridical system and the moralisation of the State also to the notion of citizenship. In this way, we can re-direct our attention from the fiction of abstract and universal subject of rights, which has often been overlooked by scholars because considered an empty and outdated political category (Gonzales and Sigona 2017), to the heavily politicised notion of the good and responsible citizen, and to the modalities of its production. In fact, as recently pointed out by Martina Tazzioli’s analysis of lockdown measures implemented by some European governments (2020), the good and responsible citizen is politically produced and regulated as well. Through different means and strategies, the same political rationality produces and lets co-exist the criminal as social enemy and the good and responsible citizen. An analysis of how the notion of the good and virtuous citizen operates alongside the notion of the criminal-social enemy would therefore allow us to interpret some contemporary phenomena like privileged migration, citizenship revocation or security measures, which a traditional legal framework fails to explain.
Foucault, Michel. The Punitive Society, translated by Graham Burchell, New York: Picador, 2015
Gonzales, Roberto G. and Nando Sigona, eds. Within and Beyond Citizenship: Borders, Membership and Belonging. London: Routledge, 2017