By Bernard E. Harcourt

[This article draws on a longer essay titled “Reading Penal Theories and Institutions”]

“Women, prisoners, conscripts, asylum patients, homosexuals have now begun a specific struggle of resistance against the particular forms of power, of constraint, of control that are exercised over them.” Michel Foucault, in discussion with Gilles Deleuze, “Les Intellectuels et le pouvoir,” March 4, 1972, Dits & Écrits #106, Quarto I, p. 1183.

The second seminar gave rise to a productive disagreement between Étienne Balibar and François Ewald regarding a matter of central importance to the questions of power and of resistance to power: Can resistance operate through the existing institutions, mechanisms, and practices of power, or must we look elsewhere to find other means to counter “the particular forms of power, of constraint, and of control that are exercised over us”?

These questions preoccupied Foucault at the time of his 1972 lectures, and they confounded him. Most of his exchanges with others critical thinkers in the period—with Noam Chomsky in November 1971, with Benny Lévy and André Glucksmann in June 1971, with Gilles Deleuze in March 1972—revolved around the central question of resistance to power: whether to work within the judicial institution, whether to litigate, whether to mimic the judicial model and organize independent popular tribunals, whether to write or to militate, whether to lead or to allow others’ voices to be heard, whether to form committees of inquest, whether to reach outside and resist by other means—in sum, whether to focus on the state institutions or on power itself.

In these debates, Foucault was adamant, especially with Lévy and Glucksmann, that resistance had to avoid the judicial institutions (e.g. the model of the popular tribunal), precisely because of the historical functioning of justice: judicial institutions, on Foucault’s view, had always functioned to create divisions and contradictions within society. Tribunals had always had a “constitutive role in the divisions of our contemporary society.” (D&E, Quart I, p. 1224). The penal system served to fracture and divide popular resistance, to legitimate established power relations, to construct the figure of the common law “criminal.”

But the deeper problem, Foucault insisted, was that critical thinkers were still at a loss to understand how power functions in contemporary society. In conversation with Deleuze, Foucault would repeatedly emphasize this point:

“Our difficulty in finding adequate forms of resistance, doesn’t this all come from the fact that we still ignore what power really is? After all, we had to wait till the 19th century to know what exploitation is, but we still perhaps don’t know what power is. […] The theory of the state, the traditional analysis of state apparatuses, surely these do not exhaust the field of the exercise and the functioning of power. Today, the great unknown is: who exercises power? And where do they exercise it? “ (D&E Quarto I, p. 1180).

It is within this specific context that we must reread Foucault’s theoretical interventions, as well as his practical engagements at the time. It is in this light that we need to return, for instance, to the G.I.P. manifesto that Foucault read out-loud to the press on February 8, 1971: “It is not our task to suggest a reform of the prison. We only want to make known its reality. And to make it known immediately, day by day; because time is pressing. It is a matter of alerting public opinion and holding it in high alert. We will try to use every means of information: daily newspapers, weeklies, monthlies. We are thus appealing to every possible tribune.” (D&E, #86, Quarto I, p. 1043).

***

The lacuna—namely, the gap between the traditional analysis of repressive state apparatuses and a full-blown theory of power—framed a productive disagreement between Étienne Balibar and François Ewald at the Foucault 2/13 seminar.

Balibar set the stage perfectly in his introductory remarks. The point of departure is the distinction, emphasized for instance by Althusser, between state institutions and power. As Althusser had underscored in “Ideology and Ideological State Appartuses (Notes towards an Investigation)” in 1969: “I argue that it is necessary to distinguish between State power (and its possession by…) on the one hand, and the State Apparatus on the other.” (On Ideology, p. 21) During the student uprisings of May ’68, some of the young militants believed that seizing and transforming the state institutions were the decisive matter—far more important than seizing power—because holding power did not guarantee fundamental change in society. According to these militants, there had to be a deep transformation of the apparatuses of the state—for instance, of the educational institutions and universities, key sites of reproduction. By contrast, for other militants at the time, the institutions were mere instruments or tools, and the real struggle had to be over power. The latter followed more closely what Althusser referred to as the classic “marxist theory of the State,” namely the idea that “the objective of the class struggle concerns State power” and “the proletariat must seize State power in order to destroy the existing bourgeois State apparatus.” (On Ideology, p. 15)

On Balibar’s reading, Foucault’s 1972 lectures, Penal Theories and Institutions—at least, at the level of the writing—place the categories of power and state apparatuses at the same level. “The two categories,” Balibar suggested, “are of equal weight and very frequently exchange their functions.” On this reading, Foucault’s text would be somewhat closer to Althusser’s analysis of repressive state apparatuses. Moreover, Balibar added, the most important state apparatuses for Foucault are the institutions of justice.

Now, on this latter point, Balibar is surely correct in the context of these 1972 lectures, which trace two separate genealogies of the judicial/policing institutions, first through the emergence of “armed justice” with the Chancelier Séguier’s repression of the Nu-pieds rebellion in 1639, and second through the gradual development starting in the Middle Ages of the institutions of royal justice. This is also clear from Foucault’s debate with Lévy and Glucksmann in June 1971 (see D&E #108, Quarto I, p. 1218). On this point, Ewald agreed fully.

By contrast, on the first point, Ewald offered a different reading of the relationship between state institutions and power, one in which the historical emergence of the repressive judicial/policing institutions in the 17th century produced an entirely new form of “administrative power.” On this reading, state apparatuses are strategic means toward new modalities of power. Here, the question of power takes precedence over the traditional analysis of state institutions.

Ewald proposed what he called a “structural analysis” of the 1972 lectures, specifically a structural interpretation of the key historical episode, Richelieu and Chancelier Séguier’s repression of the Nu-pieds rebellion in Normandy in 1639. In effect, Ewald dissected and set forth the political anatomy of one form of power that we might call “repression.” This form of power should be thought alongside other modalities of power, such as discipline, biopower, security, or govern mentality—each of which would constitute “a particular form of power, of constraint, of control that is potentially exercised over us.”

On this reading, Foucault develops in the first seven lessons of the 1972 lectures a detailed model of “repressive power relations,” which Ewald spelled out as follows:

1. The object: certain revolutionary seditions, but not all. Repression is not monolithic; oppression does not operate everywhere in the same way. Here, certain rebellious actors were targeted, others spared.
2. The subject: the representative of the king, who brings together the functions of giving justice and of using military force, combining them into something new and unique called “armed justice.”
3. The means: a conjoint exercise of military power and of civil authority, in an unprecedented mixture, under the guise of justice.
4. The tactics: subjectivation of certain actors as enemies, a final judgment of wrongdoing, dependence on the mystery of the sentence, waiting for judgment.
5. The strategies: the theatralization of politics; ceremony and rituals; knowledge and differentiation.
6. The outcome: not to make order, or to reestablish peace, but to produce a new form of power, namely the administrative state.

On Ewald’s proposed reading, then, Foucault’s 1972 lectures set forth a vision that privileges a particular model of power and describes its political anatomy—a task that, importantly, cannot be found anywhere else in Foucault’s writings. [As I discuss in the Course Context for the 1973 lectures, The Punitive Society, Foucault moves beyond this repressive model of power as early as April 1972, after he visits Attica, and throughout the 1973 lectures, see TPS at p. 267-269 and 279-281].

These competing readings of Balibar and Ewald have significantly different implications on the question of power and resistance to power: the first places the analysis of institutions and power relations on an equal footing, the second privileges a political anatomy of the different forms by which power circulates through society.

***

The disagreement between Balibar and Ewald is productive, I would argue, because it highlights two important elements—one from each reading—that together contribute to a more complete understanding of the 1972 lectures and their implications.

To be more specific: in these 1972 lectures, Foucault (1) focuses on the institutions of justice in a silent conversation with Althusser (2) because he fully appreciates that the discourse of repressive state apparatuses dominates the political debate at the time (in the post May ’68 period) (3) with the objective of analyzing power relations in his own terms and with his own concepts.

“From the depth of the Middle Ages, a man was mad if his speech could not be said to form part of the common discourse of men.” (The Discourse on Language, p. 217)

Foucault placed great emphasis on state apparatuses in these 1972 lectures because he was seeking to understand power in a new way, in his own words, but was acutely aware that he could not simply escape or avoid the common discourse of his age. That explains the emphasis on state institutions, the traces of Althusser, and what Balibar identifies as the equivalent weight, at the level of writing, of power and state apparatuses. Nevertheless, the overarching objective, on my reading, was to develop a fuller understanding of relations of power in order to formulate strategies of resistance—which was, for Foucault at the time, the central problematic.

It is for this reason that the lectures are so inflected by a certain “contre-Althusser,” or more broadly, a certain “contre-Marx.” Foucault was using the language of these thinkers to get beyond state apparatuses and understand repressive power.

On my reading, understanding power is the object, apparatuses are the means, and the outcome is a rich analysis of “one particular form of power, of constraint, of control that is exercised over us,” namely repression.

I will try to show this by means of three important passages from the 1972 lectures.

(1)      The lecture of February 9, 1972

A first indication occurs when Foucault turns to Germanic and medieval penalty in the lesson of February 9, 1972, in order to elaborate the way in which punishment practices shape economic distribution and the circulation of wealth, not merely as a kind of “superstructure,” he writes, but through the interplay of relations of appropriation and relations of power.

Foucault underscores the integral role of penal practice in the following manner:

Penal practice is not simply the result of a juridical conception of the state, nor of a religious conception fault. It is not part (or in any case, not only part) of superstructures. It is very directly inscribed in the game of relations of appropriation and relations of power. (T&IP, p. 132-133).

This first direct reference to the notion of “superstructures” would preface a long development on the relations of appropriation in the Middle Ages: on the imposition of fines and of confiscations, seizures and collections, of the regulation of usury and loans, of compensation, of judicial fees and office charges, of the cost of litigation, the guarantee of property and inheritance—in sum, the entire apparatus of penal justice that contributed directly to the circulation of wealth and demanded “a coercive force, both political and military.” (T&IP, p. 136).  In Foucault’s analysis, the questions of property rights play a central role and are at the heart of the penal system: criminal law enforces and simultaneously circulates and redistributes property. Or, in Foucault’s more simple formula: “Penality mobilizes and displaces wealth.” (T&IP, p. 149)

As he moves beyond the notion of superstructure, Foucault would identify both a rupture and a fundamental contrast between the forms of property seizure during the Middle Ages and the form of exclusion of individuals in our contemporary punishment practices, leading to this critical comparison (T&IP, p. 138-139):

Medieval Penal System:                                  Contemporary Penal System:

• Seizing property                                            Excluding individuals
• Fiscal                                                               Carceral
• Qui rachète quoi ?                                        Qui exclut qui et quoi?
• Pourquoi rachète-t-on telle action ?          Qui enferme qui?
• Comment ça se compense ?                       Qui est mis hors circuit
• Exchange                                                        Exclusion

This first development captures well the way in which Foucault starts from a particular discourse, here the language of “superstructures,” and goes beyond it, in order to build his own theory of power relations. By putting the interaction of penality and the circulation of wealth at the same level as relations of production, Foucault opens the door to the larger analysis he will conduct the following year in The Punitive Society, an analyses that will eventually lead him to explore the role of a new form of disciplinary power in the history of industrialisation in Discipline and Punish. In other words, the silent conversation makes possible an analysis of the interaction between the accumulation of docile bodies and the accumulation of capital, which emerges a few years later as a new theorization of power. See « Situation du cours », La Société Punitive, p. 300 et seq.; and « Notice », Surveiller et Punir, La Pléiade edition 2015 (specifically, on his new conception of power). Those analyses will take us far beyond the original confrontation with Althusser.

(2)      The lecture of February 23, 1972

A second indication occurs in the lesson of February 23, 1972, when Foucault delivers a methodological interlude to his discussion of medieval institutions of peace. In the process, he discusses the importance of juridical forms, the juridical matrices that are at the heart of all  his research since the beginning of the 1970s (i.e. the measure, the test, the inquiry). These matrices are not simply elements in the reproduction of economic relations, he argues, they  are not simply “expressions” or “re-conduction(s) of economic relations.” (T&IP, p. 171). Rather, this set of juridical forms “inscribe themselves as relations of power within economic relations, and in that very act, modify them: they transcribe the economic relations into relations of power and modify them at the same time.” (T&IP, p. 172). Foucault continues:

An apparatus like the judicial apparatus is not simply an expression or instrument of reproduction. It is a system by which:

• the economic invests itself in the political
• the political inserts itself in the economic.

It assures at the same time

• the omnipresence of the political to the economic
• and the discrepancy of one to the other. (T&IP, p. 172).

In a nearby passage, scratched out, Foucault writes the following: « les rapports de pouvoir ne se superposent pas aux rapports économiques. Ils forment avec eux une trame unique. Les rapports de pouvoir sont aussi profonds que les rapports de production. Ils ne se déduisent pas les uns des autres. Ils reconduisent des uns aux autres. » (T&IP, p. 172).

This passage is extremely important. Foucault’s theoretical effort here is to displace a certain academic marxism: The study of relations of power is as important and profound as the analysis of relations of production. Each one forms and modifies the other.

How, exactly? By shaping, for example, a conception of human nature. (Foucault will develop this in The Punitive Society and “Truth and Juridical Forms”). The disciplinary mechanisms at the heart of industrialization shape the common belief in the importance of hard work, due diligence, and thrift. They give rise to the shared perception of work as human essence—the condition of possibility of both the concept of alienation from the young Marx and of the notion of human capital of American neoliberalism. Without these technologies of discipline, there is no centrality to work; and without the centrality of work, it is not possible to think certain key economic theories and practices of the 19th and 20th centuries.

Notice here the overlapping of the genealogical and archaeological methods: the relations of power that produce the centrality of notions of work and production are themselves the expression of a modern episteme described in The Order Of Things in 1966. We find here the genealogy of this vast archaeological artifact that is work, production, time—or, as Foucault writes in 1966, the fact that men are “all subject to time, to toil, to fatigue, and, at the limit, to death itself.” (Les Mots et les Choses, p. 237).

As Claude-Olivier Doron shows, this methodological parenthesis must be understood as opposed to “the reduction of mechanisms of power to instruments of reproduction or of relations of production, the central thesis in the Althusserian analysis of state apparatuses.” (T&IP, p. 178 n.9). Foucault takes up here, and simultaneously modifies, central themes in the work of Althusser and Bourdieu on the reproduction of economic systems—themes to which he will return in The Punitive Society, once again challenging the foundational notion of a human essence founded on work. (LSP, p. 224, p. 245 n.8, and « Situation du cours » p. 299).

Foucault threads this all together in Penal Theory and Institutions, linking the resulting notion of knowledge–power to the earlier logic of political economy. He acknowledges this, very precisely for example, on page 213 of the French edition, where he underscores that “it is at that level [of power–knowledge] that the veritable, profound, and decisive link is formed with the economic.” Foucault has thus invented his concept of power-knowledge, in his own terms, by means of resistance to a discourse focused more exclusively on relations of production.

(3)      The lecture of March 8, 1972

The third passage is from the lesson of March 8, 1972, where Foucault discusses the epistemological and political effects of criminal law—or what he calls « les effets de savoir » and we might translate as “knowledge effects.” (T&IP, p. 198). Foucault underscores that these knowledge effects must be distinguished from simple “ideological operations.” By “ideological operations,” Foucault means the set of rationalizations that explain and justify the judicial decisions and the penal practices. By contrast, by knowledge effects, Foucault tells us, “one must understand something different”:

It is the breakdown, the distribution, and the organization of that which can become an object of knowledge through punishment practices; it’s the position and the function of subjects who are authorized to know; it is the form of knowledge, the indication, the revelation, the manifestation that plays out there.

To analyze these knowledge effects of punitive practices means to study these practices as a scene where truth emerges. (T&IP, p. 198). 

To differentiate and distance oneself from “ideological operations,” at least in 1972, is to speak “through” Althusser. But once again, the theoretical device does not begin to convey the implications of the work that this notion of “knowledge effects” is going to play in Foucault’s writings. In Penal Theories and Institutions alone, there emerges, from the transition from Germanic law to medieval penal practices, a manifestation of an entirely new paradigm of power relations, one that is going to be of central importance in Foucault’s later work.

For it is here that Foucault identifies another rupture and transition from a Germanic legal model founded on battle and war, to a model of royal justice in the 17th century that begins to impose a kind of knowledge—a kind of pre-statist knowledge.

Germanic law is characterized by the struggle, the combat, war. It is a question, Foucault suggests, of an entire set of feudal penal practices that function “by means of struggles, conflicts, and contradictions.” The juridical field, in that period, defines itself through the regulated combat: “The rule and the struggle, the rule in the struggle, that is what the juridical is all about.” (T&IP, p. 115). Or more simply, in Foucault’s manuscript we find: « acte de justice = lutte réglée » [“act of justice = regulated struggle”]. In short, the struggle over justice takes “the form of a battle.”

But a gradual displacement will take place over time—a displacement towards the truth, towards the production and imposition of knowledge. From the « événement-épreuve » [event-test], we pass to « l’enquête-vérité » [truth-inquiry]. With royal justice—the royal cases, royal prosecutors, the judge, the trial process—we pass to a model no longer of war, but of the quest for truth: “The replacement piece, which permits us to pass from a guardian power of order to a power that carries the sentence, that is the truth–inquest.” (T&IP, p. 201). Royal justice imposes a knowledge—which is very different from feudal justice where “Justice does not impose itself. It is constituted by the will of the individuals in litigation.”

In sum, from a “series of tests” modeled on war and combat, penality transitioned to a model of knowledge and truth:

– Alors que dans le vieux droit germanique, le défendeur lutte avec son accusateur, il est, dans ces procédures d’enquête, l’objet d’un savoir. Il n’est plus celui qui doit lutter ; il est celui à propos duquel il faut savoir.

Il était dans un champ de force ; il est maintenant dans un domaine de savoir.

– Dans le droit de type germanique, l’accusé gagnait ou perdait : maintenant, « on sait » ou « on ne sait pas » à son sujet. Il est percé à jour ou il demeure caché.

Il est pris dans l’opposition lumière/obscurité et non plus gain ou perte. (T&IP, p. 202).

This model of knowledge, naturally, is of essential importance for what follows, namely the emergence of the human sciences. In fact, it is on this precise hypothesis that Foucault will conclude his lessons on Penal Theories and Institutions in 1972, giving us a clear sense of the trajectory to come (the study of the examination in the context of the prison, which will lead to Discipline and Punish), and all the implications for the social sciences (which also harkens back to his archaeology in The Order Of Things from 1966):

Une remarque enfin.

L’analyse d’autres matrices juridico-politiques fera apparaître à côté de l’enquête et de la mesure un autre schéma du pouvoir-savoir.

Les nouveaux types de pénalité, de contrôle et de répression au XVIIIe-XIXe siècle ont fait apparaître la forme de l’examen :

• examen de normalité
• examen de niveau
• examen de moralité
• examen de santé (mentale ou non)

sur les individus ou les groupes.

C’est de là que sera extrait un sur-savoir dont l’effet sera l’apparition des sciences humaines.

À partir des trois matrices juridico-politiques sont nées les sciences :

• mesurantes du κοσμος,
• descriptives de la nature,
• normatives de l’homme. (T&IP, p. 215).

Once again, it is this model of knowledge-power, according to Foucault, that surrounds us today.

***

What is crucial, for present purposes, is that Foucault has managed to propose, in his own words and using his own concepts, a theory of power-knowledge that is the heart of his contribution. The initial momentum was the opposition or confrontation with Marx and Althusser; but Foucault goes well beyond that confrontation to ultimately formulate a new theory of power.

That, on my reading, is what these 1972 lectures achieve: the seeds of a new way to theorize power and understand how it circulates in society. And that, I believe, is where we can begin to rethink resistance. Or at least, begin to better understand what to resist:

It is not capitalism that produces criminality. That is a far too superficial analysis (“capitalism produces thieves and murderers; without capitalism, no more thieves”).

It is rather the case that capitalism cannot subsist without a repressive apparatus whose central function is anti-revolutionary. And that apparatus produces a certain coding of penality and delinquency.   (T&IP, p. 106)

This explains why political power holds on so dearly to the distinction between the political and the common law [crime and criminals].

The opposition political/common law is an essential political element of punishment practices …. (T&IP, p. 191)