Foucault 3/13: Nadia Urbinati Introducing “The Punitive Society as a Political Text”

By Nadia Urbinati

If I concern myself with the G.I.P. [Groupe d’information sur les prisons], it is because I prefer effective work to university chattering and scribbling books. …On the other hand, a concrete political action in favor of prisoners seems to me charged with meaning” (from “Le grand enforcement” in Tages Anzeiger Magazin, March 1972, cited from Bernard E. Harcourt, “Course Context” in MF, The Punitive Society, p. 270).

We are forever in the habit of speaking of the ‘stupidity’ of the bourgeoisie. I wonder whether the theme of the stupid bourgeoisie is not a theme for intellectuals: those who imagine that merchants are narrow-minded… The lucidity and intelligence of this class produce many effects of stupidity and blindness, but where, if not precisely in the stratum of intellectuals? (MF, The Punitive Society, p. 165).

In what follows I propose we read MF’s lectures on The Punitive Society (TPS) as a political text, as a work written by a “militant intellectual” who wanted to have a direct link to “concrete political action.” If these lectures speak to us in such an unmatched powerful manner, it is because they testify to the proximity of “concrete political action” to the genealogical method: MF’s interest in the past was that of a scholar “writing the history of the present” (Discipline and Punish (Vintage, 1997, p. 31).

There are thus two terms that guide my reading of TPS as a political text: the “present” and the “intellectual.” After a tentative analysis of both of them, I conclude with contemporary political science’s incompetence in facing the “question of incarceration” in order to suggest that MF’s lectures are a classic work that contain general categories and a method of understanding that are indispensable to us for interpreting not only or solely MF’s present but ours. Foucault is not Foucault-ism.

First part – the Present

The “present” has 3 meanings in MF’s work.

  • 1. – As Foucault’s object of research the “present” is the fact of punishment as the producing/production engine of power relations. This “present” is the present of power, as it were, which can have, empirically and historically, various manifestations, modulations, and mobilize different disciplinary strategies.  This vision of the present motivates MF’s idea of punishment as the place where we have to look in order to understand power in all its forms and loci (private and intimate, civil, administrative, bureaucratic, religious, economic, etc). These relations have their terminal specification and their reason in punishment (which can be a fine, the refusal of communion in confession, the imposition of a certain relations between working forces and leading forces, etc.). Punishment is the present of power.

This explains why MF thinks that “time” more than space is the object of control –because shaping, limiting, controlling, determining individuals’ time (their choice of expressing themselves, enjoying life, having pleasure – thus living) means obstructing individuals’ expression and freedom. “Illegalism” looks like Carnival — taking back one’s living time. Hence he writes in TPS (and elsewhere), that human beings are not made for disciplined occupations but for enjoying and experiencing freely. Luddism, vagabondism, wasting money (not saving): these are the anti-power forms that the individuals excogitate as a tactic to oppose the “present” of any kind of power.

I’d like here to suggest a parallel with G. Vico on the issue of punishment as the present (because the foundation) of power (Vico thought that feeling of shame and the punishment of shameful doing were the source of “human society”.) MF cites Vico on very few occasions in his lectures (never in TPS) and once in Discipline and Punishment – I shall return to this citation when I analyze the 2nd meaning of the “present.” I don’t know how much MF knew of Vico’s philosophy – his reference was to Jules Michelet’s translation of G. Vico’s Scienza Nuova in 1827 (a major source of access to Vico’s thought until 1948 when an authoritative English translation appeared).

  • 2.- The “present” as the specific form of punishment in a historical time. Given punishment as the present of power relations, “prison” is the system of punishment in a specific time and as such belongs to a “political technology of the body”: “I have learned not so much from history as from the present” (Discipline and Punishment, ed. 1997, p. 30).  Genealogy is precisely “writing the history of the present” (Id., p. 31). Thus in Discipline and Punishment MF starts from the event of old punishment – he starts with the scaffold that hosted the last minutes of Damiens’ life (and suffering) and from there he excavates the several components of the machinery that produced it: torture, trial and juristic rules of judgment, religious mentality, methods of evidences collection: in substance the punishment strategy in its completion. Detecting and studying legal codes, the legal culture of the lawyers, the religious cultures and codes, the organization of knowledge and the disciplines of knowledge around punishment.

I thus come to MF’s citation from Vico in Discipline and Punish where MF comments on Damiens’ torture and death: “As Vico remarked, this old jurisprudence was ‘an entire poetics’” (p. 45).

We may say that Vico was the father of the genealogic method, although he used philology rather than archival historiography. The “new” science was the science of the system of punishment and life regulation (from birth to marriage to property and death) by means of juridical codes and formulas. “Thus, in primitive nations, divine and heroic jurisprudence are based on certainty. By contrast, in enlightened nations human jurisprudence is based on truth” (Vico, New Science, Penguin 199, p. 406). Difference of methods is central of course in TPS and earlier lectures also.

In “poetic” jurisprudence, justice is “interpretation”; in “rational” jurisprudence,  “judgment”.

Interpretation is a word that “properly speaking derived from inter-patrai” or entering into the “’fathers’ as the gods were at first called” (Vico, p. 405). As we learn in TPS, in the Middle Ages trials were like disputation on the interpretation of the texts (Umberto Eco has this model in mind in his The name of the rose). To anticipate an issue related to the “intellectual,” it is interesting to observe that in TPS, MF ascribes the old monk-like style of truth “revealing” to the Marxist intellectuals (the “universalist” as opposed to the “specific” intellectuals as we will see below) who “seek in the lacunae of a text the force or effect of an unsaid” (TPS, p. 165) because they assume that everything has been said, so that knowledge is interpretation.

Revealing and interpreting – to this method corresponded the sacred form of power wherein punishment was the dictate of the divine “certainty” achieved through interpretation of its texts. This “poetic jurisprudence” did not survive the enlightenment according to Vico (and MF).

Vico wrote: modern jurisprudence “examines the truth of the bare fact” which is constrained or ordered by the “strict principles of law.” This jurisprudence is practiced by “human governments namely democracies, and especially monarchies” (Id., 407).  It is the jurisprudence MF associates with Beccaria: the “purely juridical judgment” on the action of the doer.

Beccaria’s method for seeking truth in justice is not interpretation but syllogism. MF shows that this rational stage of judgment, which is supposed not to punish the body but the doer, opens the door to the scientific method for reaching the soul, a method that will be much more comprehensive and systematic than both the poetic one and the enlightened one: in the 19th century, medicine, phrenology, physio-psychology and finally positivist criminology were intended to produce truth that was consistent with and not contradictory to the rational method.

The history of punishment is a history of relocation, accumulation, and adaptation of old strategies and knowledge. Thus Cesare Beccaria and George Fox, the enlightenment and the Christian reformer (the pious Quaker), are co-operative not alternative.

The punitive society started proceeding (producing our “present”) when the war (civil war) was relocated from group rebellions (forms of illegality and plebeian revolts through the 17th and 18th centuries) to the individual violation of the law (the criminal as the solitary soldier of a war which no longer had an army).

Playing with Kantorowicz’s paradigm of the king’s two bodies, MF applied the same duality to punishment which treated the punished person as a double being: as a body (Beccaria’s pure juridical judgment) and as a soul (Fox’s moral judgment). MF does not concede any leverage to the supposed “humanization” argument of punishment (from torture to imprisonment) because he sees the operation of punishment over the soul as a means to reach and violate the body. Reversing the logic of Christianity (“the soul is the prison of the body”), he concluded that the body was the target. Secluding, curing, and reshaping the soul were like the culmination of the Christian goal achieved thanks to the new science of the body-and the soul. Beccaria and Fox or the renaissance of Christianity in the epoch of the enlightenment was not a set-back but a rational completion because the suppression of the reason for disobedience is the rationale for punishment.

Discipline and governmentality are thus the final step, and not by chance either: TPS starts with “civil war” and ends with “habit” and “habituation” – the hegemonic substation for coercion is the victory over rebellion, as docility is the victory over war. It is a gloomy conclusion.

  • 3.- The “present” as MF’s biographical or temporal present, which is not an appendix. Kendall Thomas proposed last time (Foucault 2/13) we pay more attention to the historical and political context in which MF wrote his lectures. This is good suggestion, above all if we read (as I propose) TPS as a political text.

The historical time of MF was the time of liberal-democracy in western countries in which MF cast himself as a “militant intellectual.”

I shall spend thus few words to contextualize MF’s own “present” as made both of his political action on, with, and for the inmates and his work on punitive society (in the 2/13 seminar François Ewald and Etienne Balibar gave us some sense of his “present”).  MF was among the leaders of the G.I.P. and organized demonstrations, participated in sit-ins, wrote pamphlets and directed an enquête of the system of incarceration, to support and inspire a global political struggle by prisoners and prisoners’ revolts that took place in several counties ruled by liberal-democratic governments: in France in 1972 (but also in other European countries, some of which were engaged in a fighting against political terrorism, like Germany and Italy) and in the USA (George Jackson, a member of the Black Panther Party, was killed in San Quintin, California, in August 1971 and a general revolt of prisoners took place in the Attica prison in that same year, just before MF visited the prison, in April 1972, that is to say few months before he delivered his lectures on punitive society).

This leads me to read TPS as a militant study of the present or as a political text. The early 1970s (and through the entire decade) were marked by “political” activism on both sides of the spectrum of politics: protests, contestations and movements and the state’s mobilization of its repressive force – two tactics of power that characterized liberal-democratic societies in the 1970s, so much so that the leaders of the Trilateral Committee released a document in 1975 denouncing a claimant citizenry as a threat to “governability” and the sign of a deep crisis of democracy, the ideal situation being political apathy.[1]

As a study of the “present,” TPS made a further step in decoding the birth of the punitive society, the name of a practice and of a regime that constitutional democracies seemed to have embraced without self-criticism, as they employed the police as a military force against their internal enemies (hence Foucault’s revision of Hobbes’s theory of the “civil war” as a war of all against all), thus suspending on many occasions the rule of law and basic rights, and adopting emergency legislation. In countries in which, like Italy, the constitution did not foresee any exceptional power it was the parliament (the representative popular will) that decided on granting the police and the military (the Minister of Interior and of Defense) the authority to use war-like methods that were by all means in contradiction with democracy (MF used the word “fascism” in these lectures and was not alone doing so nor was he wrong in doing so). The 1970s were witness to a society that was still in a phase of “civil war”, thus not yet pacified, not yet docile, and not yet a defeated place ruled by governmentality. Yet in a few years, MF would turn his attention on the forms of micro-power and the issue governmentality while almost dropping “civil war,” which played a central role in TPS. Was that change followed by a decline of the “militant intellectual”?

Second Part — The Intellectual

These quick thoughts on MF’s presents may help us to understand his description of himself as a “militant intellectual,” and moreover his view of the role of the intellectual.  MF’s “present” was also made of the political context of discussion on (French Maoism) in which MF was involved and whose main organizations survived until the mid-1970s. In 1970 the GP was banned by the French government, and a number of its members were imprisoned. This event inspired Foucault (and some of his contemporaries such as Gilles Deleuze) to launch a political-research whose objective was collecting and disseminating information about the conditions in French prisons. During the period 1971–1973, the G.I.P. issued four publications under the title Enquête-Intolérable.That campaign was able to achieve important objectives as it helped improve prisoners’ rights through the 1970s and lead prisoners to create their own organizations. It had also an impact outside France, in particular Italy, where the campaign on the conditions of prisoners lasted well beyond the Leftist organizations and produced some important legislation. Within that complex and specific context, MF developed his view on the role of the “intellectual” as “specific” and opposite to “universalist” (in traditional Marxism) as he wrote, and linked the intellectual to “a concrete political action” (MF, “The Political function of the Intellectual,” Radical Philosophy 17 (1977): 12-14).

The Leftist tradition has been immersed in the reflection on the role of the intellectual since the time it became a political project and a movement (second half of the 19th century).  Whether the object of the project was situated far ahead in the future or was concerned with the reforms of the working conditions in the actual present, the issue on how to module the knowledge and interpretation of texts and events was at the source of an unsolvable divide within the Left (one would need only to read Gramsci’s writings to have a sense of the meaning of this debate).

According to MF, if concrete political action is to profit from the intellectual work, the latter has to be redefined in a way that has to reverse certain Marxist theorists’ view of the intellectuals, which in the last pages of TPS (see the distich above) is sketched in a manner that resembles (as mentioned above) the monk-interpreters in Vico’s poetic jurisprudence or Eco’s The name of the rose. Until the “present” was seen as a revelation of a truth already written and known, the intellectuals were sacral interpreters. MF’s idea of making knowledge effectual explains why he used “intellectuals” in the plural and why he defined them as “specific” rather than “universalist”. Redefining the role of the intellectual in MF’s words thus did not mean going back to “an author’s texts or oeuvre” in a novel or different way; it meant closing those texts, and going to “the present.”

The first of the two distiches is here relevant. The distich is taken from an interview published in March 1972 as a comment on the aforementioned series of political events that were directly related to incarceration and punishment.  MF’s comment can be taken to represent his genealogic project of “writing the history of the present.” “I try to grasp an event when appears to me, which appears to me important for our actuality, even while being an anterior event.” [2] The “present” toward which he was pushing the intellectual must be understood as a long present or a past that has not yet ended – this explains why Foucault claimed not to be an historian but in fact more of a “journalist” who, in order to understand the present had to become an archeologist of the present. A journalist who is involved in “a concrete political action” is an “intellectual” of a certain kind, not “universal” (as above depicted) but “specific.”

Intellectuals have become accustomed to working not in the character of the ‘universal’, the ‘exemplary’, the ‘just-and-true for all’, but in specific sectors, at precise points where they are situated either by their professional conditions of work or their conditions of life (housing, the hospital, the asylum, the laboratory, the university, familial and sexual relations). Through this they have undoubtedly gained a much more concrete awareness of struggles. And yet, I believe that they have really come closer to the proletariat, for two reasons: because it has been a matter of real, material, everyday struggles, and because they often came up, even though in a different form, against the same adversary as the proletariat, the peasants and the masses, namely the multinational corporations, the judicial and police apparatuses, property speculators etc. This is what I would call the ‘specific’ intellectual as opposed to the ‘universal’ intellectual (M.F., “The Political function of the Intellectual,” p. 12).

TPS opens with a critical discussion of Hobbes’ theory of “war of all against all,” which MF insists, correctly in my view, in keeping distinct from “civil war.” To Hobbes, civil war comes at the end as the state’s mortal disease. The state must organize itself so as to not perish and the Leviathan’s success occurs when disobedience is solely an individual act of law violation. If groups of resistance exist that challenge the sovereign then the state enters a war with its organized enemies (civil war in England inspired Hobbes’ theory of absolute sovereignty and absolute obedience).  So Hobbes does not exclude that groups challenge the state. What he excludes is that the state tolerates them. In my view, MF is ultimately a Hobbesian because when he observes (with Clausewitz) that civil war is politics by other means he does not exclude (nor is scandalized) that the state will react against its internal enemies and in fact he predicts it will react. The difference between him and Hobbes is that Hobbes sides with the state, while MF with the anti-state revolts.

But what is the place of “civil war” at the end of TPS?  As anticipated above (2nd meaning of “present”), the transformation of the system of power from a state based one (modernity) to one based on the society-plus-the state (the total power was born along with the nation-state and the capitalist society in the 19th century) is primed to erase the condition for a war-like confrontation: putting an end to civil war for ever. Although Hobbes’ state’s self-preservation was based on rational judgment (like Beccaria’s), the logic of punishment was to become as less expensive and convenient as possible: in this sense, the punitive society was inscribed within the Leviathan – Hobbes relocated the war (civil war) from state power to social relation powers; later on the war would be relocated from group rebellions (illegality and plebian revolts through the 17th and 18th centuries) to the individual’s violation of the law (the criminal was made into a solitary soldier of a war that had no longer an army).

Yet given the “calm order” that punishment and surveillance (repression and docility) gives birth, what kind of “struggle” (“civil war”) may exist, and what kind of political action?

How would a “militant intellectual” find her place in a society that is a total Panoptic?

Perhaps a tentative answer may be found in MF’s “militant intellectual” – whose study of the rationality of the system is a key to cast light on the fallacies in the system, both in its technical apparatuses and in the disciplines it relies upon. Studying the present in its “anterior events” is an invitation to studying its effectual fragility and weakness.  MF’s persistent assault on the idea of power as something to be possessed by a centralized unitary actor is closer perhaps to our present than it was to his. The challenge to the sovereign state by a network of global forces and factors makes the paradigm of a single agent possessing power more dysfunctional today than when MF developed his intellectual project of detecting the disorganization, irrationality, dysfunctionality within the diffusive apparatuses of governmentality.

A Coda — Still Foucault?

Franςois Ewald asked in his 1999 article: “Is Foucault still a relevant (actual) philosopher?” Ewald formulated this question after mentioning MF’s pondering on the present as the “anterior event” that remains present. This link (past-present) is perhaps the key to adapt the role of the militant intellectual in a time, like ours, in which there is no elsewhere (politically speaking no elsewhere to democracy) yet there is a renaissance of “interest” in and “attention” to the “question of incarceration.”

In the introduction of the last issue of the Perspectives on Politics (a journal of the American Political Science Association) the editor of the journal Jeffrey C. Isaac writes that in the thousands courses on “Introduction to American Politics” offered in American universities, only a handful of them propose readings on “the criminal justice system”, and speaks of this as a serious “normative blight on and political dysfunction of American democracy” and political sciences. Isaac makes similar observations on the blindness to the “centrality of labor repression” in political history and science. None of the articles published in this issue mentions MF, yet the “question” they study and the way in which they try to study it reveal a Foucauldian style.

Thus, yes, Foucault is still relevant as a philosopher because his tools and categories are essential to scholars trying to understand society. Foucault’s “present” is ours as the incarceration problem in the USA (more than 2 million inmates) testifies. This prompts even political scientists to be as it were Foucauldian malgré eux. Perspectives on Politics presents us with the following irony: after a militant ostracism of Foucault’s genealogical method and after the celebration of methodological individualism and the rational choice as the doctrine and the method of political science, we see that Foucault is making his entrance through the backdoor – using his tools without mentioning him; a silent confession that the tools political science uses to study “normality” (the institutions of government) are unfit to understand normality’s other face, and this ultimately means that they are largely insufficient to study “normality”.

[1] Michael Crozier, Sameul P. Huntington, and Joji Watanuki, The Crisis of Democracy: On the Governability of Democracies: Report on the Governability of Democracies to The Trilateral Commission (New York: New York University Press, 1975.

[2] Cited in François Ewald, ‘Foucault and the Contemporary Scene’, Philosophy & Social Criticism 25(3), 1999: 82).