{"id":361,"date":"2015-10-11T20:56:25","date_gmt":"2015-10-12T00:56:25","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/foucault1313\/?p=361"},"modified":"2015-10-13T13:46:53","modified_gmt":"2015-10-13T17:46:53","slug":"foucault-313-the-punitive-society-didier-fassin-axel-honneth-nadia-urbinati-and-the-question-of-the-political-and-moral-economies-of-punishment","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/foucault1313\/2015\/10\/11\/foucault-313-the-punitive-society-didier-fassin-axel-honneth-nadia-urbinati-and-the-question-of-the-political-and-moral-economies-of-punishment\/","title":{"rendered":"Foucault 3\/13 The Punitive Society: Didier Fassin, Axel Honneth, Nadia Urbinati, and the Question of the Political and Moral Economies of Punishment"},"content":{"rendered":"<p><strong>By Bernard E. Harcourt<\/strong><\/p>\n<p style=\"padding-left: 60px;\">[This article draws on a longer essay titled \u201c<a href=\"https:\/\/ssrn.com\/abstract=2673062\" target=\"_blank\">The &#8217;73 Graft: Punishment, Political Economy, and the Genealogy of Morals<\/a>\u201d]<\/p>\n<p style=\"text-align: justify;\">In their fascinating and provocative articles on\u00a0<em><a href=\"https:\/\/blogs.law.columbia.edu\/foucault1313\/2015\/10\/03\/foucault-313-biblio-the-punitive-society\/\" target=\"_blank\">The Punitive Society<\/a><\/em>, <a href=\"https:\/\/blogs.law.columbia.edu\/foucault1313\/2015\/10\/07\/fassin\/\" target=\"_blank\">Didier Fassin<\/a>, <a href=\"https:\/\/blogs.law.columbia.edu\/foucault1313\/2015\/10\/06\/axel-honneth\/\" target=\"_blank\">Axel Honneth<\/a>, and <a href=\"https:\/\/blogs.law.columbia.edu\/foucault1313\/2015\/10\/05\/foucault-213-nadia-urbinati-introducing-the-punitive-society-as-a-political-text\/\" target=\"_blank\">Nadia Urbinati<\/a> raise a set of critical questions about Foucault&#8217;s 1973 lectures, concerning:<\/p>\n<ul>\n<li style=\"text-align: justify;\">the idea\u00a0of civil war as a model for relations of power in society, and\u00a0the related notion of the &#8220;criminal as social enemy&#8221; as a specific instantiation of the matrix of war;<\/li>\n<li style=\"text-align: justify;\">the concept of &#8220;illegalisms&#8221; as the basis for a political economy of punishment that criminalizes the poor and minorities;<\/li>\n<li style=\"text-align: justify;\">the relation of that particular political-economic theory to a Weberian-inspired, genealogical \u00a0analysis of the protestant roots of the wage- and prison-form;<\/li>\n<li style=\"text-align: justify;\">the contemporary reflections of all this in our present condition of massive and racialized over-incarceration, or what has come to be known as the <a href=\"https:\/\/newjimcrow.com\" target=\"_blank\">New Jim Crow<\/a>; and<\/li>\n<li style=\"text-align: justify;\">the role and method for militant specific intellectuals to intervene in our present, drawing on\u00a0<em>The Punitive Society<\/em> as a political text.<\/li>\n<\/ul>\n<p style=\"text-align: justify;\">The three articles push hard on Foucault&#8217;s marriage of a political economy of punishment and a genealogy of morals in these 1973 lectures.\u00a0<a href=\"https:\/\/blogs.law.columbia.edu\/foucault1313\/2015\/10\/07\/fassin\/\" target=\"_blank\">Didier Fassin<\/a> suggests that &#8220;the political and moral economies of punishment are somewhat disjointed&#8221; and may not really reflect the reality of how prisons worked. <a href=\"https:\/\/blogs.law.columbia.edu\/foucault1313\/2015\/10\/06\/axel-honneth\/\" target=\"_blank\">Axel Honneth<\/a> discusses how they produce a tension\u2014a dual focus, on the one hand, on the body, on the other, on the soul\u2014that leads to a &#8220;biopolitics\u00a0<em>and\u00a0<\/em>psychopolitics&#8221; that are hard to reconcile.<\/p>\n<p style=\"text-align: justify;\">Following <a href=\"https:\/\/blogs.law.columbia.edu\/foucault1313\/2015\/10\/05\/foucault-213-nadia-urbinati-introducing-the-punitive-society-as-a-political-text\/\" target=\"_blank\">Nadia Urbinati<\/a>&#8216;s proposal to treat these 1973 lectures as a &#8220;political text&#8221;\u2014and in the vein of her provocative statement that reading these lectures shows that\u00a0&#8220;Foucault is not Foucault-ism&#8221;\u2014I propose to explore here this problem\u00a0of the marriage of political economy and the genealogy of morals in relation to our present political condition of massive racialized over-incarceration. I will leave for <a href=\"https:\/\/web.law.columbia.edu\/foucault1313\/multimedia\" target=\"_blank\">the Foucault 3\/13 seminar, which will be live-streamed here<\/a>, the other critical issues, including the model of civil war, raised in these three powerful articles.<\/p>\n<p style=\"text-align: justify;\">I intend this post to specifically address Didier\u00a0Fassin&#8217;s urgent call, after having spent four years in a French prison as an ethnographer,\u00a0to\u00a0come to terms with &#8220;the singularity of imprisonment, the specific violence of confinement and the particular consequences\u2014social, political, ethical\u2014of the generalization of its use,&#8221; as well as\u00a0Kendall Thomas&#8217;s intervention from <a href=\"https:\/\/blogs.law.columbia.edu\/foucault1313\/2015\/09\/28\/foucault-213-the-live-stream-today-at-615-est\/\" target=\"_blank\">the last seminar, Foucault 2\/13 on <em>Penal Theories and Institutions<\/em><\/a>, to focus us on the stakes of the conversations we are having in <a href=\"https:\/\/twitter.com\/foucault1313\" target=\"_blank\">#Foucault1313<\/a>.<!--more--><\/p>\n<p style=\"text-align: center;\">***<\/p>\n<p style=\"text-align: justify;\">In order to do so, though, I will need to take a step back and begin with at least once version of a political economy of punishment.\u00a0In previous research on <em>The Illusion of Free Markets<\/em>, I tried to demonstrate how the emergence of liberal economic ideas in the eighteenth century was inextricably linked to the idea of a strong police state, and how this relation has influenced our current political condition of massive, racialized over-incarceration. In that work, I tried to document simultaneously, first, the <em>diachronic<\/em> evolution of two historical ideas\u2014namely, that of the free market on the one hand (represented by the left column in the diagram below) and of the police state on the other (the right column)\u2014and, second, the <em>synchronic<\/em> linkage at each historical stage of these two necessarily imbricated notions:<\/p>\n<p style=\"text-align: justify;\"><a href=\"https:\/\/blogs.law.columbia.edu\/foucault1313\/files\/2015\/10\/Harcourt-diagram.png\"><img loading=\"lazy\" decoding=\"async\" class=\" wp-image-364 aligncenter\" src=\"https:\/\/blogs.law.columbia.edu\/foucault1313\/files\/2015\/10\/Harcourt-diagram-300x225.png\" alt=\"Harcourt diagram\" width=\"397\" height=\"298\" srcset=\"https:\/\/blogs.law.columbia.edu\/foucault1313\/files\/2015\/10\/Harcourt-diagram-300x225.png 300w, https:\/\/blogs.law.columbia.edu\/foucault1313\/files\/2015\/10\/Harcourt-diagram.png 581w\" sizes=\"auto, (max-width: 397px) 100vw, 397px\" \/><\/a><\/p>\n<p style=\"text-align: justify;\">The analysis explored, on the one hand, how the concept of the free market emerged from eighteenth-century notions of \u201cnatural order.\u201d The analysis traced the transformations and variations from an early divine notion of orderliness tied to natural law in the work of Fran\u00e7ois Quesnay and the Physiocrats, through Jeremy Bentham\u2019s (admittedly complicated and messy) maxim that the government should \u201cBe Quiet\u201d in economic affairs, through the more secular ideas of self-interest, expertise, and informational advantage reflected in conventional 19<sup>th<\/sup> century <em>laissez-faire<\/em> ideas, to the cybernetic notions of \u201cspontaneous order\u201d elaborated by Friedrich Hayek, and finally to the more scientific and highly technical economic theories of the Chicago School of Economics regarding the efficiency of competitive markets. This is the left column.<\/p>\n<p style=\"text-align: justify;\">On the other hand, the analysis demonstrated how these varying notions of economic orderliness have been linked, since their inception and at each stage, with a paradoxical trust in governmental competence when it comes to policing and punishing. This latter concept of the police state, just like the idea of the free market, evolved over time, <a href=\"https:\/\/harpers.org\/blog\/2011\/11\/quesnay-the-despotism-of-natural-law\/\" target=\"_blank\">from early notions of \u201clegal despotism\u201d in Quesnay\u2019s writings<\/a> and in the policing practices of Le Mercier de la Rivi\u00e8re when he was <em>Intendant <\/em>of Martinique (paradoxically, his parting gift to the island was a police force); through the omnipresent, pervasive intervention of the state in Bentham\u2019s <em>panopticon <\/em>prison and criminal law writings (recall that Bentham viewed the penal code as a \u201cgrand menu of prices\u201d and invented the <em>panopticon <\/em>for all sorts of institutions of social control, including penitentiaries, asylums, workhouses, etc.); to the conventional nineteenth century notion of the state as \u201cnightwatchman\u201d in the classical <em>laissez-faire<\/em> approach (the metaphor had never struck me, in fact, until I hit upon this genealogy); to the symbiotic function of the criminal law to efficient competitive markets in Chicago School theory. As my colleague Richard Posner would write, in 1985, precisely capturing this symbiotic relationship:<\/p>\n<blockquote>\n<p style=\"text-align: justify;\">\u201cThe major function of criminal law in a capitalist society is to prevent people from bypassing the system of voluntary, compensated exchange\u2014the \u201cmarket,\u201d explicit or implicit\u2014in situations where, because transaction costs are low, the market is a more efficient method of allocating resources than forced exchange\u2026 When transaction costs are low, the market is, virtually by definition, the most efficient method of allocating resources. Attempts to bypass the market will therefore be discouraged by a legal system bent on promoting efficiency.\u201d<\/p>\n<\/blockquote>\n<p style=\"text-align: justify;\">In fact, Posner would <em>define<\/em> crime as inefficient behavior or market bypassing in 1985. Just like legal despotism in Physiocratic thought, the criminal law represents the outer boundary of the free market and natural order. Penal law is its diametrical other, where the state must intervene through punitive practices in order to sustain and guarantee the natural orderliness of the economic domain or free market. This is the right column.<\/p>\n<p style=\"text-align: justify;\">Throughout, the analysis\u00a0sought to demonstrate the paradoxical linkage of the notion of orderliness in economics with the need for a Big Brother state when it comes to policing and punishing. This is the series of synchronic arrows relating the two diachronic series. In contrast to other critical thinkers who also study what has been called \u201cneoliberal penality\u201d today\u2014namely, the paradox of a supposedly hands-off government and a massive prison apparatus\u2014I argue that the symbiotic relationship preceded the neoliberal turn in the 1970s and was itself inscribed in early liberal thought in the eighteenth century. I trace our present political condition back to the eighteenth century and argue that this paradoxical set of beliefs\u2014on the one hand, in the incompetence of government in the economic domain and, on the other hand, in the competence and legitimacy of government in the penal sphere\u2014has facilitated the exponential growth of the prison and jail populations in the United States, not only with mass incarceration in the twenty-first century, but also at the birth of the penitentiary during the \u201cMarket Revolution\u201d of the Jacksonian era.<\/p>\n<p style=\"text-align: justify;\">An undercurrent in that political economy of punishment\u2014perhaps one that was too far under the surface, but one that I would like to explore here\u2014concerns the mechanisms and devices by which these concepts of natural order and policing would become accepted, tolerated, and so pervasive. And one critical way to address this question\u2014one to which we often do not pay sufficient attention\u2014is precisely the issue of <em>moral economies<\/em>, of the moralization of social relations and behaviors. This is a topic that <a href=\"https:\/\/www.cairn-int.info\/article-E_ANNA_646_1237--moral-economies-revisited.htm\" target=\"_blank\">Didier Fassin has explored in depth.<\/a><\/p>\n<p style=\"text-align: justify;\">The place to start is with E. P. Thompson, whose work on \u201cThe Moral Economy of the English Crowd in the Eighteenth Century,\u201d or more generally, on the notion of moral economies, would make us rethink seemingly spontaneous and spasmodic food riots as fully-coherent resistance to new forms of economic relations and ideas. Thompson highlighted the extent to which the resistance was itself a <em>moralized <\/em>resistance, grounded in notions of moral fault, responsibility, and blame, of right and wrong, of good and evil. The riots were not merely irregular, spasmodic responses to shortage and hunger; rather, they represented a righteous indignation, a moralistic and thus political response to the shift away from a paternalistic rationality of custom, intended to protect the people, to a purportedly amoral and abstract force of the market. For Thompson, the most compelling proof of the moral underpinnings, you will recall, was that the seditious crowd did not simply steal food, but rather, against their own interests, destroyed the mills, the very instruments that would have provided them with food. The riots, Thompson showed, were aimed at dismantling the instruments of the new political economy.<\/p>\n<p style=\"text-align: justify;\">It may\u00a0be surprising to start with Thompson because he was moralizing\u2014and justifying\u2014<em>resistance<\/em>, whereas the task here is rather to show how these new political economies became <em>acceptable and tolerated<\/em>, in other words to enlist a genealogy of morals as a key element in the eventual acceptance of new economic regimes. This is where Max Weber\u2014the Nietzschian Weber, the Weber of the <em>Protestant Ethic<\/em> in its original, not Parsonian version\u2014would be so important. The spirit of capitalism would feel so natural to many because it had been, for many, a calling, as Weber suggested.\u00a0Weber\u2019s genealogy of capitalism passed through morals\u2014producing new political economies and processes, such as \u201cmachine production,\u201d that would govern our lives. The soil has to be tilled, it does not bear the fruit of capitalism spontaneously.<\/p>\n<p style=\"text-align: justify;\">So we have, then, Thompson on the moral economies of resistance, and a Nietzschian Weber on the moral economies of acceptance. Foucault would marry the two in his Coll\u00e8ge de France lectures on <em>The Punitive Society <\/em>in the winter of 1973. Foucault would graft a genealogy of morals on a political economy by means of what he called \u201c<em>ill\u00e9galismes<\/em>.\u201d But here again, we will have to take a step back to start with Foucault&#8217;s political economy.<\/p>\n<p style=\"text-align: justify;\">The core concept of <em>ill\u00e9galismes <\/em>is a term that has somewhat erroneously been translated as \u201cillegalities\u201d in the English edition of <em>Discipline and Punish<\/em>. It would be more appropriate to use a neologism, such as <em>illegalisms<\/em>, because \u201cillegalities\u201d is actually the end state, that which, in some sense, resolves the struggle. Illegalities is what represents the culmination of a power struggle that operates through illegalisms.<\/p>\n<p style=\"text-align: justify;\">The idea of illegalisms, then, is that the law itself is a struggle, a negotiation, agonistic combat, a competition over the very question of defining the line of illegality\u2014the line that divides deviations, disorderliness, rule-breaking, rule-interpretation, from illegality and the sanction.<\/p>\n<p style=\"text-align: justify;\">Foucault elaborated in 1973 a political economy based on this notion of illegalisms\u2014a theory in three steps. As you realize, I am giving you the theory and not the historical details.<\/p>\n<p style=\"text-align: justify;\">Foucault starts, first, with the idea that illegalisms were widespread throughout the eighteenth century and well distributed across the different strata of society: the different classes practiced strategic games at the borders and interstices of the law. \u201c[I]n every system, different social groups, different classes, different castes each have their illegalisms,\u201d Foucault would declare. In the eighteenth century, he would identify not only the popular illegalisms\u2014the illegalisms of the popular classes\u2014but illegalisms of merchants and men of commerce, as well as \u201cillegalisms of the privileged who escape by status, tolerance, as an exception to the law,\u201d and even illegalisms of power\u2014of <em>the lieutenant de police<\/em>, of the <em>commissaires<\/em>, etc. These illegalisms were nested, sometimes in conflict, often in symbiosis, both working together and in tension. But for the most part, the privileged in the eighteenth century tolerated popular illegalisms because they also practiced their own forms of deviance against the monarchy, and the relationship \u201cworked\u201d in a certain way. \u201cIt seems to me that in the late eighteenth century,\u201d Foucault said in February 1973, \u201ca popular illegalism was not only compatible with, but useful to the development of the bourgeois economy. [But] there came a time when these popular illegalisms that had meshed with the development of the economy became incompatible with it.\u201d<\/p>\n<p style=\"text-align: justify;\">Second, then, Foucault identifies a break, toward the end of the <em>ancient r\u00e9gime<\/em>. As the nineteenth century approached, the popular illegalisms began to be perceived as a threat, a danger by the more privileged in society, the merchants, aristocrats, and bourgeois in France, but also in England, Russia (where Bentham\u2019s brother, Samuel, was inventing the <em>panopticon<\/em>). The new forms of wealth accumulation, of moveable goods, of stocks and supplies\u2014as opposed to landed wealth\u2014exposed massive amounts of chattel property to the workers who came in direct contact with this new commercial wealth. The accumulation of wealth began to make popular illegalisms less useful\u2014even dangerous\u2014to the interests of the privileged. \u201cThese illegalisms ceased, at a certain time, to be tolerable to the class coming to power, because wealth, in its materiality, was spatialized in new forms \u2026\u201d<\/p>\n<p style=\"text-align: justify;\">Foucault then identifies, in a third moment, a turn to the penal sanction. In the late eighteenth century, the commercial class seized the mechanisms of criminal justice to put an end to these popular illegalisms\u2014not only the depredation of material property and private wealth, but also the \u201cdissipation\u201d of their own time and bodies, of the strength of the workers themselves, of their human capital (dissipation that took \u201cthe form of absenteeism, delay, laziness, parties, debauchery, nomadism.\u201d) In this way, , the privileged would seize the administrative and police apparatus of the late eighteenth century to crack down on popular illegalisms. The result would be a turn to the penitentiary and the prison-form\u2014which was not so much a model of confinement for violations of a statute, so much as imprisonment for irregular behavior.<\/p>\n<p style=\"text-align: justify;\">So far, though, we are still at the level of an explanation in political economy. But a genealogy of morals would come next. For it was only through the <em>moralization<\/em> of those acts of debaucherie and absenteeism that the managerial classes would be able to transform formerly tolerated behaviors, even encouraged behaviors, into illegal acts.<\/p>\n<p style=\"text-align: justify;\">Foucault would excavate and discover this move first in the writings of the Quakers and other dissenters. He located there a moralized discourse that would introduce the idea of the penitentiary, of penitence, into the sphere of punishment. He found echoes of this discourse among the more privileged classes of the early nineteenth century, echoes revealing how certain writers in France and England\u2014Colquhoun in London, for instance\u2014would use moral notions of fault, guilt, and penance to facilitate the construction of the capitalist enterprise.<\/p>\n<p style=\"text-align: justify;\">This is so important, it is precisely why Foucault&#8217;s remarkable excerpt about Colquhoun figures on the <a href=\"https:\/\/www.palgrave.com\/page\/detail\/?K=9781403986603\" target=\"_blank\">jacket of the 1973 lectures<\/a>, an utterly riveting passage:<\/p>\n<blockquote>\n<p style=\"text-align: justify; padding-left: 30px;\">Unfortunately, when we teach morality, when we study the history of morals, we always analyze the\u00a0<i>Groundwork of the Metaphysics of Morals<\/i>\u00a0and do not read [Colquhoun], this character who is fundamental for our morality. The inventor of the English police, this Glasgow merchant &#8230; settles in London where, in 1792, shipping companies ask him to solve the problem of the superintendence of the docks and the protection of bourgeois wealth. [This is a] basic problem &#8230;; to understand a society&#8217;s system of morality we have to ask the question: Where is the wealth? The history of morality should be organized entirely by this question of the location and movement of wealth.<\/p>\n<\/blockquote>\n<p style=\"text-align: justify;\">Now, the transformation of popular illegalisms into illegalities operates first by means of their conversion into morally reprehensible acts that deserve penance, into moral failings and failures. Foucault unearths these brutal passages, written by early nineteenth century reformers, about the moral inadequacies and failings of the working class\u2014here, for instance, he minutely dissects this text by a jurist and reformer from the Napoleonic era regarding revisions to the penal code, a brutal text referring to the popular classes as that \u201cbastardized race\u201d:<\/p>\n<blockquote>\n<p style=\"text-align: justify;\">There, hard souls, dry, fierce, devoid of moral ideas, will only obey their gross sensations; laziness, immorality, greed, envy will prove the irreconcilable enemies of wisdom and labor, of the economy and of property. There will thrive misdemeanors and crimes of all kinds, less in the masses of the nation than in the dregs of the foreign tribe in general, which is formed next to the real people by the force of circumstances and habits accumulated for centuries. Almost always, for such a nation, the punishments must be measured against the nature of this bastardized race, which is the source of crimes, and the regeneration of which can barely be glimpsed, after many years of the wisest government.<\/p>\n<\/blockquote>\n<p>Foucault would unearth and dissect this other, equally violent passage from the rural context:<\/p>\n<blockquote>\n<p style=\"text-align: justify;\">The peasant is an evil, cunning, ferocious beast, half-civilized; he has neither heart nor integrity, nor honor; he lets himself be led to ferocity, were it not that the other two states crushed him mercilessly and reduced him to not being able to commit the crime he would want to commit.<\/p>\n<\/blockquote>\n<p style=\"text-align: justify;\">And in a fictitious dialogue between the popular class and the privileged, Foucault asks on behalf of the workers: \u201cWhat has changed? Didn\u2019t we together violate the law, and circumvent the rules?\u201d To which the privileged respond, \u201cunder the <em>ancien r\u00e9gime<\/em>, we were all together fighting power, unjustifiable abuses of the monarchy, we were taking on sovereign power. But now, you are just attacking private property. Formerly, we fought together against abuse of power. Now, you are violating the law. And it manifests a complete lack of morals.\u201d And in his manuscript, Foucault ends this dialogue with a marvelous exclamation: \u201c<em>Allez et faites p\u00e9nitence<\/em>.\u201d<\/p>\n<p style=\"text-align: justify;\">\u201cGo, and do your penance\u201d: this is the moment where Foucault would turn from an archeological method, which had been inadequate to explain the generalization of the prison-form, to the genealogical method. For Foucault, the prison-form could not be derived from an archaeological examination of the penal theories of the great reformers of the eighteenth century. It traced instead to the moralized notion of penitence.<\/p>\n<p style=\"text-align: center;\">***<\/p>\n<p style=\"text-align: justify;\">It is precisely this marriage of political economy and a genealogy of morals that might help us to visualize our current political condition. <em>The Illusion of Free Markets<\/em> may not have paid sufficient attention to this dimension, namely to the moralization that is necessary for so many of us to swallow neoliberal penality. But it is certainly present. The traces of a moral struggle, of a battle, of what Foucault described in <em>The Punitive Society<\/em> as a civil war, the idea of the criminal as social enemy, these are all over the texts, from the eighteenth to the twentieth centuries.<\/p>\n<p style=\"text-align: justify;\">Beginning with Fran\u00e7ois Quesnay, who referred to \u201c<em>les hommes pervers,<\/em>\u201d<em> \u201cles voleurs et les m\u00e9chants.<\/em>\u201d Quesnay would write:<\/p>\n<blockquote>\n<p style=\"text-align: justify;\">The natural and fundamental laws of societies . . . imprint themselves on men\u2019s hearts, they are the light that illuminates and masters their conscience: this light can only be weakened or obscured by their disordered passions [<em>leurs passions d\u00e9r\u00e9gl\u00e9es<\/em>]. The principle object of positive laws is this very disorderliness [<em>d\u00e9r\u00e8glement<\/em>], to which they oppose a severe punishment to those perverse men [<em>une sanction redoubtable aux hommes pervers<\/em>]. For, on the whole, what is it that is truly necessary for the prosperity of a nation? To cultivate the land as successfully as possible and to keep society safe from thieves and evil people [<em>des voleurs et des m\u00e9chans<\/em>]. The first part is governed by self-interest, the second is entrusted to the civil government.<\/p>\n<\/blockquote>\n<p style=\"text-align: justify;\">Quesnay&#8217;s writing is truffled with demoralization of the &#8220;perverse men&#8221; who are &#8220;out of order&#8221; and need to be punished. Dupont de Neumours as well would moralize his discourse. In response to a discussion in Beccaria&#8217;s little tract from 1764, <em>On Crimes and Punishments<\/em>, advocating\u00a0severe penalties, including the galleys, for smuggling,\u00a0Du Pont would viscerally write about the moral righteousness of private property. To Du Pont, the real criminals are not those who smuggle contraband, but those who regulate commerce: \u201cIf there is, then, a true offense that deserves prison and penal servitude, it\u2019s not that of the smugglers, but that of the Regulators who have proposed and still propose, who have compelled and still compel the adoption of royal edicts that hamper trade, of fiscal inquisitions, and of monopolistic threats to the natural rights of citizens, to their property, to their civil liberty, deterring useful work, and as fearsome for public as for private wealth.\u201d The notion of the \u201creal\u201d criminal, of the \u201creal enemy of society\u201d\u2014this moralization of crime infuses Dupont\u2019s response to Beccaria.<\/p>\n<p style=\"text-align: justify;\">Fast forward to the present. The moralization of criminality and of delinquents has a long, storied, and troubled history in the twentieth century in this country. <a href=\"https:\/\/global.oup.com\/academic\/product\/making-crime-pay-9780195136265?cc=us&amp;lang=en&amp;\" target=\"_blank\">Katherine Beckett<\/a>, <a href=\"https:\/\/www.press.uchicago.edu\/ucp\/books\/book\/chicago\/C\/bo4092002.html\" target=\"_blank\">David Garland<\/a>,\u00a0and others have demonstrated how the very category of crime was produced as a political category in the 1960s\u2014in both a racialized and moralized way\u2014as a political response to the Civil Rights gains, and we see reflections of that even today with renewed claims about <a href=\"https:\/\/www.theguardian.com\/commentisfree\/2015\/jun\/06\/dont-believe-ferguson-effect-fictitious-undermine-police-reform\" target=\"_blank\">a supposed \u201cFerguson Effect.\u201d<\/a> <a href=\"https:\/\/pressblog.uchicago.edu\/2014\/08\/14\/against-prediction-ferguson.html\" target=\"_blank\">Dorothy Roberts<\/a> has explored the production of a moralized discourse over \u201cBlack criminality\u201d and its role in justifying the massive incarceration of young black men. Others have analyzed the moralized tropes of the \u201cwelfare queen\u201d in relation to the evisceration of the welfare state and the shift from welfare to workfare; of the <a href=\"https:\/\/colabradio.mit.edu\/broken-windows-again-3\/\" target=\"_blank\">\u201cdisorderly\u201d in relation to the Broken-Windows Theory<\/a>; of the \u201cne\u2019er-do-well\u201d in relation to parole prediction instruments; or of the <a href=\"https:\/\/contemporarythinkers.org\/edward-banfield\/essay\/present-orientedness-crime\/\" target=\"_blank\">\u201cpresent oriented\u201d<\/a> in the writings of Edward Banfield\u2014a category that overlapped squarely with race and poverty. The 1960s especially were scarred by a moralized discourse that linked race, poverty, and liberalism to violence, crime and immorality. Richard Nixon\u2019s acceptance speech in 1968 captures that well:<\/p>\n<blockquote>\n<p style=\"text-align: justify;\">For the past five years we have been deluged by Government programs for the unemployed, programs for the cities, programs for the poor, and we have reaped from these programs <em>an ugly harvest of frustrations, violence and failure across the land<\/em>. And now our opponents will be offering more of the same\u2014more billions for Government jobs, Government housing, Government welfare. I say it\u2019s time to quit pouring billions of dollars into programs that have failed in the United States of America.<\/p>\n<\/blockquote>\n<p style=\"text-align: justify;\">One need only think back to John DiIulio\u2019s earlier interventions in the 1990s\u2014a time when he developed (and <a href=\"https:\/\/www.nytimes.com\/2001\/02\/09\/us\/as-ex-theorist-on-young-superpredators-bush-aide-has-regrets.html\" target=\"_blank\">would later regret<\/a>) the theory of <a href=\"https:\/\/www.nytimes.com\/2014\/04\/07\/us\/politics\/killing-on-bus-recalls-superpredator-threat-of-90s.html?_r=0\" target=\"_blank\">\u201csuperpredator youths,\u201d<\/a> what he referred to as that \u201cnew generation of street criminals\u201d who are \u201cupon us\u201d: \u201cthe youngest, biggest and baddest generation any society has ever known.\u201d \u201cBased on all that we have witnessed, researched and heard from people who are close to the action,\u201d DiIulio wrote with two co-authors, \u201chere is what we believe: America is now home to thickening ranks of juvenile \u2018superpredators\u2019\u2014radically impulsive, brutally remorseless youngsters, including ever more preteenage boys, who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun-toting gangs and create serious communal disorders.\u201d<\/p>\n<p style=\"text-align: justify;\">These are some of the moralizations that make us tolerate the paradoxes of neoliberal penality and blind us to the reality and devastating consequences of mass incarcaretion today.<\/p>\n<p style=\"text-align: justify;\">Let me close with this. The importance of moralization should not be underestimated. The idea of \u201cthe criminal as social enemy,\u201d the notion of perverted men, of brutally remorseless youngsters, of the righteous hatred of the criminal\u2014these must alert us to the seriousness of the struggle. So I will end with a particularly striking passage from Foucault\u2019s lesson of February 28, 1973. After having engaged the ruthlessly brutal texts about the \u201cbastardized races\u201d of rural peasants and unearthed their violent premises, Foucault tells his audience at the Coll\u00e8ge de France:<\/p>\n<blockquote>\n<p style=\"text-align: justify;\">We\u2019re always used to talking about the \u201cstupidity\u201d of the bourgeoisie. I wonder if the theme of bourgeois stupidity is not a theme for [artists, for intellectuals, for philosophers]: those who think that merchants are dim-witted, that financiers are obtuse, that those in power are simply blind. Sheltered by these caricatures, in fact the bourgeoisie is remarkable in intelligence. The lucidity and intelligence this class, which has captured and retained power under the conditions that we know, produces many effects of stupidity and blindness, but where? &#8211; if not exactly among intellectuals. We might be able to define intellectuals as those upon whom the intelligence of the bourgeoisie produces an effect of blindness and stupidity.<\/p>\n<\/blockquote>\n<p style=\"text-align: justify;\">And then he adds in the margin of his manuscript: \u00ab <em>Ceux qui le nient sont des amuseurs publics. Ils m\u00e9connaissent le s\u00e9rieux de la lutte.<\/em>\u201d<span style=\"font-size: 9px; line-height: 0px;\">\u00a0<\/span><em>\u201c<\/em>Those who deny this are public entertainers. They don\u2019t recognize the seriousness of the fight.\u201d<\/p>\n<p style=\"text-align: justify;\">One gets a sense of this when one rereads Dilulio or Banfield, or when one goes all the way back to Quesnay and Dupont. Our understanding of the political economy of punishment today must be twined to a genealogy of morals: it is the only way to understand how the new political economies of mass incarceration become normalized. How, in effect, the intolerable becomes tolerable.<\/p>\n<p><a href=\"#_ednref1\" name=\"_edn1\"><\/a><\/p>\n<p><a href=\"#_ednref2\" name=\"_edn2\"><\/a><\/p>\n<p><a href=\"#_ednref1\" name=\"_edn1\"><\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>By Bernard E. Harcourt [This article draws on a longer essay titled \u201cThe &#8217;73 Graft: Punishment, Political Economy, and the Genealogy of Morals\u201d] In their fascinating and provocative articles on\u00a0The Punitive Society, Didier Fassin, Axel Honneth, and Nadia Urbinati raise&hellip; <a href=\"https:\/\/blogs.law.columbia.edu\/foucault1313\/2015\/10\/11\/foucault-313-the-punitive-society-didier-fassin-axel-honneth-nadia-urbinati-and-the-question-of-the-political-and-moral-economies-of-punishment\/\" class=\"more-link\">Continue Reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":1641,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[38936,38937],"tags":[],"class_list":["post-361","post","type-post","status-publish","format-standard","hentry","category-featured2","category-foucault-313"],"_links":{"self":[{"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/posts\/361","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/users\/1641"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/comments?post=361"}],"version-history":[{"count":0,"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/posts\/361\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/media?parent=361"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/categories?post=361"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/tags?post=361"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}