{"id":912,"date":"2015-10-03T10:31:04","date_gmt":"2015-10-03T10:31:04","guid":{"rendered":"http:\/\/testing.elotroalex.com\/foucault\/?p=133"},"modified":"2018-08-11T16:29:18","modified_gmt":"2018-08-11T20:29:18","slug":"the-stakes-of-the-balibar-ewald-debate","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/foucault1313\/2015\/10\/03\/the-stakes-of-the-balibar-ewald-debate\/","title":{"rendered":"Bernard E. Harcourt | Epilogue: The Stakes of the Balibar-Ewald Debate"},"content":{"rendered":"

By Bernard E. Harcourt<\/strong><\/p>\n

[This article draws on a longer essay titled \u201cReading\u00a0Penal Theories and Institutions<\/em><\/a>\u201d]<\/p>\n

\u201cWomen, 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.\u201d\u00a0Michel Foucault, in discussion with Gilles Deleuze, \u201cLes Intellectuels et le pouvoir,\u201d March 4, 1972,\u00a0Dits & \u00c9crits<\/em>\u00a0#106, Quarto I, p. 1183.<\/p><\/blockquote>\n

The\u00a0second seminar<\/a>\u00a0gave rise to a productive disagreement between \u00c9tienne Balibar and Fran\u00e7ois 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\u00a0look elsewhere to find other means to counter \u201cthe particular forms of power, of constraint, and of control that are exercised over us\u201d?<\/p>\n

These questions preoccupied Foucault at the time of his\u00a01972 lectures, and they confounded him.<\/span>\u00a0Most of his exchanges with others critical thinkers in the period\u2014with\u00a0Noam Chomsky<\/a>\u00a0in November 1971, with\u00a0Benny L\u00e9vy and Andr\u00e9 Glucksmann<\/a>\u00a0in June 1971, with\u00a0Gilles Deleuze<\/a>\u00a0in March 1972\u2014revolved 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\u2019 voices to be heard, whether to form committees of inquest, whether to reach outside and resist by other means\u2014in sum, whether to focus on the state institutions or on power itself.<\/p>\n

In these debates, Foucault was adamant, especially with\u00a0L\u00e9vy 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\u2019s view, had always functioned to create divisions and contradictions within society. Tribunals had always had a \u201cconstitutive role in the divisions of our contemporary society.\u201d (D&E<\/em>, 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 \u201ccriminal.\u201d<\/p>\n

But the deeper problem, Foucault insisted, was that critical thinkers\u00a0were still at a loss to\u00a0understand how power functions in contemporary society<\/em>. In conversation with Deleuze, Foucault would repeatedly emphasize this point:<\/p>\n

\u201cOur difficulty in finding adequate forms of resistance, doesn\u2019t this all\u00a0come from the fact that we still ignore what power really is? After all, we had to wait till the 19th\u00a0century to know what exploitation is, but we still perhaps don\u2019t know what power is. [\u2026] 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? \u201c (D&E\u00a0<\/em>Quarto I, p. 1180).<\/p><\/blockquote>\n

It is within\u00a0this specific context that we must reread\u00a0Foucault\u2019s theoretical interventions, as well as his\u00a0practical 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: \u201cIt 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\u00a0every possible tribune.\u201d (D&E<\/em>, #86, Quarto I, p. 1043).<\/p>\n

***<\/p>\n

The lacuna\u2014namely, the gap between the traditional analysis of repressive state apparatuses and a full-blown theory of power\u2014framed a\u00a0productive disagreement between \u00c9tienne Balibar and Fran\u00e7ois Ewald at the\u00a0Foucault 2\/13\u00a0seminar<\/a>.<\/p>\n

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\u00a0in “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,\u00a0<\/em>p. 21) During the student uprisings of May \u201968, some of the young militants\u00a0believed that seizing and transforming the state institutions were the decisive matter\u2014far more important than seizing power\u2014because holding\u00a0power did not guarantee fundamental change in society. According to these militants, there had to be a deep transformation of the apparatuses of the state\u2014for instance, of the educational institutions and universities, key\u00a0sites 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<\/em>, p. 15)<\/p>\n

On Balibar\u2019s reading, Foucault\u2019s 1972 lectures,\u00a0Penal Theories and Institutions<\/em>\u2014at least, at the level of the writing\u2014place the categories of power and state apparatuses at the same level. \u201cThe two categories,\u201d Balibar suggested, \u201care of equal weight and very frequently exchange their functions.\u201d On this reading, Foucault\u2019s text\u00a0would be somewhat closer to Althusser\u2019s analysis of repressive state apparatuses. Moreover, Balibar added, the most important state apparatuses for Foucault are the institutions of justice.<\/p>\n

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 \u201carmed justice\u201d with the Chancelier S\u00e9guier\u2019s repression of the\u00a0Nu-pieds\u00a0<\/em>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\u2019s debate with L\u00e9vy and Glucksmann in June 1971 (see<\/em>\u00a0D&E<\/em>\u00a0#108, Quarto I, p. 1218). On this point, Ewald agreed fully.<\/p>\n

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\u00a0in the 17th\u00a0century produced\u00a0an entirely new form of \u201cadministrative power.\u201d On this reading, state apparatuses are\u00a0strategic means toward new modalities of\u00a0power. Here, the question of power takes precedence over the traditional analysis of state institutions.<\/p>\n

Ewald proposed what he called a \u201cstructural analysis\u201d of the 1972 lectures, specifically a structural interpretation of the key historical episode, Richelieu and Chancelier S\u00e9guier\u2019s repression of the\u00a0Nu-pieds<\/em>\u00a0rebellion in Normandy in 1639. In effect, Ewald dissected and set forth the political anatomy of one form of power that we might call \u201crepression.\u201d This form of power should be thought alongside other modalities\u00a0of power, such as discipline, biopower, security, or govern mentality\u2014each of which would constitute \u201ca\u00a0particular form of power, of constraint, of control that is\u00a0potentially exercised over us.\u201d<\/p>\n

On this reading, Foucault develops in the first seven lessons of the 1972 lectures a detailed model of \u201crepressive power relations,\u201d which Ewald spelled out as follows:<\/p>\n

    \n
  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.<\/li>\n
  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 \u201carmed justice.\u201d<\/li>\n
  3. The means: a conjoint\u00a0exercise of military power and of civil authority, in an unprecedented mixture, under the guise of justice.<\/li>\n
  4. The tactics: subjectivation of certain actors\u00a0as enemies, a final judgment of wrongdoing, dependence on the mystery of the sentence, waiting for judgment.<\/li>\n
  5. The strategies: the theatralization of politics; ceremony and rituals; knowledge and differentiation.<\/li>\n
  6. The outcome: not to make order, or to reestablish peace, but to produce a new form of power, namely the administrative state.<\/li>\n<\/ol>\n

    On Ewald\u2019s proposed\u00a0reading, then, Foucault\u2019s 1972 lectures set forth a vision that privileges a particular model of power and describes its political anatomy\u2014a task that, importantly, cannot be found anywhere else in\u00a0Foucault\u2019s writings. [As I discuss in the Course Context for the 1973 lectures,\u00a0T<\/em>he Punitive Society<\/em>, Foucault moves beyond this repressive model of power as early as April 1972, after he visits Attica, and throughout the 1973 lectures,\u00a0see<\/em>\u00a0T<\/em>PS<\/em>\u00a0at p. 267-269 and 279-281].<\/p>\n

    These competing readings of Balibar and Ewald have significantly different implications on the question of power and\u00a0resistance to power: the first places the analysis of institutions and power relations on an equal footing, the second privileges a\u00a0political anatomy of the different forms by\u00a0which power circulates through society.<\/p>\n

    ***<\/p>\n

    The disagreement between Balibar and Ewald is productive, I would argue, because it highlights two important elements\u2014one from each reading\u2014that\u00a0together\u00a0<\/em>contribute to a more complete understanding of the 1972 lectures and their implications.<\/p>\n

    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 \u201968 period) (3) with the objective of analyzing power relations in his own terms and with his own concepts.<\/p>\n

    \u201cFrom 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.\u201d (The Discourse on Language<\/em>, p. 217)<\/p><\/blockquote>\n

    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.\u00a0That 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\u2014which was, for Foucault at the time, the central problematic.<\/p>\n

    It is for this reason that the lectures are\u00a0so inflected by a certain \u201ccontre<\/em>-Althusser,\u201d or more broadly, a certain \u201ccontre<\/em>-Marx.\u201d Foucault was using the language of these\u00a0thinkers to get beyond state apparatuses and understand repressive power.<\/p>\n

    On my\u00a0reading, understanding power is the object, apparatuses are the\u00a0means, and the outcome is a rich analysis of \u201cone particular form of power, of constraint, of control that is\u00a0exercised over us,\u201d namely repression.<\/p>\n

    I will try to show this by means of three important passages from the 1972 lectures.<\/p>\n

    (1)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The lecture of February 9, 1972<\/em><\/h1>\n

    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 \u201csuperstructure,\u201d he writes, but through the interplay of relations of appropriation and relations of power.<\/p>\n

    Foucault underscores the integral role of penal practice in the following manner:<\/p>\n

    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,\u00a0p. 132-133).<\/p><\/blockquote>\n

    This first direct reference to the notion of \u201csuperstructures\u201d 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\u2014in sum, the entire apparatus of penal justice that contributed directly to the circulation of wealth and demanded\u00a0\u201ca coercive force, both political and military.\u201d (T&IP<\/em>, p. 136).\u00a0\u00a0In Foucault\u2019s analysis, the questions of property rights play a central role and are at the heart of the penal system: criminal law\u00a0enforces<\/em>\u00a0and simultaneously\u00a0circulates\u00a0<\/em>and\u00a0redistributes\u00a0<\/em>property. Or, in Foucault\u2019s more simple formula: \u201cPenality mobilizes and displaces wealth.\u201d (T&IP<\/em>, p. 149)<\/p>\n

    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<\/em>, p. 138-139):<\/p>\n

    Medieval Penal System: \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Contemporary Penal System:<\/p>\n