Forty years ago Michel Foucault published his controversial book Discipline and Punish, subtitled The Birth of the Prison, which explores the origins of what Foucault claims is a novel and surprising mode of punishment. Now, with the publication of Foucault’s Lectures at the Collège de France we have a clearer insight into how Foucault’s ideas on punishment and forms of social control developed during the years that led to the writing of Discipline and Punish. And not only have we now the transcripts of the lectures, but also Foucault’s preparatory notes and, thanks to the careful work of the editors, a detailed critical apparatus which reveals many of the sources that Foucault used to explore the question of punishment and the intellectual, social, and political context in which his ideas took shape.

One of the main intuitions that animates Foucault’s project is the conviction that if there is punishment in any type of society, only our society is a punitive society, i.e., a society where a certain type of punishment plays a central and necessary role. Seen from this point of view, the problem that Foucault presents is how our society becomes, beginning in the 19^th century, a punitive society. This flies in the face of the assumption that modern society is more humane and compassionate that earlier ones, having rejected cruel and unusual forms of punishment (see on this issue chapter 1 of Discipline and Punish). But this is not Foucault’s point. If indeed our society rejects for the most part the theatrical and sadistic executions of the past, it extends much further the domain of what falls under the regulation of institutionalized bodies of surveillance, correction, and moral redress. And the key to the understanding of the development of those bodies and practices is found in the late 18^th and early to mid 19^th century. This is the subject matter of these lectures.

Foucault introduces the problem stating that there are four major forms of punitive tactics: (1) to exclude; (2) to compensate; (3) to mark the body physically or in certain cases in a symbolic way; (4) to confine, which is the form that we practice and that became established in the 19^th century (7-8). All these four forms are described as actions, denoted here by the use of active verbs, because Foucault wants to frame the problem of punishment as the forms of power that respond to infractions using certain punitive tactics. These tactics are ‘analyzers of power relations’ (12). They reveal the conflicts, the struggles, between power ‘as is exercised in a society and the individuals who seeks…to escape this power’ (12-13). Punishment then has to do with conflict, with civil war, a notion that in Foucault’s thought is different of what described by Hobbes and other theoreticians of the ‘state of nature’. According to Foucault, Hobbes describes civil war as the dissolution of the sovereign; so long as there is a sovereign there is no civil war. Furthermore, Hobbes conceives of civil war as a war between individuals, a return to the original condition that precedes the constitution of the commonwealth, while for Foucault civil wars are conflicts between groups and not between individuals (28). Civil war is not something that exits in the absence of power, but a situation where groups seize and reclaim fragments of power. Foucault gives the example of the market riots in 18^th century France and England, where the rioters requested the re-introduction of old regulations protecting the price of grain for small buyers.

The second lecture raises the question of the criminal. The criminal, claims Foucault, is the communicating element between two independent series, the first, includes the notions of civil war, social hostility, and finally the criminal as a public enemy; the second, a process by which the monarchy in the 18^th century appropriates the forms of penal justice (a subject Foucault dealt with in the previous year). Foucault claims that the notion of the criminal is an instrument through which the ruling powers present those who threaten their interest as the enemies of society (36).  

In the third and fourth lectures, Foucault examines several sources for the development of the notion that the criminal is a social enemy. At the end of the fourth lecture, Foucault introduces the notion —central for Discipline and Punish— that the modern form of punishment, centered in the prison system, is not the logical consequence of the emerging science of criminology and of the teachings of the legal reformers such as Beccaria and Julius, who advocated a graduated and deterrence based system of punishment. The penal system that developed since the early 19^th century has time served as its primary variable, time being the price for an infraction. At this stage, Foucault’s claim is that ‘the prison-form and the wage-form are historically twin forms, without us being able to say what their relationships are’ (71). 

In Lectures 5 and 6, Foucault makes a detour into what he calls the progressive re-Christianization of crime, which he traces to the influence of the Quakers and the Methodist in England and in the US. The framing of crime as a moral fault leads to program of moralization of the offender based on tactics of permanent and fundamental supervision (110), an approach that Foucault considers the ancestor of our ‘human sciences’, a category that includes psychiatry, criminology, and the social sciences.

This is explored in greater detail in lecture 7, where Foucault discusses the ‘lettre de cachet’, an administrative order of confinement issued by the King in use in France during the 18^th century. This instrument is generally presented as a leading example of despotism and arbitrariness, but Foucault shows that most of the confinement orders were issued for various moral and social offenses, and at the request of the immediate family of the subjects or of representatives of civil society. This insight is used by Foucault to develop his thesis that power is widespread among society, and not the monopoly of one single social factor. He also insists that the moralizing bias of the penal system ‘is not a residual effect of Christianity’ (135).

Lecture 8 introduces the notion of illegalism. What needs to be controlled, what the programs of moralization and of penal punishment intends to combat, are the illegalism of the lower classes. Illegalisms are behaviors that circumvent existing regulations, and that, to a certain extent, are tacitly accepted and tolerated. But with the development of the capitalist system, these old customs and usages become no longer acceptable. The capitalist system not only requires the protection of private property, but also that the worker accepts to be integrated to the productive system and to the discipline of the wage system. Behaviors that weaken the integration of the worker into the production system —more than the extreme behaviors of theft, murder, etc.— need to be condemned. The penal system introduces a divide between the working class and the criminal classes. This is the secret of the feat of the prison system and how it established itself in a few decades as the major form of penalty:  its success in creating and managing the criminal class. This form of control is reinforced through a number of para-penal mechanisms, the most important among them, the worker’s record book, whose absence prevented further employment or even the presumption of vagrancy.  

The last lecture rounds up the discussion with brief references to a general discussion of the nature of power that are critical of the standard Marxist interpretation.  Against the Marxists, Foucault sees power as a strategic relationship and not as a something to be conquered (225-32). He also recasts the precedent discussion on the management of illegalism in terms of habits (237-240) and normalization. Finally, Foucault concludes with the observation that the appearance of these new forms of social regulation gives rise to new form of discourse, the normalizing discourse of the human sciences (241).

Bernard Harcourt’s concluding essay ‘Course Context’ (265-300) if of great interest for an understanding of the constitutions of Foucault’s oeuvre. Harcourt situates Punitive Society in the context of 1970’s French politics, explains Foucault’s engagement with the prison reform movement in France in the early 70’s, and evaluates Foucault’s complex relationship to his old teacher and friend Louis Althusser.   

© 2015 Michael Maidan

Michael Maidan studied philosophy in Buenos Aires, Haifa and Paris-Ouest (Nanterre). He published several papers on the history of modern and contemporary social and political philosophy. Since 1990 he lives in Miami, Florida.