Michel Foucault – The Punitive Society – Lecture 8 (21 of February 1973)

 Questions

1. What does Foucault mean by a transition from fraud to theft (148-149)? Can we track all the illegalisms that are at play in this lecture?
   
   
2. Are oppositions key entry-points into understanding or uncovering the underlying conditions of possibility for the punitive society (145)? Is this part of genealogical method?
   
   
3. "A law functions, it is applied only within a field of illegalism that is actually practiced and, in a way, supports it" (145). What is does the "field of illegal practices" that allows the law to be applied refer to? 
   
   
4. What is the role of the State apparatus in the transition from the penal system to the penitentiary system (139-140)?
   
   
5. What is the origin of the term "illegalism" (140) and what is the relation to the "anarchist ideology" at the end (151)?
   
   
6. Foucault tracks the transition from the compatibility to incompatibility of popular illegalisms to bourgeois economy. What is the relationship of in/compatibility with the concept of "tactic of the bourgeoisie" (149)?
   
   
7. How does the moralization of the worker connect with the development of the penitentiary (149)? How is this related to the prison-form vs the wage-form?
   
   
8. Why is "depredation" inevitable once the worker is exposed to material wealth (147)? Can "depredation" be a site of counter-conduct?
   

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Anarchism refers to illegalisms in order to articulate a justification for looting and other activities but it seems that Foucault has a much broader conception than this. 

There has been a contemporary resurgence in relation to assassination (e.g. Luigi Mangione) and other forms of direct action and/as violence.

Foucault, however, seems is trying to emphasize the "productivity" of illegalisms and avoid a more traditional focus on repression and the quelling of sedition (this is his debate with Althusser but, in this case particularly, with E. P. Thompson).

Different kinds of illegalisms in terms of classes: (1) lower-class/popular illegalisms; (2) "privileged" illegalisms (aristocracy); and (3) merchant, business or bourgeois illegalism. However, Foucault also mentions illegalisms in terms of spheres/styles(?): economic (machine breaking), social (formation of associations), civil (rejection of marriage), political (riots) – p. 151.

Illegalism in contrast to sedition  – other possible names: crimes (but it could be anachronistic). This would make this a functional distinction vis-à-vis the responses of power: illegalisms calls for a disciplinary response versus sedition calls for repression (sovereign response).

Foucault uses a practice-based description of illegalism: "lower strata practicing illegalisms" (150), especially in order to avoid "the criminal" as a figure or status.

Important to note his notions of "ambiguous" and "oscillating" between illegalisms as practices and the law. Illegalism is a "game" within which legality is a "strategy" (144). There appears to be some mutual benefit or some kind of reciprocity.

In some sense there is an account of class struggle, but the emphasis here is in the "struggle" in terms of strategies and tactics in order to give a more nuance account of the workings of power beyond repression and (mere) prohibition.

Prison separates the delinquency from the general lower-class of illegalisms and it is there that criminalization (or the appearance of crime) becomes salient (see p. 150). Delinquents in that sense are autonomous but at the same time are "soaked up" as "recruits for the police" (151). It is possible to see these discussions in relation to moralizing account of the lumpenproletariat.

Delinquency is useful, therefore, as a theory and a practice because it helps to manage and solve the problem of the worker in relation to fortune/wealth. Delinquency is a tactic of population management.

2 open questions: (1) what happens to these non-delinquent illegalisms (and what is an example); and (2) is this strategy or a tactic? Is it intentional (seems too clean for Foucault) or is it an effect? If it is not planned in advance, then how and why did it persist? What stabilized it? What is the social environment that makes that possible?

Maybe the bourgeoisie does not have an interest in repressing illegalisms and therefore there is a question: what do we do about it? The prison: we need to discipline them and inculcate the work ethic.

There is a methodological tension because there is a lot of function language (very useful in social theory) and even teleology (p. 150), and also a resistance to it. Is there value in choosing which one to lift or use, or maybe maintaining the ambiguity between them...?

This is also complex when we consider conceptions of "appearance" and of things "appearing" that also points to the emergence of phenomena or events. 

Concern with "revolt" (150) in relation to the stability of...the nation? Again: how are we to understand the role of the State apparatus here. 

Michel Foucault, The Punitive Society Lecture Five (31st January, 1973)

Questions:

1. What is the level of autonomy of the subject of power relations?

2. (P. 92): “new form of judicial established through it…” What does it mean to say that it is not the “old monastic form” but a new “juridical-religious connection that emerges through it?

3. (88-89): What is a good example of the impermeability of Christianity and the penal system?

4. How does the Quaker conception of political power contrast with a non-religious or non-Quaker conception of political power? (perhaps catholic?)

5. (91 first paragraph): connaissance (program of knowledge) and savoir (criminal as object of knowledge) / what are the elements F. lists (dossier, biography, etc.) tracking? Is it pouvoir or something else? 

6. (85): “temporal justice”: what does he mean by this term? 

7. (84) F. points to a formal analogy and a functional dis-analogy, how do we understand the distinction between an analysis of forms v. an analysis of functions. What does he mean by “function” here? What would some synonyms be?

8. (90): “The Christian conscience penetrates…” What does it mean that it penetrates not from the ideological level of principles, but from the base/ bottom?

9. (89) What is the penitentiary? How do we specify its function or its form? Or is it an institution/ technique?

Beginning with Q9: a footnote on 65 is illuminating.

• Perhaps the penitentiary is more abstract, somewhat synonymous with the prison

• Penitentiary is a place to make people penitent, to correct or repent for wrongdoing

• Historical claim is being made: wherein the penitent movement takes place in the Americas (in Pennsylvania), and then is brought back to France. 

• Also speaks to processes of globalization during the modern era.

Question 4:

• In catholicism, the institutions, modalities of power and practices are a top-down form of power. The political form takes on a verticality, while the Quaker model seems more horizontal.

• Power, on the Quaker model, must be moral, where any politics beyond morality is excluded.

• Raises questions about slave labor and colonization

• Perhaps a good segway to question about impermeability 

Question 3:

• The idea of the sovereign here seems based on the Roman conception (infraction against the sovereign).

• But, don’t Christians (87) also hold this view?

• The claim for Foucault seems to be that when it comes to lay justice, the Church (before the Quakers), was satisfied that the state, with its own mechanisms, would control the institution of punishment. When the Quakers come along, they believe that it is the Church’s role to intervene in these practices of punishments.

• And, this first intermeshing does not take place at the level of principles, but “through the penitentiary’s invasion of the whole of the penal and the juridical”

• Is one point that the Quakers have a different conception of evil (as something to be eradicated) versus something inevitable in human nature? (Catholics)

• Raises questions about the genealogical analysis of morality, similar to Nietzsche. 

• What has to happen for Christian morality to be autonomous such that it becomes formal for a punitive society?

• How do we move from the case of the vagabond, who isn’t an object of Christian intervention, to the evildoer, who becomes an object of jurico-religious power?

• And, what kind of example would Foucault need to claim that the penal system and christianity are impermeable before this moment he is articulating through the phenomenon of the Quakers?

• There is a difference between claiming an affinity between relations and forms and claiming a causal connection. Is Foucault tracing affinities? What gets emphasized in either project? 

• Maybe one form that “affinity” takes is “alliance,” rather than “descendent” or “descent” –thinking methodologically about the history F.’s genealogy is giving.

• Interestingly, Foucault describes his genealogical analysis here (84) as “dynastic” (not plural)

Question 5:

• Pages 90-91, the second consequence of the heterogeneity of the judicial and moral: knowledge of the prisoner (as such) becomes a central problem.

• Unfolding of punishment with surveillance or supervision, “the object must be monitored” (91)

• This accumulation of connaissance (knowledge) qua object of savoir, is possible through various techniques: dossier, etc., –are these surface knowledges or depth knowledges?

• How do we read the “need for”? Is the “need for” available to the episteme or actors?

• What comes first? The “need” or the techniques?

• Quakers were aware of a need to cure/punish the object: criminal, where the savoir that conditions the need for techniques and practices (dossiers, etc) is something like objectification of the criminal–of knowability and ultimately individualization/normalization (pouvoir) 

• Where will we end up? That the criminal will become objectified as an object of knowledge and power, and this is his social status.

Foucault Punitive Society 24 January 1973

 Questions:

1. General question for MF: when he talks about the “elective affinity between the prison-form and the wage-form,” he mentions their relationship to be one of interpenetration; what does this mean? How are we to understand interpenetration? (P.71)
2. When MF says that prisons are not trying to be under the juridical and the law (p.66), what does he mean? MF doesn’t provide an example, what would one be?
3. Connection to prison-form and wage-form as it relates to his argument about time (p.72); what does it mean for time to be the crux (or hinge) between the prison-form and the wage-form?
4. P.65 MF talks about interesting phenomenon where prisons emerge and criminal as social enemy emerge; how does MF draw conclusion that criminal as social enemy and incarceration are correlated but not causal in relation?
5. Clarifying question (p.63) regarding “principal penalties in which remain in the Penal Code”; when is MF referencing? (1831, 1973, etc?)

Question 5: he’s trying to map the threshold between 17th and 18th century. The Punitive Society, he’s lecturing as he’s working on Discipline and Punish. There’s a new modality of power arising—discipline—which relates to the prison. There are something’s from the previous penal period which have been re-imagined. There are things that remain but are reconfigured through the perspective of discipline. We can see the things which remain but there is a shift, like a paradigm shift. MF doesn’t want to say that anything started from scratch. It’s not a radical break, where everything is started anew, things are repurposed; just looking at when things emerge. The prison is not new but its function is. 

To some extent, there is a lack of clarity regarding timelines because different societies (e.g. England and France) and their legal code. What is event for MF? It’s not like a big event in time but an overlapping of simultaneous little events in time.

(P.63-65) In the 1810 code, “whole system of incarceration re-organized…” this re-organizes structure of prisons. Did features of old codes featured different forms of imprisonment by different names? It has a different function, it was about making sure someone could be punished. The function was different so the ontology was different; criminals have always existed but not this type of criminal. 

(P.64) Discussion of liberty illuminating how prison as a space of loss of liberty. In D&P: the “dark side of liberal society.” As we discover the liberties, we discovered the disciplines, the reverse of the enlightenment is the prison. Questions arise: Does discipline create its own techniques? Are all techniques used by discipline in turn disciplinary? Example of the colony and bio-power; there is still sovereign power (the boomerang of the sovereign power coming back).

The question of the timeline becomes difficult: France is in a transitory period re penal code, there is a non-linear shift. 

Why does MF think he can just say this (re: question 3); MF not going to say yes or no but methodologically deposit. What if we just look at the practices and techniques? Just because we think of the criminal as a social enemy it doesn’t necessarily entail practical changes; you need to look at power and knowledge together. There probably is a correlation but there is still heterogenous processes occurring. Challenges simplistic notion of history (this happened so this etc), there is not a clear causal relation. It is a complex relationship. MF distinguishes (p.66) the confrontation of penal and penitentiary.

Question 2: We are here, years later, and these are now bound together; prisons break laws all the time but it doesn’t seem to matter. What does MF mean, why does it matter? Seems like penitentiary is extra-judicial but it is the judicial that sends criminals there. The criminal as coming to the books after it was created in the practices. MF wants to go reverse order; we needed to incarcerate people and then made them criminals. Similar ways he analyzes state. The effect of all these changes in law, penitentiary, etc is the criminal. Or is it the reverse? We have separated the criminal from society (e.g. colonization, enslavement), but there are still criminals in society; how do you send them outside of society from within society? Processes are intertwined but there is not a clear causal relation. 

Is there now a different relation than MF is talking about? Systems that mark out who should be punished, deemed an outside and the system that carries that out are different discourses that don’t necessarily emerge together. It’s not the discourse, they are distinct discourses but the interplay happens at the institutional level. At this time, not private prisons, so what penitentiary is saying that the state doesn’t have a say? MF references (footnote 26): “the law must follow the prisoner into the prison.” Somehow, the prison has been cognizant as outside as law, otherwise it wouldn’t make sense to say the law follows the prisoner. The way they were speaking doesn’t imply a separation.

Now we think of criminology; MF is thinking of a threshold, of the practice of getting people jailed/imprisoned was not in complete symphony with penal law. There was a moment when they were not matched but will work itself out. Doesn’t mean they will directly map up but MF showing this shift. Two opposition MF discusses: at the level of discourse and the law and the science of the criminal (what will become criminology which operates outside the law.) Does seem a lot would be permitted in the case of punishment; during this period, there is a constraining on this excessiveness, a tug-of-war whether the law gets to decide or people who are trying to theorize new methods of punishment (e.g. Bentham). Isn’t this still suggesting a conceptual difference influencing the practice, which it seems MF wants to differentiate; there is an autonomy of processes that isn’t necessarily constrained. The process has its own logic. (P.66) Here the juridical is also the idea of sovereignty; see a struggle between power, the threshold between power. How does power go from sovereign torture to discipline?

Is the logic of prisons and power then not juridical in that way? MF talking about the threshold from the 18th century to 19th century metropole. MF addresses limitations in view (to France). 

(P.70) Different models of prison shifting to confinement: MF saying these practices almost preceded the discourse and theory around it. Whenever they had to try to translate it into law, that’s when you get talk of confinement. Primacy of practice; doesn’t mean hierarchy for MF. It’s a methodological assessment. Penal theory is having all these developments but the practices of the prison are already being implemented; it’s not a progressive, or dialectic, relation. There’s not contradictions but events and problems being worked through. MF not going through traditional philosophical route but looking to the archive. What MF does by mapping power is trying to give a toolbox to whoever is doing politics. Not telling you what to do but mapping out what could be useful. MF is not political in that he is going to give an answer as to what we should do but rather question what is useful. We first have practices and then theory. 

Question 3: MF questions the experiential organization of time in modernity. The clock and the watch both become important as the shift of time changes importance. How time is organized and experienced in a historical way. (P.71) “Time being the only good possessed…” Map this to MF archaeology: this is the time of history. MF not on the level of discourse but on the level of practice. 

Question 1: Interpenetration: MF wants to study so many things in their specificity, MF is opposed to notion of totality. There’s a lot which he cannot explain. There’s a curious proximity and distance between labor and prison. Example of finger trap; something about the relationship that is symbiotic, opposition doesn’t mean they constrain each other. You need a system where a prison can operate as punishment and question of how liberty is operating underneath. One way to read MF: he was a philosopher of experience (not in a phenomenological sense) and here he is trying to track the experience to this interweaving. It produces and produces it. MF trying to say the experience of time that is emerging is condition for the possibility of these two forms but at the same time you can’t track it independently from the practices. (P.72) “What allows us to analyze…” MF will eventually drop repression for production; beginning of bio-power/bio-politics.

The Punitive Society, lecture 3

Diagram 1.1. Archaeology to Genealogy

Discussion Questions:

1. Is Foucault analyzing the "vagabond" in terms of function or practice? 

2. Is the starting episteme medieval, feudal, and/or mercantile? (pp. 43-44)

3. Double reading of Le Trosne's work -- vagabond not just as enemy of society but also as a mirror image of the nobility. How can we understand this in terms of method? (pp. 51-52)

4. What is the relationship between production and reproduction? (p. 47)

5. Techniques of penalty that creates the vagabond and power/knowledge (pp. 49-50)

6. Is the vagabond a distinct kind of subject or an "archetype" of delinquency?

7. What is the French word for "vagabond"? Can we translate this into contemporary English term? Is criminality internal to the concept?

Idleness --> mobility as the "mother of vices"

The enemy of society is the vagabond because they are anti-productive, just like the nobility who "leech" off of the body politic. Foucault is talking about the emergence of bourgeois thought.

Initially, the prevailing criminal procedure was prosecution as a private offense, but later, the offender was conceived of as a public offender. Is this the case?

Rather, the concept of the public enemy was "re-transcribed" during the French Revolution.

Criminality as existing "outside" rather than "inside" of society. Criminality is not within society but is its exterior. Criminality as an affront to society, not just individuals (or to a sovereign).

In the initial episteme, the mode of punishment was torture, whereas in the newer one, it is imprisonment and "reform" -- the (re)creation of productive subjects.

The prison is "puissance," an empiricity or positivity we can perceive, whereas the power/knowledge relations are "pouvoir."

Today's punishment practices still primarily disciplinary? Biopolitical? 

The vagabond's "counter-society" is an enemy of civil society. The former must be spatially enclosed, surveilled, and disciplined. 

What is the savoir/pouvoir of these new techniques? It's not a shift from non-production or production. The shift at the level of how we understand things like production, the social body, etc. 

Note: in the archaeological method, we "find" the answers not at the conscious level of the people/authors propagating a given form of knowledge, but the depth conditions of such forms. 

Next steps? The Matrix. 

Order of Things, selections on work and labor

  We began the year, as we always do, with questions... 

1a. Clarification of the concept of "table" and its place in the episteme of Order (cf. 217). 

1b. Clarification of notions of historicity and its place in the episteme History (cf. 259).

2. Clarification of Foucault's concept of "event" (cf. 217), "archaeology, however, must examine each event" (218).

3. How or why do discourses/epistemes undergo mutation; contrast Marxism which "introduced no real discontinuity" (cf. 261).

4. Relation of History to economics (cf. 219).

5. What does Nietzsche represent for Foucault at the end of the discussion (cf. 263)?  Are we still, as of 1966, within the 19th century episteme?  Or beyond it?

6. How would/should we characterize archaeology?  Where is archaeology in all of this? 

 

   Then discussion ensued...

Archaeology is the study of depth conditions for rules of knowledge within a certain episteme.

Depth conditions make sense of "surface" knowledge (connaissance) in terms of depth conditions of knowledge (savoir).  This depth is a "positive unconscious".

Depth conditions = "Order and Representation" versus "History" 

Study of depth conditions = archaeology.

Smith versus Ricardo.  Smiths's analysis of the growth of wealth versus Ricardo's overt labor theory of value.

"Work and Labor" Reading Plan for Fall 2025

Theme for AY 25-26: Work and Labor 

Fall Term Reading Course: Work and Labor in Foucault’s Writings, 1966-1979

 

Recommended background reading (for first time CGC participants): “The Meshes of Power” (1976; link to version in Viewpoint magazine) is highly recommended as a preliminary reading, especially for those not already well-versed in Foucault’s political philosophy of the 1970s—this piece provides an excellent concise summary of central elements of his analytics of power. 

 

Week            Reading 

1	The Order of Things (1966) Part II, ch. 7 – “The Limits of Representations,” esp. sections 1 (introduction) and 2 (on the introduction of labor to political economy and, specifically, Adam Smith), pp. 217-226. Part II, ch. 8 – “Labour, Life, Language,” esp. sections 1 (introduction to new empiricities) and 2 (on Ricardo, Smith and Quesney), pp. 250-263.
2	The Punitive Society (1972-73, posth. pub.) 17 January lecture – Political econ. of vagabondage; criminal as social enemy
3	24 January lecture – Criminal as social enemy; comparing prison-form (discipline) and wage-form (capitalism)
4	31 January lecture – Comparison of prison/wage form; power’s hold on time and conditions of possibility for discipline and capital.
5	21 February lecture – Popular illegalisms; worker depredation
6	7 March lecture – Fear of the laboring class; pol. econ. of the working body
7	21 March – New form of confinement-sequestration; normal and abnormal
8	28 March – Knowledge-power; early statement of analytics of power
9	Discipline and Punish (1975)  Selections (to be determined) from Part III – Discipline: “Docile Bodies” (pp. 135-169), “The Means of Correct Training” (pp. 170-194), and “Panopticism” (pp. 198-228) TBD, we may skip the selections for this week in order to not have to meet during week 11
10	Part IV – Prison: “Illegalities and Delinquency” (pp. 257-292)
11	The Birth of Biopolitics (1978-79, posth. pub.) 14 March lecture – Work as economic conduct, from homo oeconomicus to the entrepreneur of the self, the notion of human capital