This is a comment on three of Foucault’s lectures given at the Collège de France on 14, 21 and 28 of March 1973. The contextualization of those lectures, published in The Punitive Society, was already given by Bernard Harcourt, and for this reason I will skip it. My interest here is to summarize what I understand to be the question, the hypotheses and the conclusions that Foucault reaches in those texts, especially in lectures eleven and twelve, as well as to provide a very brief introduction to the concept of “illegalisms” (illégalismes) and also very briefly discuss whether the issues at stake might be seen as Marxist in any meaningful sense. I mention this about Marxism because these lectures are sometimes seen as influenced in some way by Marxist thought, or somehow being closer to a Marxist approach, so I thought I should just briefly mention that. And of course, this is a very short comment, and I am not any specialist in Foucault, so I am more hinting at those questions than properly trying to answer them.
In lecture thirteen, Foucault summarizes his project for the lectures and states his initial question (which I think is a lovely formulation): “Why this strange institution, the prison?” (2015:225). He goes on to explain what he means by that and unpack all that is contained in the question, but I believe this short version suffices for now. I think this simple, almost naïve formulation, this way of conceiving of the problem, might be an example of the type of open question that permits Foucault to integrate elements from areas as diverse as sexuality, law, economics and social history into the genealogy of a single phenomenon. “Why this strange institution, the prison?”
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In lecture eleven, Foucault presents the idea that in the 19th century a new type of illegalism is introduced. But before we get to what this illegalism is and what it represents I believe we should try to understand what he means by illegalism or at least in what context he uses the concept. It appears first in lecture eight and it will be referred to throughout the rest of the lectures. Its final form I believe is in Surveil and Punish (1975). Foucault introduces it when discussing how certain practices that fall outside of the law are not only selectively tolerated by different social strata, but actually have an economy of their own, and are in a sense necessary for social reproduction. He introduces it in a discussion of practices of the ancien régime, where he says that, “either by a silent consent from power, by negligence, or simply by the effective impossibility of imposing the law and repressing the population” (1975:85),[1] every social class had some way of circumventing the law in a manner that was generally socially acceptable. What happens is that in the 18th century there is a crisis in this system, and the bourgeoisie starts to get really annoyed that the lower classes are stealing their property and, as it ascend in terms of political power, the system of tolerances changes dramatically and some things that were previously tolerated are not tolerated anymore. Of course I am simplifying the discussion here but that’s because I wouldn’t be able to reconstruct the whole argument step by step.
And as the bourgeoisie starts to get tougher on what used to be tolerated illegalisms, the working class, on its turn, also gets creative and starts to make use of new strategies. Instead of riots and general depredation of the means of production, this new illegalism is a form of — in Foucault’s words — a “refusal to apply [one’s] body into the apparatus of production” (2015:187). This might take the form of idleness, irregularity, revelry, refusal to have a family and so on — techniques that Foucault discusses under the category of “dissipation”. What he finds interesting about this new illegalism of the working class is that it is not really a form or organization (such as in riots); it does not involve any central coordination. It is also not technically “illegal” to be lazy or to not have a family or to not do your job properly. It is rather a whole new mode of existence, which Foucault thinks is, for this reason, much more dangerous to the production system.
The reaction to these new working-class tactics is double. Foucault calls them a moralization of penalty and a penalization of existence (2015:193). Since daily life was now being mobilized by the working class to increase their room for illegalism, justice now was also being extended to daily life (that’s sort of the backlash against the new techniques of the workers). A whole new system of rewards and punishments was starting to take shape in the 19th century that, for example, prohibited public drunkenness, forced workers to have savings accounts, to have nuclear families, etc. So while in the “classical” era (what Foucault calls the period prior to the Industrial and French revolutions) there was a discontinuity between the penal and the punitive system, now a continuity was taking shape. Society becomes the society of the judicial, and the judicial is pulverized in a diffuse punitive system that moralized workers’ private, everyday life. This new configuration is termed the surveil–punish system and is the marker of what Foucault calls the disciplinary society.
Combined with this process of moralization of penalty and penalization of existence is a new system of confinement. That is the topic of lecture twelve. (I’ll be skipping a lot here but this paragraph is more of a summary) While in the classical age individuals were organized in groups (castes, communities, guilds, ateliés), Foucault identifies a trend in the 19th century of confinement (encasernement) of the working class in new institutions: kindergartens, schools, workshops, hospitals, etc. — apparatuses of which, unlike in the classical age, they are not part. Foucault’s main thesis here is that these new institutions (which formed a new sort of social normativity) functioned to integrate workers’ lives into the productive apparatus. These institutions worked by sequestering workers’ time: individuals were occupied all the time in either productive, purely disciplinary, or leisure activities (2015:210).
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With this I come to the question of whether Foucault’s theses can be seen as tributary of a larger Marxist, or Marxian critique of political economy. One might be tempted to think so both by the terms employed and by the problems mobilized in the lectures. Foucault speaks of the perennial need, in modern capitalism, of a class of unemployed workers, which is discussed by Marx under the name of reserve army of labor. Foucault also mentions that his interest is in the “prison-form”, which might evoke Marx’s concept of the “value-form”, the social form of a commodity as a vehicle of value. Foucault is also sharing some of his vocabulary with Marx and Marxists: he speaks of a capitalist mode of production, working class, labor-power, etc.
While these keywords might induce a Marxist reading of The Punitive Society, I do not think this is really appropriate. On top of Foucault’s own dismissal of Marxist notions of power in lecture thirteen, the type of question that interests Foucault is hardly Marxist in nature. Basically, he is not interested in the critique of political economy. He is interested in the history of the capitalist mode of production in its relation to the birth of new forms of power, or of disciplinary control. To mention just one key difference, Foucault does not share Marx’s system — at least as interpreted by Althusser — of an economic infrastructure that ultimately determines a cultural/political superstructure. Foucault’s system seems to be more complex.[2] For him, practices and institutions such as confinement, the nuclear family, modern capitalism and heterosexuality can all be conceived in a dynamic cycle of mutual reinforcement, with no clear precedence of one over the others. And with regards to the question of there being a class analysis in Foucault — that’s true, but I think what’s important in a Marxist analysis of the rise of the bourgeoisie is not the analysis in terms of class itself, but the idea that class struggle is the motor of history. And Foucault doesn’t really accept that. He will say (this is a quote from Dits et écrits): “class domination or a state structure can only function if there are, at base, these small power relations”. So he seems to think power relations and pulverized struggles are broader and in a sense a condition, a more fundamental stage of class struggle.
However, I believe this does not mean Foucault is anti-Marxist by any chance. I actually think that Foucault’s rejection of Marxist categories here might have more to do with a general critique of actually existing socialism in the Soviet Union, something that was already going on since the thirties, even in Marxist circles, such as with Adorno and the Frankfurt School. His investigation on the integration of workers into the productive forces is instructive for a broader critique of political economy. The working class, after all, is not a natural given, but has been formed through social processes, some of which Foucault helps unveil and understand.
[1] Translation my own.
[2] Running the risk, one might object, of having less explanatory power. But I will not get into that.
Foucault, M. (1975). Surveiller et punir. Gallimard.
Foucault, M. (2015). The Punitive Society: Lectures at the Collège de France, 1972-1973. Palgrave Macmillan.