Didier Fassin on The Punitive Society

blogs.law.columbia.edu/foucault1313/2015/10/07/didier-fassin-on-the-punitive-society

October 7, 2015

By Didier Fassin

The Punitive Society prepares and announces Discipline and Punish , on which Foucault began to work in
parallel. Nevertheless, far from being a draft of the latter, the former deserves to be treated as a
completely distinct and independent object. It has the liberty and audacity but also sometimes the
inconsistency of what the provisional oral presentation permits but is erased in the definitive written
version. In that regard, one could argue that the two major conceptual innovations of The Punitive Society
are the idea of civil war and of the notion of illegalism. The first one has disappeared from Discipline and
Punish, while the second one becomes central in the book.

The idea of civil war is probably the most visionary, but it is not the most coherent. While it is clear that it
differs from both Hobbes’ war of all against all, with its supposed state of nature, and Marx’s class
struggle, with its necessary class consciousness, what it is seems much less obvious. The civil war is a
“social war” in the dual meaning of being a war between constituted “collective elements” and a war “of
the rich against the poor”. This war “haunts” the power not in the sense that fear would inhabit it but in
the sense that it is ubiquitous in the exercise of it. Yet, at the same time, the civil war manifests itself
through the “rioting” of eighteenth-century peasants in periods of food shortage and increase in the price
of bread. However, what remains obscure is how the two are related – that of the dominant against the
dominated and that of the dominated against the dominant, to use a vocabulary that is foreign to Foucault
– and the suggestion that the latter would be a “reactivation” of the former, using its forms and rituals
does not resist the empirical test of the archives. More fecund is the link established by Foucault with
crime as the criminal becomes the “social enemy”, that is, the “one who wages war on society”, which
then allows society to wage war on him, who can in fact simply be the beggar, the vagrant or, by
extension, the poor.

The notion of illegalism is therefore crucial to understand the criminalization of the poor. Illegalisms
correspond to tactical games that agents play with the law at its margins, not abiding by it but doing so
within limits generally tolerated by society. They are ubiquitous across social groups and classes. Until
the eighteenth century, they all contributed to the good functioning of society as everyone benefited more
or less from them. In the nineteenth century, with the development of capitalism and the consolidation of
the bourgeoisie, the illegalisms of the lower class became increasingly regarded as dangerous not only
for the preservation of property but also for the reproduction of the workforce, and therefore rendered
illegal and penalized, whereas the illegalisms of the upper class proliferated with complete impunity. The
penal system thus came to be an essential instrument of control of the working class. Prison served to
ensure exclusion, surveillance and discipline of the undesirable members of society. In accordance with
his usual method, Foucault relies here on analyses of normative discourses from legal texts, institutional
rules, criminology treatises, rather than of actual practices described in reports, testimonies or letters. As
historians of nineteenth-century prison have shown, such research would have revealed, far from the
fantasied projects of surveillance and discipline, the mere routine of neutralization, arbitrary power,
physical and psychological abuse.

The combination of the idea of civil war and the notion of illegalism gives The Punitive Society singular
relevance – probably even more than Discipline and Punish – when one wants to examine contemporary
situations such as those encountered in countries like Britain and the United States, studied by David
Garland, as well as other nations in Europe and elsewhere. Indeed, during the past four decades,
politicians and governments have overused the bellicose language of the war on drugs and the war on
crime, which has often been translated on the ground into a war on the poor mostly from racial and ethnic

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minorities. This process has been rendered possible via a differentiation in the processes of
criminalization: while the perpetrators of corporate crime and its multiple economic and financial variations
were increasingly protected, petty crime and misdemeanor including loitering, driving without a license
and possessing marijuana became the object of the attention and severity of the penal system. Today
perhaps more than ever, one should take seriously Émile Durkheim – to whom Foucault does not entirely
do justice in his last lecture – when he affirms that we do not condemn an act because it is a crime, but it
is a crime because we condemn it, and that the range of crimes we condemn is highly differentiated
according to social classes. The idea of civil war and the notion of illegalism thus open the way to an
exploration of punishment through the lenses of both political economy and moral economy since on the
one hand it is used as an instrument in the power relations between social groups and classes and on the
other hand it finds its justification in the evaluation of what deserves to be sanctioned and what can be
condoned.

Although it abundantly resorts to the Marxist vocabulary and even thinking, the political economy of
punishment, as analyzed by Foucault, accounts for the prison system not in terms of the utilization of a
cheap and docile workforce, but in terms of the domestication and subjugation of the workers’ bodies and
minds so as to make them functional and productive for the capitalist system, in their relations to time for
instance: during the nineteenth century habituation and normalization became the processes through
which the power insinuated itself in the life of the subjects and eventually succeeded in controlling their
conducts. In parallel, the moral economy of punishment, to reformulate the concept by which E.P.
Thompson described traditional modes of exchange and to give it the broader meaning of the production,
circulation and appropriation of values and affects, is interpreted by Foucault through the ideal of
Jacksonian penitentiaries created by Quakers and lauded by Beaumont and Tocqueville, where silence
and labor were supposed to redeem inmates kept in solitary confinement. There are however two issues
in Foucault’s thesis.

First, the political and moral economies of punishment are somewhat disjointed, and how the Christian
genealogy, about which he remarkably ignores the illuminating second essay of the Genealogy of
Morals, is connected to the modes of production is rather unclear: the argument that the “condition of
acceptability of the prison” is the principle of coercion used as a moral force by the capitalist system
resembles a little-documented intuition. Adopting very distinct perspectives to account for this conjunction
of the political and moral economies, Loïc Wacquant, in a Neo-Marxist tradition, and especially Bernard
Harcourt, in the Foucauldian vein, offer more convincing interpretations. In fact, one problem of Foucault’s
analyses is their dualism – the rich and the poor, the haves and have nots – when more complexity might
be necessary. In particular, the development of the public sphere in that period, as studied by Jürgen
Habermas, implies new mediations: in the case of punishment, the domination of the powerful and the
tolerance of their illegalisms supposes to construct the powerless and their illegalisms as a problem vis-à-
vis the growing middle class and even the socially integrated lower class; the “public” has to be
persuaded that inequality in wealth as well as before the law is not only legitimate but also beneficial to it
from the perspective of the social order.

Second, it seems plausible that both the political economy of punishment oriented toward the increase of
capitalist productivity and the moral economy of punishment thought as a way to reform prisoners never
really worked, or worked for short periods of time and within specific segments of the system. The dual
functionality of the prison – economic productivity and moral reform – belongs more to the imagination of
those who conceived the system than to the actual reality of how prisons worked. Historians such as
Michelle Perrot or Rebecca McLennan propose a much gloomier vision of the meaninglessness and
uselessness, brutality and abandonment of both French and United States prisons in the nineteenth
century. Even today, the political economy of punishment has more to do with the prison industrial
complex (comparable to the military one) than with the use or subjugation of the inmates for cheaper
production (with some limited exceptions) and the moral economy of punishment is rarely associated with
the rehabilitation of offenders while concern regarding reentry is essentially focused on technologies of
control deployed to reduce recidivism under the threat of harsher sanctions.

A final point should be considered, because it connects The Punitive Society and Discipline and Punish ,
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and turned out to be one of Foucault’s most influential contributions to the critique of contemporary
society. The last lectures develop an argument that will later give birth to the concept of “carceral
archipelago”, namely the percolation of control, surveillance, sanction and discipline throughout the entire
society and most of its institutions from education to sexuality – and one perceives the premises of later
lectures and books. This theory contradicts Erving Goffman’s paradigm of the “total institution” developed
in Asylum, according to which closed organizations, be they monasteries, orphanages, psychiatric
hospitals or concentration camps, share similar modalities of social relations that are radically distinct
from the ordinary functioning of society. However stimulating and heuristic the idea of “prison-form as
social form” may be, the risk of thinking of it in terms of dissemination across multiple social worlds is to
miss the singularity of imprisonment, the specific violence of confinement and the particular
consequences – social, political, ethical – of the generalization of its use. Spending four years as an
ethnographer in a French prison convinced me that social scientists had to account for both the
exceptionality of the carceral condition and the porosity of the correctional system.

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