Update May 2024

I am still working on this (but it is not a top priority) and have recently scanned his later writings to see where his thinking had taken him. Whilst I think Foucault had a clear theory of penal law in his early to mid- 1970s writings I am not sure to what extent it was clear to him (an implicit rather than explicit theory) and he doesn’t seem to deploy it in his 1980s interviews or writings. In particular I am struck by his answers to interview questions on Louk Hulsman’s abolitionism in an 1983 interview.

Foucault clearly identifies in the early period the strategic use of penal law – that it exists as a repressive tool rather than as a response to crime. It is political and functions to maintain the existing social order. However in 1983, confronted with Hulsman’s calls to abolish the penal system, Foucault expresses concern that the notion of “problem situations” (as a conceptual alternative to the concept of crime) ‘will lead to a psychologizing of both the question and the reaction?’ This is actually similar to many other initial reactions to abolitionist thought. Abolition of criminal justice is only one part of abolitionist thought, the other, possibly more important aspect, is imagining the alternative social structure and ways of living that would make the pain infliction of criminal justice redundant. Abolitionism only make sense if you approach it with a willingness to engage in utopian thinking. The extent to which Foucault was focused on our current social structure is illustrated by this quote from the same 1983 essay

I am suggesting that we return to the serious idea of a penal law that would clearly define what can be considered, in a society like ours, as requiring punishment or as not requiring it.

I would argue that in a society like ours we will always get a penal law similiar, if not the same, as our current one.

In many ways the great value of Foucault’s thinking was that in writing about the history of institutions he was less concerned with their function and much more focused on exposing the ideas that not only allowed them to function, but to exist. He was in his own words interested in ‘uncover(ing) the system of thought, the form of rationality’ that made a certain institution the ‘obvious’ answer to a particular problem. But I think in his early 1970s lectures he went deeper in not only identifying the systems of thought that justified penal (and other) institutions but also exposing their political functions. Not their claimed functions but their real functions. As Louk was keen to point out ‘the menu is not the meal’.

Foucault is always positive about struggle, but pessimistic about its outcome. In 1979 he said ‘I am not in agreement with anyone who would say, “it is useless to revolt; it is always going to be the same thing.”‘ It was revolt that drove history; it was because people revolted that ‘the time of human beings does not have the form of evolution but that of “history”.’ But the outcomes of revolt inevitably for Foucault resulted in new structures of power emerging which in turn required resisting and revolt.

For me reading these later writings/interviews of Foucault have been really useful. I think I need to be careful not to claim that the political theory of penal law I am developing from Foucault’s writings is necessarily Foucault’s theory. It is bound to be far too influenced by my optimism and utopianism for Foucault to have been comfortable with it. He has taken me so far down the road, but to complete the journey I need to proceed beyond Foucault.  

I remain keen to talk about this with anyone else interested.

Original Post April 2021

Having just reviewed Foucault’s recent published Penal Theories and Institutions: Lectures at the Collège de France 1971-1972 I have been trying to work through the links between Foucault’s various engagements with penal law in the early 1970s, in particular, in addition to Penal Theories and Institutions, the following year’s lectures The Punitive Society, his 1973 Rio de Janeiro lectures, the 1973 I, Pierre Rivière, the monograph Discipline and Punish and the 1975/76 lecture series Society must be Defended.

Foucault is anything but consistent, often asserting grand claims confidently, then, only a few pages later, modifying his position, often dramatically. If this is true of specific books it is even more so between books. His style is very provisional – thinking aloud rather than reporting definite findings. However, Foucault was consistent, across books and different historical periods, in seeing penal law as something fundamentally political, a technique of governance/social control rather than anything to do with ‘crime’. In Penal Theories and Institutions Foucault announces at the very start that despite the title of the lecture series his method was ‘to approach it neither on the basis of penal theories, nor on the basis of penal legislation or institutions, but to situate both of these in their overall operation, that is to say in systems of repression’.

It strikes me that Foucault’s three dimensions of the penal system – theory/institutions/practice – are potentially a highly productive way of exploring the operation of penal law. In particular, there is real potential in developing a model of penal law that expands Foucault’s three dimensions to include:

• Penal Discourses – including theories, but also other discourses such as those of the media, the state and penal reformers;

• Penal Structures – including the various criminal justice institutions but also encompassing other structural aspects such as penal legislation; and

• Penal Practice – to be centred around the reality of penal law and in particular the lived experience of those subjected to it. It would also include other important components such as the working cultures of penal inflictors and their capacity to use discretion).

I have written a short (2,000 word) attempt to use this model to explain the role of penal reform in legitimising and sustaining penal law which can be read here. Over the summer I hope to write a longer essay attempting to both unpack Foucault’s political theory of penal law and to further develop the expanded model detailed above.

Be really good to talk to anyone else interested in this or working on something similar.