Foucault’s Theory of Penal Law – Research Update

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 I will share when it is published. 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.

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