This book review of Penal Theories and Institutions: Lectures at the College de France 1971–1972 by Michel Foucault, edited by Bernard E. Harcourt and translated by Graham Burchell was originally published by the British Journal Of Criminology in January 2022. Volume 62, Issue 1, Pages 254–256. The original can be read here
A Spanish translation is available here: Teorías e instituciones penales: Los “sistemas de represión” según Foucault
Between 1970 and his death in 1984 (with the exception of a sabbatical in 1977), Michel Foucault delivered an annual series of lectures at the Collège de France. Using tape recordings as well as Foucault’s and others’ notes, the lectures have, since 1997, been published in French (with English translations appearing from 2003). The second lecture series, Penal Theories and Institutions, delivered between November 1971 and March 1972, is the final set of lectures to be published. It is not surprising these lectures have been published last. There were no recordings of the lectures and the editor, Bernard Harcourt, has recreated them from Foucault’s notes. Foucault’s original notations have been included, with crossed out passages detailed in the footnotes. These footnotes are supplemented by extensive endnotes providing context and links to Foucault’s wider scholarship and social activism. Whilst I suspect some readers will find this format frustrating, I found it a fascinating, if at times disjointed, read. To supplement Foucault’s lectures, the book also includes four accompanying contributions: a 1972 lecture given by Foucault in Minnesota entitled ‘Ceremony, Theater, and Politics in the Seventeenth Century’; an essay by Francois Ewald and Bernard Harcourt placing the lectures in context; a letter from Etienne Balibar to the editor with his observations on the lectures; and an essay by Claude-Oliver Doron entitled ‘Foucault and the Historians: The Debate on Popular Uprisings’. Collectively these provide valuable insights to the lectures. I read the book from start to finish, however on reflection these contributions, located at the end of the book, could most profitably have been read first.
Despite the lecture series being given the title Penal Theories and Institutions, Foucault states at the beginning of the first lecture that his focus will be on neither theories nor institutions but on ‘systems of repression’ (p. 1). For Foucault, focusing on theories and institutions resulted in problems being posed ‘in terms of morality (good/evil) … in sociological terms (deviance, integration) … in psychological terms (delinquency …)’ (p. 2), approaches which all fail to identify the penal system’s central, political, function. These lectures therefore need to be read as the beginning of Foucault’s development of a political theory of penal law, a project that was further developed in his 1972–73 lectures, The Punitive Society, the lectures he delivered in Rio de Janeiro in 1973 and in his book, which is most familiar to criminologists, Discipline and Punishment, published in 1975. Whereas in Discipline and Punishment, Foucault (1979: 3–7) focuses on the transformation of punishment in the period between the execution of Damiens in 1757 and the opening of Léon Faucher’s House for young prisoners in 1838, in Penal Theories and Institutions, he is concerned with early periods. The first seven chapters focus on the response to the Nu-pieds [bare feet] uprisings of 1639, Chapters 8–12 on the emergence of the medieval state and its penal practices, with the final concluding chapter linking these lectures to the previous year’s and to Foucault’s established interest in the emergence of the human sciences.
Although the lectures were historical in their content, their contemporary relevance is made clear from the start. The first lecture opens: ‘No introduction. The reason for these lectures? One has only to open one’s eyes’ (p. 1). His meaning would have been clear to his audience. Foucault was referring to the French state’s ongoing reaction to May 1968, a response that would have required those attending to pass through a series of police cordons to access the lectures. Foucault himself was a high-profile participant in a number of campaigns against state repression, most notably as a founder of Groupe d’information sur les prisons (GIP). For Foucault understanding state repression, both historically and at that moment, required seeing penal law as a strategy deployed in a social struggle.
The first seven chapters focus on the early modern period and, in particular, the Nu-pieds uprising in Normandy, its immediate suppression and the new state systems of repression that emerged in response. In selecting the Nu-pieds revolt, Foucault argues that its significance lies in its revolutionary nature. Unlike earlier uprisings, which had protested against the authorities, the Nu-pieds threatened to revolutionize social relations and introduce a new legality (p. 29). This, together with the reluctance of the local nobility and bourgeoise to suppress it, required a military response from the central state. Although this appears to be a reassertion of the authority of the Monarch, for Foucault, it was ‘the first major deployment of the “arms” of the State independently of the person of the king’, an innovation that resulted in ‘(t)he “triumph” of the State’ (p. 5). Faced with the unreliability of the nobility and bourgeoise and the cost and logistical problems of relying on the army, Foucault argues that ‘the State put in place two institutions: A police: centralised … and local … (and an) even newer institution … confinement or deportation, that is to say the removal of a fringe of population’ (p. 95, emphasis in original). This new system has as its central aim the suppression of sedition, something which required the invention of the concepts of the ‘internal enemy’ or ‘social enemy’ (p. 59). Popular revolts play a crucial role in the development of the state, with, in particular, the response to the Nu-pieds representing the point where ‘the juridicio-military form of state power is taken over by an administrative form’ (p. 87).
In the eighth lecture, Foucault’s focus moves back in time from the 17th century to the late 12th and early 13th century to explore the movement away from the ordeal to the inquiry within judicial practice. Foucault’s account of this transition is partial and problematic. In describing ordeals, his analysis is almost exclusively based on dispute resolution between elite actors. Whilst it is plausible to conclude that: ‘Justice is not imposed. It is constituted by the will of the individuals in dispute’ (p. 118), in cases determined by trial by combat, this is hardly the case in the much more common ordeals imposed on non-elite actors, such as cold water or hot irons. By focusing only on the state’s penal interventions, the significance of both the church and the household is underplayed. Both were central to social control and the infliction of punishment. So, when Foucault observes that ‘(a)part from (political) treason and (sexual) transgression, there are only disputes’ (p. 118), he is correct to identify the limited role of the state. However, the vast majority of the population was subject to routine, and often brutal, private punishment by their husbands, fathers, employers, landowners and others in powerful positions. The medieval state did see a significant expansion of public justice, but as Thorsten Sellin (1976: 35) has argued, this was to a large extent a transfer of existing practices (and punishments) from the domestic to the public sphere.
In an often overlooked footnote to the opening chapter of Discipline and Punishment, Foucault (1979: 309) states ‘I shall study the birth of the prison only in the French penal system’. A similar caveat applies to Penal Theories and Institutions. The value of this book lies in the methodological innovations rather than the detailed history. In particular, Foucault’s linkage of the history of penal practices with both the economic field and the process of state formation can be productively applied across time and place. In his account of 17th-century France, I was struck but the potential to transfer Foucault’s framework to the development of the state and penal law in England and Wales a century earlier during the Tudor period. The argument that the modern system of penal practice ‘has an “anti-seditious” social function’ is clearly useful, particularly in studying the colonial penal systems developed by European empires (p. 139). However, in understanding how the contemporary penal system developed, we need to avoid purely economic reductionist explanations. For example, it was over 200 years after Foucault’s ‘birth of the French police’ that Britain, with a more advanced capitalist economic system, was to develop its own national (but locally controlled) police. This does not disprove Foucault’s central thesis of the inherently political nature of penal law, but instead suggests that in practice power can be exercised in multiple ways and the form the penal system takes is not predetermined solely by the social structure, but emerges from specific localized struggles and accommodations. The publication of Discipline and Punish had a profound impact on criminology and the publication of these earlier lectures should be welcomed as they will provide an invaluable resource in deepening our appreciation of Foucault’s theories of penal practice and provides valuable tools to further explore the historic development of penal theories, institutions and, most importantly, practices.
Foucault, M. (1979) Discipline and Punish: The Birth of the Prison. Penguin Books.
Sellin, J. T. (1976) Slavery and the Penal System. Elsevier.