Current Issues in Law & Society: Punishment
Michel Foucault (2015) Chapter Three, “3 January, 1973” (p. 43-60) from The Punitive Society: Lectures at the College de France 1972-1973. New York: Palgrave.
Foucault’s (2015) chapter is briefing how the discourse of the criminal individual being the enemy of society as a collective. He is trying to convince its audience of a new perspective on the perception of Le Trosne’s writing on the vagabonds (who refuse to work and by doing so, harm the economy by lack of labour and living off the taxes paid by those who do not refuse to work) and delinquents (who are similar to vagabonds, with the addition of using violence), which both are the result of laws allowing vagabondage assuming they have no opportunity to work, and only restrict begging, that is a counter-act not a preventive measure. Le Trosne has proposed four measures – slavery, outlawing, self-defence for peasants, and conscription – but all focusing on the poor (Foucault, 2015, pp. 50-51). Foucault (2015, p. 52) points out that it is not only vagabonds, but delinquency is possible at all levels of profession: it can be the bourgeois just as much as the poor. The so-called ‘feudal’ can just as much be an anti-production being, as a vagabond, since their exercised power is also an ‘obstacle to production’, as the refusal of work by the vagabond.
First, the strongest claim of his comes from the comparison to other literature: Gil Blas (delinquency surrounds every profession, as everyone can be perceived as hones or dishonest from different angles). Foucault points out how the emergence of the discourse on the ‘criminal as a social enemy’ is visible in other writings of judicial theory, too (Foucault, 2015, pp. 53-55). Second, his argument is also strong due to it relying strongly on historical evidence from these various authors. He drew a logical, clear line beginning from the eighteenth century with Le Trosne’s argument on criminals against the society, who can only be the poor refusing work (Foucault, 2015, pp. 43-51), followed by Gil Bas’s expansion of the argument onto all profession, and Chàteau de Pyrénées (Foucault, 2015, pp. 52-54). Foucault (2015, pp. 55) then closed the argument with the end of the century, where this image of the criminal has evolved into the ‘novels of terror’ (e.g., Ann Radcliffe). By this time, in the discourse of the criminal, criminality has lost its nature of continuum, graduation and abiguition, and it has become local and something that is outside of society, not overarching each and every individual within the society. Last but not least, Foucault’s argument is convincing due to the clear and logical parallel he draws between the vagabond’s anti-production-behaviour, and that of the feudals. He uncovers how the different means of the poor and the rich lead to the same end (2015, p. 52).
This writing of Foucault, like any other, strongly relies on the perception that our world is not a given: it is constituted by continuously transforming discourses, formulated by humanity. He has been particularly interested in discourse as language, but also as practices, institutional arrangements, and representations, claiming there is nothing outside of language, we cannot think and express ourselves without language – even images we perceive through words (e.g., what I see is a tree) (Foucault 1990; 1971; 2013).
Therefore, a similar critique can be argued on this chapter of his, like his other writings. Although, I am personally a believer of social post-constructivism, as I have long been into how the discourse on the war of terror, or the war of drugs has come about, the theory has been rightfully critiqued for its undefined broad concepts of the extent to which discourse rules. Where is the limit and how do we determine which discursive truth to believe in? (Norton & Morgan, 2012, pp. 4-5). In the present case, how do we choose between accepting the theory that there is always work to do and vagabonds voluntarily reject it, or we believe the truth of the USSR where absolute employment has led to the creation of jobs where there was no work to be done? (Ruble, 1977) This has also been suggested by Graeber (2018). Foucault has failed to draw attention to these events of history, when quoting Le Trosne.
Poststructuralism is although less misleading due to its philosophical domain with criticism on structuralism and modernity (which studies the social and cultural construction of the various structures that give meaning to our lives), and is builds on subjectivity, identity (inner and outer) and power, it is not perfect (Hall, 2018).
Foucault (2015, p. 52), although pointed out that there are two ways to be an anti-productionist, he failed to mention the dichotomous nature of being a criminal versus not. He could have drawn from Jacques Derrida’s post-structuralist analogy because everything is in opposition to another variant. These oppositions are not neutral or merely descriptive but are hierarchical, and deconstruction of the social construction is also possible. That is, ‘denaturalising’ linguistic, representational, and conceptual systems to expose implicit assumptions (and hierarchies) (Peoples & Vaughan-Williams, 2010, pp. 62-74).
Foucault (2000) could have also made use of his own theory about ‘truth regimes’, when discussing how the notion of the ‘criminal’ emerged in juridical theory: how have these authors succeeded in defining the ‘criminal’ for the entire society? What was their power position in this? Therefore, there are limitations to his lecture, but it remains to be a convincing idea, but only one of many possible views on the events of whether it is the vagabonds refusing work or work refusing more employees, which then becomes the issue of the ‘chicken or egg first’.
References
Foucault, M. (1971). Orders of discourse. Social science information, 10(2), 7-30.
Foucault, M. (1990). The history of sexuality: An introduction, volume I. Trans. Robert Hurley. Vintage, 95.
Foucault, M. (2000). Governmentality. pp. 201-222 in Rabinow, Paul (ed.) Essential Works of Foucault 1954-1984. The New Press. Vol. 3.
Foucault, M. (2013). Archaeology of knowledge. Routledge.
Foucault, M. (2015). Chapter Three “3 January, 1973”. In Michel Foucault The Punitive Society: Lectures at the College de France 1972-1973. Palgrave, 43-60.
Graeber, D. (2018). Bullshit jobs. E mploi, 131.
Hall A. (2018, November 15). Critical Global Security Studies lecture. University of York.
Norton, B., & Morgan, B. (2012). Poststructuralism. The encyclopedia of applied linguistics (pp. 1-6).
Peoples, C., & Vaughan-Williams, N. (2010). Poststructuralism and international political sociology. Peoples, Colomba; Vaughan-Williams, Nick. Critical Security Studies: an introduction. Routledge, 62-74.
Ruble, B. A. (1977). Full Employment Legislation in the USSR. Comp. Lab. L., 2, 176.
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