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«BEYOND DISCIPLINE AND PUNISH: FOUCAULT’S CHALLENGE TO CRIMINOLOGY Published in English thirty years ago, Discipline and Punish has exercised a ...»

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Mechanisms of security and biopolitics both focus on aggregates. In that sense they work at a very different level than ‘discipline’, which targets Beyond Discipline the shaping of individual bodies and souls (even though individualization and the formation of ‘normal’ populations are of course two sides of the same coin). But there is another strand in Foucault’s work that is very directly concerned with individualization: his work on ‘techniques of self’ and ethics. Foucault’s insights on ethical self-governance were developed mainly by reading classical Greek and Roman texts and the work of early Christian intellectuals: it may be that because of the constant references to people like Seneca and Saint Augustine, this work has not been seen as relevant to contemporary criminology, but in my view the array of insights about ethical practices of self developed through Foucault’s extensive study of classical and Christian sources is highly relevant to today’s neoliberal correctionalism. A word about the context of these writings is necessary before proceeding to the more substantive argument.

In the years after Discipline and Punish, Foucault pursued two very different lines of inquiry. One line—developed mainly in the lectures given every year at the College de France rather than in publications—concerned the rise of liberal political economy and the genealogy of modern state governance.

This research agenda produced some highly nuanced analyses of law and sovereignty that have yet to be fully explored by legal and sociolegal scholars—as will be discussed in the next section of the paper—and that shed an interesting light on the conceptual and empirical limitations of Discipline and Punish. At the level of publications, however, Foucault concentrated on the ‘history of sexuality’ project, whose main publication was a peculiar trilogy in which the second and third volumes have little to do with the first one (Foucault 1980, 1985, 1986). It is the last two volumes of the trilogy, as well as related work developed mainly in a series of lectures given at Berkeley (Foucault 2001) and in interviews, that could be usefully mined by those working on the sociology of punishment. Why? Because in these works Foucault went beyond the somewhat functionalist and ‘social-controli-ish’ account of bodily training and spiritual discipline that is contained in Discipline and Punish and began to concentrate instead on practices of governance developed by and for ‘free’ subjects, practices now found throughout the governmental apparatus, including programs for ‘at risk youth’, probationers, abused women, etc6.

In Foucault’s work on the governance of the self, the ethical governance of the self by the self is carefully distinguished from the top-down governance of the populace by moral authorities and moral codes. This is important because Discipline and Punish, in keeping with the social-control mentality of the 1970s, emphasized how children and soldiers and prisoners are governed by various institutional practices—but little time was spent capturing the thoughts of the governed or reflecting on self-discipline and M a r i a n a Va l v e r d e self-development. By contrast, Foucault’s writings on ethics carefully analyze practices such as diary-writing, self-reflection, and the kind of intimate friendship among free citizens that used to be the privilege—and the burden- of the leisured, educated classes but is now expected of everyone.

It could be plausibly argued that while panopticon-style surveillance remains important, and while the old-fashioned discipline that insists on uniformity has by no means disappeared, other, post-disciplinary techniques have come to play a much larger role not only in the governance of ‘problem’ populations but in inciting all citizens to monitor and govern our problems in particular ways.

An example may be helpful. In previous work I examined the practices of self developed by Alcoholics Anonymous and related programs, drawing on the work of Foucault and other scholars influenced by Foucault (Valverde 1998 chapter 5). I showed that Alcoholics Anonymous cannot be properly understood under the banner of ‘discipline’: the alcoholic self of AA is not a totalizing identity developed by experts but rather a pragmatic assemblage in which the self, not the expert, is the primary authority on the self and its habits. While in that work I did not examine criminal justice settings, the relevance is obvious, particularly for the US, where psychiatric help is rarely provided for people in trouble with the law but self-help support groups, self-help manuals and peer counselling are common. Whether our particular goal is to understand how women who are victims of sexual abuse are helped, how non-psychiatric addiction counselling works, or how violent male partners are ‘retrained’, Foucault’s work on the ethical governance of the self by the self is bound to be a useful resource.


REVISING ‘FOUCAULT’S EXPULSION OF LAW’ Since the basic plot of Discipline and Punish concerns the rise and dissemination of disciplinary practices, sovereignty — which in that work is not clearly distinguished from what Foucault calls ‘juridical power’—is both undertheorized and underdocumented. Sovereignty appears mainly as a foil to modern discipline and is not properly analyzed; and the legal system is in that work treated mainly as an embodiment of sovereignty that is fated to be increasingly dominated by disciplinary practices and subordinated to what Ewald influentially called ‘the logic of the norm’ (Ewald 1990, 104Similarly, in Discipline and Punish, the constitutional apparatus of the ‘Rights of Man’ is given very short shrift, in keeping with the then prevail


Beyond Discipline

ing left-wing view that equal rights is but a veneer for bourgeois domination.

These absences or distortions were specific to that book and its rather dualistic argument about discipline and sovereignty. But unfortunately for later legal scholarship, they were taken to be inherent features of Foucault’s thought as such. An influential formulation of this view was Alan Hunt’s claim about ‘Foucault’s expulsion of law’ (Hunt 1993, Hunt and Wickham 1994).

I have elsewhere argued that this formulation is somewhat misleading even about Foucault’s published work (Rose and Valverde 1998, Valverde 1998). But the expulsion of law thesis has to now be completely abandoned, in the light of posthumously published works and especially the College de France lectures. In both the 1976 and 1978 lectures, Foucault spoke at great length about the rise of modern sovereignty and provided a rich texture and a historical context for this term. The 1976 lectures spent much time drawing a contrast between the ‘sixteenth-century jurists who collated the monuments of public right’ and an older tradition of epic history writing, a genre used by aristocratic writers (and much later, by nostalgic accounts of lost national/ethnic glories, such as Walter Scott’s best-selling myths of Anglo-Saxon virtue) to describe the glories of a particular lineage or people. The ‘monuments of public right’ elaborated by Jean Bodin, Hobbes, Locke, and others—which go unmentioned in Discipline and Punish, since in that work ‘sovereignty’ appears only as a foil to discipline and is not itself investigated—are discussed at length, in lectures that among other things show Foucault knew quite a bit about the history of English political-legal thought (e.g. Foucault 2003, 98-104). It is thus clear that when the focus of his writing shifted away from ‘discipline’, Foucault was able to recognize the importance and the persistence of legal and sovereign forms of power and knowledge. The 1976 lectures also demonstrated how the particular historical context of the emergence of legalized central sovereignty shaped works of political theory (Locke, Hobbes) that are traditionally regarded as grand rational beginnings rather than as weapons wielded by monarchs against barons.

Most importantly, the ‘thickening’ of Foucault’s understanding of sovereign governance came not by building a conceptual edifice around a transhistorical ‘sovereignty’(in the manner of Giorgio Agamben) but rather by focusing on particular historical struggles, such as the sixteenth-century transnational effort to put monarchical power on a solid secular conceptual basis that did not require divine right and canon law to support it7.

M a r i a n a Va l v e r d e

Elsewhere, in a 1973 lecture entitled “Truth and juridical forms”— whose content did not make it into Discipline and Punish—Foucault made an argument that completely undermines the ‘expulsion of law’ thesis.

Using evidence from the history of medieval law, he argues that juridical practices of investigation and guilt determination in fact laid the basis for later scientific endeavours. Disciplinary knowledges, which are among the nineteenth-century descendants of seventeenth-century science, are thus seen here as borrowing their basic knowledge moves from the realm of the judicial.

It is worth quoting this text at some length, since as far as I know its great potential for legal studies has remained undeveloped despite the fact that it’s been widely available in French since 1994 and in English since 2000:

Among the social practices whose historical analysis enables one to locate the emergence of new forms of subjectivity, it seemed to me that the most important ones (emphasis MV) are juridical practices... For what is called the inquiry (emphasis in original)—the inquiry as practiced by philosophers of the fifteenth to the eighteenth century, and also by scientists, whether they were geographers, botanists, zoologists, or economists—is a rather characteristic form of truth in our societies.

Now where does one find the origin of the inquiry?

One finds it in political and administrative practice, which I’m going to talk about; one also finds it in judicial practice. The inquiry made its appearance as a form of search for truth within the judicial order in the middle of the medieval era. It was in order to know exactly who did what, under what conditions, and at what moment, that the West devised complex techniques of inquiry which later were to be used in the scientific realm and in the realm of philosophical reflection.

In the same way, other forms of analysis were invented in the nineteenth century, from the starting point of juridical, judicial, and penal problems— rather curious and particular forms of analysis that I shall call the examination (emphasis in original), in contradistinction to the inquiry. (Foucault 2000, 4-5).

Beyond Discipline

The passage just cited presents a very different picture of the rise of modern modes of power-knowledge than the somewhat epochal and binary perspective made famous by Discipline and Punish. The ‘expulsion of law’ thesis was rather simplistic; but to be fair to Alan Hunt, it was not without basis in the text of Discipline and Punish. Reading more widely in Foucault’s work, however, definitively shows that ‘discipline’ is not a sociological concept with a fixed content that is part of a generalized abstract model of ‘modernization’. Even though Foucault does state that the disciplines have colonized the legal apparatus, especially the criminal law apparatus, there is no general thesis about discipline replacing sovereignty.

‘Discipline’ can be usefully regarded as a tactical and even polemical invention that served an important purpose in the 1970s, a time in which expert knowledges of all kinds were for the first time coming under serious scrutiny, from patients’ rights groups, feminists, historians, and other sources. Discipline and Punish presented a rather simplified and dualistic argument, however; this had the effect of creating an extremely successful but rather partial view of the highly complex, always changing and site-specific relations among different modes of power-knowledge8.


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