Foucault, Stigler, Weber, and some pre-history going back to Thomas More, Mandeville, Grouchy and even Spinoza

The cost limitation upon the enforcement of laws would prevent the society from forestalling, detecting, and punishing all offenders, but it would appear that punishments which would be meted out to the guilty could often be increased without using additional resources. The offender is deterred by the expected punishment, which is (as a first approximation) the probability of punishment times the punishment-$100 if the probability of conviction is 1/10 and the fine $1,000. Hence, increasing the punishment would seem always to increase the deterrence. Capital punishment is cheaper than long term imprisonment; and seizure of all the offender's property may not be much more expensive than collecting a more moderate fine.

To escape from this conclusion, Becker introduces as a different limitation on punishment the "social value of the gain to offenders" from the offense. The determination of this social value is not explained, and one is entitled to doubt its usefulness as an explanatory concept: what evidence is there that society sets a positive value upon the utility derived from a murder, rape, or arson? In fact the society has branded the utility derived from such activities as illicit. It may be that in a few offenses some gain to the offender is viewed as a gain to society,' but such social gains seem too infrequent, small, and capricious to put an effective limitation upon the size of punishments.

Instead we take account of another source of limitation of punishment, which arises out of the nature of the supply of offenses. It is no doubt true that the larger the punishment, the smaller will be the expected net utility to the prospective offender from the commission of a given offense. But marginal decisions are made here as in the remainder of life, and the marginal deterrence of heavy punishments could be very small or even negative. If the offender will be executed for a minor assault and for a murder, there is no marginal deterrence to murder. If the thief has his hand cut off for taking five dollars, he had just as well take $5,000. Marginal costs are necessary to marginal deterrence.2 The marginal deterrence to committing small crimes is also distorted if an otherwise appropriate schedule of penalties is doubled or halved. One special aspect of this cost limitation upon enforcement is the need to avoid overenforcement. The enforcement agency could easily apprehend most guilty people of we placed no limits upon the charging and frequent conviction of innocent people. In any real enforcement system, there will in fact be conviction and punishment of some innocent parties, and these miscarriages of justice impose costs of both resources and loss of confidence in the enforcement machinery. The costs of defense of innocent parties, whether borne by themselves or by the state, are part of the costs of enforcement from the social viewpoint. The conviction of innocent persons encourages the crime because it reduces the marginal deterrence to its commission.--Stigler, George J. "The optimum enforcement of laws." Journal of Political Economy 78.3 (1970): 527-528.

Foucault quotes the Stigler (1970) article in the tenth lecture of 21 March 1979 (Birth of Biopolitics, p. 256.) It is quite natural, if you read the editorial apparatus of the Birth of Biopolitics, to think that Foucault may not have read the original source, but that he is relying entirely on Jenny, F. "La théorie économique du crime: une revue de la littérature." Vie et sciences économique 73 (1977): 7-20. The wording of the editorial footnote (18) -- "(Foucault draws on information provided in this article.)" -- is sufficiently ambiguous to give the editors plausible deniability here. But the editors go on to imply it in a later footnote (25) when they tell the readers that "This phrase is not found in Becker’s article. Foucault relies on the synthesis of Becker’s and Stigler’s works provided by Jenny." Foucault's vexed relationship to underlying sources came up in discussion over lunch with Bruce Caldwell and Joel Isaac yesterday.

So, I was pleasantly surprised yesterday when during a hallway conversation Vincent Carret -- yes I am visiting Duke's Center for the history of political economy [hence all the name-dropping] -- informed me that there is a project, Le projet Foucault Fiches de Lecture (FFL), that is collecting and making digitally available many of Foucault's annotations on his readings which he did to prepare his lectures and books. So, when I went to check it out, I thought it made sense to use it as my first foray to see what annotations he had left on Becker and Stigler. While zero annotations would not be decisive -- after all notes get lost and re-used, maybe he relied on others for summaries and checked them against original sources -- it would naturally be taken to reinforce the editors' point.

To give a non-trivial example that a false negative is not decisive: as far as I can tell, there are no annotations on Jenny's article (or the underlying book in which it appeared). Since there are Foucault annotations on papers by Becker (here) and Stigler, that would have made a nice punchline for this digression, but I have other fish to fry!  In addition, the annotations do not seem to be dated, and as far as I can tell [after a few hours of poking around on the website] the project has not yet tried to date the manuscripts. So, I am not going to try to connect Foucault's scribbling to particular passages in the lecture course. (I will leave that to a different kind of scholar.) Foucault read and made a few annotations (see here) on Stigler's "The Optimum Enforcement of Laws." That should be no surprise because Foucault had a deep interest in criminology, and its history, and Becker's and Stigler's work were creating important waves in the field. (I would be amazed if these annotations were written after the Birth of Biopolitics lectures.)

When Stigler wrote the passage I have quoted, Becker may well still have been at Columbia. (Becker returned to Chicago in 1970.) And, at first sight the passage has the aura of a senior scholar setting the young upstart straight on marginal analysis (then exactly a century old), although the real disagreement is to explain the absence of widespread and enormous numbers of capital punishment. For, while Stigler's (and Becker's) project has a normative component (Stigler is explicit about this), it's also meant to do a decent job with the empirical world.

And, in fact, Stigler's analysis ("If the thief has his hand cut off for taking five dollars, he had just as well take $5,000.") echoes pre-marginalist thinking going back to Thomas More (in part I of Utopia [recall this NewAPPS post]), and, as Foucault explicitly notes (repeatedly in the lecture), in the writings of Beccaria and Bentham (and (recall this digression on) Sophie Grouchy). This is why Foucault treats Stigler and Becker as an updated version of Benthamite utilitarianism (although as the reference to More suggests cost-benefit analysis of criminal decision making and how to create rational punishment in light of it precedes Benthamite utilitarianism). 

Now, I want to close with more substantive observations. Foucault himself makes an important point in a passage (which I have quoted in passing before (recall here) in which he explicitly quotes Stigler (1970):

The regulatory principle of penal policy is a simple intervention in the market for crime and in relation to the supply of crime. It is an intervention which will limit the supply of crime solely by a negative demand, the cost of which must obviously never exceed the cost of the supply of the criminality in question. This is the definition that Stigler gives of the objective of a penal policy: “The goal of law enforcement,” he says, “is to achieve a degree of compliance with the rule of prescribed behavior that society believes it can procure while taking account of the fact that enforcement is costly.” This is in the Journal of Political Economy in 1970.30--Foucault 21 March, 1979,  translated by Graham Burchell, Lecture 10, The Birth of Biopolitics, p. 256.*

The 'definition that Stigler gives' is from the first section of the essay labeled 'The Goal of Enforcement.' Stigler returns to the regulatory principle in the final (third) section labeled 'The Enforcement Agency: A Normative Approach.' Some other time I want to discuss how we should think about the normativity involved in Stigler's analysis. Foucault does not remark on it. It's worth nothing that 'Chicago' is by no means the first to think about the role of enforcement costs in law enforcement: Spinoza (in the Theological Political Treatise) and Mandeville (in the Fable) recognize that Amsterdam's practice of tolerating brothels is explicitly shaped by consideration of enforcement costs.

Now, 'the art of government' is the major theme of Birth of Biopolitics. And the phrase (and its cognates) are used repeatedly throughout the lectures. But one peculiarity of the lectures is that the phrase does not occur in the lectures on Chicago economics ('governmentality' does in case you want to play gotcha with me). And this has let commentators, I think, to miss that Chicago school does have an account of the art of government: in Friedman it's called the 'art of economics' (which is recall here and here the phrase he inherits from J.S. Mill and J.N. Keynes) and Stigler with less flair, calls it "advice on policy...[in light of] understanding of the regulatory process" in the introduction to his (1975) Citizen and the State. Now, in Friedman (and Mill, and even Adam Smith) the content of the art of government is articulated in terms of maxims or principles. Foucault echoes this language when he describes Stigler's 1970 in terms of 'regulatory principles.'** 

To put my first important point simply: in the context of the modern administrative state, the liberal art of government, as understood at 'Chicago' is partially codified in terms of regulatory principles that constrain how one should think about the relationship between policy aims and fundamental liberal principles (and constitutional constraints, etc.) in light of experience with the ordinary workings of the democratic political process which is often also a market in political regulation. 

The second point is that Foucault uses 'regulatory principle' as the content of the art of government in the context of the modern administrative state. This is actually confirmed or illustrated in an interview held with him (by folk who are actually confused on this) in a passage that has attracted quite a bit of critical attention (because it involves Foucault's attitude toward consensus politics), where Foucault corrects his interviewers' terminology by saying that 'X is a regulatory principle' always presupposes that X is subject to "governance" and to "be organized." (The Foucault Reader, p. 378)

And lurking here is the most important point often lost in twentieth century debates over markets vs states is that much of neoliberalism, that, as Foucault correctly recognizes, is about -- and Becker and Stigler are explicit about this -- a process of rationalization of the administrative state on liberal principles not its abolition. And so while Foucault repeatedly ties the ORDO liberal approach to Max Weber's shadow, he could have also done so with Chicago (even if Stigler got his Weber through Knight and Talcott Parsons).

 

 

 

*It is worth noting that Stigler would have put it (and does put it) in terms of "marginal return equals marginal cost."

 

**Foucault introduces this terminology in his earlier treatment of Ordoliberalism (pp. 146-147 of Birth of Biopolitics.) In an earlier footnote (note 35), the editors suggest while (following Foucault's lead in connecting Eucken to neo-Kantianism especially because Foucault treats Walter Eucken's father as a prominent neo-Kantian) that the use of 'regulatory principles' reflects this neo-Kantianism: "The link Foucault suggests with neo-Kantianism no doubt refers to the Kantian distinction between “constitutive principles” and “regulatory principles” in the Critique of Pure Reason, trans.
Norman Kemp Smith (London: Macmillan, 1978) 1st Division, Book 2, ch. 2, section 3 (“Analogies of Experience”) pp. 210–211." (Birth of Biopolitics, p. 154.) What's odd about this claim is that the note is attached to a passage where Foucault does not use 'regulatory principle' at all, but 'regulatory action'! And second, Foucault uses 'regulatory principles' as in contexts far removed from neo-Kantianism.