It is understandable that the criticism of the public execution should have assumed such importance in penal reform: for it was the form in which, in the most visible way, the unlimited power of the sovereign and the ever-active illegality of the people came together. Humanity in the sentences was the rule given to a system of punishment that must fix their limits on both. The ‘man’ that must be respected in the sentence was the juridical and moral form given to this double delimitation.
But, although it is true that reform, as a penal theory and as a strategy of the power to punish, took shape at the point of coincidence of these two objectives, its stability in the future was due to the fact that, for a long time, priority was given to the second. It was because the pressure on popular illegalities had become, at the period of the Revolution, then under the Empire, and finally throughout the nineteenth century, an essential imperative, that reform was able to pass from the project stage to that of an institution and set of practices. That is to say, although the new criminal legislation appears to be characterized by less severe penalties, a clearer codification, a marked diminution of the arbitrary, a more generally accepted consensus concerning the power to punish (in the absence of a more real division in its exercise), it is sustained in reality by an upheaval in the traditional economy of illegalities and a rigorous application of force to maintain their new adjustment. A penal system must be conceived as a mechanism intended to administer illegalities differentially, not to eliminate them all.--Michel Foucault (1975) Discipline and Punish: The Birth of the Prison [Surveiller et punir: Naissance de la prison] translated by Alan Sheridan, pp. 88-9 [in the Vintage & Penguin classcis edition]
The passage quoted from Discipline and Punish (hereafter D&P) caught my attention because the final sentence expresses an idea that later in the (1979) lecture series, Birth of Biopolitics, Foucault associates with the 'Chicago' (that is, Becker and Stigler) approach to crime. Let me explain.
At the end of the second lecture of 17 January 1979, with an explicit nod to Beccaria, Foucault had summarized the"new regime" of "the well-known principle of mildness of punishment appears:" "...government is basically no longer to be exercised over subjects and other things subjected through these subjects. Government is now to be exercised over what we could call the phenomenal republic of interests." (p. 49) In fact, in 1979, Foucault here explicitly denies that this change has anything to do with a new humane sensibility.
He then returns to the theme of crime as a major subject (recall this post) in his tenth lecture of 21 March 1979, which is the second one devoted to American (Chicago) neoliberalism (in context he explicitly mentions Ehrlich, Becker, and Stigler).* There he starts his discussion by claiming that "Their analysis of criminality at first appears to be the simplest possible return to the eighteenth century reformers like Beccaria and especially Bentham." (248)+ He then goes on to summarize a kind of synthesis of the reformers as follows (and uses Coase-ian language):
A good law is necessary and almost sufficient, was nothing other than the desire for what could be called, in economic terms, a reduction in the transaction cost. The law is the most economical solution for punishing people adequately and for this punishment to be effective. First, the crime must be defined as an infraction of a formulated law, so that in the absence of a law there is no crime and an action cannot be incriminated. Second, penalties must be fixed once and for all by the law. Third, penalties must be fixed in law according to the degree of seriousness of the crime. Fourth, henceforth the criminal court will only have one thing to do, which is to apply to an established and proven crime a law which determines in advance what penalty the criminal must suffer according to the seriousness of his crime. An absolutely simple, apparently completely obvious mechanics constitutes the most economic form, that is to say, the least costly and most effective form for obtaining punishment and the elimination of conducts deemed harmful to society. (p. 249)
So, in 1979, Foucault implies that the late eighteenth century penal reformers (Beccaria & Bentham) invent the economic analysis of the law in terms of transaction costs and cost benefit analysis. It is worth noting that this reflects a modest change from Discipline and Punishment, where Beccaria is not treated as a progenitor of law and economics, and where (with nods to Capital) Bentham is treated as someone who helps create or constitute the homo economicus through a 'disciplinary mechanism' (D&P, pp. 205-209), but does not take homo economicus as given (in the way, say, Chicago economics does). This change, reflects a rethinking on Foucault's part of the role of interest (and of a decrease of Marx's significance and an increase of Hume's significance to his overall argument), but about that some other time more.
Now, in the passage quoted from p. 249 it seems as if Foucault allows that the 18th century reformers allowed for the complete elimination of conduct deemed harmful to society. But recall (again here) that this will come at a cost. And so, de facto, the way Foucault introduces the eighteenth century reformers is that in their law & economics of crime, one can calculate a kind of optimum crime rate at the lowest cost to society. And, after explaining that the reformers did not have a pure law & economics, this is, in fact, the view he ends up attributing to Stigler as "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." (256; as the editors note, this is a reference to “The optimum enforcement of laws,”) And then Foucault glosses Stigler's point as follows: "Consequently, good penal policy does not aim at the extinction of crime, but at a balance between the curves of the supply of crime and negative demand. Or again: society does not have a limitless need for compliance. Society does not need to conform to an exhaustive disciplinary system." (256)**
That a "penal system must be conceived as a mechanism intended to administer illegalities differentially, not to eliminate them all" is, thus, a key insight of Stigler (1970), and Foucault makes a point of emphasizing this in his 1979 lecture where he treats it as a return to the reformist sensibility of the late 18th century (before it was, as it were, corrupted by criminology's search for the anthropology of the criminal). Foucault thinks this is highly significant because, looking forward, "On the horizon of this analysis we see instead the image, idea, or theme-program of a society in which there is an optimization of systems of difference, in which the field is left open to fluctuating processes, in which minority individuals and practices are tolerated, in which action is brought to bear on the rules of the game rather than on the players, and finally in which there is an environmental type of intervention instead of the internal subjugation of individuals." (259-260, emphasis added on the Hayekian, 'rules of the game'). While I would not go so far as claiming that Foucault endorses this horizon in normative fashion, I do think he is intrigued by the opportunities this affords.
Before I conclude. You might think I have made way too much of Foucault's claim that the "penal system must be conceived as a mechanism intended to administer illegalities differentially, not to eliminate them all" as an anticipation of his analysis of Chicago law & economics. After all, the quoted paragraph leading up to it does not seem very law & economics at all. Fair enough. However, in his own gloss, he goes on to write the following:
Shift the object and change the scale. Define new tactics in order to reach a target that is now more subtle but also more widely spread in the social body. Find new techniques for adjusting punishment to it and for adapting its effects. Lay down new principles for regularizing, refining, universalizing the art of punishing. Homogenize its application. Reduce its economic and political cost by increasing its effectiveness and by multiplying its circuits. In short, constitute a new economy and a new technology of the power to punish: these are no doubt the essential raisons d'etre of penal reform in the eighteenth century. (D&P, 89)++
So, it's clear that in 1975, Foucault understands the significance of the late 18th century penal reformers in terms of a political economy. And he presents them as anticipating the very point that in 1979 he attributes to Stigler (who he treats as returning to the best insights of the reformers). And this theme is really introduced as early as D&P p. 82, so it's not a mere throw away remark.
Let me conclude with two speculations. First, it is not impossible that Foucault was familiar with Stigler's work before he published Discipline and Punish. There is an annotation on Stigler 1970 in his hand (see here). After all, Foucault was enmeshed in prison reform activism, so not just doing historical research on prisons in the early 1970s. This hypothesis is strengthened by the fact that Stigler 1970 is absent in Lepage (1978), which is often treated as Foucault's source to Chicago neoliberalism.** So, if that's right, Foucault was already interpreting his source material in light of some familiarity with the Chicago approach to crime.
Second, it's also possible, of course, that Foucault's familiarity with Stigler and the Chicago approach to crime came after he wrote Discipline and Punish. And then that opens up the possibility of not just an epynomous disovery (a term coined by George's son, Stephen Stigler), but also a kind of convergence between Foucault and Chicago economics on a non-trivial issue. This suggests that Foucault's purported late affinity with American neoliberalism (a much debated issue among Foucault scholars) may have roots in his own intellectual development in reflecting on the role of crime and punishment in society.
*When confronted with this material, Gary Becker described Isaac Ehrlich as a former student (from his Columbia days). As the editors of the Birth of Biopolitics note, Foucault explicitly quotes, Ehrlich's "The Deterrent Effect of Capital Punish-ment: A Question of Life and Death." The American Economic Review 65.3 (1975): 397-417. We know Foucault made some annotations on it (see here). This paper is in the bibliography of (but not discussed by) Lepage's (1978) Tomorrow Capitalism, which Foucault seems to have read while preparing the Birth of Biopolitics lectures. Either way, it seems unlikely that Foucault read Ehrlich before Discipline and Punish.
+In Discipline and Punish, Foucault does not bring Beccaria and Bentham so close together.
**While LePage (1978) mentions Stigler, he does not mention this 1970 JPE article.
++To be sure, Foucault goes on to analyze it in terms of a social contract. But that's because he treats Beccaria (correctly) as a Humean social contract theorists.
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