On Foucault and the criminal law

Michel Foucault wrote little directly on the topics of law or criminal law and, given that much of his writing on political theory and power was directed at subverting those approaches which saw questions of sovereignty and constitutionalism as central, this is hardly surprising. Notwithstanding this, his published writings comment frequently on the law, even if this can hardly be said to add up to a theory of law as such. I don't wish to add to this, but while looking over his 1977-8 lectures at the College de France recently I was struck by his comments on the development of the criminal law.

He sees this as comprising three stages. First, the simple prohibition followed by punishment. Second, there is prohibition and punishment, but now accompanied by a series of supervisions, checks and controls - policing individuals before and after the event. The third stage sees the same structure but now the application of policing and punishment will be framed by a series of further questions - about the incidence of crime in particular localities, the cost it presents to the economy, the factors that change its incidence, the costs of different forms of repression, the effectiveness of forms of punishment and so on. His point is that as the basic code is supplemented by these other mechanisms it becomes something else - part of an apparatus of security. This, for him, sees the breach of the norm in the penal code inserted into a series of calculations of probability and cost in the determination of levels of the social acceptability of the conduct.

Looking at it, it is easy to see how this links to the account of the birth of the prison in Discipline and Punish (1977) and, in the third stage, to the developing theme of governmentality. It is, on the face of it, a plausible enough account, suggesting how, while the 'core' of the law remains the same, it is supplemented by other mechanisms which gradually change its character. It is not a complete account, for it seems clear enough that new areas of law develop and the legal form also changes in different ways. The challenge then is to develop a theoretical account of the criminal law which is not narrowly confined to the prohibition, but which also includes the surrounding mechanisms.