2. Genealogist as Radical Critic: Nietzsche and Foucault
A genealogy is an account of an individual's descent from an ancestor; thus, a genealogy of a practice intends to show the origins of the practice. The genealogist tells us why, historically, we have our practices. What we have to explore is how the understanding given to us by the genealogist might help us cope with our practices. The work of Friedrich Nietzsche and Michel Foucault will serve as our paradigms of genealogy as radical criticism.
[2] The one exception is Karl Menninger. As we shall soon see, Menninger hedges. Sometimes he argues that we should not punish. But sometimes he accepts that we have the practice and proceeds to give advice on its details-for example, that we should use psychiatric and medical expertise in determining sentencing.
2.1 Nietzsche
Nietzsche does not discuss the practice of legal punishment systematically.[3] The only extensive source for his views on the subject is his second essay in On the Genealogy of Morals , although his other works contain several passages addressing punishment. The tone of all of these sources is critical. But before we judge their force, let us see their substance.
Retributivists often argue that the essence of punishment is the just deserts it metes out to the guilty. Nietzsche argues that punishment did not arise from an initial judgment that the criminal deserves punishment—this is "in fact an extremely late and subtle form of human judgment and inference." The origin of punishment is more primitive:
Throughout the greater part of human history punishment was not imposed because one held the wrongdoer responsible for his deed, thus not on the presupposition that only the guilty one should be punished: rather, as parents still punish their children, from anger at some harm or injury, vented on the one who caused it—but this anger is held in check and modified by the idea that every injury has its equivalent and can actually be paid back, even if only through the pain of the culprit. And whence did this primeval, deeply rooted, perhaps by now ineradicable idea draw its power—this idea of an equivalence between injury and pain? … in the contractual relationship between creditor and debtor, which is as old as the idea of "legal subjects" and in turn points back to the fundamental forms of buying, selling, barter, trade, and traffic.[4]
[3] He doesn't discuss anything systematically. Moreover, Nietzsche's interest in punishment may be limited to its being a convenient example for his more general point about the construction of meaning.
[4] Friedrich Nietzsche, On the Genealogy of Morals and Ecce Homo , trans. Walter Kaufmann and R. J. Hollingdale (New York: Vintage, 1969), essay 2, section 4. In citing Nietzsche, I refer to essay and section numbers.
Punishment emerged as a "right of the masters"—the creditors—to "experience for once the exalted sensation of being allowed to despise and mistreat someone as 'beneath him'"—punishment was "a warrant for and title to cruelty."[5] Before Christian ressentiment transvalued the power of the masters from something "good" to something "evil," teaching man to "be ashamed of all his instincts," cruelty was essential to a cheerful" life.[6] In the days when we did not repress our instincts, we reveled in and celebrated cruelty: "[W]ithout cruelty there is no festival: thus the longest and most ancient part of human history teaches—and in punishment there is so much that is festival!"[7]
Nietzsche thinks that punishment as now practiced is no longer as it originally was. For if punishment still embodied the strength of the powerful who punished, we would, he suggests, no longer punish:
The "creditor" always becomes more humane to the extent that he has grown richer.… It is not unthinkable that a society might attain such a consciousness of power that it could allow itself the noblest luxury possible to it—letting those who harm it go unpunished. "What are my parasites to me?" it might say. "May they live and prosper: I am strong enough for that!"[8]
Punishment arose as the expression of the will of the powerful. But a reversal has taken place. To be powerful in primitive days was to be cruel and cheerful;[9] to be powerful in modern times is to be able to resist being cruel, to resist punishing. To punish is no longer a sign of power; the power that now punishes is too weak to be able not to punish.
[5] Ibid. essay 2, section 6.
[6] Ibid., essay 2, section 7. For the meaning of ressentiment and its importance to Nietzsche's account of punishment, see Walter Kaufmann, Nietzsche (New York: Random House, 1968), pp. 371–78.
[7] Nietzsche, Genealogy , essay 2, section 6.
[8] Ibid., essay 2, section 10.
[9] Primitive=prehistoric: ibid., essay 2, section 9.
Ressentiment changes both who punishes and what punishment is. The power that now punishes understands punishment to be a means of upholding justice by meting out retribution, or of treating the sick, or of preventing crime. Nietzsche claims that our present understanding of punishment belies its origins:
Thus one also imagined that punishment was devised for punishing. But purposes and utilities are only signs that a will to power has become master of something less powerful and imposed upon it the character of a function.[10]
Nietzsche is telling us in this passage that the institution of punishment—the remnant of the "will to power"—now masters the weak, not they it, and dictates to them the necessity of seeking retribution or doing what has utility. The weak don't make up their own institution, but receive the old, which, with new managers, takes on a meaning that belies the original.
Nietzsche I believe, wants us to see a great irony about punishment. The original will to punish was not a will to revenge or to seek retribution; it was "the will of life,"[11] the will of the powerful masters who reveled in cruelty. The will to revenge that now punishes, that has occupied the institution left behind by the will to power, is the will of the weak, the will of ressentiment ; it is what has emerged as part of the sinister "European culture" with its spreading morality of pity, a morality that has "seized even on philosophers and made them ill." The will to revenge is the will of the nihilist;[12] it is a will counter to the will of life. The present power that punishes is the vengeful tarantula, which hangs its webs, but is really frail: "[Tlouch it, that it tremble!"[13]
[10] Ibid., essay 2, section 12.
[11] Ibid., essay 2, section 11.
[12] Ibid., Preface, section 5.
[13] Friedrich Nietzsche, Thus Spoke Zarathustra , trans. Walter Kaufmann (New York: Penguin, 1978), "On the Tarantulas."
What conclusions does Nietzsche draw from his genealogy of punishment? He makes several suggestions. He suggests that retributive punishment—the punishment of the weak that seeks justice—will be ineffective, perhaps because the new appropriators of punishment are wielding a weapon effective only in the hands of those capable of using it. The instrument of punishment was appropriate to its original users, who festively enjoyed their tool. But in the hands of its new managers, punishment is put to new uses for which it is ill suited (for example, to make the criminal repent):
lt is precisely among criminals and convicts that the sting of conscience is extremely rare; prisons and penitentiaries are not the kind of hotbed in which this species of gnawing worm [men of conscience who repent] is likely to flourish.… If we consider those millennia before the history of man, we may unhesitatingly assert that it was precisely through punishment that the development of the feeling of guilt was most powerfully hindered.[14]
Nietzsche says it would be a relief to be free of the idea of sin and punishment, which is part of the "old [though not prehistoric] instinct of revenge."[15] We should rise above this practice of the weak, of the Nay-sayers:
Let us stop thinking so much about punishment, reproaching, and improving others.… Let us not contend in a direct fight—and that is what all reproaching, punishing, and attempts to improve others amount to. Let us rather raise ourselves that much higher.… No, let us not become darker ourselves on their account, like all those who punish others and feel dissatisfied. Let us sooner step aside. Let us look away.[16]
[14] Nietzsche, Genealogy , essay 2, section 14.
[15] Friedrich Nietzsche, Morgenröte (Stuttgart: Alfred Kröner, 1964),section 202.
[16] Friedrich Nietzsche, The Gay Science , trans. Walter Kaufmann (New York: Random House, 1974), section 321.
I do not want to wage war against what is ugly. I do not want to accuse; I do not even want to accuse those who accuse. Looking away shall be my only negation. And all in all and on the whole: some day I wish to be only a Yes-sayer.[17]
To the modern power that punishes, that weak, venomous, vengeful spider or snake, Nietzsche says: "But take back your poison. You are not rich enough to give it to me."[18]
Nietzsche is critical of punishment, but is he critical only of punishment as it has become—of the perverted form of punishment that is our own practice? Sometimes Nietzsche appears to be calling us back to our original home, to a prehistoric practice of punishment that in its cruelty is "festive" and celebratory of the greatness of the strong. In this view, Nietzsche is saying that the meaning of punishment has changed, it has become a sickly and spiteful institution of revenge, a weapon of the weak in their reaction against the strong; and Nietzsche is pointing us back to our original or natural instinct to dominate, beckoning us to express our natural will to life. Although there are passages to support such a reading,[19] I think this view misses Nietzsche's more potent point, and the essentially critical, not constructive, character of his project.
Nietzsche insists that the origins of a practice or institution do not tell us its purpose or value:
the cause of the origin of a thing and its eventual utility, its actual employment and place in a system of purposes,
[17] Ibid., section 276.
[18] Thus Spoke Zarathustra , "On the Adder's Bite." There Nietzsche also writes, "It is nobler to declare oneself wrong than to insist on being right—especially when one is right." And in the section "On the Tarantulas": "For that man be delivered from revenge, that is for me the bridge to the highest hope, and a rainbow after long storms." Also, Ecce Homo (essay 1, section 5): "not to take the punishment upon oneself but the guilt would be divine."
[19] For example, the tone of essay 1, section 11, in the Genealogy , challenging the morality of ressentiment and praising the beast man over the maggot men.
lie worlds apart; whatever exists, having somehow come into being, is again and again reinterpreted to new ends, taken over, transformed, and redirected by some power superior to it.… However well one has understood the utility of any physiological organ (or of a legal institution, a social custom, a political usage, a form in art or in a religious cult), this means nothing regarding its origin: however uncomfortable and disagreeable this may sound to older ears—for one had always believed that to understand the demonstrable purpose, the utility of a thing, a form, or an institution, was also to understand the reason why it originated—the eye being made for seeing, the hand being made for grasping.[20]
Nietzsche warns us against mistakenly thinking that our conception of the value of a practice accounts for the origins of the practice. Nietzsche's view in the Genealogy is, rather, that practices and institutions first emerge in history and subsequently come to assume various meanings: we invent purposes for them, we interpret their meanings.[21] Nietzsche is aware that "punishment" means different things, and he lists several: punishment can mean to render harmless, to recompense, to prevent future disturbances, to inspire fear, to repay, to purify; it can refer to a festive rape and mockery of an enemy, or a declaration of war.[22] Nietzsche's point is that none of these, alone, is the true meaning or purpose of punishment:
[Tlhe concept "punishment" possesses in fact not one meaning but a whole synthesis of "meanings": the previous history of punishment in general, the history of its employment for the most various purposes, finally crystallizes into a kind of unity that is hard to disentangle, hard to analyze and, as must be emphasized, totally in-definable. (Today it is impossible to say for certain why people are really punished: all concepts in which an entire
[20] Genealogy , essay 2, section 12.
[21] Ibid., essay 2, section 13.
[22] Ibid.
process is semiotically concentrated elude definition; only that which has no history is definable.)[23]
At certain times one element "appears to overcome all the remaining elements" and mark the true meaning of punishment.[24] But Nietzsche says this is only an appearance; there is no essence of punishment, even though we can speak of punishment as one practice, as a "unity."[25]
Nietzsche's genealogy, then, seems directed, not at calling us back to the true purpose and meaning of punishment, but at challenging all claims to know its true meaning. He attacks retributivists, who see justice as the essence of punishment; he attacks utilitarians, who see deterrence as the essence of punishment.[26] The value of genealogy lies, not in telling us the true purpose of punishment, but in helping us see that there is no true purpose.
There is much that is attractive in Nietzsche's view. In chapter five I shall embrace Nietzsche's nonfoundationalism , his view that the justification of a practice depends essentially on our interpretation of the practice, and that no one interpretation can claim to articulate the true meaning of the practice. But there is also much that is disquieting. Is Nietzsche, like the Socrates he portrayed in his earlier The Birth of Tragedy , a "theoretic man" who delights in unmasking and who "finds the highest object of pleasure in the process of an ever happy uncovering?"[27] More to our point than deciding Nietzsche's
[23] Ibid.
[24] Ibid.
[25] Cf. Michel Foucault's account of Nietzsche's genealogy, in Language, Counter-Memory, Practice , ed. Donald Bouchard (Ithaca: Cornell University Press, 1977), p. 142: "[I]f the genealogist listens to history, he finds that behind things there is not a timeless and essential secret, but the secret that they have no essence or that their essence was fabricated in a piecemeal fashion…. Examining the history of reason, he learns that it was born in an altogether 'reasonable' fashion—from chance."
[26] Deterrence is his example of what at one time "appears" to be the true purpose of punishment (Genealogy , essay 2, section 13).
[27] Friedrich Nietzsche, The Birth of Tragedy , trans. Walter Kaufmann (New York: Vintage, 1967), p. 94.
own intentions, does Nietzsche, who seems to challenge the validity of every justification of the practice of legal punishment, offer practical criticism? Does his account better equip us to live with our practices, perhaps to reform them? It is not easy to see how. Nietzsche clearly is not engaged in the activity of justifying actions within the practice. But it's not clear that he intends even to engage in the activity of justifying (or denying the justification of) the whole practice; and his account is not obviously intended to move us to abolish our practice. Sometimes Nietzsche seems to assume a position of radical skepticism that claims there can be no justifications.[28] Whatever Nietzsche's intentions are, it is difficult to see how Nietzsche's account is in any sense practical, or useful to the practitioner committed to the criminal justice system.
Toward the end of the second essay in the Genealogy , Nietzsche asks himself. "What are you really doing, erecting an ideal or knocking one down?" He answers:
But have you ever asked yourselves sufficiently how much the erection of every ideal on earth has cost? How much reality has had to be misunderstood and slandered, how many lies have had to be sanctified, how many consciences disturbed, how much "God" sacrificed every time? If a temple is to be erected a temple must be destroyed : that is the law—let anyone who can show me a case in which it is not fulfilled.[29]
The immanent critic, committed to our practices, would respond: If we destroy the temple that houses us, we will be homeless. I think this is a powerful objection to Nietzsche's project of radical criticism. Of course, it is the immanent critic's burden to persuade us that the home we have is better than none or than one we might build from scratch.
[28] In this view Nietzsche is what Dworkin calls an external skeptic: see chapter 2, note 1.
[29] Genealogy , essay 2, section 24, Nietzsche's emphasis.
2.2 Foucault
Foucault's account of punishment has its most complete expression in Discipline and Punish .[30] His thesis in this work is that the Enlightenment penal system that emerged in the late eighteenth and early nineteenth centuries, though on its surface marking a reaction to the old system of equating punishment with pain and torture and spectacle, in fact is but a new mask for what was and is essentially a politics of power.[31] Although the Enlightenment penal system denies that it acts inhumanely, its imposition of a bureaucratic structure of psychologists and parole boards upon the penal process serves only to distance the judge from the actual act of punishment.[32] Punishment is made to appear more humane—it is said to be a cure[33] —but in fact it is even more devious: it is intended no longer to punish the offense, but to supervise the individual.[34] In the new system we no longer torture the body. Instead we deprive the offender of some liberty, often by placing him in a house of correction for treatment; but in Foucault's view there is no such thing as a non-corporal punishment, for depriving the body of its rights is the same as inflicting pain.[35]
Foucault presents his account as genealogy. He offers an explanation of the transition from the old to the new system of punishment. In the old system the power to punish was held exclusively by the sovereign,[36] and punishment was a public spectacle that "displayed for all to see the power relation that gave his force to the law."[37] In the new system, the power relation in punishment remains but no longer displays itself publicly.[38] Punishment now takes place behind closed doors,
[30] Michel Foucault, Discipline and Punish: The Birth of the Prison , trans. Alan Sheridan (1975; reprinted New York: Vintage, 1979).
[31] Ibid., p. 55.
[32] Ibid., p. 13.
[33] Ibid., pp. 16–17, 22, 101.
[34] Ibid., p. 18.
[35] Ibid., pp. 16, 101.
[36] Ibid., p. 35.
[37] Ibid., p. 50.
[38] Cf. ibid., p. 55.
hence the birth of the prison and houses of correction. Why the change? Foucault sees as causal, not a new spirit of Enlightenment ideals, but shifting mechanisms or tactics of power. There was a "closer penal mapping of the social body."[39]
Ultimately, what one is trying to restore in this technique of correction is … the obedient subject, the individual subjected to habits, rules, orders, an authority that is exercised continually around him and upon him…. The agent of punishment must exercise a total power, which no third party can disturb; the individual to be corrected must be entirely enveloped in the power that is being exercised over him.[40]
Foucault explains punishment as a "political tactic"; it is a practice "based on the principle of the technology of power."[41] To understand punishment we must study "political anatomy."[42]
Punishment is just one manifestation, to Foucault, of what he sees as power:
Punishment is a functioning of a power that is exercised on those punished, and more generally on those being supervised,on madmen, children, those stuck at a machine, etc.[43]
The underlying process of power reveals itself not only in punishment but in the concern for and control over detail, and in various techniques of domination.[44] Other manifestations of this power include the discipline of factories, schools, barracks, and hospitals.[45] Even the keeping of clinical records
[39] Ibid., pp. 77–78.
[40] Ibid., pp. 128–29.
[41] Ibid., pp. 23–24.
[42] Ibid., p. 28.
[43] Ibid., p. 29.
[44] Ibid., p. 141.
[45] Ibid., pp. 227–28.
of an individual's medical facts represents, to Foucault, a power's "coercion over bodies."[46]
The underlying process of power also sets up masks or myths to hide its ugly workings. One of the myths is the "logical nexus" linking punishment to crime. Foucault argues that the politics of power makes punishment a sign for crime and understood to go together with crime: society links crime and punishment via signs,[47] and by this linkage it conceals the power that actually punishes.[48] In another essay Foucault speaks of "rights" as a mask: theories of rights serve to efface the domination intrinsic to power, in order to make power appear as legitimate, as something we are legally obligated to obey.[49]
Power, then, is what for Foucault accounts for the development of the practice of legal punishment. Power is an "underlying force." The penal process reflects invisible, "more profound processes."[50] Foucault says this underlying process of power is so profound that it constitutes our concept of truth: "There is no knowledge that does not presuppose and constitute at the same time power relations."[51]
The underlying process of power is invisible, like Marx's mole. There are similarities between Foucault's explanation and that of many Marxists, and Foucault is sympathetic to some of the Marxists we shall take up.[52] But Foucault says he rejects simple class analyses.[53] In another essay he breaks with the Marxists in not seeing power as the domination of one
[46] Ibid., p. 191.
[47] Ibid., pp. 104–5, 109.
[48] Ibid., p. 105.
[49] Michel Foucault, Power/Knowledge , ed. Colin Gordon (Suffolk: Harvester Press, 1980), p. 95.
[50] Foucault, Discipline and Punish , p. 210. Cf. p. 139: "[B]eneath every set of figures, we must seek not a meaning, but a precaution; we must situate them not only in the inextricability of a functioning, but in the coherence of a tactic."
[51] Ibid., p. 27.
[52] Cf. ibid., pp. 24–25, on the work of Rusche/Kirchheimer; also pp. 273–75, on the class basis of punishment.
[53] Ibid., pp. 24–25, 54.
group or class over another. Rather, "power must be analysed as something which circulates, or rather as something which only functions in the form of a chain."[54] For Marx, power is a possession: it may be held, transferred, or alienated. For Foucault, power has the character of a network; its threads extend everywhere. Power or domination can't be terminated merely by overthrowing a regime.[55] Foucault rejects the particular Marxist explanation of punishment, which we shall discuss later in this chapter, but not the Marxists' general project of explaining punishment. Foucault explains punishment as historically and at present the result of the functioning of a power.
The power to which Foucault refers may strike us as ineffable, even after reading the concrete accounts in Discipline and Punish and elsewhere.[56] What are we to make of Foucault's account: is it persuasive? is it in any sense practical?
First, is Foucault's explanation persuasive? There is certainly something compelling in Foucault's vision: he directs us to look again at familiar institutions—schools, hospitals, factories, prisons, armies—and see in them something we might have missed before. Foucault is persuasive in showing how all of these institutions discipline and normalize us.[57] Perhaps,
[54] Foucault, Power/Knowledge , p. 98.
[55] See Barry Smart, Foucault, Marxism and Critique (London: Routledge and Kegan Paul, 1983), pp. 81–87.
[56] The power Foucault describes is not always ineffable. In the book he edited, I, Pierre Rivière (New York: Penguin, 1975), Foucault interprets the penal process that led to the eventual conviction and incarceration of the parricide Pierre Rivière as a struggle of powers. The documents of the trial and Pierre's own memoir of his deed are seen by Foucault as narratives that became facts, part of a history "below the level of power" (205–6). Concretely, this means, for example, that the testimony regarding Pierre's sanity given at the trial by various medical experts reflected a power struggle within the medical and psychological fields and also between the fields of law and medicine.
[57] The English verb "to discipline," with its dual meaning of "to punish" and "to make regular or obedient," is particularly well suited for Foucault's argument.
now, we will see our world differently, in a new light. But what precisely is it that Foucault wants us to see?
Foucault argues that if we look at the organization of our institutions we shall see there the urge to discipline and impress power upon individuals—we shall see "coercion."[58] But is this the best interpretation of what we see? Many institutions have aims the achievement of which requires order. In a symphony orchestra or a chamber group each member must count strictly, under the gaze of each other or of the conductor. Is this a sign of power at work? Is the discipline in the orchestra or chamber group evidence of an urge to control the body? Why is it bad to be watched or observed?[59] Isn't it sometimes good? Can't it show that someone loves or cares about us? Which judgment of the gaze is best: that it reveals coercive designs, or loving care? Is Foucault's interpretation of the keeping of clinical records as "coercion over bodies" the best account of this practice? Foucault also says that the isolation of contagious patients is a technique of discipline, a tactic of power.[60] Is this the best account of why doctors decide to isolate certain patients?[61]
In advancing his own interpretation of legal punishment, Foucault challenges past and present justifiers of the practice, in effect arguing that we cannot take them at their word when they offer their justifications. Although the Enlightenment reformers
[58] Foucault, Discipline and Punish , p. 169.
[59] See Foucault's discussion of Bentham's Panopticon: ibid., ch. 7.
[60] Ibid., p. 144.
[61] Norman Jacobson has suggested to me that we might understand Foucault's theorizing about discipline and the coercive ways society normalizes us as part of his personal struggle to engage us in his plight as a homosexual in a society that regards homosexuality as abnormal. This might make us more sympathetic to Foucault's account, but I'm not sure it makes more convincing his interpretations of particular practices such as legal punishment or the isolation of contagious patients. Also, Dennis McEnnerney has suggested to me, in defense of Foucault, that Foucault's account of the keeping of clinical records might be a convincing interpretation of the practice in Foucault's France, if not of the practice elsewhere.
gave their reasons for changing the practice of punishment, Foucault imputes to them a different motive from the one they professed. "The true objective" of the reform movement, he says, was to set up a new economy of the power to punish, and not, as Enlightenment reformers claimed, to establish the right to punish on equitable principles.[62] The justification for reform, in Foucault's view, was really to "insert the power to punish more deeply into the social body."[63]
[To] constitute a new economy and a new technology of the power to punish: these are no doubt the essential raisons d'être of penal reform in the 18th century.[64]
Foucault repeatedly devalues the role in reform, and perhaps challenges the sincerity, of Enlightenment ideals of humanity.[65] At one point Foucault suggests that Enlightenment thinkers and juristic reformers collaborated (unknowingly?) with "technicians of power":
While jurists or philosophers were seeking in the pact [social contract] a primal model for the construction or reconstruction of the social body, the soldiers and with them the technicians of discipline were elaborating procedures for the individual and collective coercion of bodies.[66]
Other times, Foucault indicates that his argument is not about the desire for power: his is an argument about institutions, structural features, and their relation to technology.[67] Ultimately Foucault's argument depends on the persuasiveness of his account of our institutions and practices, and to be persuasive he has to convince us that the justifications given in practice can't be accepted at face value. Yet Foucault seems
[62] Foucault, Discipline and Punish , p. 80.
[63] Ibid., p. 82.
[64] Ibid., p. 89.
[65] Ibid., pp. 74–75, 78–79, 81–82, 303.
[66] Ibid., p. 169.
[67] Cf. ibid., p. 163 (the discussion about the rifle).
unwilling even to engage in dialogue with Enlightenment reformers, of whose intentions he is suspicious—but what if these reformers were sincere?
Even if we were persuaded by Foucault's interpretation of legal punishment, the question would still remain: How does Foucault's theory bear on our practice? Foucault himself is unclear about his own intentions. Like Nietzsche, Foucault does not engage with those who are inside the practice of legal punishment and concerned about its details. He is engaged, it seems, not with such questions as what sentence is appropriate for a given crime or what standard of accountability we should apply but, rather, with the question of whether we should punish at all. If Foucault is involved in any justificatory activity—and he speaks as if he is when he challenges past and present justifiers—it is that of justifying the whole practice. Is Foucault, then, a radical critic who tells us why we should not have the practice of legal punishment?
Foucault often implies that punishment is a practice we should do without. He says that prisons are "detestable,"[68] and he suggests that we are in chains:
"A stupid despot may constrain his slaves with iron chains; but a true politician binds them even more strongly by the chain of their own ideas; it is at the stable point of reason that he secures the end of the chain; this link is all the stronger in that we do not know of what it is made and we believe it to be our own work."[69]
Moreover, in describing educational institutions as "a relation of surveillance," Foucault speaks of them as an "insidious extension" of disciplinary power.[70]
Yet though Foucault is clearly critical of many of our institutions, I do not think he is suggesting that we abolish them, that we break these odious chains and free ourselves. The use
[68] Ibid., p. 232.
[69] Ibid., pp. 102–3. This is Foucault's quotation from a work by Servan.
[70] Ibid., p. 176.
of prisons is detestable, but, he adds, "it is the detestable solution which one seems unable to do without."[71] Foucault gives us no alternatives to the institutions and practices he claims are coercive.[72] At one point Foucault says that the issue is not whether we should have prisons but, rather, how we are to assess the rising use of these mechanisms of normalization.[73] It is not the institutions per se that Foucault opposes—they are but part of "a whole series of carceral mechanisms" which "all tend, like the prison, to exercise a power of normalization."[74] But where does this leave us with respect to these practices and institutions? Is Foucault's account in any sense practical?
In one of his essays in Power/Knowledge, Foucault explains his work as genealogy that gives us a historical knowledge that we can make use of tactically today.[75] ln another essay, a transcription of a discussion he held with Maoists over whether the institution of a people's court is a good model for the popular justice the Maoists seek, Foucault opposes the model of the court; he appeals to his genealogy in arguing that the idea of a court is opposed to justice. The historic role of penal systems was "to create mutual antagonisms between the proletarianized common people and the non-proletarianized common people."[76] The penal system emerged to stamp out rebellion.[77] Foucault recommends to the Maoists that they give up on the idea of a court, because courts, and the penal law they execute, are historically a functioning of power, directed against those who are politically threatening.[78] Foucault says
[71] Ibid., p. 232.
[72] For this reason alone we might say he is not engaged in the activity of justification. One criterion sometimes advanced for giving a justification is that one must argue for this over that: see Antony Flew, "The Justification of Punishment," Philosophy , vol. 29, no. 111 (October 1954), p. 295.
[73] Foucault, Discipline and Punish , p. 306.
[74] Ibid., pp. 307–8.
[75] Foucault, Power/Knowledge , p. 83.
[76] Ibid., pp. 8–9.
[77] Ibid., p. 14.
[78] Ibid., p. 15.
that the judicial system and courts must be "the target of our present struggle."[79] The Maoists ask Foucault what form, if not that of the court, popular justice should take. Foucault answers, "[I]t remains to be discovered."[80]
Sometimes Foucault talks as if he does want to cash in practically on his theory of social institutions—he speaks of making tactical use of his genealogy, and of using it in the struggle against existing institutions. But I doubt that he seriously expects or even wants us to abolish our penal system or to abandon the practice of keeping clinical records. Foucault, like Nietzsche, unleashes a radical criticism that smashes our temples today but tomorrow leaves us homeless and still searching. Of course, he may be right that we are not at home in our prisons and asylums.
Both our genealogists, Nietzsche and Foucault, tell us about the origins of our practices. But their efforts are not reducible to a "search for origins."[81] Both have us look at our practices in a new way. Both interpret our practices so that we may understand them in a new light. But their project remains ambiguous: they are unmasking, but to do what? Neither genealogist takes up the questions faced by those inside the practice. Are their projects practical in any sense?
Both at times seem to take up the activity of examining the justification of the practice as a whole, using their radical criticism to deny that the practice is justified. We might ask whether they are successful at this—whether they can persuade us to abolish the practice of legal punishment. But this does not seem a good question, because, as we have seen, neither commits himself to the abolition of the practice. In any case, there is no obvious criterion for success, for deciding whether
[79] Ibid., p. 36.
[80] Ibid., p. 28.
[81] Foucault objects to the effort to reduce Nietzsche's genealogy to the level of a "search for origins" (Michel Foucault, The Archaeology of Knowledge , trans. A. M. Sheridan Smith [New York: Pantheon, 1972], p. 13).
they are right about our practices. Nietzche would tell us that his is but one possible interpretation.[82] I think that to see what is practical in the accounts of these genealogists we must consider the nature of their activity: justifying, or denying the justification of, a practice as a whole. But before we do this, we shall discuss the other radical critics who engage in that activity.