Chapter 1
Illegalisms and the Law of Civil Society
From Foucault to Marx
MikhaĂŻl Xifaras
This chapter1 engages with the question of how to theorize the relation between disciplines and the structure of the capitalist economy and focuses on the particular role played by the invention of a legal fictitious âthingâ called patrimony. It aims to show that although Michel Foucault brilliantly unveiled the productivity of a whole set of norms at a micro level (the disciplines), he was not able to accurately articulate this set of norms to the legal structures of capitalism and therefore failed to give an account of the relation between the fostering of free markets and the development of mass incarceration. The careful attention the young Karl Marx gave to the analysis of legal regimes might offer, at this point, an alternative way to theorize law and the disciplines. Thus, this chapter discusses the role of the âtheory of patrimonyâ in the understanding of the relation between private law and the invention of illĂ©galismes (illegalisms).
We know, thanks to Foucault, that the birth of the human sciences corresponds with the arrival of a âcertain modern manner of knowing empiricitiesâ (Foucault 1994, 249). The human sciences are addressed to man âin so far as he lives, speaks, and producesâ (ibid., 350).2 We also know the crucial role played by âsocial relationsâ in the development of modes of knowledge about productive activity.3 The invention of the concept of social relations comes from a theoretical shift dismissing as ideological the âjuridical vision of the worldâ, which was carried by natural law theories. According to these theories the relations that lace the fabric of real life are first and foremost jural relations (e.g. legal personality, property, contracts). Once this vision is repudiated, however, something appears both behind and before the law, which cannot be sufficiently expressed in legal discourse alone, because it is deeper and more real than that. This something is âthe socialâ, understood as an autonomous ontological order and an independent domain of inquiry.4
Once this shift to the social occurred, in the work of many authors, âthe Spirit of the Lawâ and, more generally, the different stages of history of âcivilizationâ are no longer to be searched for in legal regimes of property (as in, e.g., Simon N. H. Linguet5 and Adam Ferguson6) but in the âsocial relations of productionâ. These relations are understood as real, organic connections. The right to property is just a tool for their reproduction, and it does not take part in their constitution. First, property law faithfully reproduces social relations by inadequately reflecting them, providing an âinversed visionâ that shrouds the relationships of domination that are, in fact, structuring them (e.g. by representing employer and employee as freely acting and fully equal co-contractors). Second, property law reproduces social relations by punishing, with all the brutality and violence of public authority, any opposition to these relationships of domination (as manifested in theft or in a strike). According to that perspective, law is seen as an ideology and as a repressive apparatus, or following Louis Althusser, as an âideological state apparatusâ. In freeing us of the âjuridical view of the worldâ,7 the human sciences thus often, at least in France, refuse law a major role in the constitution of society and are sometimes, then as now, largely indifferent to legal phenomena and their productivity.
This indifference rests on a misunderstanding that is hard to make sense of: one can very well dismiss the theoretical juris-centrism of modern natural law theories, try to think outside of any statist storytelling, reckon that all the relations in real life are not necessarily legal, and, nevertheless, stay alert to the role of law in the constitution and functioning of our societies. One can raise the criticism that the juridical vision of the world is ideological, without necessarily relegating legal relations to the dustbin, deeming them secondary to or even outside the social. Foucaultâs first lecture at the CollĂšge de France in 1972â1973, recently published under the French title La sociĂ©tĂ© punitive,8 offers exactly this lesson, thanks in large part to the careful work on these lectures accomplished by François Ewald, Alessandro Fontana and Bernard Harcourt.
As Harcourt argues in his superb commentary,9 the intuitive notion of illĂ©galismes (illegalisms) shows that the establishment of a given legal regime does not simply observe and sanction deviations or transgressions within an already-constituted social order but participates in its very definition by delineating the boundary between the âlegalâ and the âillegalâ. The figure of the criminal is not that of a person outside of society. Rather, society constructs him or her, at least in negative terms, by defending itself against its âenemiesâ. Thus, law asserts a constitutive role, and the analysis of legal regimes reintroduces itself to the study of human being and society. Generally, this lesson has been applied. Thanks to Foucault, we now know that to understand madness, citizenship or housing one must pay close attention to the internal regulation of psychiatric hospitals, the administrative status of alien residents and legal regimes regulating homelessness.
This is an important and welcome lesson. However, it remains limited. Foucault recognizes that the law is productive, but the law remains only negatively so. The notion of illegalisms does not take us further than the context in which it was developed: a study of repressive tools whose function is mainly to enforce and sanction what the law itself is establishing as illegal. Law participates in the production of social relations but still only by the way of repression and sanction. That is undoubtedly the reason why most frequently law appears in Discipline and Punish in the guise of criminal law and is generally associated with the stateâs sovereignty.10
The law also appears in the writings of 1972 that Foucault pulled as a set of learned discourse from treatises, pamphlets, dissertations, sometimes the travaux prĂ©paratoires for legislation, or the dicta of court decisions (les motifs), that is to say all that which, in the mass of legal discourse, falls within what might be called âsecondary literatureâ. Foucault was less frequently interested with the holdings (les dispositifs) and, in general, with the texts carrying concretely enforceable legal provisions. Foucault understood the law as a narrative on society (which it is) more than as an ensemble of speech acts productive of social facts (which it also is). In Foucaultâs view, the law is linked exclusively to repression and ideology. This limitation self-manifests more clearly when one juxtaposes Foucaultâs analysis of illegalisms with one of his sources, the young Marx in Theft of Wood. Foucault probably evokes this text because he sees in it a striking example of manufactured illegalisms, in this case the criminalization of wood gathering and the transformation of the poor peasant into a delinquent (Foucault 2015, 62). But our interest in Marxâs analysis does not end here.
Theft of Wood and property hybrids
Marxâs text comprises a series of newspaper commentaries on the legislation adopted in October 1842 by the Rhine Province Assembly in connection with the pickup of fallen wood in forest.11 Prior to that bill, peasant communities could collect fallen wood through something like a customary right of use. The French-inspired legal overhaul was meant to introduce into the Rhenan Civil Code the notion of absolute property, according to which a forest owner would also own the fallen wood. The legislation targeted fallen wood gatherers by criminalizing fallen wood collection. The young Marx roared with indignation at these provisions, especially since any wrongdoer, beyond reimbursing the forest owner of the value of the stolen wood, would also have to pay a fine to the owner (and not to the state). For Marx, this flagrant privatization of even the fine in question demonstrated that the Rhine Province Assembly was not a public legislator but merely an authority working in the exclusive interest of the private owners who composed it.
Yet the wood theft provisions were not just criminal. They included an important civil law component that transformed the conception of property in force at that time. Without entering too much into the details, for Marx, customary property rules were necessarily undecided in their scope (i.e. it is not clear who owns which aspects of the thing in question) and were natural hybrids (i.e. simultaneously public and private), because they were linking the private property interests of monasteries and lords with the collective rights of use of peasant communities. In Marxâs view, hybrid property rules contrasted with modern property rules like the wood theft provisions (modelled on Article 544 of the Napoleonic Code)12 that drew together in the ownerâs hands, and to the exclusion of all others, an absolute right regarding every potential utility of the thing, enforceable against a third party. In uniting rights that were once diffuse, modern property claimed to âfreeâ peasant communities from having to fulfil their feudal duties to forest owners (i.e. monasteries and lords). As a result, the same wood â cut wood as well as fallen wood â would also be free: that is, free to be sold by the owner. In this way, Marx explained, the law put into place the necessary conditions for a capitalist timber market. The French-inspired law hoped to expunge feudal hybrids and the relations of personal domination that accompanied them and, at the same time, to cancel the traditional entitlements from which peasants profited, in this instance, the legal privilege to collect fallen wood from forests for personal use (i.e. heating) or local sale.
Marxâs analysis remains relevant because it highlights the link between the criminal regimeâs interdiction of wood theft and the civil regimeâs transformation of property, or in the terms of our purposes, the link between the production of illegalisms and the transformation of civil society. Marx shows that the Rhine Province Assembly criminalized deadwood collection and invented the figure of the âcriminal peasantâ because the law of property took the modern shape of an absolute subjective law. The assembly did so because a capitalist timber market would be formed, because the formation of this market would dispossess peasant communities of customary usage rights, which they had enjoyed until then, and because the German courts had dismissed the claims of civil owners, forcing those owners to the means of criminal legislation to get their way. For Marx, the Province Assembly embraced with such fervour the interests of forest owners, because it was dominated by feudal property owners who dreamed of becoming modern businessmen in order to participate in the emergent timber market. The assembly, based on an estate system of representation, gave a monopoly to land owners, and this monopoly led, inevitably, to the muddling of private and general interests, of which the transfer from public to private ownership (of even criminal fines) was both a galling symptom and the prime example.
Marxâs argument can also be understood as an effort to describe the interaction of the constitutional system (i.e. the composition of the assembly), the civilian regime (i.e. property protection) and penal law (i.e. criminalization) as implicated in the establishment of this novel illegalism: âwood theftâ. His analysis also aims to show how the adopted provisions themselves sometimes openly contradict the theories and justifications advanced by parliamentarians in the preamble (exposĂ© des motifs) of the legislation. He reveals these contradictions by exploiting all possible opportunities for attack available, due to the many inconsistencies between the various registers of legal discourse.
Marxâs insights usefully supplement Foucaultâs lesson. The contrivance of illegalisms is a process that does not take us out of or beyond law but rather extends the lawâs reach. One cannot fully analyse the outcomes of a new criminal regime without imbuing that analysis with a perspective on the evolution of the legal system as a whole (in this case, a perspective on the transformations of the civilian property regime). Law does not just negatively produce repression and ideology. It is, instead, the place where new micro-political spaces of domination, freedom and resistance are positively invented and constituted.
The limits of the Foucauldian approach, however, do not diminish the force of Foucaultâs central thesis that the modern penitentiary reintroduced morality to the heart of an old system, which up to then was content to index each infraction with an equivalent somatic chastisement, just in order to purge the sin through punishment. But when it comes to explaining this, the reasons advanced are less clear. Capitalism and the penal system would be homologous, or, to be more precise, the âwage formâ (forme-salaire) and the âprison formâ (forme-prison) would be homologous to each other, because they both need the âoverall hold of power on timeâ (Foucault 2015, 72). Certainly, in order to both imprison and provide wages, it is necessary to frame time âin order to control itâ (ibid.), but criminal sentences with both fixed time and work actually predate the disciplinary phenomena that Foucault describes. Yet the invention of the various ways of âframing timeâ, both in the factory and in the prison, neither explains the eventual link between the penitentiary regime and the wage regime nor does it more generally explain the eventual link between the invention of âdisciplinary powerâ and the putting into place of what Foucault calls the âcapitalist systemâ. Foucault, who in a stunning manner considers that the âwage formâ is ânot at all legalisticâ, actually admits that:
I do not mean that the wage imposed its form; that the socio-economic model was taken up by penal practice. ...