Last Updated September 5, 2023.
Prisons manufactured delinquents, but delinquents turned out to be useful, in the economic domain as well as the political. Delinquents come in handy.
In his "Prison Talk" chapter in Power/Knowledge, Foucault discusses his book Discipline and Punish with J.J. Brochier. In the quote above, Foucault returns to a central and recurring theme in his work: the idea that what seem to be mistakes or unintentional byproducts of state institutions are actually what the state wants to produce. In this case, what the state knew as early as the 1820s—that the prison system didn't rehabilitate criminals but hardened them into criminality—came to be seen not as problem to be solved but as an asset. As Foucault points out, for one example, a large and profitable illegal sex industry was made possible in the nineteenth century thanks to "delinquents" who had no other job avenues than to be pressed into the sex trade. The state may wring its hands about the "problem" of the prison system producing criminals, but this problem will never be solved, because it really is seen as an asset.
Now my hypothesis is not so much that the court is the natural expression of popular justice, but that it historical function is to ensnare it, to control it, and to strangle it, by re-inscribing it in institutions that are typical of a state apparatus.
This again, is classic Foucault: turning popular wisdom (or what he would call indoctrination or propaganda) on its head; the justice system is not on the side of the people, but out, always, to control the people for the state's own purposes. This quote arises from a discussion of justice in the book's first chapter, "On Popular Justice, a Conversation with Maoists." Foucault goes on to say that perhaps the law courts are not a good way of achieving popular justice but are its "first deformation." He explains that, for example, the people, during the French Revolution wanted to execute the known oppressors who opposed the principles of the revolution. Instead of just letting this happen, the revolutionary state set up courts to give this action an orderly appearance: Foucault posits, at least tentatively—he is still thinking this through—that the creation of a bureaucracy of justice during the French Revolution to establish "truth" or to obtain "confession" was the beginning of an authoritarian structure that would protect the interests of the state, not the people. What is most interesting, however, is not a debate about what occurred in 1792, but the larger questions Foucault raises about the purpose of the courts and whose "justice" they serve.
Power is taken to be a right, which one is able to possess like a commodity
In his "Two Lectures" essay in Power/Knowledge, Foucault again aims at the heart of his project, to examine and dissect how power is conceived in the hands of capitalist democracies—and to argue that there are other ways to understand power. Foucault argues that before we can even begin to conceive of power in new or different ways, we have to understand how it is currently deployed. Foucault says the western nation states understand it as a "thing" that can be owned and used for the interests of the owner. It can be transferred, like money, to whomever the "owner" prefers, and is conceived primarily in terms of safeguarding the economic power—the property rights—of the ownership class. Foucault pushes back against this, asking—and again he is tentative—whether we should define power not as the ability to repress or oppress but as "struggle," "conflict," and "war."