Michel Foucault’s 1977 work, Discipline and Punish, philosophically analyses the development of the modern penal system. Foucault’s focus on the social contextualization of power relationships associated with punishment led to numerous new ways of thinking including the carceral continuum. He notes that the continuum acts as a means for the sentencing authority to infiltrate “all those other authorities that supervise, transform, correct [and] improve.” This paper will explore Foucault’s background and conception of carceral continuum, in particular, how contemporary law has both grounded and perpetuated this practice and its associated institutions. Following on, the relevance of governmentality in modern society will be gauged against the framework of Foucault’s theory.
Michel Foucault’s life experience greatly informed and influenced his work. The forensic analysis of power systems consistent through his work was birthed from his own contact with the modern bourgeois state in 20th century France. Being born to a doctor and educated at elite Jesuit Schools, Foucault was subject to many of the structures which he would later critique. He maintained a sense of guarded privacy about his troubled youth however it is informative to any study of his work. In his early 20s, Foucault abused himself, attempted suicide and was treated by France’s most famous psychiatrist Jean Delay against his will. Delay’s treatment allowed Foucault to identify that his unhappiness stemmed from the repression of his own homosexuality and interest in sadomasochism. This realization led him to explore the underground scene and travel Europe to societies which were less censorious. His interest in philosophy remained through this time and he drew inspiration from Friedrich Nietzsche’s writings. Foucault characterized himself as a philosophical historian, who could study the past for insights and solutions of modern problems. His seminal work Madness and Civilisation (1961), compared treatment of the mentally ill in the Renaissance to modern-day, thereby signalling his discipline which would similarly manifest in Discipline and Punish (1975). Foucault’s works include two distinct techniques which he used as a lens when studying history, the ‘archaeological’ method and the ‘genealogical’ method. The former centers on how language and it’s foundations act to frame discourses and perspectives. Whereas the ‘genealogical’ method focuses on social structures and their associated relationships of knowledge and power. These two approaches inform the majority of Foucault’s work and together mark his contribution to the wider historical philosophy discipline. His theme of scrutinizing power dynamics and relationships informs the basis of the carceral continuum conception.
Panopticism and punishment
Before engaging the continuum, it is necessary to understand its basis, that is, Foucault’s theory of Panopticism. Panopticism is an indicator of internal surveillance which Foucault conceived after considering Jeremy Bentham’s Panopticon. Named after Argus Panoptes, a mythological Greek giant with 100 eyes, the Panopticon, was a hypothetical circular prison tower that discretely observed prisoners from central tower. This had many effects including the prisoner’s not being aware of their potential surveillance and thus felt compelled to act appropriately, even if there was no-one watching. This use of disciplinary power separated prisoners from each other, using spatial division and heightened surveillance to de-emphasize the need for physical punishment. Foucault extended this logic beyond the prison into other institutions to create Panopticism.
“He who is subjected to a field of visibility, and who knows it, assumes responsibility for the constraints of power; he makes them play spontaneously upon himself; he inscribes in himself the power relation in which he simultaneously plays both roles; he becomes the principle of his own subjection.”
Foucault’s realisation of the transferability of the Panoptic power dynamic demonstrates the continuing relevance of this theory. The permeation of surveillance induced self-regulation into the individual is condition of all authority figures, which leads the “convict to good behaviour, the madman to calm, the worker to work, the schoolboy to application, the patient to the observation of the regulation.”
He recognises that the panopticon is not just a building, but a is symbol and mechanism which confers unique power sentiments. It features a pervasive power because the tower can see every cell and all activities within, thus its regulatory reach is extensive. Further, the Panopticon obscures power because the prisoners can be observed from the tower but they cannot see into tower, hence they cannot know when, how, or why they are being observed. Foucault also extrapolates the transition that structural violence is replacing direct violence. Bentham championed the reduced need for prison guard presence and thus the reduction in associated reprimanding abuse. He noted that prisoners would behave themselves without coercion (by violence). However Foucault noted that the tower itself by its implications was coercive, as imposed structural violence upon prisoners who are subjected to it. Moreover, the tower limited the options of all involved to simply compliance with the will of its author, there was no alternative to working towards power’s goal. Bentham theorised that the Panopticon could be made profitable, turning prisoners into an assembly line within their cells in exchange for bread and water. By using the tower for the goal of the ruling authority, those in power may dominate every facet of the prisoner’s life in pursuit of their own goals. Foucault highlighted the extension and scalability of Panopticism as a mechanism of punishment and rule.
The Carceral Continuum
The Carceral Continuum the state where Panopticism has migrated beyond institutions into interpersonal relations generally. A technical genealogical study highlights “the frontiers between confinement, judicial punishment, and institutions of discipline… (that disappeared) to constitute a great carceral continuum that diffused penitentiary techniques into the most innocent disciplines.” Foucault engages the archaeological method to cite the medium for taking this way of thinking into interpersonal relations is linguistic discourse. He highlights Victorian sexuality to demonstrate how trend of discourses establishing norms limit freedom. Victorians, by not discussing sex, created no discourse and therefore no norms. There was no standard of what was acceptable and thus no limitation on what they could or could not do. However, in the modern era, conversations about sex have conditioned people to conform to ‘normal’ notions of what sex is. Foucault posits that the prevalence of norms in modern society is a key vehicle for power to travel through discourses. The stem quote effectively encapsulates the continuum by demonstrating that “Prison continues… an innumerable mechanisms of discipline”, on individuals even today. Foucault this perpetuation is demonstrated through the contemporary legal and punitive systems.
Contemporary law & the function of the penal system
The contemporary law features penal practices and institutions which are grounded in Foucault’s carceral continuum. The continuum extends the power dynamics established by the Panopticon onto individuals through the melding together of institutions and discourse. Foucault’s comparison of society’s punishment in the 18th century against the modern day demonstrated the basis of contemporary law in the continuum. In Discipline and Punish, he explored the execution of Robert-Francois Damiens, who had attempted to assassinate King Louis XV of France. Foucault details the gruesome, tortuous and excessive punishment inflicted on the “Body of the Condemned”, as an emotive example of how power was exerted in past societies. The penal system of old featured public and physical inflicting of pain. The modern law uses policing and surveillance to ensure that punishment is privately applied, is boundless and is more focused on non-physical penalties. The shift from focussing punishment on the mind rather than the body has coincided with the increase of discourse. The universal spread of the continuum is reflected in modern society through the regulation of crime. Foucault’s extrapolation of Panopticism applied to contemporary penal system suggests that its function is to inflict power to turn a profit. Modern punishment methods seek to recycle “waste product’ into something beneficial for the weilder of power. He qualifies the waste product as only the specific offenders who are not useful to the ruling classes. The utility of the punished is dependent on the ruling class however in Capitalist societies, job creators are seen as useful. The 2008 Global Financial Crisis signifies this dynamic where only one banker in America was sent to prison despite 22 trillion USD being lost. Banks paid settlements as penalties and used shareholder money to pay off fines. The regulation of white collar crime is relatively lenient when compared with other offences. Foucault would suggest that this is a perpetuation of large institutional power dynamics which have taken root in modern society. This is further evidenced by the recent failed case of the Australian Securities and Investments Commission v Westpac Banking Corporation in the Australian Federal Court. The general lack of oversight led to potential mismanagement of the power dynamic by the bank’s lending policy. The case assumed that customers had sufficient financial literacy, self-regulation and responsible tendencies to comply with loan agreements without note to the actual pragmatism of this position. The case ruled in favour of the bank that the necessary requirement was to enquire whether the consumer will be unable to comply with the consumer’s financial obligations under the contract. This downhill assignment of responsibility places extra emphasis on the independent self-moderation expected of the individual. This power dynamic is grounded in contemporary law and is perpetuated by the norms of white collar crime. This alignment and affirmation of individuals with self-governance of modern society may also be observed through examination of governmentality in modern society.
Contemporary authorities have perpetuated and expanded upon Foucault’s concept of governmentality. They supervise, transform, correct and improve the behaviour of individuals under their power through a new method of social control. Foucault characterises governmentality as “a unique way of governing populations as a whole but not by using law, and not by directly using discipline.” He compares the top-down authority of law and action based discipline against this new method which governs from above by utilising the self-control autonomy of the governed. This triad of forces developed over time into siloed avenues whereby sovereignty orders society at large (general laws), discipline works on individuals (to order individuals) and governmentality governs populations as a whole but not by using law, and not by directly using discipline. Governmentality enables powers to rule society by appealing to people to freely participate in government solutions. This social policy may be enacted not through legislation but through non-legal devices which rely upon free will and independent decision-making. This method of governing, from an arm’s length through gentle steering and suggestion has been directly implemented in modern society.
The concept of ‘nudging’ was first promulgated in 2008 by economist Richard Thaler and legal scholar Cass Sunstein. Nudging is a concept in behavioural science, political theory and behavioural economics which proposes positive reinforcement and indirect suggestions as ways to influence the behaviour and decision-making of groups or individuals. Nudging contrasts with other ways to achieve compliance, such as education, legislation or enforcement. It’s success led to the formation of the British Behavioural Insights Team in 2010, often called the ‘Nudge Unit’ and the Behavioural Economics Team of the Australian Government, or BETA in 2016. This clear example of behavioural intervention as part of ruling policy demonstrates governmentality’s ubiquity in modern society. Foucault’s continuum works in tandem with governmentality through the imposition of an absentee ruling power in the mind of the citizen. However nudging and governmentality create concerns of liberal paternalism, is it right to decide what is right for people? Foucault may not clearly indicate whether governmentality is right or wrong, but he does explore the freedom and mobility that it affords. He notes that
Governmentality does not objectify people to control them – it constructs subjects (individuals capable of choice and action) and aligns their interest with those of the government. It doesn’t abolish freedom; it presupposes it. It cultivates subjectivity in a way that is functional for government. It creates homo prudens (person capable of being prudent).