Foucault’s ‘Discipline and Punish’ and the Essence of Law

In the conversation with Ramin Jahanbegloo, Sir Isaiah Berlin, who strongly advocated the value of negative freedom, admits that society would not be existed without some authority. He too worries that the liberty of the individual could be intervened by the authority, but it was almost impossible to assert that individuals can live without society, even for Berlin. The individual, unfortunately, cannot be completely free; it is inevitable to get involved in social relations. Law, from my previous perspective, was simply a sort of societal promise that the people must follow and a method to protect the people from any harm. However, my point of view on law has changed after I read Michel Foucault’s Discipline and Punish which is in the reading list.

A public torture or execution was the most popular spectacle in France until the eighteenth century, however, the role of physical punishment as a public performance was completely disappeared from the nineteenth century. Torture or execution in front of the crowd was no longer enough to punish the offender effectively. The reform of the entire economy of punishment, according to Foucault, turned out by the emergence of a new theory of law and crime. I suddenly have begun to get suspicious about the position of law in the context of our day-to-day life. I thought the role of law as protecting justice and the individual freedom within society. Law, however, in the Discipline and Punish, seemed like an apparatus to control the liberty of the individual and even the individual themselves. I have begun to think that not only the criminal are regulated by law, but also the innocent are not entirely free from the power of it. Every human beings are existed under the surveillance of law. Law produces disciplines in society, disciplines then create individuals. Foucault’s work eventually has caused me to suspect law itself in various ways and to focus on the study of law.

As a first blog post, I would like to open up the question: does law aim at protecting the people or controlling them? I hope to find the answer through the course.


5 thoughts on “Foucault’s ‘Discipline and Punish’ and the Essence of Law

  1. wn39 says:

    Does the law aim at protecting the people or control them?

    This is an interesting question and it seems to come up very often. The obvious answer one gives is yes law does protect us. But when we think a little what price do we pay to receive that protection. Nothing comes free in today’s world. And just to carry on what others mentioned we have to abide and follow the rules even if we don’t agree with them in order to receive the protection. If we don’t then we defiantly face the consequences.
    I think in today’s world we are defiantly dependent on the protection of our leaders and government but they also tend to fall short at times to provide that protection. Laws are ever changing as our society is changing. And for things ‘function’ normally we need to adhere to the rules in place. But there are those who either forget or decide to break the rules intentionally for their own goals.
    To carry on one of the points made, law is set to carry out protection to all citizen despite any restriction. But we could see the disconnect when it comes down to it. The elite of the society could continue living without facing any consequences for any crime committed. But those on the other end of the spectrum face the complete opposite. Relating it back to the recent events in the US. With the random arrests and killing of innocent people. One leaves their house as an abiding law citizen and that has ‘faith’ in the law to protect and things turn around in a heartbeat.
    Determining if law protect or control us is a hard concept in my opinion. And they will always go hand on hand but as someone else mentioned that might not be the main concern it might come down to where do you fall on the economic sphere.

  2. tk321 says:

    Law as a Means of Protection or of Control: The Two Sides of the Same Coin

    An assertion by one of the comments ‘Control only seems to come later’ could be another starting point of the discussion.
    According to social contract theories by various thinkers in the West, of course, the state has been created to protect the individuals and their rights. It, however, is necessary to consider more about the nature of state and of the individual right. We simply believes that people need a strong state in order to protect their liberty, equality, etc. From my perspective, this is insufficient to explain the nature of state. We need to begin with a question that why the people need rights? The right of individual or the concept of human rights are the invention of modernity, in other words, it have not been from the beginning of human history. Without asserting such rights, the people would not have liberty, equality or other constituents of human dignity at all. In Leviathan, Thomas Hobbes argues that every human being is equal – so they can even kill each other to obtain what they want to have, so there is always a possibility of war of all against all. This is why the people need a strong state and why the state need the rule of law. The state needs the law to control the people by preventing any type of wars among the citizen and to maintain itself as ‘strong’ state.
    From my point of view, protection and control in terms of the law look like the two sides of the same coin. They always exist together, so it is impossible to take them apart.

  3. rg373 says:

    Does the law aim at protecting the people or controlling them?

    This is an excellent question which has led to some stimulating responses from a legal perspective. From a cultural perspective this question is also pertinent.

    It can be seen that in some senses, the law does serve to protect us. Yet in order for us to enjoy protection we must abide by what we are instructed.

    What is striking to me though is that, whilst the crimes of the powerful largely go unpunished, the crimes of those marginalised in society are demonised by the media. Those with power in society are best placed financially, as well as having the necessary knowledge and connections (see Bourdieu’s on economic, ) to evade scrutiny. Those with less power are systematically abused by police. Take for example urban areas that have a higher concentration of non-whites, that are statistically subject to a higher number of police ‘Stop and search’ warrants. This not only has a negative mental affect on the people living in these areas but it also serves to control and regulate particular demographics that are deemed to be a threat. Imagine a full blown drugs operation happening at a banker’s banquet? It just wouldn’t happen.

    The law can be seen as a coersive force in that not only do we internalise the rhetoric of policy making but we consciously amd unconsciously enact these narratives in our everyday lives. This is one of the ways in which the law can be seen to control us.
    What is also quite alarming is that increasing neoliberal policy has led to destruction to the welfare state, characterised by a multitude of cuts and austerity measures. The ideological narrative that attempts to justify this is divisive and serves to fragment society. For example those found to be claiming benefits fraudulently, suffer full punitive wrath as well as being further maligned and stigmatised. All the while corporations happily avoid billions in tax and are hailed as stimulating the economy. Of course corporations are operating within the law and this is one way that the law can be said to protect – albeit a corporate entity rather than a human.
    Indeed it could be said, it doesn’t really matter what side of the law you are as long as you are on the right side of the economy.

  4. dm487 says:

    For Foucault, the law is only the instrument of power. Hence he overlooked somewhat the details of the role of the law. If we regard how sovereign power was legitimized in the modern times, we will be struck by an apparent consensus which attributes to the sovereign the role of protecting its citizens. Control only seems to come later.

    For Foucault, it is only a matter of discipline in a limited set of circumscribed institutions and not of a whole society of control.
    Could the two aims of protection and control eventually be made compatible ?

    Deleuze and Guattari show how a mot d’ordre (order word) seems to have an ambiguous nature. They observed how such discourses were at the same time seemingly innocuous and reenforcing an order, a relation of obligation. There could be such a dual nature in the mots d’ordre concerning the role of the state, at the same time protective and controlling.

    Jonathan Crary argues, when referring to Deleuze and Guattari mots d’ordre, that the benefits we draw from the ubiquity of information devices in our lives might make them more comfortable but at the same time could make us enter a society of control.

    Such a situation would be marked by the use of microphysics of power in the society as a whole, enveloping even the confines of our daily lives.

    Today, political leaders seem keen to experiment with nudge policies (instead of legislation or regulation). These programs try to reinforce certain behaviours by seamless positive reinforcements designed in infrastructures.

    Why not then propose to redesign our relations with the state around smartphone notifications ? What better tool for the state to protect us against our own distractions than a gentle nudge coming from our right pocket ?

  5. sp637 says:

    “Does law aim at protecting the people or controlling them?”

    To me this seems like one of the most valuable questions on hindsight of the course. It provided us with an accurate timeline of the evolution of justice, and protection. Which end does the compass of law point toward? It was discussed that the evolution of Justice started out under reason, rationality, objectivity and willingness. Contemporarily however, justice can be observed as authoritative, controlling, political, and a preservation of the state, or empire. This can be seen within the protocol and practice of the criminal system, as well as our surveillance culture to name a few. The need for a normative justice seems to be the natural progression in which justice evolved for its dealings with global capitalism, protection and spread of western values imposed through war (modern day colonialism), and one thing that stood out to me was that normative justice must have greatly evolved as such because of massive growth in population. The law comes from possibly protecting and being sensible to a few individuals, but the law’s applicability becomes limited when faced with a larger variety of situations and people it cannot always serve. The law must always remain solid, and consistent, and therefore it seems more important to protect the law from multifaceted alteration, and using the law to protect the laws consistency. Rather than manipulate it to serve and protect the most it can. Identifying the objectives in which the arrow of justice is pointing toward is imperative in the discussion of any contemporary legal subject.

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