Discipline is one of Foucault’s most intriguing and widely discussed concepts. This explanatory post broadly examines discipline and disciplinary power by considering how Foucault conceptualises the panopticon (and panopticism) to articulate it, how it differs from juridical-sovereign power, and its (contentious) interrelation to law and liberalism. The hope is to suggest and gesture towards uses of disciplinary power in legal analysis.
Foucault discussed and theorised discipline in what English-language scholars of his work call his genealogical period.1English language scholars accept that his work falls into three periods. This middle period consists primarily of Discipline and Punish (Vintage, 2nd Ed, 1991); History of Sexuality Vol I (Random House, 1978); and, Society Must be Defended (Picador, 2003). In a key text from that period, Discipline and Punish, Foucault articulates several modes of power: absolutist, juridical, and disciplinary. The absolutist, monarchical or sovereign form of power involved punishment as a theatrical ritual of public torture.2Discipline and Punish, 1-15. Foucault details how punishment took the form of public torture so that members of society could witness the absolute power of the sovereign and therein learn to obey, because crimes were committed against the sovereign.3Ibid 1-5, 7-8 Through interrogation, convicts would confess their crimes in formal ceremonies involving oath making and ‘judicial torture’, where the accused accepted the charge, recognized its truth, and, quite importantly, helped produce the truth of that matter.4Ibid 38-9. By the late 18th and early 19th century, Foucault writes, ‘the gloomy festival of punishment was dying out, though here and there it flickered momentarily into life’.5Ibid 8.
The decrease in punishment as a spectacle of public torture and interrogation was matched by an increase in a different type of power – what he calls ‘discipline’ – which was justified as being more ‘humane’.6Ibid 7-8. The body of the convict was no longer treated as a site of torture for public spectacle.7Ibid 10, Instead, it became ‘necessary for the law to reach and manipulate the body of the convict’. This means that ‘in order to deprive the individual of a liberty that is regarded both as a right and as property’ the body had to be ‘caught up in a system of constraints and privations, obligations and prohibitions’.8Ibid 11. While that sounds purely legalistic, discipline is central to understanding how bodies are caught up in such a system.
To explain disciplinary power, Foucault famously employs Jeremy Bentham’s notion of the Panopticon – the architectural layout of a prison where the guards reside within a central tower and maintain surveillance over all inmates – which does far more than structure the building. For Foucault, ‘the major effect of the Panopticon [was] to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power’.9Ibid 201. This permanent visibility was constant but also unverifiable, in the sense that one would never know whether, in fact, anyone was watching.10Ibid 201. Foucault saw Bentham’s Panopticon figuratively, as a technological ‘ideal form’ of power that already existed elsewhere, albeit not in such a concentrated and elegantly articulated blueprint.11Ibid 205
Unlike an absolutist, monarchical or sovereign form of power, where one might believe that some individual actually wields power, the Panopticon ‘automatizes and disindividualizes power’ so that no individual wields or commands it.12Ibid 202. In order for disciplinary power to be exercised it ‘had to be given the instrument of permanent, exhaustive, omnipresent surveillance, capable of making all visible, as long as it could itself remain invisible. It had to be like a faceless gaze … thousands of eyes posted everywhere’.13Ibid 214. This form of power is neither a public spectacle nor an interrogation by one who controls power over a subject. When one knows that they are subject to a constant but unverifiable gaze, as does a prisoner in the Panopticon, the prisoner knows they could be watched and inscribes that gaze within themselves, on their souls to become useful, productive, and effective.14Ibid 202-03. As represented by the Panopticon, disciplinary power involves surveillance and control that works on the body and into the souls of the inmates.15Foucault, Foucault Live (Semiotext(e), 1996) 227. They become self-disciplined.
Although Foucault employs the Panopticon to articulate disciplinary power over convicts, he argues that disciplinary power is useful in many areas of life, such as to ‘treat patients, to instruct schoolchildren, to confine the insane, to supervise workers, to put beggars and idlers to work’.16Discipline and Punish, 205 Unlike a sovereign-judicial power, disciplinary power is not
the brute fact of the domination of the one over the many, or of one group over another, but the multiple forms of domination that can be exercised in society; so not the king in his central position, but subjects in their reciprocal relations; not sovereignty in its one edifice, but the multiple subjugations that take place and function within the social body.17Society Must Be Defended, 27.
Instead of operating as a top-down power that emanates from a sovereign or a judge, disciplinary power circulates between people as they form relationships in multiple contexts.18Discipline and Punish, 146. Disciplines regulate bodies wherever disciplinary power is exhibited, produced and reproduced. For example, the knowledges (or discourses) of medicine, education and punishment are used in hospitals, schools or prisons to discipline and structure its subjects (individuals as well as discourses).19Society Must Be Defended, 241.
The mechanization of the Panopticon – ‘panopticism’ – gives rise to a disciplinary society, which is ‘a certain concerted distribution of bodies, surfaces, lights, gazes … whose internal mechanisms produce the relation in which individuals are caught up’.20Discipline and Punish, 202. Panopticism functions to strengthen social forces by increasing production, develop the economy, spread education, raise and define morality,21Discipline and Punish, 207-8. which has a homogenizing or normalising effect.22Ibid 202 One could think of discipline as negative, in the sense that it arrests, breaks, suspends or oppresses, but, crucially, it also functions as a mechanism that is productive, efficient and subtle.23Ibid 210-11.
Where a society primarily ordered by sovereign-juridical power uses interrogations to enable convicts to confess their crimes through ‘judicial torture’ to produce the truth of the matter,24Ibid 38-9. the form and function of interrogation in disciplinary society is different. In disciplinary society, interrogations take the form of exams, consultations, investigations ‘in order to rectify the mechanisms of discipline: educational psychology is supposed to correct the rigours of the school, just as the medical or psychiatric interview is supposed to rectify the effects of the discipline of work’.25Ibid 226. Panopticism moves an individual from being a subject of one discipline to another, which enables those disciplines to self-correct.26Ibid 209.
But that raises questions about how an inmate, once a subject of a sovereign-juridical law, became a subject of discipline, of panopticism; the role of the police in effecting the will of the sovereign or discipline; and, more generally, the relationships of law and discipline.27Ibid 208.
In Foucault’s Law, Ben Golder and Peter Fitzpatrick discuss Foucault’s understanding of whether juridical power was expelled by disciplinary powers.28Golder and Fitzpatrick, Foucault’s Law (Routledge, 2009) Ch 1. Those in favour of the ‘expulsion thesis’ argue that Foucault’s account subsumes or ‘expels’ law to disciplinary powers.29Ibid 11-17 nn 4-10, citing Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance (Pluto Press, 1994); Alan Hunt, ‘Foucault’s Expulsion of Law: Towards a Retrieval’ (1992) 17 Law and Social Inquiry 1, etc. On the other hand, Golder and Fitzpatrick argue that law has a discursive function or is mutually constitutive alongside or with disciplinary power as well as bio-power and governmentality.30See also, Matthew Craven, ‘On Foucault and Wolff or from Law to Political Economy’ (2012) 25 Leiden Journal of International Law 627, 629. Although Foucault’s statements about ‘law’, ‘juridical’ or ‘judicial’ are not always consistent (or easily translatable), the perspective argued for here follows Golder and Fitzpatrick to show how and why disciplinary power could be useful in analysing law.
For Foucault, under a society that is governed by a sovereign/absolute form of power, discipline may have originally been an enclosed or singular technology that preceded the development of disciplinary society arising from ‘an indefinitely generalizable mechanism of “panopticism”’.31Discipline and Punish, 216 However, that does not mean disciplinary power ‘replaced’ or ‘expelled’ the other modalities of power, like that of law. Instead, disciplinary power ‘infiltrated the others, sometimes undermining them, but serving as an intermediary between them, linking them together, extending them and above all making it possible to bring the effects of power to the most minute and distant elements’.32Ibid. Accordingly, discipline and ‘law’ today work together.
For Foucault, a disciplinary or panoptic ‘modality of power … is not under the immediate dependence or a direct extension of the great juridico-political structures of a society; it is nonetheless not absolutely independent’.33Ibid 221-2. Powers of legality and disciplinarity are mutually constitutive, but there are important differences. Foucault explains that a
coded and formally egalitarian juridical framework [was] made possible by the organization of a parliamentary, representative regime. But the development and generalization of disciplinary mechanisms constituted the other, dark side of these processes. The general juridical form that guaranteed a system of rights that were egalitarian in principle was supported by these tiny, everyday, physical mechanisms, by all those systems of micro-power that are essentially non-egalitarian and asymmetrical that we call the disciplines[.] The real, corporal disciplines constituted the foundation of the formal, juridical liberties. The contract may have been regarded as the ideal foundation of law and political power; panopticism constituted the technique, universally widespread, of coercion.34Ibid 222.
Where contract is the ideal foundation of juridical liberties, the panopticon is the ideal form of disciplinary power.35Ibid 205 Foucault supplements the idealized foundations of classical liberalism and the formalized egalitarian system of rights with a broader analysis of the modalities of power beyond, behind, supportive of, and integrated in law.36Ibid 223 He argues that the ‘disciplines … appear as methods of training that enable individuals to become integrated into these general demands [of law]’, as a ‘sort of counter-law’ that is constitutive of ‘the same type of law on a different scale, thereby making it more meticulous and more indulgent’.37Ibid. Disciplinary power supports and is mutually constitutive of law by making individuals want law and seek it out as they become self-disciplined.
Accordingly, it is not entering into a contract itself that is non-egalitarian, asymmetrical, or coercive. Those are effects of disciplinary power which underlay contract, which produce the individual who signs a contract for military service, education, medical attention, and so on. People do not enter into a private or social contract because they tap into ‘the universal consciousness of the law’.38Ibid 224 Instead, individuals seek out contracts and are entered into the social contract through the ‘regular extension, the infinitely minute web of panoptic techniques’.39Ibid.
Stephen M Young is a lecturer in law at the University of Otago in Dunedin, New Zealand.