Since the May 25 death of George Floyd in Minneapolis police custody, activists have been demanding, and local officials have been making, dramatic cuts to police budgets. Calls to defund police, abolish prisons, and move toward a “community” or “restorative” model of justice are only likely to become louder.
These demands are radical but not new. Since the 1960s, activists in North America and Europe have fought to transform police, prisons, and courts in line with a new vision of justice. One of the most lucid of these activists, Michel Foucault, saw where such efforts might lead. In an infamous 1972 interview, he horrified his comrades on the Left by arguing that their vision of justice meant the end of any pretense of a disinterested search for truth.
Foucault’s involvement with radical politics began after the wave of student-led protests that rocked France in May 1968. In the eyes of many leftists, orthodox Marxism had been tarnished by its inability to exploit or explain that critical moment. They turned to new sources of inspiration. One was Mao Zedong’s China, which appeared to offer a more dynamic form of Marxism. Closer to home, they began to view social groups that had been ignored or despised by orthodox Marxists — prisoners, immigrants, homosexuals — as potential revolutionaries who could replace the disappointingly sedate workers as the agents of overthrowing capitalism.
In the early 1970s, as he worked on what would become his influential history of prisons, Discipline and Punish, Foucault allied himself with overlapping groups of French Maoists and anti-prison activists. In 1971, he created the Prison Information Group to collect testimony on conditions in French prisons. The Maoists, meanwhile, tried to imagine what a future without prisons and police might look like. They developed a notion of a “people’s tribunal” that would replace the court system.
Les Temps Modernes, the magazine that Jean-Paul Sartre and Simone de Beauvoir had made a beacon of the French Left, gave the young radicals a chance to explain their agenda in a February 1972 interview with Foucault and two Maoists, Benny Levy and Andre Glucksmann. Foucault stole the show, opening with a series of destabilizing provocations.
Foucault began by noting that there was something self-contradictory about a “people’s tribunal.” “People,” in the Maoist usage, suggests a united group struggling against its oppressors. But a “tribunal” is a “neutral institution” dedicated to the discovery of “truth” according to well-defined norms, presided over by experts and without the outcome being “determined in advance.” The judicial system, in other words, presupposes that the agents of the state can be nonpartisan, can suspend judgment until they have considered the facts of the matter, and can decide the guilt or innocence of the accused in “reference to a universal idea, form, rule of justice.”
But the possibility of neutrality is just what the Marxist conception of the state denies — it sees the state’s norms and rules as an ideological screen by which the ruling class justifies its power. Once the working class has brought about a revolution, why would it maintain this hypocritical neutrality? Better, Foucault argued, for the people simply to massacre its foes.
Mob violence did not appeal to Levy and Glucksmann, who tried to argue that a trial would still be necessary for the people to determine the guilt or innocence of the accused. Foucault countered they did not know what they wanted. A trial supposes that the “truth,” revealed through certain procedures developed over centuries of judicial practice, will allow us to categorize the accused as “guilty” or “innocent” in accordance with conceptions of personal responsibility inherited from our religious and philosophical tradition.
The problem, Foucault argued, was that these notions of guilt and innocence were created by the society the revolutionaries were trying to overthrow. Replacing the bourgeois order of police and prisons with a concept of justice oriented toward the people would abolish the very notions of truth and responsibility.
Rather than scold his interlocutors with facts or ethical injunctions, he asked them why they were only going halfway, still holding on to such tools of bourgeois oppression as the notion of guilt. Foucault suggested that, on the one hand, bourgeois justice based on “guilt” placed responsibility for criminal acts on supposedly wicked or sick individuals instead of on the oppressive social structures that drove them to steal, kill, etc. On the other hand, by insisting on a hypocritical neutrality, it denied “the people” the right to combat its “objective” enemies — in this view, a capitalist is an exploiter and therefore a criminal whether or not he commits what the bourgeois justice system would consider a crime.
Today’s calls for the transformation of the judicial system are mobilized by appeals to race rather than class. They have much in common, however, with the Marxist movements that Foucault knew. Like the old Marxists, contemporary activists decry what they see as the justice system’s hypocritical pose of neutrality. They seek to expose the violence of the present order, and they turn to history to show it is fundamentally contaminated by the United States’s “original sin” of racism.
This set of intellectual moves is potentially open to the same kinds of destabilizing questions Foucault posed to the Maoists. He derailed the Maoists’ discussions of popular justice with two sorts of arguments, one philosophical and one historical. First, he made a critical conceptual distinction between the “justice” that Maoists demanded and the neutral, empirical procedures of “justice” as it is usually meant. The former is a cry of “war” and “vengeance” of one side against another; the latter an arbitration between two sides by an impartial force that can overpower both. When activists shout, “no justice, no peace,” we should remember which form of justice they mean.
In his second, historical argument, Foucault observed that supposedly “bourgeois” structures and concepts were built into the most basic elements of judicial practice, including the very ideas of investigation, deliberation, and culpability. If, as radical activists allege, our prisons, police, and courts are partisan and we must see that partisanship as the product of a long history that taints not only specific institutions and practices, then our most ordinary and foundational ways of thinking about law and order are also in jeopardy.
Perhaps Foucault meant to push his Maoist comrades to consider (and embrace) the consequences of their critiques of liberal justice. But liberals who want to defend this system and its values of neutrality and objectivity in the face of anti-racist movements must likewise confront his provocations.
Blake Smith is a Harper Schmidt fellow at the University of Chicago, where he works on cultural ties between France and India.
