Key Arguments

• Foucault links the shift directly to new capitalist relations: “With the new forms of capital accumulation, new relations of production and the new legal status of property, all the popular practices that belonged, either in a silent, everyday, tolerated form, or in a violent form, to the illegality of rights were reduced by force to an illegality of property.”
• He formulates this as a general transformation: “the economy of illegalities was restructured with the development of capitalist society. The illegality of property was separated from the illegality of rights.”
• He explicitly interprets this separation as a class opposition: “This distinction represents a class opposition because, on the one hand, the illegality that was to be most accessible to the lower classes was that of property – the violent transfer of ownership – and because, on the other, the bourgeoisie was to reserve to itself the illegality of rights”.
• He characterizes bourgeois illegality of rights as the capacity to manipulate the law’s gaps: “the possibility of getting round its own regulations and its own laws, of ensuring for itself an immense sector of economic circulation by a skilful manipulation of gaps in the law – gaps that were foreseen by its silences, or opened up by de facto tolerance.”
• He shows how this redistribution is institutionalized through differentiated legal circuits: “for illegalities of property – for theft – there were the ordinary courts and punishments; for the illegalities of rights – fraud, tax evasion, irregular commercial operations – special legal institutions applied with transactions, accommodations, reduced fines, etc.”
• He concludes starkly that “The bourgeoisie reserved to itself the fruitful domain of the illegality of rights.”

Source Quotes

The offences had to be properly defined and more surely punished; out of this mass of irregularities, sometimes tolerated and sometimes punished with a severity out of all proportion to the offence, one had to determine what was an intolerable offence, and the offenders had to be apprehended and punished. With the new forms of capital accumulation, new relations of production and the new legal status of property, all the popular practices that belonged, either in a silent, everyday, tolerated form, or in a violent form, to the illegality of rights were reduced by force to an illegality of property. In that movement which transformed a society of juridico-political levies into a society of the appropriation of the means and products of labour, theft tended to become the first of the great loopholes in legality.

In that movement which transformed a society of juridico-political levies into a society of the appropriation of the means and products of labour, theft tended to become the first of the great loopholes in legality. Or, to put it another way, the economy of illegalities was restructured with the development of capitalist society. The illegality of property was separated from the illegality of rights. This distinction represents a class opposition because, on the one hand, the illegality that was to be most accessible to the lower classes was that of property – the violent transfer of ownership – and because, on the other, the bourgeoisie was to reserve to itself the illegality of rights: the possibility of getting round its own regulations and its own laws, of ensuring for itself an immense sector of economic circulation by a skilful manipulation of gaps in the law – gaps that were foreseen by its silences, or opened up by de facto tolerance.

The illegality of property was separated from the illegality of rights. This distinction represents a class opposition because, on the one hand, the illegality that was to be most accessible to the lower classes was that of property – the violent transfer of ownership – and because, on the other, the bourgeoisie was to reserve to itself the illegality of rights: the possibility of getting round its own regulations and its own laws, of ensuring for itself an immense sector of economic circulation by a skilful manipulation of gaps in the law – gaps that were foreseen by its silences, or opened up by de facto tolerance. And this great redistribution of illegalities was even to be expressed through a specialization of the legal circuits: for illegalities of property – for theft – there were the ordinary courts and punishments; for the illegalities of rights – fraud, tax evasion, irregular commercial operations – special legal institutions applied with transactions, accommodations, reduced fines, etc. The bourgeoisie reserved to itself the fruitful domain of the illegality of rights.

This distinction represents a class opposition because, on the one hand, the illegality that was to be most accessible to the lower classes was that of property – the violent transfer of ownership – and because, on the other, the bourgeoisie was to reserve to itself the illegality of rights: the possibility of getting round its own regulations and its own laws, of ensuring for itself an immense sector of economic circulation by a skilful manipulation of gaps in the law – gaps that were foreseen by its silences, or opened up by de facto tolerance. And this great redistribution of illegalities was even to be expressed through a specialization of the legal circuits: for illegalities of property – for theft – there were the ordinary courts and punishments; for the illegalities of rights – fraud, tax evasion, irregular commercial operations – special legal institutions applied with transactions, accommodations, reduced fines, etc. The bourgeoisie reserved to itself the fruitful domain of the illegality of rights. And at the same time as this split was taking place, there emerged the need for a constant policing concerned essentially with this illegality of property.

Key Concepts

• With the new forms of capital accumulation, new relations of production and the new legal status of property, all the popular practices that belonged, either in a silent, everyday, tolerated form, or in a violent form, to the illegality of rights were reduced by force to an illegality of property.
• the economy of illegalities was restructured with the development of capitalist society. The illegality of property was separated from the illegality of rights.
• This distinction represents a class opposition because, on the one hand, the illegality that was to be most accessible to the lower classes was that of property – the violent transfer of ownership – and because, on the other, the bourgeoisie was to reserve to itself the illegality of rights:
• the possibility of getting round its own regulations and its own laws, of ensuring for itself an immense sector of economic circulation by a skilful manipulation of gaps in the law – gaps that were foreseen by its silences, or opened up by de facto tolerance.
• for illegalities of property – for theft – there were the ordinary courts and punishments; for the illegalities of rights – fraud, tax evasion, irregular commercial operations – special legal institutions applied with transactions, accommodations, reduced fines, etc.
• The bourgeoisie reserved to itself the fruitful domain of the illegality of rights.

Context

In ‘Generalized punishment’, after detailing Colquhoun’s account of massive pilfering, organized receivers, counterfeiting and tolerated small thefts in the Port of London, Foucault generalizes to a structural analysis of how capitalist development reconfigures tolerated practices into a polarized system of property vs rights illegalities, mapped onto class and distinct juridical channels.