TABLE OF CONTENTS

THE NEW SAVAGERY

Adam Pendleton, Black Lives Matter (wall work) #2 (detail), 2015, wallpaper, dimensions variable.

IN HIS 1984 ESSAY on the question of enlightenment, Michel Foucault urged, with his typical verve, an attitude and ethos of “permanent critique of our historical era.” For all its resounding tone of defiance, the stance is an odd one to take: Who other than the fundamentalist—the dogmatist, the fanatic, the zealot, the disciple—would oppose critique and modest experimentation? With just a soupçon of rhetorical radicality, Foucault’s idea of enlightenment passes over historical actuality and instead asserts an aesthetics of self-creation and a wholly formal ethics of critique. I suspect he does this in case the Enlightenment should turn out to be just another historical error, a regression, another dogmatism—it’s as if, I am tempted to say, Foucault’s greatest fear were historical embarrassment.

Of course, he knew better than this. In Discipline and Punish (1975), Foucault argues that the emergence of enlightened modernity involved an explosive transformation in our practices of punishment. For seven hundred years in Europe, torture of a savage kind had been both a central component of judicial interrogation prior to trial and a primary mechanism of penalization itself. Pre-Enlightenment criminal justice was punctuated with torture from beginning to end. Yet with breathtaking speed, between the last third of the eighteenth century and the opening decades of the nineteenth, torture more or less disappeared from the Continent. (Foucault ignores its perpetuation in the colonies.) With elegance and precision, he describes this remarkable change: “Physical pain, the pain of the body itself, is no longer the constituent element of the penalty. From being an art of unbearable sensations punishment has become an economy of suspended rights” (italics mine). That one sentence is our most acute phrasing of the meaning of enlightenment. Foucault goes on to offer a chilling account of this transformation, whereby the “development and generalization of disciplinary mechanisms” come to constitute the “dark side” of the better-known processes of acquiring liberal rights and government. And that connection is the point of his genealogy: “The ‘Enlightenment,’ which discovered the liberties, also invented the disciplines.”

Foucault’s emphasis on disciplinary and surveillance practices, while dark, is not dark enough for our present in the United States. In the moment of Black Lives Matter and #MeToo; when police practices are increasingly militarized; when private prisons are scenes of violence, chaos, and cruel indifference; when approximately eighty thousand of our fellow citizens are subject to solitary confinement—a practice that Charles Dickens had already identified, in 1842, as a form of torture—and when rape and sexual harassment remain, in effect, tolerated illegalities, it seems that the Enlightenment’s core has been lost: Increasingly, the legal and illegal suspension of liberties is shadowed by practices that brutally encroach on vulnerable bodies and cross the boundary separating legal force from torturous invasion.

Because he was so intent on revealing the disciplinary structures underlying liberal society, Foucault obfuscates that feature of his own analysis that concerns the constitution of enlightened subjectivity: In a morally extraordinary moment, enlightened subjectivity and enlightened political modernity emerged together through the abolition of torture. Once the state is no longer permitted to torture accused individuals (to wring from them information or a confession); once individuals must be treated as innocent until proven guilty; and once the state is no longer entitled to physically brutalize convicts (especially in the very moment of putting them to death), a new relation between the state and the individual is instituted, introducing a new meaning to the human body. Whatever else it may do to them, the state is now prohibited from “touching” the body of its citizens. All of a sudden, the human body has become morally inviolable, and bodily integrity has become a foundational principle—within and without the criminal-justice system.

Throughout the nineteenth century, Cesare Beccaria’s now nearly forgotten On Crimes and Punishments (1764) was credited with bringing about the Europe-wide abolition of torture. Beccaria’s little book was probably the most influential philosophical work of its time. It is the fount of what is most worth salvaging in Enlightenment thinking. Beccaria’s argument links three elements: the abolition of torture, the rule of law, and the moral inviolability of the body. It is the order in which these three elements are knotted together that is most significant. Torture was already regarded as disreputable when Beccaria began writing. How, he asked, must we think about the relations among sovereign authority, law, and the citizen, to truly abolish torture? His answer was that only a state fully committed to the rule of law could truly overcome the rule of torture: In other words, no one is above the law, all are equal before the law, there is no crime unless a law is broken, one is innocent until proven guilty. Beccaria’s materialist insight is that the moral inviolability of the human body is not the magical foundation but the practical consequence of the institution of the modern rule of law; we derive our moral standing as bodies whom the state ought not to touch—whom no one should touch without our consent—through and because of the rule of law. The morally inviolable body is an invention of the modern rule of law, and without the rule of law the body’s claim to inviolability would be empty.

Only when the human body has become morally inviolable does it make sense to think of a subject who might embark on a project of self-creation through autonomy. That historical connection, between bodily integrity and an aesthetics of self-fashioning, is a trifle compared to the historical substance at stake. We are now considering the fate of Enlightenment because there is reason to think the form of life it begat is coming undone. The sign of this great undoing is that the rule of law is being willfully subverted, that the law of force and force of law are once more being merged into a system of sovereign and patriarchal torture, that black bodies and female bodies and queer bodies and immigrant bodies and homeless bodies and the bodies of workers are again becoming systematically violable, their vulnerability exploited for profit and power. Or perhaps it would be more accurate to say that the grand promise of the rule of law, that all bodies shall be equal under it, which has always been insistently, quietly, sotto voce ignored—by practices of mass incarceration and marital rape, and by rape culture; by inhuman working conditions; by unequal access to health care, housing, and food—is, today, flouted with vicious glee. This is a new tone and new savagery in our collective life. As the rule of law collapses, as it loses even its residual grip on our national conscience, the Enlightenment body is placed back on the rack.

J. M. Bernstein is distinguished professor of philosophy at the New School for Social Research.