By Bernard E. Harcourt

Marx’s articles titled “Debates on the Law on Thefts of Wood,” published in the Rheinische Zeitung in October and November 1842, were fetish texts among critical legal scholars, critical sociologists, Marxist historians, and radical lawyers during the late 1960s and 70s.[1] The articles do not typically appear in the canon of Marx’s political writings. They are absent, for instance, from the classic, exhaustive, American compendium, The Marx-Engels Reader, edited by Robert C. Tucker—that thick red volume that every undergraduate in social studies carries with them. They are considered by some, following Louis Althusser, as still tainted by the “liberal-rationalist moment” of Marx’s youthful writings.[2] They even predate, by a few months, Marx’s engagement with Hegel’s Philosophy of Right and his attacks on the Left Hegelians. The articles do not figure in the typical bibliography of political, philosophical, and economic writings.

But Marx’s 1842 articles were a touchstone for a set of critical thinkers in law, history, sociology, and radical lawyers during the 1970s. They upended criminology, creating a whole new flank of critical criminologist, and nourished a body of Marxist historiography. And for good cause. Marx’s articles captured succinctly the violence and brutality of the struggle between landowners and the poor in nineteenth-century Germany. They revealed how the criminal law and punishment could be instrumentalized by the wealthy to dispossess the downtrodden. They showed the violence of capital accumulation. They represented Marx’s first foray into the domain of material interests. And, in his own words, they “gave me the first impulse to take up the study of economic questions.”[3]

In the 1970s, Marxist historians and critical sociologists and lawyers would do precisely that work: layer the political economy, critical legal theory, and critical criminology onto the work that Marx had begun, in 1842, with his blistering critique of how the Rhine provincial legislators had turned a customary privilege of the poor (gleaning dead wood in the forest, including on private and communal property) into a crime and used it to impose forced labor on the poor to work under peonage conditions on the roads and property of the landed gentry.

The British social historians, E. P. Thompson, Peter Linebaugh, and the group that collectively assembled the classic work Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (1975), including Douglas Hay, returned to Marx’s articles on the thefts of wood to nourish their analyses of class struggle over the exploitation of forests, of poaching and the Black Act, of the development of capitalism.[4] Peter Linebaugh wrote extensively about Marx’s articles.[5] In Italy, the pioneer critical criminologist, Dario Melossi, marshaled Marx’s articles to help spark a new strand of Marxist criminology in landmark work including his notable essay, “The Penal Question in Capital,” published in 1976; other critical criminologists as well would draw on Marx’s articles to deconstruct the category of crime.[6] In France, the renowned critical jurist and penologist, Pierre Lascoumes, edited and presented the Marx articles in a classic volume titled Marx: du “vol de bois” à la critique du droit with the Frankfurt professor, Hartwig Zander; and the critical legal scholar, Mikhaïl Xifaras, published a significant treatment of the articles in “Marx, justice et jurisprudence. Une lecture des « vols de bois ».”[7]

In the legal academy in the United States, Marx’s articles on the thefts of wood became a reference point within Critical Legal Studies (“CLS”), a movement in law that brought together strands of critical and social theory, structuralism, and post-structuralism. One gets a good sense of this when Duncan Kennedy, one of the founders of CLS, recounts the history of the movement and refers to Marx’s 1842 articles as a legal category on to themselves. Kennedy is describing the first CLS conference in 1977—it’s a remarkable interview, worth reading—and gets to the intervention of Michael Tigar, a radical criminal defense attorney now and at the time a Marxist law professor at the University of Texas in Austin (he has been teaching recently at Columbia Law School, the other CLS). Kennedy describes Tigar’s intervention at the CLS conference in 1977 in the following terms:

He crashed the meeting and gave not a labour-theory-of-value speech, but a Marxist-theft-of-wood-anticipates-everything-that-the-modern-leftist-can-think-of-and-it-is-really-the-working-class-that-counts speech. He was wearing cowboy boots and a cowboy shirt and […] represented, again, a totally radical 60s thing; his message was basically “you arseholes, you don’t even know what class struggle or class violence is.”[8]

Within critical legal circles in the 1970s, Marx’s writings on the thefts of wood were precisely the reference point for the brutality of class warfare. Marx had specifically used the category of class throughout the articles, describing how the legislators “will raise their class itself to the real possibility of enjoying its rights.”[9] His commentators in the 1970s would use these articles to thrust crime and punishment back into the spotlight and the heart of Marx’s thought—crime which, as Peter Linebaugh remarked, was “capital’s most ancient tool in the creation and control of the working class.”[10]

Michel Foucault was steeped in these debates, especially of the historians, when he turned in 1973 to explore the construction of the “delinquent” and disciplinary power in his lectures at the Collège de France, The Punitive Society.[11] The year before, in his lectures on Penal Theories and Institutions, Foucault had dedicated the first half of his yearly teaching to a detailed analysis of the Nu-pieds rebellion in Normandy in 1639 and to its repression by Richelieu and the Chancellor Séguier.[12] Foucault had negotiated the querulous territory of historians—the vast literature on seventeenth-century popular uprisings, including the quarrels between a leading French historian of the ancien régime, Roland Mousnier, and the Soviet historian Boris Porchnev, a specialist of French popular uprisings during the period 1623-1648.[13] Foucault read and admired the English historians around E.P. Thompson. And, immersed in this literature, Foucault threw himself into studying the birth of the penitentiary and what he would call “the punitive society.”

In those lectures in 1973, Marx’s articles on the thefts of wood would serve as a stepping stone for Foucault to develop his theory of “illégalismes populaires”—I will translate the term “illégalismes” as “illegalisms” and distinguish it from “illegalities”—his analyses of the subjectivation of the “delinquent” subject, his discussion of the development of nineteenth-century theories of the “criminal as social enemy,” and his genealogy of disciplinary power.

Foucault had read Marx’s articles closely and annotated them as a student. His “fiches de lectures” on Marx’s articles are in the archives at the Bibliothèque nationale de France (BnF) and are available on-line.[14] Foucault’s handwriting suggests, to me, that he wrote them in the 1950s. Several years later, on January 24, 1973, in his lectures on The Punitive Society, Foucault would refer back to Marx’s articles and underscore how the emergence of the theory of the “criminal as social enemy” in the nineteenth century had to “take into account what Marx wrote regarding the discussion of the theft of wood.”[15] And both there and in Discipline and Punish, Foucault formulates a theory of “popular illégalismes” that built on Marx’s critique of the law on thefts of wood.

In his work on nineteenth-century penality, Foucault pushed Marx’s text in a uniquely productive direction, proposing new ways to think of power and focusing our attention on the way in which these acts of resistance and their punishment shaped the subjectivities of the poor and the privileged at the time.

Other brilliant contemporary thinkers would pick up these threads and push them further. The critical theorist and anthropologist James C. Scott built on Marx and Foucault to develop a theory of what he called “infrapolitics,” the political struggles from below, the “ordinary acts of resistance” from those at the margins of society.[16] Other critical theorists built on the decoupling of crime and punishment present in Marx, Foucault, and others—W.E.B. Du Bois, for instance, or Georg Rusche and Otto Kirchheimer, the early Angela Davis, George Jackson, and others—to argue for penal abolition. In fact, one can draw a straight line from these thinkers to the present, to the powerful abolitionist movement today and the writings of abolitionists, especially feminist abolitionists, including Angela Davis, Mariame Kaba, Dorothy Roberts, Sarah Haley, Derecka Purnell, and others.[17]

As these different strands make clear, there are several dimensions or directions in which Marx’s 1842 text and its receptions can be pushed today to nourish forward-looking projects and praxis.

First, Marx’s 1842 articles and their receptions can stimulate further work on forms of social control exercised by the state and parts of society, especially through the criminal law and punishment. This is the top-down dimension: the way in which the criminal law is instrumentalized and deployed; the way that punisment, for instance, serves to enforce a racial hierarchy by perpetuating racialized mass incarceration today, or a sexual hierarchy by targeting transgender persons. Along this dimension, we can develop new critiques and practices of resistance to state and social apparatuses, and interrogate how they interact with political economic developments (as in theories of neoliberal penality, racial capitalism, or labor and surplus population theories like the earlier Rusche and Kirchheimer hypotheses). We can interrogate how the criminal law serves to justify or entrench social hierarchies, and what role legal ideologies or regimes of truth might play.

Second, Marx’s 1842 articles and their reception can stimulate further work on forms of resistance by those who are most impacted by inequality, precarity, and oppression. This is the bottom-up dimension. It allows us to identify forms of resistance where we typically do not, where we usually see only domination (as in James C. Scott’s “hidden transcripts”). Along this dimension, we can explore how the self-understanding or self-consciousness of resistance is shaped—what some refer to as questions of subjectivity, subjectification, and de-subjectification. We can investigate how people can be interpelated, not just by the police as Althusser proposed, but by protest, resistance, and mobilization. We can trace the histories, and the historical trajectories, of the modern concept of revolution, of uprisings, of riots, of political disobedience, of ZADs, and other new practices of protest and social movements. And we can do that in theory and in practice.

Third, Marx’s 1842 articles and their receptions serve to break the link between crime and punishment, opening up new horizons for a world without punishment or for the possibility of replacing the punishment paradigm with a paradigm of cooperation. This dimension leads inexorably to the abolitionist movements today and the organizing that is being conducted by feminist, anti-capitalist, and anti-ableist abolitionists now.

In addition to these three spatial dimensions, there is the fourth dimension of time: Marx’s 1842 articles pose the question of the historical trajectory, sequence, continuity or disruption of popular uprisings. Along this dimension, we can explore whether and how those rebellions contributed to revolutionary change; whether they were continuous or discontinuous, and how important they were to history; or how they changed form over time, as in Joshua Clover’s work in Riot, Strike, Riot.[18] This was the terrain of those quarrels between Mousnier, Porchnev, and others, and they have become of increasing relevance today with movements like Occupy Wall Street, Black Lives Matter, penal abolition, MAGA, and others today.

Along all four of these dimensions, rereading Marx, Foucault, and those who built on their work provides markers and guideposts to help understand our present and nourishes forms of resistance to the punitive society, the state, and Behemoth capitalism. These texts point us forward toward a future in which we might be able, once and for all, to dethrone the punishment paradigm and replace it with cooperation.

Let me provide here some background elements to provide context for the seminar.

The Publication of Marx’s Articles (1842)

In October and November 1842, Marx published a series of five articles commenting on the debates in the Rhine Provincial Assembly from May 23 to July 25, 1841, over proposed and enacted laws criminalizing the gathering of wood (including dead wood) from private and communal forests. The articles were published on October 25, 27, and 30, and November 1 and 3, 1842, in the Rheinische Zeitung (in English, the Rhenish Gazette) under the pen name “a Rhinelander.”

At the time, Marx was 24 years old and the editor-in-chief of the Rheinische Zeitung, which operated from 1842 to 1843. As C.P. Dutt, an editor of Marx and Engels, notes, the Rheinische Zeitung “was founded by Rhenish radical bourgeois. Marx was one of the main contributors to the Gazette. From October 1842 to the end of the year Marx was its editor-in-chief. Under Marx’s leadership the Gazette adopted a revolutionary-democratic policy, and was suppressed by the Prussian government at the end of March 1843.”[19] During this period, Marx was also a contributing writer to the Deutsche Jahrbücher fur Wissenschaft und Kunst (German Annuals of Science and Art). The Deutsche Jahrbücher were founded, edited, and published by the Young Hegelians Arnold Ruge and Ernst Theodor Echtermeyer, and published from 1841 to 1843 in Leipzig.

In his short intellectual autobiography, in the preface of A Contribution to the Critique of Political Economy (1859), Marx attributed to these articles on the thefts of wood the inspiration to study political economy. Marx wrote:

In the year 1842-43, as editor of the Rheinische Zeitung, I first found myself in the embarrassing position of having to discuss what is known as material interests. The deliberations of the Rhine Province Assembly on the thefts of wood and the division of landed property; the official polemic started by Herr von Schaper, then Oberprasident of the Rhine Province, against the Rheinische Zeitung about the condition of the Moselle peasantry; and finally the debates on free trade and protective tariffs gave me the first impulse to take up the study of economic questions.[20]

According to Marx, writing these articles pushed him to address tangible questions of material interests and made him recognize the need to study political economy.

Looking back at the articles in 1888, Frederick Engels suggested that they signaled a sharpening of the political struggles against the Prussian state, still mostly under the veil of a scholarly dispute. Recalling this moment, Engels wrote in Ludwig Feuerbach and the Outcome of Classical German Philosophy:

The Left wing, the so-called Young Hegelians, in their fight with the pietist orthodox and the feudal reactionaries, abandoned bit by bit that philosophical-aristocratic reserve in regard to the burning questions of the day which up to that time had secured state toleration and even protection for their teachings. And when, in 1840, orthodox pietism and absolutist feudal reaction ascended the throne with Frederick William IV, open partisanship became unavoidable. The fight was still carried on with philosophical weapons, but no longer for abstract philosophical aims. It turned directly on the destruction of traditional religion and of the existing state. And although in the Deutsche Jahrbücher the practical ends were still predominantly put forward in philosophical disguise, in the Rheinische Zeitung of 1842 the Young Hegelian school revealed itself directly as the philosophy of the aspiring radical bourgeoisie and still used the meagre cloak of philosophy only to deceive the censorship.[21]

The Debates on the Law of the Thefts of Wood (1842)

In the five articles, Marx critiques a law adopted by the Rhine Provincial Assembly on June 17, 1841, which defined the crime of “theft of wood” (as a crime, rather than as a misdemeanor or violation) to include the taking without permission of any live or dead wood in a private or communal forest or at any point of transfer outside the forest.

Under customary norms at the time and for centuries, poor persons gleaned dead wood in forests for their survival; they would use it to heat themselves and sell it to make money. This legislation turned that privilege into a crime punishable by a hefty fine, restitution, and forced labor.

In the series of articles, Marx makes the following six points:

First, and foremost, that the Rhine Province legislators are turning legal behavior into crimes and meting out severe punishments to benefit the financial interests of the class of landed property owners. They are not just appropriating more property (the dead wood that would previously have been gleaned), nor simply compensating the landed gentry for the loss of this new form of private property in dead wood (a restitutionary fee or a fine), nor just imposing punitive damages (which they were, often multiple-fold the value of the wood), they are extracting free labor under punitive conditions from the poor by forcing them into penal labor to work for the landed property-owners—a form of surplus-punishment and surplus-value.

The provision regarding forced labor provided as follows:

In the Rhine Province the competent forest owner should be authorised to hand over convicted persons to the local authority to perform penal labour in such a way that their working days will be put to the account of the manual services on communal roads which the forest owner is obliged to render in the rural community, and accordingly subtracted from this obligation.[22]

This was pure windfall for the landed property owners—in addition, that is, to the restitutionary value of the wood, a punitive fine in multiples of its value, and an additional “special sum as compensation for the loss.”[23] Not only that, but, as Marx emphasized, the fines were to be paid to the forest owners, and so in effect, the landed property owners were allowed “to purloin the state itself.”[24] Marx called this “a lottery,” “winning a prize,” a pure “source of income.”[25]

The legislators were essentially creating crimes out of whole cloth, redefining civil notions of property, and producing a brutal form of convict leasing. I use the term advisably. There was a family resemblance, that W.E.B. Du Bois recognized, with the violent and brutal convict leasing schemes in the South immediately following the end of the Civil War, described in Black Reconstruction in America.

As Mikhaïl Xifaras shows, Marx’s text combined an analysis of penal and civil law. The criminalization amounted, at the same time, to a redefinition of the law of property. The legislature’s actions on the penal side went hand in hand with the emergence of a capitalist market in wood.[26]

As part of this first major contribution of the articles, Marx critiques a number of elements of the new penal law and of the hypocrisy of the legislators, including:

The conflict of interest in allowing the forester, who works for and is paid by the landed property owners, to set the value of the dead wood that was gleaned, since he would have every interest in setting that value as high as possible[27];
The conflict of interest in allowing the landed property owners to enforce laws that resulted in the free forced labor of the poor on the properties of the landed gentry, in addition to the fees, fines, and restitution being paid to those landowners;
The additional conflict of interest in allowing the landed property owners full discretion to set the tenure of employment of the forester who enforced the prohibition and set the value of the gleaned wood;
The way in which the public servant, the burgomaster, who owes a fiduciary duty to all the people in the community, is turned into the private taskmaster and executor for the individual landowners[28];
The contradiction of legislators, who are supposed to have the interest of all citizens in mind, legislating on behalf of a segment of the citizens, those who are wealthy and privileged;
The double standard of carefully distinguishing between, for instance, axes and saws, but ignoring any distinction between fallen and growing wood[29]; and
The failure to engage in any proportionality analysis of the harm done.[30]

Marx offered a visceral critique of the social and political construction of crime. In an acerbic tone, Marx wrote, “You should have called it murder of wood and punished it as murder.”[31] His point was that the legislature was making things up out of whole cloth, inventing a crime—and had the power to do what it wanted with the law. “The law is not exempt from the general obligation to tell the truth,” Marx insisted. “But if the law applies the term theft to an action that is scarcely even a violation of forest regulations, then the law lies, and the poor are sacrificed to a legal lie.”[32]

Marx also warned of the consequences of this corruption. He suggested that it would shape the understanding and behavior of poor people—in their subjectivities—and possibly lead them to question laws more generally. “The people sees the punishment, but it does not see the crime, and because it sees punishment where there is no crime, it will see no crime where there is punishment,” Marx writes. “By applying the category of theft where it ought not to be applied, you have also exonerated it where this category ought to be applied.”[33]

Second, Marx developed a critical theory of law—or several. The articles were, of course, a critique of the role of law in capitalist development. They would prove to be a goldmine for later critical legal theorists who wanted to explore how the criminal law was instrumentalized and deployed, whether it served a superstructural, an ideological, or a more basic role, how it served to internalize power structures, and whether it could be turned back for purposes of resistance.

Marx also developed a critical legal theory of universal customary rights. He did so in the context of legal remedies. Marx called for a customary right for the poor. “We demand for the poor a customary right, and indeed one which is not of a local character but is a customary right of the poor in all countries,” he wrote. “We go still further and maintain that a customary right by its very nature can only be a right of this lowest, propertyless and elemental mass.”[34]

At a legal theoretic level, Marx’s proposal was somewhat curious because customary rights tend to be understood as emanating from local customs—at the regional or national level—and to be historically situated. Here, instead, Marx called for an internationalist customary right, universal as to the class of poor peoples in all countries, that is, exclusive to them because of their condition in the social order.

As Xifaras has shown, Marx placed himself in a delicate position between the historical school of jurisprudence of Friedrich Carl von Savigny and the philosophical school of Hegel. Marx was charting new ground toward what Xifaras calls “un système des droits coutumiers universels de la pauvreté” (a system of universal customary rights of poverty).[35] Marx was developing “une science véritablement universelle du droit, une science du droit de la populace de tous les pays” (“a truly universal science of law, a science of law of the people of every country”).[36]

This is interesting insofar as it represents a rejection of the historical school of jurisprudence of Savigny.[37] Marx had written another article between April and August 1842, that was published a few month before the articles on the thefts of wood on August 9, 1842, attacking the historical school and especially Gustav von Hugo (the Germanic branch of the historical school, by contrast to the Romanist branch represented by Savigny).[38] Here too, Marx did not mince his words: “The eighteenth century had only one product, the essential character of which is frivolity, and this sole frivolousproduct is the historical school.”[39]

In some respects, the 1842 articles are somewhat imprecise or confused, and contain different theories of law. There are passages where Marx adopts a natural law concept of rights. He writes, for instance, that “it [the law] is the universal and authentic exponent of the legal nature of things” and therefore that “the law must be regulated according to the legal nature of things” (die Rechtliche Natur der Dinge).[40] He speaks of the “immortality of the law.”[41] The state, he writes, must guarantee the immortality of the law and “cannot go against the nature of things.”[42] This smacks of natural law theory. It feels a priori and idealist.

In other passages, Marx seems to have an intuitive, spiritualist conception of law. There is, for instance, a long passage where Marx likens the dead wood to the poor, and seems to ground customary right on an intuition of that physical-social resemblance:

It will be found that the customs which are customs of the entire poor class are based with a sure instinct on the indeterminate aspect of property; it will be found not only that this class feels an urge to satisfy a natural need, but equally that it feels the need to satisfy a rightful urge. Fallen wood provides an example of this. Such wood has as little organic connection with the growing tree as the cast-off skin has with the snake. Nature itself presents as it were a model of the antithesis between poverty and wealth in the shape of the dry, snapped twigs and branches separated from organic life in contrast to the trees and stems which are firmly rooted and full of sap, organically assimilating air, light, water and soil to develop their own proper form and individual life. It is a physical representation of poverty and wealth. Human poverty senses this kinship and deduces its right to property from this feeling of kinship. If, therefore, it claims physical organic wealth for the predetermined property owners, it claims physical poverty for need and its fortuity. In this play of elemental forces, poverty senses a beneficent power more humane than human power. The fortuitous arbitrary action of privileged individuals is replaced by the fortuitous operation of elemental forces, which take away from private property what the latter no longer voluntarily foregoes. Just as it is not fitting for the rich to lay claim to alms distributed in the street, so also in regard to these alms of nature. But it is by its activity, too, that poverty acquires its right. By its act of gathering, the elemental class of human society appoints itself to introduce order among the products of the elemental power of nature. The position is similar in regard to those products which, because of their wild growth, are a wholly accidental appendage of property and, if only because of their unimportance, are not an object for the activity of the actual owner. The same thing holds good also in regard to gleaning after the harvest and similar customary rights.[43]

At other times, Marx offers more of a straightforwardly conservative legal proposition, arguing for a return to earlier, supposedly more legitimate customary rights under Germanic law and the feudal codes.

There is also a passage where Marx seems to refer to Proudhon’s book, What is Property?, just published in 1840, where Proudhon famously answered that question “Property is theft!”[44] Marx would ridicule that precise argument five years later in The Poverty of Philosophy (1847). Nonetheless, here, in 1842, Marx writes “If every violation of property without distinction, without a more exact definition, is termed theft, will not all private property be theft?”[45]

Overall, Marx’s remedy appears somewhat legalistic—an approach that he would come to reject swiftly, surely by 1843 when he publishes his article “On the Jewish Question” in the Deutsch–Französische Jahrbücher. But these articles on the thefts of wood predate that turn, which also explains, in part, why they do not figure in the canon of his political writings.

Third, Marx develops a theory about the political implications of seemingly neutral forms of rationalization and administration. In discussing the transition from customary traditions to a system of objectively delineated rights—from a condition of privileges to a system of rights—Marx shows how parsimony and simplification, how rationalization and modernization itself can have political effects.[46]

Marx takes the case of the abolition of monasteries and their transition to private property, and shows how, in that process of privatization, certain privileges that benefited the poor (the accidental support that the poor received from monastery life) simply fell by the wayside. The legal rights were regularized, but the informal ties withered away, “left out of consideration.”[47]

Marx describes brilliantly how the earlier traditional arrangements involved a mixture of common property, public and private rights. They were hybrids, fuzzy at the edges. But in order to systemize matters with rights and the categories of Roman civil law, there is a “one-sidedness” that imposes orderliness and simplicity—and in the process deprives the poor of their privileges.

Marx emphasizes, in a realist analysis, that these are chosen results. It would have been just as possible to recognize occupation rights that would allow the poor to retain their benefits—like easements or rights of way on private property. The distortions and deprivations are not merely accidental. They are chosen, human-made.

It is interesting to note that Foucault was particularly interested in this aspect of Marx’s articles. In his reading notes, Foucault jots down a header “The role of reason,” and notes “The role of reason is to ‘render the world one-sided…” Foucault then cites the passage at page 233 of the English edition, picking up on the line: “The character of a thing is a product of understanding,” which in French is translated as “reason.” Foucault continues, after noting down the passage: “From which there is the resulting contradiction: reason has eliminated the ambiguity in the Medieval conception of property, partly private, partly public. Reason made it the privileges of the lords but reduced the poor to misery.”[48]Foucault would likely have filed these annotations, figuratively, in his research on reason and madness.

Fourth, Marx develops a critique of the state that he will continue to work on in the succeeding months. He critiques the pretended neutrality and representativeness of the state, here the Rhine Provincial Assembly. Although the Assembly was constituted of only three orders (the bourgeois, the landed gentry and the nobility, insofar as it had deputies from the towns, country, and nobility), it was supposed to represent all citizens. Marx shows the lie, and how in fact the deputies represent the interests of only the landed gentry. Of the Assembly, Marx writes, “They themselves are legally entrusted not only with the representation of particular interests but also with the representation of the interests of the province, and however contradictory these two tasks may be, in case of conflict there should not be a moment’s delay in sacrificing representation of particular interest to representation of the interests of the province.”[49] In fact, he goes on to say, “The sense of right and legality is the most important provincial characteristic of the Rhinelander.”[50] But this is not what occurred, as a result of the partiality of the Assembly and the fact that it does not live up to those ideals of generality:

The Provincial Assembly, therefore, completely fulfilled its mission. In accordance with its function, it represented a definite particular interest and treated it as the final goal. That in doing so it trampled the law under foot is a simple consequence of its sash, for interest by its very nature is blind, immoderate, one-sided; in short, it is lawless natural instinct, and can lawlessness lay down laws? Private interest is no more made capable of legislating by being installed on the throne of the legislator than a mute is made capable of speech by being given an enormously long speaking-trumpet.[51]

Fifth, Marx began to study material interests—as he recalled in 1859. Much of the material analysis concerns the landed property owners. Marx referred specifically to the “abject materialism” of the privileged, that the law promotes without reason or morality. Marx wrote:

This abject materialism, this sin against the holy spirit of the people and humanity, is an immediate consequence of the doctrine which the Preussische Staats-Zeitung preaches to the legislator, namely, that in connection with the law concerning wood he should think only of wood and forest and should solve each material problem in a non-political way, i.e., without any connection with the whole of the reason and morality of the state.[52]

It is the material analysis that makes these articles such a powerful demonstration of the violence and brutality of class warfare. The binary structure of the political struggle, between the landed property owners, or what he refers to as the “privileged class,” and the poor and downtrodden, who he refers to as the “poor class,” is striking this early in his writings.

Finally, and to me most importantly, Marx deconstructed the conventional, liberal theoretic link between crime and punishment—the couple that, since the Enlightenment at least, lies at the core of the Western liberal imagination. In the liberal tradition, crime is what triggers punishment, and punishment is limited to preventing or remedying crime. The legitimacy of that relationship founds the liberal state. It grounds the philosophical and juridical discourse of “crime and punishment,” from Hobbes and Locke, through Cesare Beccaria, to John Stuart Mill and John Rawls.

But what Marx showed is that crime is not what calls for punishment. It is profit and self-interest. Marx severed the link between crime and punishment, thereby denaturalizing crime.

This is something that many critical thinkers would continue to do after Marx—including Du Bois, Rusche and Kirchheimer, George Jackson, Angela Davis, Foucault, and today, feminist abolitionist organizers. I think you can draw a straight line through all this work, leading inexorably to the abolitionist movement today.

Reception in the 1970s

As Peter Linebaugh discusses in his article, “Karl Marx, the Theft of Wood, and Working Class Composition: A Contribution to the Current Debate,” radical thinkers returned to Marx’s articles in the late 1960s and early 1970s, at a specific historical conjuncture: during the rise of urban “riots,” prison uprisings, social unrest.[53] The “riots” in Watts, in Harlem, in Detroit and Newark—as well as the student revolts in Tunisia in 1967, and then around the world in 1968, in London, in Prague, in Berlin, and of course in Paris in May ’68—troubled the schema of Marxist revolution. As Linebaugh explains, the wide scope and extent of the uprisings, often involving looting and theft, did not fit in the simple categories that Marxist thinkers had used to understand ephemeral eruptions: either as secondary to the worker’s movement or as an outburst of the oppressed.[54]

Many critical sociologists and criminologists turned to Marx’s articles on the thefts of wood to challenge the rigidity within some Marxist circles over the concept of the lumpenproletariat. The Marxist tradition had contained conflicting strains on the question of crime. In Marx’s writings, the matter of the lumpenproletariat had always been a delicate and controversial issue.[55] But these articles on the thefts of wood helped make sense of the uprisings and of their repression—of the politics of criminality and the criminality of politics.

English social historians, especially E. P. Thompson, had studied earlier popular uprisings and excavated their political and moral dimensions. Thompson argued that the uprisings of people in the eighteenth century, which had been characterized by earlier historians as mere riots or desperation, were in fact political actions born of moral indignation at the exploitation and impoverishment that were accompanying the historical transformation of political economy—the enclosures, privatization of the commons, (supposed) liberalization of the markets, mechanization, and eventually industrialization of the economy. There was, he argued, a “moral economy” to the riots and England.

Others in Thompson’s circle, like Peter Linebaugh, focused on the criminological dimensions, turning back to Marx’s articles and exploring the timing and circumstances of the gleaning and the enforcement of the new prohibitions—and the extent of these behaviors. Linebaugh revealed that “the real dangers in the forests before the revolution of 1848 were […] those that a mass movement for the appropriation of forest wealth placed upon capitalist accumulation. ln 1836, of a total of 207,478 prosecutions brought forward in Prussia, a full 150,000 were against wood pilfering and other forest offenses. ln Baden in 1836, there was one conviction of woodstealing for every 6.1 inhabitants. In 1841 there was a conviction for every 4.6 inhabitants, and in 1842 one for every four.”[56]

Michel Foucault and the Theory of Illegalisms

Foucault is immersed in these debates when, in his lectures on The Punitive Society in 1973, he develops a theory of what he calls “illegalisms” and pronounces: “we cannot understand the operation of a penal system, a system of laws and prohibitions, if we do not examine the positive functioning of illegalisms.”[57]

Foucault had just finished, the year before in his lectures on Penal Theories and Institutions, an intense investigation of the Nu-pieds rebellions and their repression in 1639 and was now turning his focus to the birth of the penitentiary system. In that context, Foucault argued that social relations in the post-revolutionary period in France (around 1825 to 1848) approximated a “social war” that was best understood through the lens of civil war.[58]

Foucault proposed a model of civil war as a foil to Hobbes’s war of all against all, but he also wanted to distinguish it from Marx’s class warfare and Clausewitz’s war as the continuation of politics.[59] Clausewitz was easy because Foucault could invert the formula, so that politics became the continuation of war by other means.[60] The relation to Marx was far more complicated, especially because, when he introduced the social war, Foucault referred to it as “the war of rich against poor, of owners against those who have nothing, of bosses against proletarians.”[61]

The question of Foucault’s relationship to Marx is fraught and has generated a wide range of remarkable work—far too copious to summarize or even refer to here. In Marx 13/13 we will return to this question often and bring in specialists on the question, such as Matteo Polleri, who just completed his dissertation on the topic.[62] In this part, I will simply turn to Foucault’s theory of illegalisms as a way to immerse us in the substance. I have previously described at length his theory of popular illegalisms, on several occasions, so I will be very brief here and refer the more curious reader to those longer treatments.[63]

As I mentioned, in 1973, Foucault proposed a model of civil war to understand social relations. The terrain of that civil war was the nebulous and hazy line that separated legal from illegal conduct. Under the ancien régime, the merchants and bourgeois engaged in widespread illegalisms against the monarchy, minimizing their crops, selling them green, skirting the rules to avoid greater levies; the popular classes as well. By illegalisms, Foucault had in mind actions that were in a grey area, potentially criminalized but unenforced, sometimes unseen. They were not yet illegalities because they had not necessarily been turned into crimes and punished. They were in a grey zone. In fact, the whole struggle was whether they would be criminalized and punished, or allowed to happen.

After the revolution, those illegalisms continued unabatted, but the popular illegalisms became a source of social struggle, as the merchant class began to recharacterize them as theft, deceit, and larceny of what was now their private property. The contestations over these illegalisms led to the moralization of the behaviors of the popular classes, as the privileged attacked them for being lazy and drunken, effectively stealing their money by stealing their time—leading seamlessly to the birth of the penitentiary.

In a fictitious dialogue in The Punitive Society between the popular class and the privileged, Foucault asked on behalf of the popular classes: What has changed? “Did we not violate the law, plunder wealth together?”[64] To which the privileged respond that under the ancien régime, they were all fighting against “rules, laws, and unjustifiable abuses, and it was a question of power, and so of politics; whereas now things, property, and so common law, natural law is being attacked. Previously, abuses of power were attacked; now violating the law displays a lack of morality.” In his manuscript, Foucault ends this dialogue with a marvelous exclamation: “Go, and do your penance.”[65] Foucault then declares: “It is at this point that the pinning of the system of moral correction on the penal system takes place. Thus, Colquhoun says: ‘It is however ardently to be hoped, that the period is fast approaching when … the suggestions offered in subsequent chapters, may tend to accelerate the renovation of this forlorn and miserable class of outcasts [criminals], by means of an appropriate Penitentiary System.’”[66]

This gives birth to the prison and to the concept of the “criminal as social enemy,”[67] a concept that would animate the political landscape and struggles of the nineteenth century, the calls for order and discipline, the dominant criminological theories of the turn of century, the theories of “social defense” (such as that of the Belgian sociologist Adolphe Prins), and the impetus for the recurring theme that “society must be defended.”[68]

In this work, Foucault uses the example of the exploitation of forests in France at the end of the eighteenth century.[69]He writes, in his manuscript, that “The old forest (with an age-old rhythm of exploitation), a place of refuge, toleration, and survival not only for marginals, but also for the poorest inhabitants (who graze, take wood, and poach in it), tends to become exploitable and supervised property.”[70] Foucault mentions Marx’s articles on thefts of wood and other work, that of Louis-Auguste Blanqui, as necessary stepping stones to a theory of popular illegalisms.[71] Like Marx, Foucault criticizes the legislators at the time for pretending to represent everyone but only promoting the interests of the wealthy property owners: “social laws are made by people for whom they are not intended and applied to those who did not make them.”[72]

Michel Foucault engaged in a silent dialogue with the English, French, and Soviet historians, at first taking up but then resisting the notion of the “seditious mob”—understood not through the lens of the moral economy of the seditious mob (from the subjective view of the crowd), but through the lens of the control of the popular classes.[73] You can hear Foucault lecturing in conversation with the historians. It is at the hinge point, the pivotal point where he introduces and starts to develop his theory of popular illegalisms. He does so in contrast to the theory of the “seditious mob” in which the punitive apparatus would have been constituted in order to control the popular classes—the theory that, as Foucault states, “the political surveillance of a populace (une plèbe) that is becoming a proletariat involves the organization of a new repressive apparatus.”[74]

Foucault had originally endorsed this approach as an explanation for the birth of the judicial and prison system—this was his repressive theory of power from his study of the nu-pieds rebellion in Penal Theories and Institutions. But at this point on February 21, 1973, Foucault departs from that view and develops instead a theory of popular illegalisms that operate in a field of struggle, and that are turned into illegalities in the fight over resources. The passage is so important, I will quote it in full here, so you get a good sense of the way in which his theory of illegalisms comes out of his own earlier work and his engagement with the historians:

[The question] we have to ask is: Why did this slow shift towards the State apparatus accelerate, and why did we finally end up with this unified system? This problem, seemingly very simple to solve, is, in reality, rather more complicated. Simple, because for some time I thought it could be solved in a few words: at the end of the eighteenth century, in which the growth and installation of the capitalist mode of production provoked a number of political crises, the political surveillance of a populace (une plèbe) that is becoming a proletariat involves the organization of a new repressive apparatus. In short, corresponding to the rise of capitalism there would have been a whole series of movements of lower-class sedition to which the power of the bourgeoisie responded with a new judicial and penitentiary system. Now I am not sure I am right in using the term “seditious mobs (plèbe séditieuse).” Actually, it seems to me that the mechanism that brought about the formation of this punitive system is, in a sense, deeper and broader than that of the simple control of the seditious mobs. What had to be controlled, what the bourgeoisie demanded that the State apparatus control through the penitentiary system, is a deeper and more constant phenomenon of which sedition is only a particular case: lower-class illegalism (illégalisme populaire). It seems to me that until the end of the eighteenth century a certain lower-class illegalism was not only compatible with, but useful to the development of the bourgeois economy; a point arrived when this illegalism functionally enmeshed in the development of the economy, became incompatible with it.[75]

Foucault would famously elaborate this theory of illegalisms in Discipline and Punish, both in his discussion of eighteenth-century punishment, specifically referencing the exploitation of the forests,[76] and in greater detail in the chapter on “Illegalities and Delinquency” (in French, it is “Illégalismes et délinquance,” retaining the proper word, “illegalisms”).[77] Earlier, in the chapter on “Generalized Punishment,” in his discussion of the development of capitalism, Foucault discussed the exploitation of the forests and the question of the theft of wood:

as it was acquired in part by the bourgeoisie, now free of the feudal burdens that once weighed upon it, landed property became absolute property: all the tolerated “rights” that the peasantry had acquired or preserved (the abandonment of old obligations or the consolidation of irregular practices: the right of free pasture, wood-collecting, etc.) were now rejected by the new owners who regarded them quite simply as theft (thus leading, among the people, to a series of chain reactions of an increasingly illegal, or, if one prefers the term, criminal kind: breaches of close, the theft or killing of cattle, fires, assaults, murders (cf. Festy and Agulhon). The illegality of rights, which often meant the survival of the most deprived, tended, with the new status of property, to become an illegality of property. It then had to be punished.[78]

Later, in the chapter on “Illégalismes et délinquance,” Foucault developed what could be called a “general economy of illegalisms”: he explored in intricate detail how the penitentiary system of the nineteenth century did not so much repress or seek to eliminate illegalisms, as it sought to manage them, to distribute them, to massage them in a manner to profit the more privileged. The regulation of illegalisms served to set limits, to put pressure and to exclude some, to manipulate others, and thereby to manage social and economic relations.[79] Foucault took the example of sex work and showed how detentions and surveillance served to regulate an economy of sex to the benefit of the class of purveyors—a way to manage and exploit illegalisms.[80]

Foucault placed this “general economy of illegalisms” in a field of social battle. He wrote repeatedly about the “grondement de la bataille” (“roar” or “rumbling of battle”). He wrote of confrontations and struggles, of “jeux de force” (“games of force”), of the roar of the battle, of “a rumbling from the midst of the battlefield,” before ending the book, famously on that theme.[81]

In effect, Foucault proposes a book-length treatment in Discipline and Punish of the power struggles between the privileged and the poor—both the mechanisms of control and the forms of resistance. Discipline and Punish is a long-form treatment of the way that capitalism used crime and punishment as a force of production. It confirms that crime is, as Linebaugh wrote, “capital’s most ancient tool in the creation and control of the working class.”[82] In a way, it explains why George Jackson proposed that we burn the libraries of criminology.[83] This is the manual that shows, in intimate detail, within the subjectivities of the people, how capitalism functioned through penality.

James C. Scott and Infrapolitics

As noted earlier, the political theorist James C. Scott built on the edifice of Marx, Foucault, and social historians like E.P. Thompson and Peter Linebaugh to develop a formative theory of what he called “infrapolitics” and “ordinary acts of resistance.”

Scott drew specifically on Thompson’s writings on the poaching struggles during the eighteenth century and the exploitation of the forests to underscore the intentionality of these struggles, the way in which they constituted pitched battles over resources. These were acts of resistance by the poor and subordinate, Scott emphasized, not just forms of oppression from the privileged class. They are best understood through the metaphor of “guerilla warfare.”[84]

In the context of thefts of wood, Scott describes minutely how the ordinary acts of resistance would take place: by concealing green wood within a bundle of dead wood, or by girdling the bottom of trees below eyesight so that they would die and then get gathered as dead wood.[85] It is in this context that Scott too returns to Marx’s articles on the thefts of wood, drawing on Linebaugh’s historical and sociological analysis of enforcement proceedings to show the historical variations in the guerilla warfare:

The theft of wood in mid nineteenth-century Germany was, as Marx noted in some early articles in the Rheinische Zeitung, a form of class struggle. The overall volume of offenses varied as much with the subsistence needs of the population as with the vigor of enforcement. Forest encroachments ballooned when provisions were expensive, when wages were low, when unemployment grew, when the winter was severe, where emigration was difficult, and where dwarf-holdings prevailed. In the bad year of 1836, 150,000 out of a total of 207,000 prosecutions in Prussia were for forest crimes. In 1842 alone in the state of Baden there was one conviction for every four inhabitants. The virtual invasion of the forest for a time overwhelmed the enforcement apparatus of the state.[86]

Scott emphasizes that although these infrapolitics appear to be minor, ordinary acts of resistance, they can be deeply consequential and that we must treat them as real politics, on par with revolutionary action. The stakes are no different, and neither are the consequences. Entire armies can be defeated through acts of desertion.[87] Revolutions can be fomented by riots—or rather, riots are revolutionary, as Joshua Clover demonstrates in his book, Riot, Strike, Riot.[88]

Toward Abolitionism

In Discipline and Punish, Foucault pays tribute to the “great work” of the Frankfurt School penologists, Georg Rusche and Otto Kirchheimer, authors of Punishment and Social Structures, the classic neo-Marxist text on penality.[89] Foucault grounds his work on the premise of theirs, namely on the basic starting point that the study of punishment must be decoupled from the study of the causes and consequences of crime. In other words, that we should not think of punishment as the consequence of crime, but instead search for punishment’s other functions. In Foucault’s words:

We must first rid ourselves of the illusion that penality is above all (if not exclusively) a means of reducing crime… […] We must analyse rather the ‘concrete systems of punishment,’ study them as social phenomena that cannot be accounted for by the juridical structure of society alone, nor by its fundamental ethical choices; we must situate them in their field of operation, in which the punishment of crime is not the sole element…[90]

Foucault could have referred as well to Marx’s articles on the thefts of wood, which performed similar work. Marx showed how punishment was instrumentalized to advance the interests of the privileged and wealthy, and that it had to be understood in relation to its functions or operations in social struggle.

Marx’s text on the thefts of wood, as well as Rusche and Kirchheimer’s, as well as Foucault’s, must be understood as forming part of a broader arc of historical and social criticism that leads to the present movement for penal abolition. This arc includes W.E.B. Du Bois’s brilliant book, Black Reconstruction in America, 1860-1880, written in 1935, which deconstructed the Black Codes of the antebellum period and showed how they served to reestablish a form of slavery through institutions like convict leasing and plantation prisons. The arc includes Angela Davis’s early writings from Marin County Jail in May 1971, in which Davis reveals the political nature of the criminal law and deconstructs the distinction between common law and political prisoners. The arc includes George Jackson’s writings, Soledad Brotherand Blood in My Eye, which so powerfully demonstrate the political nature of the prison.

And the arc leads inexorably to the current movement for abolition led by brilliant critical theorists and organizers like Angela Davis, Mariame Kaba, Beth Ritchie, Dorothy Roberts, Derecka Purnell, Amna Akbar, Ruth Wilson Gilmore, Jocelyn Simonson, Dean Spade, Allegra McLeod, Liat Ben-Mosche, and others. The new abolitionists build on the critical tradition that deconstructed the link between crime and punishment: all the historical and theoretical work that demonstrated how the enforcement of law serves as a political device deployed by coalitions in power to reproduce and entrench social and racial hierarchies. Punishment is not merely a response to crime; it is a principal tool, weapon, tactic, or technique deployed to reproduce racial and social hierarchies. This critique of political liberalism went unheard for decades. The new abolitionist writings have finally propelled this critical insight into the mainstream.

The new abolitionists represent one of the most promising developments in contemporary politics. They have been a galvanizing force in the movement for Black lives and helped bring about the largest and most diverse social protest in American history.[91] They have given birth to “a global movement for racial and economic equality.”[92] And, importantly, they have challenged us to confront the most central but flawed premises that ground western political liberalism: the faulty belief in the neutrality of the criminal law, the illusion of the rule of law, the misplaced faith in law enforcement—central tenets of legalistic political liberalism that dominate our imagination in a country like the United States.[93]

Why start with Marx 1842?

Althusser maintained that these early writings reflect that Marx was still “enslaved” to the dominant ideology in which he was raised.[94] Althusser spoke of the “gigantic layer of illusions he had to break through before he could even see” his contingent beginnings and ideological biases.[95] The articles on the thefts of wood showed glimpses of Marx liberating himself from that ideology, although for Althusser they revealed his youthful attachment to earlier idealist and liberal tenets.

I think that fails to acknowledge the import of these articles and the remarkable work they did. In these writings, Marx severed the relation between crime and punishment, and exposed the violence and brutality of class struggle.

This reminds me why I wanted to start here, in 1842, with Marx’s articles on thefts of wood. Not just with Hegel and Feuerbach, but with crime and material interests and class warfare. When Marx recalls that these materials confronted him with materialism and prompted him to study political economy, that is important. A place to start. As Peter Linebaugh writes:

Faced with his own and Engel’s evidence [regarding how these articles influenced Marx’s trajectory], we must therefore beware of those accounts of the development of Marx’s ideas that see it in the exclusive terms of either the self-liberation from the problematics of Left Hegelianism or the outcome of a political collision that his ideas had with the French Utopian and revolutionary tradition that he met during his exile in Paris. The famous trinity (French politics, German philosophy, and English political economy) of the intellectual lineages of Marx’s critical analysis of the capitalist mode of production appears to include everything but the actual material form in which class struggle first forced itself to the attention of the young radical in 1842.[96]

* * *

At this seminar, Marx 2/13, we will focus primarily on Marx’s 1842 articles and Foucault’s work on the punitive society—his two lecture series at the Collège de France, Penal Theories and Institutions and The Punitive Society, and his book on the prison, Discipline and Punish.

It is thus a privilege to have the philosopher Judith Revel with us at Marx 2/13 to discuss Foucault’s reading of Marx’s articles on the theft of wood. Judith Revel is one of the most subtle and insightful readers of Foucault. She has written groundbreaking works on Foucault and other contemporary philosophers, including Merleau-Ponty, in works such as Foucault: Experiences de la pensée (2005), Dictionnaire Foucault (2007), Foucault, une pensée du discontinu (2010), and Foucault avec Merleau-Ponty. Ontologie politique, présentisme et histoire (2015). She has directed the Italian edition of Foucault’s Dits et Écrits (Feltrinelli, 1996-1998).

Judith Revel will explore with us the unique way in which Foucault weaved together the analysis of penality (penal institutions, theories, and practices), on the one hand, and the study of political economy and the birth of capitalism, on the other—how Foucault approached the topics, from which direction, and how that enriches his analysis. She will focus on the subjective question of the constitution of illegal subjects through acts and practices, not so much the constitution of “subjectivities” as that of new modes of subjectivation linked to practices of refusal, resistance and conflict. She will argue that these anticipate the rumbling of the battle at the end of Discipline and Punish, the force of struggle and resistance, and even the question of uprising in a context like Iran in 1978.

The seminar will thus proceed in two stages: Judith Revel with present for 45 minutes on Foucault and popular illegalisms; and then, if there is time, I will add a few elements on the way in which Marx’s analysis in the articles on the thefts of wood and Foucault’s theories of penality form part of a historical strain of thought that leads inexorably to abolition today.

Welcome to Marx 2/13!

To watch the seminar, visit Marx 2/13

Notes

[1] Karl Marx, Proceedings of the Sixth Rhine Province Assembly: Third Article. Debates on the Law on Thefts of Wood (1842) 224-263, in Karl Marx-Frederick Engels, Collected Works, Volume 1 (Karl Marx: 1835-1843) (New York: International Publishers, 1975); also available online at https://marxists.architexturez.net/archive/marx/works/1842/10/25.htm.

[2] Louis Althusser, “Introduction: Today (March 1965),” in For Marx [1965], available online at https://www.marxists.org/ebooks/althusser/For_Marx_-_Louis_Althusser.pdf.

[3] Marx, “Preface” to A Contribution to the Critique of Political Economy (1859).

[4] Douglas Hay, Peter Linebaugh, John G. Rule, E. P. Thompson, and Cal Winslow, Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (New York: Verso, 2011 [1975]). As E.P. Thompson noted in Whigs and Hunters: The Origin of the Black Act (New York: Penguin, 1977), 241 n.1: “These early articles on ‘Debates on the Law of Thefts of Wood’, in which Marx first attempted an analysis of the nature of capitalist property-ownership, turn upon many of the issues disclosed also in the English forests of the eighteenth century.”

[5] Peter Linebaugh, “Karl Marx, the Theft of Wood, and Working Class Composition: A Contribution to the Current Debate,” Crime and Social Justice, vol. 6, 5-16 (1976).

[6] Dario Melossi, “The Penal Question in Capital,” Crime and Social Justice, spring-summer 1976, no. 5 (spring-summer 1976), 26-33.

[7] Pierre Lascoumes and Hartwig Zander, Marx: du “vol de bois” à la critique du droit, Paris: PUF, 1984; Mikhaïl Xifaras, “Marx, justice et jurisprudence une lecture des « vols de bois »,” Revue Française d’Histoire des Idées Politiques 2002/1, no. 15 (2002), 63-112, https://doi.org/10.3917/rfhip.015.0063; see also Mikhaïl Xifaras, “Illégalismes et droit de la société marchande, de Foucault à Marx,” Multitudes, n° 59(2), 142-151 (2015) https://doi.org/10.3917/mult.059.0142.

[8] Tor Krever, Carl Lisberger and Max Utzschneider, “Law on the Left: A Conversation with Duncan Kennedy,” Unbound 10, no. 1 (2015), 1-35.

[9] Marx, “Debates on the Law of Thefts of Wood,” 235 (my emphasis).

[10] Linebaugh, “Karl Marx, the Theft of Wood, and Working Class Composition,” 5.

[11] Michel Foucault, The Punitive Society: Lectures at the Collège de France (1972-1973), ed. Bernard E. Harcourt (London: Palgrave Macmillan, 2015).

[12] Michel Foucault, Penal Theories and Institutions: Lectures at the Collège de France (1971-1972), ed. Bernard E. Harcourt (London: Palgrave Macmillan, 2019).

[13] For an excellent treatment of these quarrels, see Claude-Olivier Doron, “Foucault and the Historians: The Debate on “Popular Uprisings,” in Foucault, Penal Theories and Institutions, 285-302.

[14] Michel Foucault, Fiches de lectures, “V – Sur les vols de bois (1842),” Coteb037_f0978

SourceBoite_037-48-chem | Marx. Écrits de jeunesse, Éditeuréquipe FFL (projet ANR Fiches de lecture de Michel Foucault) ; projet EMAN (Thalim, CNRS-ENS-Sorbonne nouvelle), consultable en ligne https://eman-archives.org/Foucault-fiches/items/show/4191.

[15] Foucault, The Punitive Society, 62; see also my discussion at 74-75 n. & 6; and 285-286.

[16] James C. Scott, Domination and the Arts of Resistance: Hidden Transcripts (New Haven: Yale University Press, 1990).

[17] Angela Y. Davis, Gina Dent, Erica R Meiners, and Beth E. Richie, Abolition. Feminism. Now. (Chicago: Haymarket Books, 2022); Mariame Kaba, We Do This ‘Til We Free Us (Chicago: Haymarket Books, 2021); Sarah Haley, No Mercy Here (Durham: University of North Carolina Press, 2016); Dorothy E. Roberts, “Foreword: Abolition Constitutionalism,” Harvard Law Review, 133(1): 1–122 (2019); Derecka Purnell, Becoming Abolitionists (New York: Astra House, 2021).

[18] Joshua Clover, Riot. Strike. Riot: The New Era of Uprisings (New York: Verso, 2016).

[19] C.P. Dutt, notes to Engels, Ludwig Feuerbach and the Outcome of Classical German Philosophy, 16 n.2.

[20] Marx, “Preface” to A Contribution to the Critique of Political Economy (1859).

[21] Frederick Engels, Ludwig Feuerbach and the Outcome of Classical German Philosophy, ed. C. P. Dutt (New York: International Publishers, 1978 [1888]), 16.

[22] Marx, “Debates on the Law of Thefts of Wood,” 245.

[23] Marx, “Debates on the Law of Thefts of Wood,” 250.

[24] Marx, “Debates on the Law of Thefts of Wood,” 253; see also 254.

[25] Marx, “Debates on the Law of Thefts of Wood,” 251.

[26] Xifaras, “Illégalismes et droit de la société marchande, de Foucault à Marx,” 145.

[27] Marx, “Debates on the Law of Thefts of Wood,” 237.

[28] Marx, “Debates on the Law of Thefts of Wood,” 246.

[29] Marx, “Debates on the Law of Thefts of Wood,” 228.

[30] Marx, “Debates on the Law of Thefts of Wood,” 229.

[31] Marx, “Debates on the Law of Thefts of Wood,” 227.

[32] Marx, “Debates on the Law of Thefts of Wood,” 227.

[33] Marx, “Debates on the Law of Thefts of Wood,” 227-228.

[34] Marx, “Debates on the Law of Thefts of Wood,” 230.

[35] Xifaras, “Marx, justice et jurisprudence une lecture des « vols de bois »,” 110.

[36] Xifaras, “Marx, justice et jurisprudence une lecture des « vols de bois »,” 110.

[37] See, generally, Xifaras, “Marx, justice et jurisprudence une lecture des « vols de bois »”.

[38] Karl Marx, “The Philosophical Manifesto of the Historical School of Law,” 203-210, in Karl Marx-Frederick Engels, Collected Works, Volume 1 (Karl Marx: 1835-1843) (New York: International Publishers, 1975).

[39] Marx, “The Philosophical Manifesto of the Historical School of Law,” 203.

[40] Marx, “Debates on the Law of Thefts of Wood,” 227.

[41] Marx, “Debates on the Law of Thefts of Wood,” 257.

[42] Marx, “Debates on the Law of Thefts of Wood,” 257.

[43] Marx, “Debates on the Law of Thefts of Wood,” 233-34.

[44] Pierre-Joseph Proudhon, What Is Property?, ed. and trans. Donald R. Kelley and Bonnie G. Smith (Cambridge, UK: Cambridge University Press, 1994), 14 (with quotation marks for emphasis in original); see also id., 215.

[45] Marx, “Debates on the Law of Thefts of Wood,” 228.

[46] Marx, “Debates on the Law of Thefts of Wood,” 232-233. This is such an important an insight. When we modernize and administer the world, we so often destroy informal pathways. So, for instance, the public security apparatus that institutions, like Columbia University, put in place during COVID and now as a result of the campus protests, have wreaked havoc on the public’s ability to come on campus to participate in public seminars or lectures. It has destroyed communities of shared interest that organically emerged from the openness of public space. Modernizing, rationalizing, securing space has devastating consequences on communities.

[47] Marx, “Debates on the Law of Thefts of Wood,” 232.

[48] Foucault, Fiches de lectures, “V – Sur les vols de bois (1842).”

[49] Marx, “Debates on the Law of Thefts of Wood,” 262.

[50] Marx, “Debates on the Law of Thefts of Wood,” 262.

[51] Marx, “Debates on the Law of Thefts of Wood,” 261.

[52] Marx, “Debates on the Law of Thefts of Wood,” 262.

[53] Peter Linebaugh, “Karl Marx, the Theft of Wood, and Working Class Composition: A Contribution to the Current Debate,” Crime and Social Justice, vol. 6, 5-16 (1976), 5.

[54] Linebaugh, “Karl Marx, the Theft of Wood,” 5.

[55] In fact, even in the 1842 articles which would prove so fecund for Marxist criminologists, there were some passages that reflected a conservative Hegelian theory of punishment. Marx writes, for instance, in the first article dated October 25, 1842: “The problem is to make the punishment the actual consequence of the crime. It must be seen by the criminal as the necessary result of his act, and therefore as his own act. Hence the limit of his punishment must be the limit of his act.” Marx, “Debates on the Law of Thefts of Wood,” 229. In this passage, Marx was not being ironic—it is always necessary to double check that in his early writings. He was embracing a recognition theory of punishment that traced to Hegel’s reformulation of Kant’s theories of punishment. These theories of punishment did not radically uproot the concept of crime—on the contrary, they naturalized them—and there remain some traces of these ideas in Marx’s 1842 article. Elsewhere, of course, there are even more problematic formulations.

[56] Linebaugh, “Karl Marx, the Theft of Wood,” 13 (internal citations omitted).

[57] Foucault, The Punitive Society, 145.

[58] Foucault, The Punitive Society, 13, 22, and 266.

[59] Foucault, The Punitive Society, 271-279.

[60] Foucault, The Punitive Society, 32.

[61] Foucault, The Punitive Society, 22.

[62] Matteo Polleri, “Critique of Political Economy or Analytics of Powers: Points of Heresy Between Marx and Foucault,” PhD Dissertation, April 2023 (Scuola Normale Superiore of Pisa / University of Paris Nanterre).

[63] Harcourt, “Course context,” in Foucault, The Punitive Society, 277-279 and 281-284; Harcourt, “Notice,” for Foucault, Surveiller et punir in Oeuvres complètes, Vol. II (Paris: Gallimard/Pléiade, 2015),1471-1474; Harcourt, “The ’73 Graft: Punishment, Political Economy, and the Genealogy of Morals” (October 12, 2015), Columbia Public Law Research Paper No. 14-485, Available at SSRN: https://ssrn.com/abstract=2673062.

[64] Foucault, The Punitive Society, 156.

[65] Foucault, The Punitive Society, 156 n.† (my translation).

[66] Foucault, The Punitive Society, 156.

[67] Foucault, The Punitive Society, 34.

[68] Michel Foucault, Wrong-Doing, Truth-Telling, 224 et seq.

[69] Foucault, The Punitive Society, 157-159.

[70] Foucault, The Punitive Society, 158 n.*.

[71] See Foucault, The Punitive Society, 62 and 75 n.5 and 6.

[72] Foucault, The Punitive Society, 22.

[73] Foucault, The Punitive Society, 277-279.

[74] Foucault, The Punitive Society, 140.

[75] Foucault, The Punitive Society, 140-141.

[76] Foucault, Discipline and Punish, 85.

[77] Foucault, Discipline and Punish, 257-292.

[78] Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage, 1979), 85; Michel Foucault, Surveiller et punir. Naissance de la prison, in Oeuvres complètes, Vol. II (Paris: Gallimard/Pléiade, 2015), 346.

[79] Foucault, Discipline and Punish, 272.

[80] Foucault, Discipline and Punish, 279.

[81] Foucault, Discipline and Punish, 262, 290, 291, 308.

[82] Linebaugh, “Karl Marx, the Theft of Wood, and Working Class Composition,” 5.

[83] Linebaugh, “Karl Marx, the Theft of Wood, and Working Class Composition,” 5.

[84] Scott, Domination and the Arts of Resistance, 192.

[85] Scott, Domination and the Arts of Resistance, 194.

[86] Scott, Domination and the Arts of Resistance, 194-95.

[87] Scott, Domination and the Arts of Resistance, 200.

[88] Joshua Clover, Riot. Strike. Riot: The New Era of Uprisings (New York: Verso, 2016).

[89] Georg Rusche and Otto Kirchheimer, Punishment and Social Structure (New York: Columbia University Press, 1939). Rusche and Kirchheimer were both affiliated with the Institute for Social Research in Frankfurt but are generally not thought of as core members of the Frankfurt School (more an intellectual than an institutional designation). However, I think their extraordinary book from 1939 fits well within the intellectual contours of the Frankfurt School.

[90] Foucault, Discipline and Punish, 24.

[91] See Elizabeth Hinton, America on Fire:The Untold History of Police Violence and Black Rebellion Since the 1960s(New York: Liveright, 2021), 288 (“Between fifteen and twenty-six million people participated in [the 2020] summer’s nationwide demonstrations for racial justice, the largest social movement in American history”).

[92] Hinton, America on Fire, 288 (“Protests demanding justice…peaked in the first week of June, and eighty-seven hundred demonstrations across seventy-four countries around the world marched in solidarity.”)

[93] I develop this in detail in Chapter 6 of Cooperation: A Political, Economic, and Social Theory (2023), 135-162.

[94] I discuss this in the “Course Context” in Foucault, The Punitive Society, 285-286.

[95] Louis Althusser, “On the Young Marx,” in For Marx [1965], available online at https://www.marxists.org/ebooks/althusser/For_Marx_-_Louis_Althusser.pdf.

[96] Peter Linebaugh, “Karl Marx, the Theft of Wood, and Working Class Composition: A Contribution to the Current Debate,” Crime and Social Justice, vol. 6, 5-16 (1976), 5.