Capitalism recast tolerated popular customs as criminal property theft

Evidence

It proved necessary, therefore, to control these illicit practices and introduce new legislation to cover them. 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. 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 — Michel Foucault, Discipline & Punish- The Birth of the…, 143

Categorization

• DEFINE: Foucault here defines the key distinction between illegality of property (theft, prosecuted) and illegality of rights (fraud, tax evasion, tolerated for the bourgeoisie) — a conceptual framework central to his theory of penal reform.
• XREF: Connects to the reader’s broader reading on law merchant and extralegal contracting — the bourgeoisie’s reservation of the ‘illegality of rights’ resembles the tolerated rule-bending in the diamond trade’s extralegal regime. — connects to: Rising wealth raises tolerance for violence but intolerance for property crime — Michel Foucault, Discipline & Punish- The Birth of the…, 131; Bourgeois landed property recast peasant customary rights as theft requiring punishment — Michel Foucault, Discipline & Punish- The Birth of the…, 141; Tolerated illegality was a structural condition of Ancien Régime society — Michel Foucault, Discipline & Punish- The Birth of the…, 138 (+11 more)
• DEEPTHINKING: The claim that penal severity on theft is not about protecting everyone but about a class redistribution of legality — punishing the lower class’s illegality while licensing the bourgeoisie’s — is a paradigm-shifting inversion of the moral justifications for criminal law.

Related

• Bourgeois landed property recast peasant customary rights as theft requiring punishment (similarity 0.87)
• Eighteenth-century popular illegality shifted from attacking rights to attacking property (similarity 0.86)
• Elite circles reframe as fashionable vice what the masses punish as crime. (similarity 0.85)
• Popular illegality formed a continuum running from tolerated evasion to outright crime (similarity 0.84)
• Tolerated illegality was a structural condition of Ancien Régime society (similarity 0.83)
• Bourgeois economic growth depended on tolerated popular illegalities (similarity 0.82)
• Rising wealth raises tolerance for violence but intolerance for property crime (similarity 0.81)
• The law prosecuted lower-class crime while sparing refined upper-class spoliation (similarity 0.79)
• Industrial wealth’s physical form drove demands for stricter theft laws (similarity 0.79)
• Rentier classes accumulate savings through usurious exploitation of underfed peasants (similarity 0.78)

Broader Connections

• Industrial wealth’s physical form drove demands for stricter theft laws #corroborates (0.85) — Michel Foucault, Discipline & Punish- The Birth of the…, 142
• Theft laws criminalized former slaves’ access to land’s spontaneous fruits. #exemplifies (0.80)
• Capitalism reproduces itself by drawing civil and cultural life into conformity with its needs #expands (0.78)