Paper's abstract

Bernard Harcourt, Neoliberal penalty: Exceptionalism, autonomy and pluridisciplinarity in criminal law
In the United States today, the penal sanction forms the boundary of the free market, which is characterized by a cer-tain economic rationality which produces a spontaneous order in commerce and trade – a space of “voluntary and compensated exchange.” In contrast, the penal law sur-rounds and ensures the free market. Hence the statement of Judge Richard Posner that the “function” of criminal law in a capitalist society is to prevent what he calls “market bypassing” – i. e., diversion by fraud or coercion from market exchange, which is defined as the most efficient way to distri-bute resources. The penal sanction serves as the exceptional device that ensures that no one deviates from voluntary exchange. The penal law does not play a role at the heart of competitive markets, but only at the periphery; the penal sphere is not a place of natural order, but rather the space of legitimate and coercive – and often rather brutal – intervention by the State.
One may trace the genealogy of this neoliberal discourse, beginning with a very sharp contrast to the dominant way of thinking in 18th century France and Italy. Then the “police” of commerce and markets was nor-mal and, through Beccaria, became the very model of intervention in the penal sphere: the penal and the economic domains were fully imbricated. There was neither rule nor exception, but instead continuity between market and police, a fluid space. How did the penal sphere become the space of exception, and at what price? This article suggests that the source of this new discourse dates to the 1760s and the writings of François Quesnay and Le Mercier de la Rivière. By means of concepts such as natural order and legal despotism, the Physiocrats managed to trans-form the way we imagine government intervention, displacing the State from the center of social and economic relations to the border or boundary of the market. In tracing this genealogy, this article aims to better understand the relationship between penal law and exception - or what we might now call the penal law of exception.

Key Words : Penal law, neoliberal penality, police, legal despotism, Physiocracy, exceptionalism, autonomy, pluri-disciplinarity, Cesare
t. 53, 2010 : p. 38-57

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