Foucault
Part Two. Punishment
1. Generalized punishment (1789-)
Sovereign terror abandoned because
“Challenge that it threw down … might one day be taken up [as rebellion]” [73]
“In this violence, tyranny confronts rebellion; each calls forth the other.” [74] referencing opponents of excessive violence, 1780s
Call for respect for criminal’s “humanity:” respect – not alter (see later for that)
“The ‘man’ that the reformers set up against the despotism of the scaffold has also become a ‘man-measure’: not of things, but of power.”
Question: How was this ‘man measure’ opposed to traditional practices of punishment, as a moral imperative?
Key terms: measure and humanity
Crisis in the economy of punishment [75]
Great reformers – Beccaria, Servan, Dupaty, Lacretelle, Duport, Pastoret, Target, Bergasse, compilers of the Cahiers, or petitions, and the Constituent Assembly
End of 17th century à - decrease in civil violence (murders, assaults, etc.) and increase in property crimes (theft, swindling, pick-pocketing); [76]
§ decrease in impulsive criminality by poorest classes to “skilled” delinquency.
§ Decrease in great gangs of malefactors, increase in small groups of robbers
§ Shift from attacks on bodies to seizure of goods
§ Shift from mass criminality to marginal criminality, partly run by professionals
§ ‘criminality of blood to criminality of fraud’ [77
Changes in “underlying processes” [76]
§ Economic pressures
o Increased standard of living
o Demographic expansion
o Increase in wealth and property with ‘a consequent need for security’
§ Increased severity of the law
§ Legislation on vagabondage increased with greater severity
§ law assumed the bourgeois appearances of a class justice
§ growth of a police apparatus
§ widespread belief in a constant and dangerous rise in crime (contemporary pov vs. historian’s judgment re importance and number of gangs)
§ new severity toward poor, with mutual mistrust, hatred and fear
“the shift in illegal practices is correlative with an extension and a refinement of punitive practices” [77]
Foucault’s explanation: “It was an effort to adjust the mechanisms of power that frame the everyday lives of individuals; an adaptation and a refinement of the machinery that assumes responsibility for and places under surveillance their everyday behaviour, their identity, their activity, their apparently unimportant gestures; another policy for that multiplicity of bodies and forces that constitutes a population. … a tendency towards a more finely tuned justice, towards a closer penal mapping of the social body. [77-8]
Reformers’ critiques: [78]
Judicial procedures had become corrupted
§ Selling of offices
§ Multiplicity of overlapping jurisdictions with different authorities (church, civil, royal) [79]
§ Bad economy of power – too much in lower jurisdictions à arbitrary administration of power; too much on side of prosecution; too much in hands of judges and royal magistrates; too much power exercised by king.
o King controlled right to sell judicial offices
o Conflicted with magistrate’s rights to offices
“The reformof criminal law must be read as a strategy for the rearrangement of the power to punish, according to modalities that render it more regulr, more effective, mor constant and more detailed in its effect. [80]
New “political economy” of the power to punish [81]
Reforms result of a convergence of many different interests - CONJUNCTURE
§ Call for shift from privileges of sovereignty to the “continuously distributed effects of public power”
§ Emergence of a new strategy for the exercise of the power to punish
o To insert the power to punish more deeply into the social body.
Conjuncture not the birth of a new sensibility, but of “another policy with regard to illegalities.” [82]
Line between laws aimed at lower classes obeyed in the breach
Continuum between petty criminalities of lower classes and more serious crimes [enumerated p. 83] to which the lower strata were attached as to conditions of existence.
§ Lower classes sympathized with crimes directed above, hatred to those directed at selves.
§ The reciprocal interplay of illegalities formed part of the political and economic life of society. [84]
o Bourgeois growth in part dependent on these illegalities in 17th century
§ Second ½ 18th century process reversed – “crisis of illegalities”
o Pilfering and theft replaced smuggling and armed struggle against tax agents.
o Illegality of rights à illegality of property [85]
§ Permanent pilfering
§ Illicit commerce
§ Counterfeiting
§ New forms of capital accumulation, new relations of production, and new legal status 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.” [87]
§ The bourgeoisie reserved to itself the fruitful domain of the illegality of rights – fraud, tax evasion, irregular commercial operations, etc. while leaving illegalities of property – theft – to ordinary courts.
“Penal reform was born at the point of junction between the struggle against the super-power of the sovereign and that against the infra-power of acquired and tolerated illegalities.” [87]
“Society” appears as an actor – the social body, not the sovereign’s will and body – defense of the social body rather than vengeance of the sovereign, expulsion of the criminal as an enemy
Contractual principal of social contract [91]
“Humanity” is the respectable name given to this economy and to its meticulous calculations.” [92]
Calculate crimes on basis not of their horror but on possible repitition
New semiotics of punishment: 94-96
1. The rule of minimum quantity
2. The rule of sufficient ideality
3. The rule of lateral effectiveness
4. The rule of perfect certainty
5. The rule of common truth – innocent until proven guilty – reason, not ritual
6. The rule of optimal specification – classification like natural history (Linnaeus)
Note that this is a “transitional” phase – before the “abnormal” has been marked out and defined through scientific objectification. [101]
Anticipates the subsequent creation of homo criminalis who is an object in the field of knowledge
Creates the ‘mind’ as a surface of inscription for power, with semiology as its tool; the submission of bodies through the control of ideas; the analysis of representations as a principle in a politics of bodies that was much more effective than the ritual anatomy of torture and execution – the Idéologues.
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