the execution no longer bears the specific mark of the crime or the social status of the criminal; a death that lasts only a moment – no torture must be added to it in advance, no further actions performed upon the corpse; an execution that affects life rather than the body.
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‘Of course, we pass sentence, but this sentence is not in direct relation to the crime. It is quite clear that for us it functions as a way of treating a criminal. We punish, but this is a way of saying that we wish to obtain a cure.’ Today, criminal justice functions and justifies itself only by this perpetual reference to something other than itself, by this unceasing reinscription in non-juridical systems. Its fate is to be redefined by knowledge.
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Rusche and Kirchheimer’s great work, Punishment and Social Structures,
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but that they are linked to a whole series of positive and useful effects which it is their task to support (and, in this sense, although legal punishment is carried out in order to punish offences, one might say that the definition of offences and their prosecution are carried out in turn in order to maintain the punitive mechanisms and their functions). From this point of view, Rusche and Kirchheimer relate the different systems of punishment with the systems of production within which they operate: thus, in a slave economy, punitive mechanisms serve to provide an additional labour force – and to constitute a body of ‘civil’ slaves in addition to those provided by war or trading; with feudalism, at a time when money and production were still at an early stage of development, we find a sudden increase in corporal punishments – the body being in most cases the only property accessible; the penitentiary (the Hôpital Général, the Spinhuis or the Rasphuis), forced labour and the prison factory appear with the development of the mercantile economy. But the industrial system requires a free market in labour and, in the nineteenth century, the role of forced labour in the mechanisms of punishment diminishes accordingly and ‘corrective’ detention takes its place. There are no doubt a number of observations to be made about such a strict correlation.
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But the body is also directly involved in a political field; power relations have an immediate hold upon it; they invest it, mark it, train it, torture it, force it to carry out tasks, to perform ceremonies, to emit signs. This political investment of the body is bound up, in accordance with complex reciprocal relations, with its economic use; it is largely as a force of production that the body is invested with relations of power and domination; but, on the other hand, its constitution as labour power is possible only if it is caught up in a system of subjection (in which need is also a political instrument meticulously prepared, calculated and used); the body becomes a useful force only if it is both a productive body and a subjected body.
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Torture is a technique; it is not an extreme expression of lawless rage. To be torture, punishment must obey three principal criteria: first, it must produce a certain degree of pain, which may be measured exactly, or at least calculated, compared and hierarchized;
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The public execution, however hasty and everyday, belongs to a whole series of great rituals in which power is eclipsed and restored (coronation, entry of the king into a conquered city, the submission of rebellious subjects); over and above the crime that has placed the sovereign in contempt, it deploys before all eyes an invincible force. Its aim is not so much to re-establish a balance as to bring into play, as its extreme point, the dissymmetry between the subject who has dared to violate the law and the all-powerful sovereign who displays his strength.
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Yet, in fact, what had hitherto maintained this practice of torture was not an economy of example, in the sense in which it was to be understood at the time of the idéologues (that the representation of the penalty should be greater than the interest of the crime), but a policy of terror: to make everyone aware, through the body of the criminal, of the unrestrained presence of the sovereign. The public execution did not re-establish justice; it reactivated power.
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Perhaps the notion of ‘atrocity’ is one of those that best designates the economy of the public execution in the old penal practice. To begin with, atrocity is a characteristic of some of the great crimes: it refers to the number of natural or positive, divine or human laws that they attack, to the scandalous openness or, on the contrary, to the secret cunning with which they have been committed, to the rank and status of those who are their authors and victims, to the disorder that they presuppose or bring with them, to the horror they arouse. In so far as it must bring the crime before everyone’s eyes, in all its severity, the punishment must take responsibility for this atrocity: it must bring it to light by confessions, statements, inscriptions that make it public; it must reproduce it in ceremonies that apply it to the body of the guilty person in the form of humiliation and pain. Atrocity is that part of the crime that the punishment turns back as torture in order to display it in the full light of day: it is a figure inherent in the mechanism that produces the visible truth of the crime at the very heart of the punishment itself.
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Joseph de Maistre was to recognize in this relation one of the fundamental mechanisms of absolute power: the executioner acts as a cog between the prince and the people; the death he deals is like that of the serfs who built St Petersburg over swamp and pestilence: it is a principle of universality; of the individual will of the despot, it makes a law for all, and of each of those destroyed bodies, a stone for the State; it hardly matters that innocents, too, are struck down!
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Was this a general change of attitude, a ‘change that belongs to the domain of the spirit and the subconscious’ (the expression is Mogensen’s)? Perhaps, but more certainly and more immediately 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.
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The true objective of the reform movement, even in its most general formulations, was not so much to establish a new right to punish based on more equitable principles, as to set up a new ‘economy’ of the power to punish, to assure its better distribution, so that it should be neither too concentrated at certain privileged points, nor too divided between opposing authorities; so that it should be distributed in homogeneous circuits capable of operating everywhere, in a continuous way, down to the finest grain of the social body.4
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The reform of criminal law must be read as a strategy for the rearrangement of the power to punish, according to modalities that render it more regular, more effective, more constant and more detailed in its effects; in short, which increase its effects while diminishing its economic cost (that is to say, by dissociating it from the system of property, of buying and selling, of corruption in obtaining not only offices, but the decisions themselves) and its political cost (by dissociating it from the arbitrariness of monarchical power). The new juridical theory of penality corresponds in fact to a new ‘political economy’ of the power to punish.
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And ‘reform’, in the strict sense, as it was formulated in the theories of law or as it was outlined in the various projects, was the political or philosophical resumption of this strategy, with its primary objectives: to make of the punishment and repression of illegalities a regular function, coextensive with society; not to punish less, but to punish better; to punish with an attenuated severity perhaps, but in order to punish with more universality and necessity; to insert the power to punish more deeply into the social body.
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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.
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If the law must now treat in a ‘humane’ way an individual who is ‘outside nature’ (whereas the old justice treated the ‘outlaw’ inhumanely), it is not on account of some profound humanity that the criminal conceals within him, but because of a necessary regulation of the effects of power. It is this ‘economic’ rationality that must calculate the penalty and prescribe the appropriate techniques. ‘Humanity’ is the respectable name given to this economy and to its meticulous calculations. ‘Where punishment is concerned, the minimum is ordered by humanity and counselled by policy.’6
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In order to be useful, punishment must have as its objective the consequences of the crime, that is to say, the series of disorders that it is capable of initiating: ‘The proportion between the penalty and the quality of the offence is determined by the influence that the violation of the pact has on the social order’ (Filangieri, 214).
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One must calculate a penalty in terms not of the crime, but of its possible repetition. One must take into account not the past offence, but the future disorder. Things must be so arranged that the malefactor can have neither any desire to repeat his offence, nor any possibility of having imitators.8 Punishment, then, will be an art of effects; rather than opposing the enormity of the penalty to the enormity of the crime, one must adjust to one another the two series that follow from the crime: its own effects and those of the penalty.
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Hence the idea that the machinery of justice must be duplicated by an organ of surveillance that would work side by side with it, and which would make it possible either to prevent crimes, or, if committed, to arrest their authors; police and justice must work together as two complementary actions of the same process – the police assuring ‘the action of society on each individual’, justice ‘the rights of individuals against society’ (Duport, Archives parlementaires, XXI, 45). Thus every crime will come to the light of day and be punished in all certainty.
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Let us hear once more what Servan has to say: the ideas of crime and punishment must be strongly linked and ‘follow one another without interruption … When you have thus formed the chain of ideas in the heads of your citizens, you will then be able to pride yourselves on guiding them and being their masters. A stupid despot may constrain his slaves with iron chains; but a true politician binds them even more strongly by the chain of their own ideas; it is at the stable point of reason that he secures the end of the chain; this link is all the stronger in that we do not know of what it is made and we believe it to be our own work; despair and time eat away the bonds of iron and steel, but they are powerless against the habitual union of ideas, they can only tighten it still more; and on the soft fibres of the brain is founded the unshakable base of the soundest of Empires’ (Servan, 35).
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The art of punishing, then, must rest on a whole technology of representation. The undertaking can succeed only if it forms part of a natural mechanics. ‘Like the gravitation of bodies, a secret force compels us ever towards our well-being. This impulsion is affected only by the obstacles that laws oppose to it. All the diverse actions of man are the effects of this interior tendency.’ To find the suitable punishment for a crime is to find the disadvantage whose idea is such that it robs for ever the idea of a crime of any attraction.
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This is an advantage for the stability of the link, an advantage for the calculation of the proportions between crime and punishment and the quantitative reading of interests; it also has the advantage that, by assuming the form of a natural sequence, punishment does not appear as the arbitrary effect of a human power: ‘To derive the offence from the punishment is the best means of proportioning punishment to crime. If this is the triumph of justice, it is also the triumph of liberty, for then penalties no longer proceed from the will of the legislator, but from the nature of things; one no longer sees man committing violence on man’ (Marat, 33). In analogical punishment, the power that punishes is hidden.
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‘It is not only in the fine arts that one must follow nature faithfully; political institutions, at least those that display wisdom and permanence, are founded on nature’ (Beccaria, 114). The punishment must proceed from the crime; the law must appear to be a necessity of things, and power must act while concealing itself beneath the gentle force of nature.
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In the old system, the body of the condemned man became the king’s property, on which the sovereign left his mark and brought down the effects of his power. Now he will be rather the property of society, the object of a collective and useful appropriation. This explains why the reformers almost always proposed public works as one of the best possible penalties; in this, they were supported by the Cahiers de doléances: ‘Let those condemned to penalties short of death be put to the public works of the country for a time proportionate to their crime.’2 Public works meant two things: the collective interest in the punishment of the condemend man and the visible, verifiable character of the punishment. Thus the convict pays twice; by the labour he provides and by the signs that he produces.
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The principle stated at the outset is the need for ‘exact relations between the nature of the offence and the nature of the punishment’: physical pain should be inflicted on those who commit crimes of violence, hard labour on the idle, shame on those with degraded souls. But the severe penalties actually proposed are three forms of detention: the ‘cachot’, in which the penalty of imprisonment is augmented by various measures (solitude, a deprivation of light, restrictions on food); the ‘gêne’, in which these ancillary measures are attenuated, and lastly imprisonment proper, which is reduced to simple confinement. The diversity, so solemnly promised, is reduced in the end to this grey, uniform penalty.
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In short, the divergence is the following: punitive city or coercive institution? On the one hand, a functioning of penal power, distributed throughout the social space; present everywhere as scene, spectacle, sign, discourse; legible like an open book; operating by a permanent recodification of the mind of the citizens; eliminating crime by those obstacles placed before the idea of crime; acting invisibly and uselessly on the ‘soft fibres of the brain’, as Servan put it. A power to punish that ran the whole length of the social network would act at each of its points, and in the end would no longer be perceived as a power of certain individuals over others, but as an immediate reaction of all in relation to the individual. On the other hand, a compact functioning of the power to punish: a meticulous assumption of responsibility for the body and the time of the convict, a regulation of his movements and behaviour by a system of authority and knowledge; a concerted orthopaedy applied to convicts in order to reclaim them individually; an autonomous administration of this power that is isolated both from the social body and from the judicial power in the strict sense. The emergence of the prison marks the institutionalization of the power to punish, or, to be more precise: will the power to punish (with the strategic aim adopted in the late eighteenth century, the reduction of popular illegality) be better served by concealing itself beneath a general social function, in the ‘punitive city’, or by investing itself in a coercive institution, in the enclosed space of the ‘reformatory’?
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We have, then, the sovereign and his force, the social body and the administrative apparatus; mark, sign, trace; ceremony, representation, exercise; the vanquished enemy, the juridical subject in the process of re-qualification, the individual subjected to immediate coercion; the tortured body, the soul with its manipulated representations, the body subjected to training. We have here the three series of elements that characterize the three mechanisms that face one another in the second half of the eighteenth century. They cannot be reduced to theories of law (though they overlap with such theories), nor can they be identified with apparatuses or institutions (though they are based on them), nor can they be derived from moral choices (though they find their justification in morality). They are modalities according to which the power to punish is exercised: three technologies of power. The problem, then, is the following: how is it that, in the end, it was the third that was adopted? How did the coercive, corporal, solitary, secret model of the power to punish replace the representative, scenic, signifying, public, collective model? Why did the physical exercise of punishment (which is not torture) replace, with the prison that is its institutional support, the social play of the signs of punishment and the prolix festival that circulated them?
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The classical age discovered the body as object and target of power. It is easy enough to find signs of the attention then paid to the body – to the body that is manipulated, shaped, trained, which obeys, responds, becomes skilful and increases its forces.
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The historical moment of the disciplines was the moment when an art of the human body was born, which was directed not only at the growth of its skills, nor at the intensification of its subjection, but at the formation of a relation that in the mechanism itself makes it more obedient as it becomes more useful, and conversely. What was then being formed was a policy of coercions that act upon the body, a calculated manipulation of its elements, its gestures, its behaviour. The human body was entering a machinery of power that explores it, breaks it down and rearranges it. A ‘political anatomy’, which was also a ‘mechanics of power’, was being born; it defined how one may have a hold over others’ bodies, not only so that they may do what one wishes, but so that they may operate as one wishes, with the techniques, the speed and the efficiency that one determines.
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Thus discipline produces subjected and practised bodies, ‘docile’ bodies. Discipline increases the forces of the body (in economic terms of utility) and diminishes these same forces (in political terms of obedience). In short, it dissociates power from the body; on the one hand, it turns it into an ‘aptitude’, a ‘capacity’, which it seeks to increase; on the other hand, it reverses the course of the energy, the power that might result from it, and turns it into a relation of strict subjection. If economic exploitation separates the force and the product of labour, let us say that disciplinary coercion establishes in the body the constricting link between an increased aptitude and an increased domination.
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recall the words of Marshal de Saxe: ‘Although those who concern themselves with details are regarded as folk of limited intelligence, it seems to me that this part is essential, because it is the foundation, and it is impossible to erect any building or establish any method without understanding its principles. It is not enough to have a liking for architecture. One must also know stone-cutting’ (Saxe, 5).
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Discipline organizes an analytical space.
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One should not forget that, generally speaking, the Roman model, at the Enlightenment, played a dual role: in its republican aspect, it was the very embodiment of liberty; in its military aspect, it was the ideal schema of discipline. The Rome of the eighteenth century and of the Revolution was the Rome of the Senate, but it was also that of the legion; it was the Rome of the Forum, but it was also that of the camps. Up to the empire, the Roman reference transmitted, somewhat ambiguously, the juridical ideal of citizenship and the technique of disciplinary methods.
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The organization of a serial space was one of the great technical mutations of elementary education. It made it possible to supersede the traditional system (a pupil working for a few minutes with the master, while the rest of the heterogeneous group remained idle and unattended). By assigning individual places it made possible the supervision of each individual and the simultaneous work of all. It organized a new economy of the time of apprenticeship. It made the educational space function like a learning machine, but also as a machine for supervising, hierarchizing, rewarding.
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In organizing ‘cells’, ‘places’ and ‘ranks’, the disciplines create complex spaces that are at once architectural, functional and hierarchical. It is spaces that provide fixed positions and permit circulation; they carve out individual segments and establish operational links; they mark places and indicate values; they guarantee the obedience of individuals, but also a better economy of time and gesture. They are mixed spaces: real because they govern the disposition of buildings, rooms, furniture, but also ideal, because they are projected over this arrangement of characterizations, assessments, hierarchies. The first of the great operations of discipline is, therefore, the constitution of ‘tableaux vivants’, which transform the confused, useless or dangerous multitudes into ordered multiplicities.
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The drawing up of ‘tables’ was one of the great problems of the scientific, political and economic technology of the eighteenth century: how one was to arrange botanical and zoological gardens, and construct at the same time rational classifications of living beings; how one was to observe, supervise, regularize the circulation of commodities and money and thus build up an economic table that might serve as the principle of the increase of wealth; how one was to inspect men, observe their presence and absence and constitute a general and permanent register of the armed forces; how one was to distribute patients, separate them from one another, divide up the hospital space and make a systematic classification of diseases: these were all twin operations in which the two elements – distribution and analysis, supervision and intelligibility – are inextricably bound up.
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Tactics, the spatial ordering of men; taxonomy, the disciplinary space of natural beings; the economic table, the regulated movement of wealth.
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Whereas natural taxonomy is situated on the axis that links character and category, disciplinary tactics is situated on the axis that links the singular and the multiple. It allows both the characterization of the individual as individual and the ordering of a given multiplicity. It is the first condition for the control and use of an ensemble of distinct elements: the base for a micro-physics of what might be called a ‘cellular’ power.
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