Foucault - Discipline and Punish - Part 1: Torture

Chapter 1: The Body of the Condemned

public execution
● drawn and quartered
● burnt to ashes

prisoner’s daily time-table

late 18th century->early 19th: new age for penal justice

● disappearance of torture as a public spectacle
● adaption of punishment to individual offender

end of ‘gloomy festival of punishment’

● disappearance of punishment as a public spectacle
● savagery of punishment thought to equal the crime, thus making prisoner an object of
pity

punishment becomes the most hidden part of penal process

consequences:
● effectiveness of punishment results from its inevitability
● certainty of being punished discourages crime rather than its horrifying spectacle

redistribution of apportioning of blame

● justice distances itself from punishment as a shameful act
● separation of penal administration tasks

theoretical disavowal: punishment intended to correct and ‘cure’

● masks growing sense of shame on the part of the dispensers of punishment

disappearance of public executions -> "marks a slackening of the hold on the body”
● shift in 'punishment-body relation’
● modern punishment uses body as an instrument

new restraint in physical punishment

● experts in place of executioners
● death without pain
● non-corporal penalty

reduction of ‘thousand deaths’ to strict punishment

● defines new morality of punishment

instantaneous moment of contact between punisher and punished

juxtaposition of read sentence and mourning veil

● crime is announced but remains faceless
1830-48: public executions had almost entirely disappeared

principal object of punishment: loss of wealth or rights

there remains a trace of ‘torture’ in modern criminal justice mechanism

● enveloped by non-corporal penal systems

modern punishment lays hold not on the body but the soul
● Mably’s principle

division between the permitted and the forbidden has preserved constancy over the centuries

crime has profoundly altered

● judgment passed on the passions, instincts, anomalies, infirmities, maladjustments,
effects of environment or heredity
● intersection of medicine and jurisprudence

medical definitions of criminality and criminals

● explain action
● define individuals

gradual process by which judges come to pass judgment on the soul beyond the body

post-medieval penality: judgment established truth of crime so as to apply a legal punishment

● knowledge of offense
● knowledge of offender
● knowledge of law

shift to question of what the criminal act consists of and to what level or field of reality it belongs
to
● assignation of causal processes to crime
● consideration of punishment as playing a role in future development of offender
● consideration of rehabilitation

question of madness in penal practice over the centuries

● 1810 code: crime or offense invalidated by offender’s unsound mind
● impossibility of declaring someone simultaneously guilty and insane

misinterpretation of 1810 code -> juridical absurdities

● degree of madness determined punishment
● institutionalization instead of imprisonment

every crime now carries the hypothesis of insanity in the case of anomaly

deluge of experts fractures the legal power to punish

1958 ruling: three questions judges must address
● does the convicted person represent a danger to society?
● is he susceptible to penal punishment?
● is he curable or readjustable?

role of psychiatrist in penal matters

● adviser on punishment
● prescription for criminal’s ‘medico-judicial treatment’

since the advent of the new penal system of the 18th and 19th centuries, the penal operation
has taken on extra-juridical elements and personnel
● process has served to exculpate the judge from being simply ‘he who punishes’

statement of purpose: correlative history of the modern soul and of a new power to judge
● genealogy of the present scientifico-legal complex from which the power to punish
derives its bases, justifications and rules, from which it extends its effects and by which it
masks its exorbitant singularity

Durkheim’s study of general social forms

● posits that processes of individualization are the principles of greater leniency in
punishment
● these processes are in fact effects of the new tactics of power

four general rules of Foucault’s study

● (1) regard punishment as a complex social function, concentrating on all of its effects,
not just its repressive and punishment aspects alone
● (2) regard punishment as a political tactic, not just as consequences of legislation but as
general means of exercising power
● (3) see whether history of penal law and human sciences alike derive from a single
process of ‘epistemologico-juridical’ formation; make technology of power the very
principle of humanization of penal system and of knowledge of man
● (4) try to discover whether the role of ‘soul’ and insertion of scientific knowledge into
legal practice is not the effect of a transformation of the way in which the body itself is
invested by power relations
in sum: study of metamorphosis of punitive methods based on political technology of the body
-> common history of power relations and object relations

Rusche and Kirchheimer - Punishment and Social Structures

● study of concrete systems of punishment
● situate them in field of operation
● punitive measures are linked to positive and useful effects

relate various systems of punishment with systems of production within which they operate
● economical-juridical correlation

history of the body

● the body becomes a useful force only if it is both a productive body and a subjected
 body

political technology of the body

● subject of political power and power relations

admittance: power produces knowledge

● power and knowledge directly imply one another
● no power retain without correlative constitution of a field of knowledge

power-knowledge relations
● subject who knows
● object who is known
● modalities of knowledge are implications of power-knowledge

political anatomy
● ‘body politic’: a set of material elements and techniques serving as weapons, relays,
communication routes
● supports for the power and knowledge relations that invest human bodies and subjugate
them by turning them into objects of knowledge

the king's double body

● transitory element that is born and dies
● physical support of kingdom

least body of the condemned man: inverted figure of the king

● duplication of a ‘non-corporeal’ or a ‘soul’

soul as the present correlative of a certain technology of power over the body
● born out of methods of punishment, supervision, and constraint
● element in which effects of power and reference of knowledge are articulated

psyche - subjectivity - personality - consciousness

● the soul is the effect and instrument of a political anatomy
● the soul is the prison of the body

discourse on prisons focuses on body and material things

● technology of the soul is a tool of the technology of power

commitment to writing a history of the present

Chapter 2: The Spectacle of the Scaffold

1670 ordinance: high proportion of physical punishment

courts found ways to relax the rigors of the penal system

● banishment
● additional penalties
every penalty of a certain seriousness involved element of torture: supplice
● supplice: horribly painful corporal punishment

punishment is defined as torture it must produce a certain degree of pain which

● can be measured exactly or at least calculated, compared, and hierarchized
● torture is a regulated production of pain
● torture follows a ritual

torture ritual must meet two demands

● (1) it must mark the victim and brand him with infamy
● (2) public torture and execution must be spectacular

penal torture: organized ritual for the marking of victims and expression of the power that
punishes

secrecy of criminal procedure

● knowledge was the privilege of the prosecution
● unethical prosecution practices

‘fear of the uproar’: king did not wish to show that the ‘sovereign power’ to punish belonged to
the ‘multitude’
● “before the justice of the sovereign, all voice must be still”

various gradations of proof

● distinctions have operational functions in that they determine particular judicial effects
● they are combined according to arithmetical rules

truth as a complex art

● truth obeys rules known only to specialists and reinforces the principle of secrecy
● constraint on the magistrate

role of confession in penal investigation

● confession - immense strength of evidence for prosecution
● procedure validated by the criminal’s confession
● required circumstantial evidence

double ambiguity of confession

● element of proof // counterpart of preliminary investigation
● effect of constraint // semi-voluntary transaction

two means used by classical criminal law to obtain confession

● oath the accused was asked to make
● judicial torture

truth produced by a mechanism composed of two elements

● investigation carried out in secret by the judicial authority
 ● investigation of the act ritually performed by the accused

torture as a carefully codified and well-regulated practice

● gradations of torture
● success of the accused during trials of torture forced the magistrate to drop charges

in torture, pain, confrontation, and truth worked together on patient’s body

● elements of investigation and of a duel in the process

penal demonstration did not obey a true-false principle but a principle of continuous gradation
● degree in demonstration -> degree of guilt -> degree of punishment

immediate manifestation of the truth in public implementation of penalties assumed several

aspects
● (1) made guilty man the herald of his own condemnation
● (2) took up the scene of the confession
● (3) pinned the public torture on the crime itself; theatrical reproduction of crime
● (4) slowness of process and pain of the condemned serve as ultimate proof

cruelty of earthly punishment deducted from punishment to come

● theological ambiguities
● explains the appeal of the scaffold as spectacle

public execution as judicial as well as political ritual

● belongs to ceremonies in which power is manifested

criminal’s offense is a transgression against the superior man

● moreover, it is an attack on the sovereign
● law represents will of sovereign

king must seek redress for the injury that has been done to his kingdom and must also seek
revenge for the affront to his very person
● right to punish is an aspect of the sovereign’s right to make war on his enemies

public institution reconstitutes momentarily injured sovereignty

● manifests sovereignty at its most spectacular
● reinforces asymmetry between ruler and ruled

military machine surrounds the scaffold to prevent escape or show of force

● prevent outburst of sympathy or anger on the part of the people

public execution bears two political aspects of victory and struggle

● ceremonial of triumph in which mutilation of body serves as spectacle
● scene of confrontation in which executioner makes contact with patient’s body

public spectators sometimes demanded a pardon for the accused

torture signals a ‘contempt’ for the human body -> general attitude towards death
● pervasiveness of death -> familiarity of death
● rituals integrated death, which made it acceptable and gave its permanent aggression
meaning

historical conjectures to explain long-lasting public executions

● 1670 ordinance
● great number of uprisings
● king’s desire to assert his power

Enlightenment sensibility: ‘atrocity’ of torture

● punitive practice in 19th century established distance between ‘serene’ search for truth
and the violence that defines punishment
● power recharged in ritual display of its reality as ‘super-power’

ambiguous role of spectators in public executions

● witnesses and guarantors of punishment // participants and personal vengeance-takers
● rescuers and disturbers of the punishment ritual: ‘disturbances around the scaffold’

public desire to hear the condemned curse the judges, laws, government, and religion
● encouragement and cheers from crowd of spectators
● authority mocked and criminals transformed into heroes

18th century: dissent among lower strata of population regarding penal justice practices
● assertion of power in public sphere due to lack of voice in the courts
● agitation at difference in penalties according to social class
● sparked protests and uprisings

solidarity of oppressed under-class

● expressed during public executions

political problem posed by intervention of people in spectacle of executions exemplified by two

major events
● (1) late 17th century Avignon: public beating of an overly-violent executioner
● (2) late 18th century Paris: separation of public and condemned

political fear of the effects of ambiguous penal justice rituals

‘last words of a condemned man’: recorded confessions of the condemned

● most likely apocryphal
● intended to justify the punishment

distributed literature transformed criminal into a hero

● sainthood attributed to criminal whose memory and grave are honored and respected

aesthetic re-writing of crime

confrontation between murderer and detective
● constitutes an intellectual struggle

split
● the people were robbed of their pride in their crimes
● the great murders had become the quiet game of the well behaved