Notes on Discipline and Punish
My summary of the first four chapters of Foucault’s Discipline and Punish
Part One, Torture
Chapter One, The Body of the Condemned:
In Europe, judicial punishment underwent a rapid transformation from a spectacle of violence performed on the body to a hidden, abstracted punishment inflicted on a juridical subject
Punishment was once violence inflicted on the criminal in a manner resembling his crime; it became fines, schedules, restriction of liberties, etc.
The trace of the corporal system still exists, as demonstrated by the examples of hard labour and the death penalty; these, however, take a different form. The death penalty, where it exists, is not to be a spectacle, but a hidden process which removes the physical element as much as possible
Some would argue that punishment became less severe, which may be true, but it misses the point, which is that the qualitative nature of punishment changed; it ceased to be concerned with the body, and instead took the soul as its target
The nature of crime changed at the same time, focusing less on the act itself and more on the nature of the criminal (motivation, insanity, etc.), which required the production of knowledge about the criminal. In this way, medicine and psychiatry were introduced to the judicial; this knowledge must always be produced by the most scientific means available
It seems as if it is the crime being judged and that the criminal is studied only to explain the crime, but different punishments are given to different criminals for the same crime, and punishment serves to surveil and ‘reform’ the criminal, who therefore is judged just as much as the crime
“And the sentence that condemns or acquits is not simply a judgement of guilt, a legal decision that lays down punishment; it bears within it an assertion of normality and a technical prescription for a possible normalization.” (20-21)
A whole array of figures are created who must judge the criminal; for example, the psychiatrist who tells the judge whether a given punishment is the most appropriate
Foucault’s goal is to trace the formation of the modern subject through the disciplinary society
Chapter Two, The Spectacle of the Scaffold:
Most punishments were not execution, there was a whole array of punishments, but penalties for crimes beyond a certain threshold of severity always involved an element of torture
Torture was not a simple thing, it involved something similar to a science: the degree of pain each method caused could be put on a hierarchy; the methods of torture were strictly regulated and controlled according to a legal code (punishment “is calculated according to detailed rules: the number of lashes of the whip, the positioning of the branding iron, the duration of the death agony [...], the type of mutilation to be used” (p.34)); torture was ritualistic, involving markings, public displays, and ceremonies. To claim torture was unsophisticated violence misunderstands how it was used
The system for establishing the truth of a crime was kept secret from the public, in order to enforce that only the sovereign had access to the means of producing truth; nevertheless, it was a rigorous system, involving clearly defined types of evidence which could be mathematically combined and affected sentencing. The only way to demonstrate the full power of the truth (and thereby the sovereign) was to draw out a confession (criminals “must if possible judge and condemn themselves” (Ayrault, cited in Foucault, p.38)). Truth had two ambiguities: it was a uniquely powerful piece of evidence, but it had to be accompanied by additional evidence to be accepted; it had to be brought out by the sovereign, but also had to be the act of the accused which authenticates the investigation. Hence the accused must take an oath to be honest, and must also ‘voluntarily’ confess to the crime through torture
If the suspect maintained his innocence even through torture, all prior evidence of his guilt had to be thrown out. As such, torture was not always used, if the prior evidence was sufficient. Through torture, “pain, confrontation, and truth were bound together: they worked together on the patient’s body” (p.41)
Evidence was not solely used to establish that a suspect had committed the crime of which he was accused; each piece of evidence carried with it a certain level of guilt, regardless of whether the crime was proven in the end. As such, torture was used simultaneously as a means of extracting the truth and as punishment for an offence
This mix of truth production and punishment continued after sentencing. The criminal was made, during public punishment, to confess to the crime (since the previous investigation was secret, he announced his own guilt to the public). Public torture also served to set up relations between the crime and the punishment so the public could decipher them. Often, this was done by having the sentence carried out near the place of the offence, and in some instances the punishment was made as a reenactment of the crime. Public execution and torture (often the same thing) resulting in confession served to reproduce on the body of the condemned the truth of the investigation, and thereby the authority of the sovereign
Punishment was not simply redress for an injury, and the sovereign did not arbitrate between two parties. Crime itself, even where it harmed none, was an affront to the sovereign, an injury to his character, and to all law abiding citizens. As such, even when nobody was injured by the crime, the sovereign retained the right to punish. Public punishment, therefore, was a ritual that re-established the dominance and power of the sovereign. The role of military force in public execution was partly to prevent the proceedings from being disturbed, and partly to symbolically demonstrate the awesome power of the sovereign.
Public punishment served to reenact the struggle between the criminal and the sovereign, and to display victory through the overwhelming force of the sovereign (in some cases, punishment continued well after death). The sovereign acted through the executioner, but the executioner was never identified with the sovereign; the executioner could be punished for failing, and his job could be interrupted by a letter of pardon
The regicide did not attack an individual decision or act of the king, but the very principle of his power, and so had to be punished as severely as possible
The severity of the penal system was influenced by three further, external factors: it set the value of the body and of labour power below that which they received in economic terms; it reflected the Christian attitude towards death; and it attempted to make death (so common a part of life at the time, for many reasons) part of the political system, to integrate an ever-present death into the power of the sovereign
“The fact that the crime and the punishment were related and bound up in the form of atrocity was not the result of some obscurely accepted law of retaliation. It was the effect, in the rites of punishment, of a certain mechanism of power: of a power that not only did not hesitate to exert itself directly on bodies, but was exalted and strengthened by its visible manifestations; of a power that asserted itself as an armed power whose functions of maintaining order were not entirely unconnected with the functions of war; of a power that presented rules and obligations as personal bonds, a breach of which constituted an offence and called for vengeance; of a power for which disobedience was an act of hostility, the first sign of rebellion, which is not in principle different from civil war; of a power that had to demonstrate not why it enforced its laws, but who were its enemies, and what unleashing of force threatened them; of a power which, in the absence of continual supervision, sought a renewal of its effect in the spectacle of its individual manifestations; of a power that was recharged in the ritual display of its reality as ‘super-power’.” (p.57)
The replacement of this mechanism has many factors, one of which must be analysed in this chapter, since it’s inherent to the public execution: the public had the right to see the execution, that was a fundamental component, and their rage at the criminal was seen as allied with the sovereign; on the other hand, they were supposed to be afraid of what might happen to them if they committed a crime, they were required to secretly identify with the criminal. If the people saw a punishment as unjust, excessive, inappropriately applied, or insufficiently proven, the public execution provided perfect opportunity for the public to interfere and rebel against the sovereign. The public identified with the criminal more than ever at the very moment he was being tortured in close proximity to the public.
Further to this, the public confessions (or fabricated versions) were often printed and distributed amongst the lower classes to justify the execution; this often had the unintended effect of romanticising the criminal, leading to stories of adventure around him (one can see a predecessor to crime fiction here). In practice, this meant that the greatest of crimes were seen as the right of great men alone. This is where the transformation into disciplinary society begins
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Part Two, Punishment
Chapter Three, Generalised Punishment:
Such punishment grew to be seen as too vengeful for the sovereign and too shameful for the criminal, and so demand grew for punishment to be changed so that it would not be excessive. The measure of this excess was the figure of the human, since even criminals were human and deserved a certain amount of respect (though a positive knowledge of man would soon develop, this initially served only to limit the legitimate use of power). The question therefore becomes how the ideas of ‘humanity’ and ‘measure’ are deployed on one another in a single strategy. These ideas still come up in our contemporary discussions of punishment.
At this time (the 18th century), violent crimes fell in popularity and were replaced by crimes against property; some time after, punishment became less severe. Criminal gangs reduced in size, and a class of professional criminals developed. These changes were due in part to an increased severity in punishment, and partly due to economic changes (general rise in living conditions, growing population, etc.). The growth of police was due to a widespread (though today rejected) belief in rising rates of crime. The “shift from a criminality of blood to a criminality of fraud forms part of a whole complex mechanism, embracing the development of production, the increase of wealth, a higher juridical and moral value placed on property relations, stricter methods of surveillance, a tighter partitioning of the population, more efficient techniques of locating and obtaining information: the shift in illegal practices is correlative with an extension and a refinement of punitive practices” (p.77).
It is not a sense humanity that was being developed, but a refinement and proliferation of penal interventions. Violent crime became rarer, so economic crime became more common, and thus was punished more harshly, while the amount of investigations increased and means of control became more thorough.
One primary concern of the reformers was that the judicial system was applied irregularly depending on the status of the person accused. It is the distribution of power that, in their minds, made the judicial system immoral, not its inherent cruelty; power was too concentrated at a few points. The objective of reform was to become better at punishing, to distribute punishment more efficiently, and to implement punishment at every point in society, which meant cutting back on the severity of punishments from time to time
Initially, a large number of crimes were never prosecuted, or only quite rarely, depending on the position of the accused (even the poor were permitted to ignore particular laws). As the nature of crime changed to being more focused on property crimes, economic necessity meant that crimes had to be punished with increasing frequency, and that new crimes had to be defined. Crimes against rights were possible only to the upper class, so crimes against property proliferated and became significantly easier amongst the workers; the rarely-applied power of the sovereign would not serve its purpose in capitalist society. This is how it’s possible for Le Trosne to argue for significant reductions in the cruelty of the penal system, and simultaneously argue that vagabonds should be shot. The public execution and torture brought together the excess of power used by the sovereign and the tolerated illegality of the masses, which is why it is that which bore the criticism of reformers.
The criminal is then defined as one member of society who, in his crime, attacks society as a whole from the inside. The right to punish is given by the need to defend society from an enemy that is nearly undetectable and exists everywhere. But the proliferation of power would be unbearable if it were to retain the old penalties; as such, an economy of power must be developed, where each crime merits a proportional punishment
In the arguments of the reformers, it is not the pain of the criminal that is inhumane, but the pain felt by the rational man and judge upon seeing an excess of punishment; ‘excessive’ is defined by the effect it has on the system of power that exercises it. Humanity is not contained within the criminal, but is the principle for the calculation of efficient use of power
Such a utilitarian view means that a crime is not punished according to its immorality, but according to the possibility of it causing future crimes, that is, inspiring repetition. Though this is an old view, the use of it to determine the exact amount of punishment necessary was new
It was used according to a set of rules: since crime was done to receive a benefit, punishment had to impose a consequence of slightly greater severity, but never more than the minimum to be effective; since it is not pain that prevents the repetition of crime, but the mental representation of a penalty, the scaffold should be avoided; the representation of penalty is most useful when put in the minds of the general populace, and so the object of punishment is not the criminal who actually gets punished, but the public which in some way witnesses the punishment; the punishment must be seen to result from the crime, both in a clear manner and with perfect certainty, and so nobody can go unpunished and the details of the legal system must be made public; since degrees of suspicion no longer correlate with degrees of punishment, the truth or falsity of the offence must be proven all at once and with complete certainty before the criminal is punished (hence presumption of innocence); each possible crime and its corresponding punishment must be defined with perfect clarity, and punishment must be tailored to each individual criminal, meaning a thorough knowledge of the criminal is required
This knowledge of the criminal is not the old sovereign knowledge of his intention and circumstances, but the knowledge of his nature, a role which would later be filled by psychology. Since punishment is aimed at preventing repeat crimes, what came under investigation in general was not any individual criminal, but the delinquent subject itself, the nature of a criminal abstracted from any case; what came under investigation in particular cases was whether the criminal under consideration was likely to repeat his offence
The object of punishment is no longer the body but a collective mind, soul, understanding, or relation of representations/signs
We have seen the emergence of a particular criminal nature (which will soon be investigated by science), alongside the need to make punishment scientific; the former is not yet finished, and will be replaced by a new politics of the body, but one influenced by these ideas
Chapter Four, The Gentle Way in Punishment:
Since punishment relies on interior signs which suggest that a crime will be met by a penalty, it requires an array of obstacle-signs, which must meet 6 conditions
Firstly, penalty must be as closely related to crime as possible. The potential criminal must be capable of inferring from the idea of the crime what it’s punishment is, and this is most successful if the penalty resembles the crime to a great degree (which also naturalises the punishment). The penalties proposed by reformers often resembled those of the sovereign era, but were different in nature; it was “no longer the symmetry of vengeance, but the transparency of the sign to that which it signifies” (p.106)
Secondly, punishment must engage with the forces that motivate and otherwise cause the crime. If a crime is caused by pride, the punishment is to be humiliation; if caused by laziness, forced work; if caused by a disrespect of property, teach the criminal such respect by depriving him of property. Penalty should “recompose the economy of interests and the dynamics of passions” (p.107)
Thirdly, since the goal is reform, punishment cannot be permanent (I must be limited), and it must diminish as the reform progresses
Fourth, the association between crime and punishment must be made frequently in the minds of the public, and must be presented as working for their benefit; for this reason, public display of a criminal in community service of some kind is desirable
Fifth, the criminal must be presented to the public in highly ritualised, codified ways, so that his appearance becomes an opportunity to teach the public of the law; signifiers must be used in this regard, in order to re-construct the system of signs in the public mind
Sixth, association between the obstacle-signs and the criminal thus formed cause the criminal to be an object of pity rather than romance in discussions; and he must be discussed. In all minds there must be “hundreds of tiny theatres of punishment [...] the essential point, in all these real or magnified severities, is that they should all, according to a strict economy, teach a lesson: that each punishment should be a fable” (p.113)
Initially, and for obvious reasons when considering the above, prison was given at most an extremely limited role as a punishment; it was viewed as increasing crime and failing to draw a sufficient association between the crime and the punishment. Nevertheless, in a remarkably short period of time (less than 20 years), prison became the default penalty for most crimes. A whole hierarchy of different types of imprisonment was set forth, and the above model was almost completely abandoned nearly instantly. In some cases it literally happened instantly; codes were set out to give each crime a similar punishment, which ended up deciding the appropriate punishment was prison in nearly every case. To implement such a change, two obstacles had to be overcome. First, imprisonment had been a very uncommon punishment in the sovereign era. Second, it was commonly seen as too closely bound with arbitrary abuses of power by the sovereign. How did all this happen?
The oldest such prison was the Rasphuis of Amsterdam, which was founded in 1596 and operated according to three principles. Firstly, the term of each sentence was decided by the prison administration in accordance with the prisoner’s behaviour. Secondly, mandatory labour was normal, performed in common, and provided wages for the workers. Thirdly, the prison operated according to a strict timetable, system of supervision, list of prohibited items and acts, and so on, all worked together to control the prisoner to the greatest degree possible. These three features laid the groundwork for all later prisons, though this one was not initially popular.
Mandatory labour was popular with governments, since it cut the costs of sentencing, reformed criminals, created more labourers, and provided the basis for charity for those who needed it. Isolation was later added in the form of the cell, in order to protect the prisoner from bad influences and to allow time for spiritual reflection and internal reformation. The strict timetable and constant supervision allowed these systems to be enforced with the maximum of efficiency. The 1790 Walnut Street Prison produced the idea of a private penalty, where the process of reformation was between the administration and the prisoners alone, and the public had a minimal role to play. More importantly, it developed the idea that one must produce knowledge about the individual. Upon receiving a prisoner, the administration was given “a report concerning his crime, the circumstances in which it was committed, a summary of the examinations of the defendant, notes on his behaviour before and after sentence” (pp.125-126). The prisoner’s conducted was noted down twice a day, and inspectors visited and studied the prisoner’s conduct to decide on his future. The prisoners were split according to the dispositions they revealed under observation, not their crime: “The prison functions in this as an apparatus of knowledge” (p.126)
All of the models Foucault points to have certain traits in common: they punish not in response to what has happened, but to preempt the future; they seek to reform, not to revenge; they decide the punishment according with the individual and his prospects, not the nature of his crime. All of these are in common with the reformers; the prison distinguished itself from the reformers not in aims, but in techniques. For the disciplinary model, the “point of application of the penalty is not the representation, but the body, time, everyday gestures and activities; the soul, too, but in so far as it is the seat of habits [...] Exercises, not signs: time-tables, compulsory movements, regular activities, solitary meditation, work in common, silence, application, respect, good habits. And, ultimately, what one is trying to restore in this technique of correction is not so much the juridical subject, who is caught up in the fundamental interests of the social pact, but the obedient subject, the individual subjected to habits, rules, orders, an authority that is exercised continually around him and upon him, and which he must allow to function automatically in him.” (p.128-129)
This all necessitates secrecy. The one who punishes must have complete control, and the presence of the public allows for interference with that, so the spectacle and public display of the sovereign era and the reformers is prohibited outright
The question, then, is why it is that the disciplinary model came to be adopted