The French penal ordinance of 1670 set out very harsh penalties, but a gap existed between theory and penal practice. Public execution and torture were not the most frequent form of punishment. However, torture played a considerable part in penality. The definition of torture involves an exact, measurable quantity of pain. An "economy of power" is invested in torture.
Torture is part of a ceremony that reveals the truth of a crime. The trial is initially a hidden process. But a tradition of rules of evidence existed: there were different degrees of proof. Now these degrees relate to the juridical effects or the outcome of the trial. Penal investigation was written, secret and subject to rules. It was a machine that might produce the truth in the absence of the accused. But a confession removed the need for further investigation. A confession transforms an investigation from a process carried on against the criminal to a voluntary affirmation. The ambiguity of the confession explains the means used to obtain it: the oath and judicial torture.
Torture is an ancient practice, which had a strict place in the classical legal system. It had two elements: a secret investigation by judicial authority and a ritual act by the accused. The body of the accused linked these two elements. This is why, until the whole classical system of punishment was examined, there was no critique of torture. Judicial torture was a regulated practice, almost a game. If the suspect successfully resisted, he could be freed. Classical torture was a way of finding evidence in which investigation and punishment were mixed. As the system of proof produced a partial proof of guilt, torture punished this partial guiltiness whilst investigating it further.
In the execution, the criminal's body showed the truth of his crime because, one) the criminal became the herald of his own condemnation; two) it took up the scene of confession, where the full truth was revealed; three) it pinned public torture onto the crime itself; four) its slowness and suffering became the ultimate proof at the end of the ritual. From judicial torture to execution, the body produces and reproduces the truth of the crime. A public execution is to be understood as a political as well as a judicial ritual. The intervention of the sovereign in a case was a reply to an offense against him. Public execution was a ritual by which injured sovereignty was restored. Public execution was a ritual of armed law with two aspects: victory and struggle. The conflict and triumph of the executioner over the body of the accused was like a challenge or a joust.
Attitudes toward punishment were related to general attitudes to the body and death. Death was familiar because of epidemics and wars. These general reasons explain the possibility and long survival of physical punishment. Torture was embedded in legal practice because it revealed the truth and showed the workings of power though the body of the condemned. This truth-power relation remains at the heart of all mechanisms of punishment, and is found in different forms in contemporary penal practice. The Enlightenment condemned the "atrocity" of public execution. Atrocity is the part of crime that torture turns back on itself to display the truth of crime to the world. The mechanism of atrocity mixed the sovereign and crime together; atrocity was the "organized destruction of infamy by omnipotence."
One reason why a punishment that was unafraid of atrocity was replaced by a "humane" version is very important. A key element in the execution was the people or audience. But the role of the people was ambiguous. Criminals often had to be protected from the crowd, and crowds often tried to free prisoners. The intervention of the crowd in executions posed a political problem. In his last words, the convict could, and did, say anything. Uncertainty exists over these last words: were they fictitious? Perhaps crime literature was neither "popular expression" nor moralizing propaganda but the space in which the two investigations of penal practice met.
Broadsheets decreased in popularity as the political function of popular illegality altered. A new literature developed, in which crime was glorified as a fine art or mode of privilege. Accounts of executions became accounts of investigation; crime literature moved from an account of confessions to the intellectual struggle between criminal and investigator. In this new genre there were no more heroes or executions; although the criminal was punished, he did not suffer. Newspapers began to recount the details of everyday crime and punishment. The people were robbed of their old pride in crime, and murders became the game of the well-behaved.
Foucault essentially begins at the base of the pre-modern system of punishment, by analyzing judicial inquisition and torture. Judicial inquisition was carried out by Church and state authorities, as a means of exploring a crime and establishing the "truth". It was a key part of the inquisition process, which resembled the execution in some ways. It seems very alien to the modern mind. Foucault shows that, although torture was a brutal phenomenon, it was deeply rooted in contemporary legal systems, and cannot be understood apart from this discourse. It can also clearly be distinguished from the execution itself. Torture was highly regulated, and can be conceived of as a kind of perverse game, in which the prisoner negotiates with his questioner. By arguing that torture had a clearly-defined structure and a logic of its own, Foucault is not defending or approving of it. He is merely trying to explain it in terms of his idea of legal and penal discourse.
Perhaps the most important idea in this section is that torture and execution are both part of a public and ceremonial system of punishment. The process of punishment begins with the secret investigation, which may be hidden even from the accused, and then progresses to the public ritual of the execution. Both acts, however, are embedded in what Foucault calls the classical system of law, and cannot be understood apart from it.
The real link between torture and execution is provided by the body of the criminal. In both cases, it is acted on by the authorities in a violent way. Both procedures also aim at "truth". This is a difficult term, which means both asserting that the criminal is guilty, but also that the crime itself exists as an act beyond the moment at which it was committed. The investigation, through a range of evidence and "proofs", establishes guilt, but the execution remembers and reenacts the crime.
Foucault's treatment of public execution is sophisticated and complex. He argues that the ritual of execution depends on a specific political situation, in which a monarch is the all-powerful head of state. A certain hierarchical order exists in this situation, with the sovereign at the top and the lower orders distributed below. Power works from the top down in this kind of society. Crime upsets this order and challenges the sovereign's power. Execution is a ritual designed to reestablish order, but it was played out like a tournament or sports contest. The executioner represented the King in this action: in killing the prisoner, he was the king's champion. Essentially, the reestablishment of order can be reduced to a one-on-one combat. This combat cannot exist without an audience, however, because the people must witness order being replaced for the process to work. Foucault may be referring to Jurgen Habermas's idea of "representative publicity," in which the King's power is represented before the people by various rituals. Foucault's explanation goes beyond the theoretical level, however, as he relates the execution to its social and economic context.
The concept of atrocity is a puzzling one. Atrocity is the most horrible part of torture, but yet is necessary to reveal the truth of the crime. It resembles the violence of the crime itself, and shows the violence that is inherent in crime.
The shift between atrocious and humane punishment is a reformulation of the shift between public execution and prison. Foucault explains this in terms of the audience. An audience is necessary because the people must watch, or the ritual will have no meaning. By watching, however, they also take part. Watching can cross the line drawn by the sovereign, when the people physically attack the executioner, or try to free the prisoner. Participation can also involve reading or writing about crime in literature. Eighteenth century crime literature, according to Foucault, was centered on the convict's last words, which contrast with the relative silence of torture. If the process of punishment is seen as a discourse, then the very moment of execution becomes the one moment when the accused can speak. This is a dangerous and unstable moment. Last words were printed in pamphlets and broadsheets, which were another unstable way of representing crime to the world.
Responses to this literature and the behavior of crowds are part of what Foucault calls popular illegality. Popular illegality covers a whole range of behavior that is beyond and outside the law, such as demonstrations and riots. Similarly, changes in the literature showed changes in penality itself. Crime literature stopped being a dangerous space and focused on investigation rather than on execution. In a sense it became more "official" and repressive.
The ideal of a penal imprisonment is criticized by many reformers because
1. it is incapable of corresponding to the specificity of crimes
2. it has no effect on the public
3. It is useless, even harmful to society: it is costly. it maintains convicts in idleness, it multiplies their vices.
4. the execution of this penalty (imprisonment) is difficult to supervise
5. There is a risk of exposing prisoners to the uncontrolled power of the guards
6. The job (prison guard) is an exercise of tyranny (dictatorship)