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Petitions against executions and torture increased in the eighteenth century. There was a need to end physical confrontation between the sovereign and the criminal. Execution became shameful and revolting. The reformers argued that judicial violence exceeds the legitimate exercise of power—that criminal justice should punish, not take revenge. The need for punishment without torture was first formulated as a need to recognize the humanity of the criminal. Man became the legal limit of power, beyond which it could not act. But how did man come to be set up against the traditional practice of punishment? A problem of the economy of punishment arises. How could "man" and "measure" be reconciled? The eighteenth century resolved the problem of this economy with the idea that humanity was the measure of punishment, but with no proper explanation or definition.
Foucault salutes great reformers like Beccaria, but reform needs to be situated within a process by which crimes became less violent and punishments less intense. There were fewer murders, and criminals tended to work in smaller groups. They moved from attacking bodies to seizing goods. This can be explained by better socio-economic circumstances and harsher laws. It was part if a development that placed a greater value on property and production. There was an attempt to adjust and refine the mechanisms of power that frame individuals' everyday lives. A remarkable strategic coincidence existed between this change and the discourse of the reformers. They attacked an excess bound up in the irregularity of the power to punish. Penal justice was irregular because of the great number of courts and legal loopholes. The criticism of the reformers was directed at the bad economy of power, not the weakness or cruelty of the powerful. The dysfunction of power was related to an excess concentration of power in the King. Eighteenth century reform of the criminal law was a rearrangement of structures of power. It aimed not to punish less but to punish better.
The conjecture that saw the birth of reform was not that of a new sensibility but of another policy with regard to illegalities. Illegality was deeply rooted in the ancien regime. Sometimes laws were ignored, and exemptions were made. Tolerance existed for the less favored people, whom the laws vigorously defended. The paradox of necessary illegality was its identification with criminality, and the consequent ambiguity of attitude. A network of glorification grew up around crime. A crisis of popular illegality occurred in the eighteenth century, when an illegality of rights shifted to an illegality of goods. The bourgeois could not accept popular illegality when it concerned their property. As new forms of production and capital accumulation emerged, popular practices relating to an illegality of rights became transformed into an illegality of property.
Penal reform was born at a point between the struggle against the super-power of the sovereign and that against the infra-power of acquired illegality. Monarchical power left subjects able to practice illegalities; in attacking one, you attack the other. For many reformers, the struggle to delimit the power to punish was based on the need to control popular illegality more strictly. Public execution was criticized because it represented the coming together of unlimited sovereign power and popular illegality. But reform was successful because it came to stress the suppression of popular illegality. New, less severe criminal systems were sustained by upheaval in the traditional economy of illegalities. The key feature of eighteenth century penal reform was the constitution of a new economy and a new technology of power. This new strategy falls into a general theory of the contract. The citizen was presumed to have agreed to the law by which he is punished. The criminal was therefore a juridical paradox, participating in his own punishment. The whole of society was present in the punishment, which gives rise to a problem of degree of punishment. The formidable right to punish conflicted with the individual. The right to punish has shifted from the vengeance of the sovereign to the defense of society. The great force of this penalty was like another "super-power", a penalty without bounds. This causes a need to establish a principle of moderation for the power of punishment. The principle of moderation is articulated first as a humanitarian discourse. The recourse to sensibility contains a principle of calculation. The principle takes root that one should never apply "inhumane" punishments; this is because of the necessary regulation of power and not because of the criminal's humanity.
The object of punishment is to create consequences for crime. Punishment must be adjusted to the nature of the crime. The eighteenth century, however, had the idea that one should punish just enough to prevent recurrence. The example is no longer a ritual but a sign that serves as an obstacle. The technique of punitive signs rested on six major rules: The rule of minimum quantity, the idea that the criminal should have a little more interest in avoiding the penalty than in risking the crime; The rule of sufficient ideality, punishment has to use representation to deter, not corporal reality; The rule of lateral effects, the punishment should have a great effect on the observer, as in Beccaria's idea of slavery; The rule of perfect certainty, there must be an unbreakable link between crime and penalty; The rule of common truth, penal practice must be subject to the common idea of truth and demonstration; The rule of optimal specification, all offenses must be precisely classified. There is a need for a tabulation of offenses, a taxonomy that relates every crime to a punishment. The division between first offender and recidivist becomes important.
Beneath the humanization of penalties are rules that demand "leniency" as a calculated economy of power to punish. This power is applied not to the body but to the mind as a play of representations or signs. The new art of punishment reveals the supersession of punitive semio-techniques by a new political anatomy, in which the body is the most important feature.
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