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.
