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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.
From torture and execution, Foucault moves to considering calls for reform. In his view, the reform movement was humanitarian in the sense that man (and the pain he felt) became a standard against which punishments were assessed. The body changed from being the place where punishment acted, to a reason why it should act differently. The reformers first attempted to separate torture and cruelty from punishment; of course, for Foucault the link between torture and investigation means that, strictly speaking, torture was never part of punishment. In general, Foucault is unimpressed by interpretations of penal reform that see it as motivated by a love of one's fellow men. He takes a more calculating attitude to humanitarian reform.
This calculation extends to the processes that surrounded reform. Reform was possible within a structure in which crime itself was changed and reduced. As with his explanation of execution, Foucault looks at deep economic and social structures. The shift in the forces of production (referred to by other writers as the Industrial Revolution) led to an increase in productivity and a greater emphasis on property. In turn, this led to an increase in property crime, but also to an alteration in the operation of power in society. The fact that the reformers called for change as these deep shifts occurred was not a coincidence. Rather, it was a "strategic coincidence," a change in the way power works. The intentions or free-will of the reformers were unimportant.
Foucault then dissects the reformers' case. Just as their calls for reform were linked to shifts in power, they attacked the way power worked in society. Foucault's metaphor of the economy is important here. Penal reform looked at the way that power operated, and its relationship to the king. It tried to maximize the efficiency of the whole operation. Fundamentally, reform was concerned with efficiency and illegality.
Another discussion of popular illegality follows. Foucault sees illegality as integrated into the workings of the state in pre-modern France. It is a necessary part of the state, but is also a space in which poor people can speak and act. Illegality is affected by structural and economic changes. What Foucault calls a "crisis" of popular illegality is really yet another shift towards illegal behavior that centers on goods. Whereas the peasant previously rioted to protect his land rights against a landlord, now he stole chickens. Or possibly did both: Foucault is unclear on this point. This is a strange attitude to popular behavior in the period, which many historians have criticized.
Illegality was also linked to the structure of the monarchy, which allowed it to occur. Reform began to attack illegality without attacking monarchy because the reformers wanted to make power work better. This interpretation has the benefit of explaining why many reformers were middle-class figures who were hostile to the lower orders. Foucault sees the theory of the contract (found in eighteenth- century authors such as Pufendorf and Rousseau) as the technology by which punishment came to act. If all the citizens agreed together to form a state, and to punish those who broke the laws, a great power was created. This power, whether it took the form of a monarchy or a republic, was immense. In part, the reformers were concerned with restraining the power to punish, in case it became dangerous. The answer they found, according to Foucault, was humanity. They used man as a standard to measure punishment and power against. They were not all that concerned for the criminal himself. This seems like a remarkably cynical view.
From the idea of reform as calculation comes another calculation: the obstacle- sign. Punishment becomes a sign that shows the public the right path to follow, but which also relates exactly to the crime. This is very different to the execution. Punishment is no longer concerned with re-establishing order, but with preventing crime. Those who see a criminal being punished are now not necessary as part of the ritual. Rather, the ritual is designed to stop them from committing crime.
The controversial nature of Foucault's views needs to be spelled out. Taking the reformers at their word is not possible for him because of the nature of his analysis. The reformers spoke within a discourse that interacted with economic developments and changes in the nature of power. Their words reflect the complex operations of power, rather than any real feeling for suffering convicts. Some might say that this is a complex way of analyzing the hidden motives behind any reform movement, but it is central to Foucault's argument that all of what anyone says or does reflects structures of power.
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