Abstract of pages 16-24 of “Body of the Condemned,” from Foucault’s Discipline & Punish: the Birth of the Prison.
by Mike Peterson
In this section, Foucault discusses the shift in punishment from torturing the body to punishing the soul. He discusses how judgment is no longer passed simply on the crime but upon on the soul (passions, instincts, anomalies, infirmities, maladjustments, heredity, environment), on the subject’s will, and on attenuating circumstances. The introduction of these extra-juridical (and non-juridical) elements in the judgment take the sole responsibility of judgment and punishment off of the judge’s shoulders and redistributes it (along with culpability, responsibility, power) to other players—magistrates, psychologists, etc—who become part of a system aimed at not only punishment, but at curing/treating the criminal.
Foucault discusses the way in which article 64, an 1810 code which states that there is neither crime nor offence if the offender was of unsound mind at the time of the act, has been twisted and forgotten, so that an unsound mind is now just one of many variables in the judgment.
Foucault ends the section by establishing the four rules by which he’ll base his study into the history of the modern soul on trial.
Comments and Questions
Foucault’s four general rules for his study of the history of the modern soul on trial (23-24):
1. Regard punishment as a complex social function.
2. Regard punishment as a political tactic.
3. Find link between the history of penal law and the human sciences.
4. Find link between the entry of the soul into the penal justice scene and
how the body is invested by power relations.
Here, Foucault is establishing the way in which he will approach his genealogy of the penal system. He doesn’t want to adopt a limited viewpoint, such as that of the humanists, but instead he wants to analyze the history of the discourse by examining the interconnectedness of politico/socio/epistomologico/scientifico-juridical phenomena.
Judgment is no longer passed on crime as a mere “juridical object defined by code;” it is now passed on “passions, instincts, anomalies, infirmities, maladjustments, effects of environment, or heredity”—some object and say this isn’t to judge the subject, but to determine their “will” in committing the crime, but Foucault argues the soul is judged along with the crime and must share the punishment (18). Murder, for example, isn’t just murder: there’s manslaughter, negligent homicide, first-degree murder, etc. So many factors go into it: your state of mind, premeditation, how the crime was carried out. If the soul weren’t on trial, murder would be murder, and the punishment for murder would be equal for all those found guilty.
It’s always troubled me that homicide as a crime of passion usually gets a lesser punishment than other forms of homicide. Or for that matter, that everybody arrested for homicide plays the insanity card in hopes of treatment rather than punishment (though I’ve seen Cuckoo’s Nest, and I have to wonder if treatment and punishment aren’t the same thing).
If judges have started judging something other than crimes, they have begun to do something other than pass judgment. They judge—define, impose, etc.—“normality,” which opens the judging to psychologists, magistrates, educationalists, and members of the prison service. “A whole set of assessing, diagnostic, prognostic, normative judgments concerning the criminal have become lodged in the framework of the penal system” Psychiatric expertise gets a justifiable hold not only on offenses, but on individuals: “not only on what they do, but also on what they are, will be, may be” (18). (18).
This makes me think of a typical law and order episode where so many people have their hands in the pie when it comes to a trial: the defender wants his glory (and pay-check), the psychologist wants to look credible, the DA wants to increase his public standing, the victim wants justice for all, the human-rights activists want fair treatment, the Republicans want heads to roll, the prosecutor wants to send a message, the judge doesn’t want to set a precedent, and so on and so forth. So many outside factors come into play: power struggles, judgments of character, politics, social control—pretty much all the stuff Foucault is talking about.
Soul – “the heart, the thoughts, the will, the inclinations” (16).
Genealogy – From what I understand of this, a genealogy is a study of the history of systems of knowledge. Here, Foucault is studying how the discourse of punishment has developed, and how we can (if possible) step outside of that discourse to examine it’s myths, origins, fallacies, etc, in order to…well that’s my question: In order to what? Create a new discourse?
Normality – In order to judge someone as abnormal, someone has to determine what normal is. Defining and establishing normality increases the power exercisable by judges, psychologists, magistrates, etc (since power through the penal system isn’t something to be possessed but exercised) (23).
Perhaps someone who knows more about literary criticism could answer this. What does Foucault mean on 17 when he says, referencing the end of torture and the beginning of the punishment of the soul, “It was the end of a certain kind of tragedy; comedy began, with shadow play, faceless voices, impalpable entities”? I think it’s beautifully worded, but I’m not familiar enough with comedy and tragedy to get the impact of the statement. All I really have to go on is Sanderson’s summation: Comedy: you wed. Tragedy: you’re dead.