The purpose of punishment: from judging guilt to judging normality
Wednesday 24 August from 5-6.30pm in ib3.307 on Deakin's Waurn Ponds campus
Foucault highlights the modern turn away from the view of law as a means of judging guilt and sentencing as the administration of proportionate punishment toward law as a means of judging perversion and sentencing as a process for normalising the guilty.
Here's a lengthy excerpt that gets to the heart of Foucault's thesis:
During the 150 or 200 years that Europe has been setting up its new penal systems, the judges have gradually, by means of a process that goes back very far indeed, taken to judging something other than crimes, namely, the 'soul' of the criminal.
And, by that very fact, they have begun to do something other than pass judgement. Or, to be more precise, within the very judicial modality of judgement, other types of assessment have slipped in, profoundly altering its rules of elaboration. Ever since the Middle Ages slowly and painfully built up the great procedure of investigation, to judge was to establish the truth of a crime, it was to determine its author and to apply a legal punishment. Knowledge of the offence, knowledge of the offender, knowledge of the law: these three conditions made it possible to ground a judgement in truth. But now a quite different question of truth is inscribed in the course of the penal judgement. The question is no longer simply: 'Has the act been established and is it punishable?' But also: 'What is this act, what is this act of violence or this murder? To what level or to what field of reality does it belong? Is it a phantasy, a psychotic reaction, a delusional episode, a perverse action?' It is no longer simply: 'Who committed it?' But: 'How can we assign the causal process that produced it? Where did it originate in the author himself? Instinct, unconscious, environment, heredity?' It is no longer simply: 'What law punishes this offence?' But: 'What would be the most appropriate measures to take? How do we see the future development of the offender? What would be the best way of rehabilitating him?' A whole set of assessing, diagnostic, prognostic, normative judgements concerning the criminal have become lodged in the framework of penal judgement. Another truth has penetrated the truth that was required by the legal machinery; a truth which, entangled with the first. has turned the assertion of guilt into a strange scientifico-juridical complex. A significant fact is the way in which [he question of madness has evolved in penal practice. According to the 1810 code) madness was dealt with only in terms of article 64. Now this article States that there is neither crime nor offence if the offender was of unsound mind at the time of the act. The possibility of ascertaining madness was, therefore, a quite separate matter from the definition of an act as a crime; the gravity of the act was not altered by the fact that its author was insane, nor the punishment reduced as a consequence; the crime itself disappeared. It was impossible, therefore, to declare that someone was both guilty and mad; once the diagnosis of madness had been accepted, it could not be included in the judgement; it interrupted the procedure and loosened the hold of the law on the author of the act. Not only the examination of the criminal suspected of insanity, but the very effects of this examination had to be external and anterior 10 the sentence. But, very soon, the courts of the nineteenth century began to misunderstand the meaning of article 64. Despite several decisions of the supreme court of appeal confirming that insanity could not result either in a light penalty, or even in an acquittal, but required that the case be dismissed, the ordinary courts continued to bring the question of insanity to bear on their verdicts. They accepted that one could be both guilty and mad; less guilty the madder one was; guilty certainly, but someone to be put away and treated rather than punished; not only a guilty man, but also dangerous, since quite obviously sick, etc. From the point of view of the penal code, the result was a mass of juridical absurdities. But this was the starting point of an evolution that jurisprudence and legislation itself was to precipitate in the course of the next I50 years: already the reform of 1812, introducing attenuating circumstances, made it possible to modify the sentence according to the supposed degrees of an illness or the forms of a semi-insanity. And the practice of calling on psychiatric expertise, which is widespread in the assize courts and sometimes extended to courts of summary jurisdiction, means that the sentence, even if it is always formulated in terms of legal punishment, implies, more or less obscurely, judgements of normality, attributions of causality, assessments of possible changes, anticipations as to the offender's future. It would be wrong to say that all these operations give substance to a judgement from the outside; they are directly integrated in the process of forming the sentence. Instead of insanity eliminating the crime according to the original meaning of article 64, every crime and even every offence now carries within it, as a legitimate suspicion, but also as a right that may be claimed, the hypothesis of insanity, in any case of anomaly. And the sentence that condemns or acquits is not simply a judgement of guilt, a legal decision that lays down punishment; it bears within it an assessment of normality and a technical prescription for a possible normalization. Today the judge - magistrate or juror - certainly does more than 'judge'.
See you Wednesday,
President, Deakin Philosophical Society.