Part II: Un-Masking Marauders à la Augustine and Foucault

In his book, Discipline and Punish, Foucault discusses at great length how modern scientific discourses (and their attendant practices) are employed to further a rhetoric of progress and to mask new forms of violence inherent in modern socio-political institutions such as the modern judicial and prison systems. According to Foucault’s account, although by beginning of the nineteenth century the great theatrical displays of physical punishment—the tortured body—had disappeared,[1] “a trace of ‘torture’” can still be found “in the modern mechanisms of criminal justice—a trace that has not been entirely overcome, but which is enveloped, increasingly, by the non-corporeal nature of the penal system.”[2] Now that the body is no longer drawn and quartered, on what, if not the body, is punishment carried out? “The expiation that once rained down upon the body must be replaced by a punishment that acts in depth on the heart, the thoughts, the will, the inclinations.”[3]

Foucault is not claiming that modern punishment in no way involves the body; rather, his analyses help us to see that the “objects” of punishment have changed and the extent of its reach has been broadened considerably. Crimes are certainly still juridical objects of concern, even if certain former offenses are no longer categorized as crimes (for example, blasphemy). However, from another perspective, our understanding of the nature of crime as an object of concern for penal practice has been transformed radically. That is, we still pass sentences on certain acts defined as illegal and criminal; however, “judgment is also passed on the passions, instincts, anomalies, infirmities, maladjustments, effects of environment or heredity; acts of aggression are punished, so also, through them, is aggressivity; rape, but at the same time perversions; murders, but also drives and desires.”[4] As a result, judges are no longer competent to pass judgment on their own; they must instead call upon a host of “subsidiary judges” to aid them.  This “scientifico-juridical complex,” including psychiatrists, medical doctors of various sorts, prison specialists, and educationalists, not only helps the judge decide what kind of punishment shall be enacted but whether the act is punishable at all.  In other words, if the person who committed the act is judged mad, then all talk of crime disappears and medical treatment rather than punishment is required.

This modern scientifico-judicial apparatus does much more than simply mete out sentences; it discerns what kind of “soul” a person has, speculates on how one’s past influences one’s present, and then predicts what future actions one is likely to commit. Through the complex interplay of scientific, medical, psychiatric, and legal discourses and their accompanying practices, new subjectivities are produced such as the delinquent and the pervert. Moreover, the production of new subjectivities goes hand in hand with the emergence of new scientific discourses, and the two serve to mutually reinforce one another. Not only is a greater role in the sentencing process given to psychiatric experts, but criminologists likewise come on the scene, defining new subjectivities and new “scientific” objects of study. According to Foucault, those trained in psychiatry, criminal anthropology, and related fields engage in this subject- and object-making activity as follows:

by inscribing offenses in the field of objects susceptible of scientific knowledge, they provide the mechanisms of legal punishment with 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. The additional factor of the offender’s soul, which the legal system has laid hold of, is only apparently explanatory and limitative, and is in fact expansionist.[5]

In other words, punishment does not cease with the completion of one’s prison term; rather, one’s new identity remains fixed long after the term has been served via strict monitoring, mandatory medical or psychiatric treatment, counseling, as well as restrictions on living, educational, and employment possibilities. Now that criminals are objects of science and legal punishments are intertwined with “judgments of normality, attributions of causality, assessments of possible changes, [and] anticipations as to the offender’s future,” punishment expands into long-term treatment with the hope of curing the criminal. A new truth game has been born; although bloodless, its rules, discourses, and practices create living subjects as objects. In addition to these embodied subjects, another “body” is formed—“[a] corpus of knowledge, techniques, ‘scientific’ discourses,” which together“ becomes entangled with the practice of the power to punish.”[6] Having broadened its cabinet to including medical experts and specialists of various sorts, the judicial system presents itself as apolitical, dispassionate, and relying upon objective science to render its determinations. Thus, like Augustine, Foucault issues a warning, calling us to be alert to the ways in which the rhetoric of scientific progress is at work in our society where we might least expect it. Although it is highly unlikely that any of us would want to return to medieval torture as a means of punishment for crime, Foucault’s analyses of the genealogy of the modern prison system help us to see that our “contemporary mechanisms of power,” although less spectacular, “are no less coercive. In attempting to rehabilitate the whole individual, the modern judicial system uses its own methods of violence and force, only it administers them in such a way that they no longer appear violent or forceful.”[7]

Notes

[1] Foucault, Discipline and Punish, 15.

[2] Ibid., 16.

[3] Ibid.  In characteristically vivid prose, Foucault further describes this new phase of bloodless, less intense yet more extensive punishment as follows:  “[t]he old partners of the spectacle of punishment, the body and the blood, gave way. A new character came on the scene, masked. It was the end of a certain kind of tragedy; comedy began, with shadow play, faceless voices, impalpable entities. The apparatus of punitive justice must now bite into this bodiless reality” (ibid., 16–17).

[4] Ibid., 17.

[5] Ibid., 18–19.

[6] Ibid., 23.

[7] Schuld, “Augustine, Foucault, and the Politics of Imperfection,” 19.