Many people have a vague understanding of the concept of prison. We often hear terms like detention center, custody center, and prison, so let's first clarify the differences between these units. If the crime you committed is relatively minor, you will generally be held in a detention center. A record of the violation will be left after going through a detention center, but it won't leave a criminal record. Next is the custody center, where most of the detainees are offenders whose sentences have not yet been determined by the court or those with relatively short sentences. Only those with longer sentences will be transferred to prison, where they will begin their labor reform careers.
First, we will find that whether it is a violator or a sentenced prisoner, the custody center is an unavoidable checkpoint for newcomers. After going through a series of processes such as physical examinations and receiving supplies, you will be sent to your cell. The moment the iron door closes, your new life begins. Many people are most concerned about whether they will be beaten during their initial period. In fact, you can rest assured about this; the atmosphere inside is very civilized. There is 24-hour continuous monitoring in the cell, and there is a three-position system to prevent fights. Those who start fights will face harsher consequences; if they continue to fight after being warned, they will generally be shackled and placed in solitary confinement.
Solitary confinement is like a nuclear bomb for those who are being detained. The confinement cell is very small, with concrete walls on all sides, and only a small window for meals. No extra meals or snacks are allowed; some solitary cells have toilets, while those without will be given a bucket. Everything—eating, drinking, and relieving oneself—during solitary confinement happens in this dark, windowless cell, with absolutely no social interaction. Three days of this can lead to a reversal of day and night, and seven days can leave one in a daze. If someone insists on arguing with you despite the risk of solitary confinement, you might really need to reflect on the reasons within yourself.
However, the initial construction upon entering is not standard construction; it is a transitional space designed to help newcomers quickly adapt to the environment. Here, the focus is mainly on learning various rules and regulations, and the peers around you are all newcomers as well, so there is no need to make things difficult for each other. The duration of stay in the transitional space varies by facility and will also depend on individual performance before being transferred to a regular cell.
Another frequently asked question is about the food. You can rest assured in this regard; as long as you want, you can think of hot pot, barbecue skewers, roast duck, and crayfish, but in reality, the meals are limited to low-calorie, low-oil, low-salt options, which translates to something like boiled cabbage in plain water. It's quite disappointing. Staying here for a month will definitely normalize high blood pressure, and even severe fatty liver can rejuvenate, but the food varies by region. This is a widely circulated recipe for lead-free beans, which is evidently very healthy. You must remember, when chatting in the soup, never bring up topics like ramen, fried chicken, barbecue skewers, or hot pot, otherwise, you will definitely have insomnia that night.
In addition to the cravings for good food leading to insomnia, the environment is also one of the reasons for sleeplessness. There are no beds in the custody center; everyone sleeps on a large bunk, packed closely together. Not only are you hungry, but you might also find someone else's front pressed against your back while sleeping. It's quite commendable, but because there are too many people, you can't avoid enduring your roommate's burps, farts, and snores. If you can tolerate all this, there is still a system that prevents you from getting a full night's sleep: duty shifts. To prevent roommates from committing suicide or suffering sudden illnesses, everyone in the cell must take turns on night duty, with each shift lasting one or two hours. If you manage to survive the shift change, there is still an ultimate challenge: sleeping with the lights on. You might think, "Can't I just put my head under the blanket?" Ah, sorry, that's not allowed. The monitoring rules state that you cannot put your head under the blanket or share a blanket with someone else. When the wake-up bell rings the next morning, you must immediately get up and fold your blanket; there's no such thing as sleeping in, and throwing a tantrum won't change that.
The consequences can range from a week of material confiscation to solitary confinement. Life in the custody center is very routine, and the schedule is very tight. Dozens of people are confined in a small cell, everyone folds their blankets and takes turns washing, and even cleaning the toilet is done under surveillance; you must learn to adapt to receiving tasks under everyone's watchful eyes.
But be careful; if the time spent in the toilet is too long or too smelly, it may cause dissatisfaction among your roommates. Another slightly more enjoyable aspect is shopping. Everyone has an account, commonly referred to as the "big account," where family members can deposit money, usually no more than 400 or 500 yuan per month, which can be used to buy limited snacks like instant noodles, ham, pickled vegetables, biscuits, and milk. The seasoning packets for instant noodles are rare treasures; no matter how bland the meals are, adding a little can make them taste better. The biggest problem here is anxiety—endless anxiety. Every day is a routine life, waiting in a crowded, privacy-less environment, waiting for interrogations, waiting for verdicts, waiting indefinitely. The moment everyone looks forward to the most is the time for fresh air, which is one of the few times you can leave your cell. You might think that fresh air means going to the playground for free activities, but that's not the case. The fresh air in the custody center is actually just a room without a ceiling, covered with a steel mesh, where you can hang clothes and see the blue sky outside. Even just this long-lost fresh air can provide some relaxation. When it rains, the fresh air area will be closed, which can be quite frustrating for many.
Some people look forward to going home, while others dream of quickly going to prison, thinking that prison conditions are much better than those in the custody center. At least everyone has a bed, and you no longer have to worry about waking up to find a big guy hugging you, and you won't have to take turns on duty anymore, finally able to sleep soundly. The food also improves from plain meals to several meat dishes a week, and occasionally there will be improvements like roast chicken or pork knuckles. The most fortunate thing is that the case is finally settled, and you no longer have to be anxious every day about the outcome. Now, all you need to do is to work hard on labor reform, which is similar to assembly line work outside. Most prisons implement a 5+1+1 work system: five days of work, one day of study, and one day off. Although the wages are not high, at least there is money to be earned. Here, no one will paint a rosy picture for you; there are only clear scoring assessments. As long as you don't slack off, you can meet your KPIs, and if you exceed them, there are rewards for extra meals. If you accumulate enough points, you can even exchange for items, so slacking off is not an option; everyone is working hard.
If you accidentally become a serious offender and are about to enter prison, what will you face? This is not a romantic encounter like in "Prison Break," nor is it a shocking twist like in "The Shawshank Redemption." There are no filters, no beautification; there are only cold iron bars and high walls, along with the monotonous life that repeats day after day. This prison guide will take you through an immersive experience of the prison process, revealing the little-known daily life in prison. When you are handcuffed and pushed into a police car, this strange journey begins. As you board the dedicated bus and see so many fellow inmates, you might feel a bit excited, but you must remain quiet because the police will use "loving education" to make the prisoners obedient.
- First, we arrive at the first stop, the medical examination center. The prison will arrange a comprehensive free medical examination for the prisoners, covering everything from height, weight, and vision to blood tests and internal organs, leaving no stone unturned. The staff will establish a health record based on the examination results to ensure the hygiene and safety of the iron-bar resort. If any serious illnesses are discovered during this period, or if there are nursing mothers, they will arrange special cells based on the specific circumstances. As the police car slowly drives into the prison, you may feel a bit excited, but even if you are excited, please remain calm and follow the police's instructions to get off the car one by one.
Everyone must unbuckle their seatbelts and get off the car in order from front to back on the right side.
At this point, the prison guards and police dogs have been waiting at the gate for a long time. Although you want to take a few more glances at the outside world, the restraints on your hands and feet do not allow you to do so, and the guards will keep urging you. Next is the identity verification. Name.
Zhang San, date of birth, May 28, 1985, expected release date, sentenced to 3 years and 6 months, is there any mistake?
Suddenly, you feel a chill on your wrist; it turns out the warning is being activated. Everyone finally breaks free from the restraints, but now you must hand over all personal belongings, including your phone, wallet, jewelry, and even your belt and shoelaces, completing a severance from your past life. Then, the warning will conduct a thorough search of the prisoners to ensure that no contraband is present. After the search is completed, you can go to receive new clothes. The prison uniforms are thin, in a single color, and the sizes may not fit strictly, but you have no other choice. Subsequently, the prisoners will change into prison uniforms and shoes under the supervision of the guards. Teacher Tony is ready; regardless of whether you were previously non-mainstream, with side bangs or straight bangs, here everyone will have no bangs, male prisoners will have uniform buzz cuts, and female prisoners will have their hair cut to the ear.
After the haircut, the guards will take photos to establish personal files. At this time, each prisoner will receive a badge with basic information; this badge will be the identity marker for the prisoners for the next month. At this moment, the beauty of the world will have nothing to do with them, and you will also feel that there was once absolute freedom in front of you, but you did not cherish it. Now it is too late to regret. Before you finish your lament, the prison has already called the prisoners in for one-on-one talks. Of course, they are not there to give the prisoners motivational speeches or emphasize prison rules; this is just a baseline conversation. To understand the basic information of the prisoners for future management and ideological reform, after the baseline conversation, the guards will conduct another roll call and headcount.
First row, report numbers 1, 2, 3. Four, five, 5, He Lin to Lin Si Lv, go up.
Then there is another body search. Once you enter the prison, it is an endless cycle of roll calls and body searches. Next, you will follow the group into the new reception area for a month of entry education. During this period, prisoners will undergo queue training, health exercises, learn and recite prison rules, and learn patriotic songs, etc. After a month, the prison will conduct an assessment, and based on the assessment results, prisoners will be assigned to different blocks. Generally speaking, prisoners will be divided into four levels: strict management level, general management level, observation level, and lenient management level, with different levels corresponding to different treatment. The lower the level, the better the treatment, allowing for phone calls, increasing the frequency and duration of family visits, and also increasing the monthly spending limit. Next, prisoners will be taken into the dormitory, assigned to a room, but you do not have the right to choose your bed. The prison will assign beds based on the prisoners' physical condition, age, etc. Prisoners cannot switch beds, and two people cannot lie on the same bed; when sleeping, they cannot cover their heads, and sometimes they cannot even put their hands under the blanket.
Do not argue, do not fight. Can you do that? Yes.
At this point, the guards will give you 15 minutes to organize your personal belongings, and then you will have to go with your fellow inmates to the playground for queue training.
After a fulfilling day, you can finally sleep. The lights in the cell will not be turned off, and many people cannot sleep, but no one dares to speak. You lie in bed tossing and turning. The next morning, prison life officially begins. Accompanied by the 6 o'clock wake-up whistle, you and your fellow inmates immediately get out of bed, not daring to slack off for a moment, because prisoners must immediately tidy up their living space and fold their blankets into tofu blocks, then go wash their faces and brush their teeth. Any failure to meet the requirements or complete washing within the specified time will be considered a minor violation, resulting in a deduction of 1 to 3 points. Once the deductions reach a certain level, punishments such as warnings, demerits, or solitary confinement will be imposed. Parole and sentence reductions follow quickly after the assembly bell rings, and prisoners must quickly reach the playground for roll call and physical training.
Time quickly reaches 8 o'clock, the most exciting meal time. Although you are in a hurry, please don't rush; there is also a strict roll call and body search before meals. As a seasoned inmate, you are most concerned about the prison food. Although the meals here are not known for their color, aroma, and taste, they only guarantee basic nutrition, but fortunately, these meals do not contain any technology or harshness; every bite is very healthy. Although the meal standards vary from prison to prison, most prisons serve steamed buns and plain porridge with pickles for breakfast, a bowl of rice with a stir-fried dish for lunch, usually home-style dishes like cucumber stir-fried with meat or celery stir-fried with meat, and dinner is a bowl of rice with a bowl of vegetarian dishes. When the guard gives the command, you must start wolfing down your food because prisoners only have 15 to 30 minutes to eat, and during mealtime, you must also pay attention not to talk, not to snatch food, eat as much as you can, and not waste food. After finishing, you must clean your own bowls and chopsticks and leave in an orderly manner under the guard's instructions.
Around 8:30, breakfast ends, and prisoners begin to receive new tasks, such as stepping on sewing machines, installing round table pens, pulling data cables, and higher-demand tasks like carpentry and electrical work. These tasks can earn a certain amount of pay, although not much, it can improve life. However, in prison, even if you have money, you cannot spend it as you wish. To encourage prisoners to reform and become better people, prisons generally implement a strict consumption grading system.
- Strict management level can only spend 100 yuan per month, observation level is limited to 200 yuan,
- General management level is limited to 300 yuan, lenient management level is 500 yuan.
- Among them, strict management level can only purchase daily necessities, while the other three levels can purchase other goods provided by the prison's online supermarket. If there are holidays like Spring Festival, New Year's Day, or Dragon Boat Festival, the spending limits for prisoners will also be adjusted.
At noon, you finish your morning labor and can return to your cell for a lunch break after eating. In the afternoon, you may continue working or engage in educational studies, depending on the relevant regulations of the prison. When it reaches 6:50 in the evening, prisoners will sit in front of the TV to watch the daily news broadcast. Next is everyone's favorite free activity time; you can read books, look at family photos, or write letters to family members, and you can also talk to fellow inmates in the same area, but the content of the conversation will be monitored by the guards.
At 9 o'clock, it's time to return to the cell, and the guards will conduct another roll call, while you continue to lie in bed tossing and turning. From now on, what wakes you up will no longer be the pressure of life and alarm clocks, but the biological clock brought by the prison.
Life in Chinese Prisons.#
First of all, in the custody center, after the court pronounces your sentence, you have the above rights for 7-20 days. This is a right given to you by law, and of course, you can also choose not to have the above rights. The benefit is that you show an attitude of admitting guilt, which will be reflected in the materials for sentence reduction during your time in prison. However, the pros and cons of the above are somewhat ambiguous; the higher court will not reduce your sentence without absolute evidence, and some may... this is not to be stated explicitly. You understand...
Do you know what selling pigs is? Then congratulations, you have officially entered prison. From the detention center to prison, there will be armed police standing guard, so don't be afraid; they are armed! No one dares to rob you unless they are...
However, speaking of which, going to that prison used to be a choice, with two options:
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- Short-term prison
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- Long-term prison
The latter is much tougher because the people inside are all starting from ten years. What does ten years mean? You can imagine it yourself. Now let's get to the main topic:
The police will take you to the prison gate. Remember to look outside; this way, you can get out sooner.
Take your belongings and register with your officer to enter the prison.
The officer will take you to the prison gate and hand you over to the prison reception team. The reception team will immediately take you to the medical team for disinfection and inspection; if you do not meet the standards, you will be sent back!
The life of the reception team is as follows:
The tough life begins. Generally, at that time, your mind is very confused. If you are lucky enough to catch a meal, you won't have to go hungry!
The first thing to do is that the inmates in charge will give you a number, and prepare the daily necessities for you, including prison shoes, prison uniforms, quilts, pillows, pens, paper, envelopes, stamps, and even family cartoon phone cards. Each person gets two small handbooks (Behavior Norms for Inmates) (Inmate Joint Assistance System), which will accompany you throughout your reform journey, so make sure to memorize and understand the rules.
The second thing is that the guards will come to understand your situation. They will tell you three things: "Remember where you are, what your identity is, and what you are here for."
The fourth thing is to distribute cages for three months of reform learning, which includes norms, queue training, and singing, all of which must pass assessments to be allowed to join the team.
If you have skills in society, congratulations, you will have a place to use them. Chefs can go to the kitchen, doctors can go to the medical team, and those with higher education can go to the teaching building. If you have nothing, then sorry, there is no way. Those with money can reform, while those without money can only be reformed.
After joining the team, the captain will arrange for you to learn from that inmate, which is operational. If you have friends from the same hometown, you can ask them to help you avoid detours.
Life after joining the team is as follows:
Every day, the inmates will blow the whistle around 6 a.m. to wake up. Remember to get up immediately; otherwise, if the captain finds you sleeping in, you will be punished, depending on the captain's mood.
Get up quickly and fold your quilt, and lining up to wash up is the first thing to do. After washing up, clean the area and prepare for breakfast; singing a reform song before meals is a must.
After breakfast, wait to go to work. Speaking of which, labor is the most glorious; hard work washes the soul. There are task indicators for work; if you fail to complete them, you can ask me what to do. I will tell you, congratulations, the difficult moment has arrived. You know the circle that Sun Wukong drew for Tang Seng when he fought the White Bone Demon; you can try that. Or you can copy the 38 regulations several times, and I believe you will soon meet the indicators.
In prison, never say anything bad about the country, insult the party, or resist the people's government; these are all bottom lines. If you cross the line, there will be no way to survive.
Now prisons have begun to implement a 5+1+1 reform model: five days of labor reform, one day of rest, and one day of skill learning. The weekends can be spent in the square for activities, but you must apply in advance. Furthermore, under the leadership of the people's government, five reform prisoners will be inspected at each corner, and every 3-5 people will form a group. You must remember the situation of your group members to prevent police inspections.
Each person's situation is different, but one rule is to speak less and do more, be smart, and don't talk randomly with others. Sometimes, what you say in one minute can lead to disaster in the next, so be careful.
Reform is the loss of freedom and loneliness. If you can't stand it, you are not far from a mental breakdown.
Whether in the custody center or prison, if you want to survive well, you must follow these points: first, obey the rules; second, respect others; third, keep a low profile; fourth, reduce internal friction, do more work, and think less. In fact, these points also apply to the outside world after leaving prison. The side quests of life have been completed, and players should not replay them.
Chapter One: The Body of the Prisoner#
- The Change of Punishment
Foucault begins by using historical materials to show us the scene of Damiens' execution on March 2, 1757—bloody and brutal. He then quotes the regulations of the "Paris Juvenile Detention Center" eighty years later—tightly linked to a schedule. Although the two are not targeting the same type of crime or offender, they represent two completely different methods of punishment. There was a significant change in punishment from the late 18th century to the early 19th century, which includes two processes that are not synchronized and have different causes. In Foucault's words, "a tragedy has ended, and a comedy has begun."
The first process is "the disappearance of punishment as a public spectacle." People began to question the barbarity of this dramatic punishment process itself, and the executed individuals even began to be praised at the execution site. The gradual disappearance of this spectacle produced several consequences: "It detached itself from the realm of daily experience and entered the realm of abstract consciousness; its effectiveness was seen as stemming from its inevitability rather than from its visible intensity; the certainty of punishment, rather than the terrifying scenes of public punishment, should be able to deter crime; the demonstrative power of punishment changed the punishment mechanism. One result is that the judiciary no longer bears social responsibility due to the violence connected with its practice." The judiciary no longer focuses on the execution scene but gradually distances itself from it, while public attention shifts to the interrogation and judgment. This also means "a relaxation of control over the body." The second process emerges: "Punishment shifts from a technique that produces unbearable sensations to an economic mechanism of temporary deprivation of rights." This primarily means that the target of punishment has changed; the body retreats, and the soul takes the stage. The purpose of punishment measures is "not to punish the illegal act but to supervise the individual, eliminate their dangerous mindset or reform their criminal tendencies, and even maintain these measures after the criminal has transformed." At this stage, psychiatry, especially criminology and criminal anthropology, enters the scene, and their discourse plays an important role: "By solemnly incorporating crime into the realm of scientific knowledge, they provide a legitimate control power that combines the punishment mechanism: not only controlling crime but also controlling individuals, not only controlling their behavior but also controlling their current, future, and potential states." Thus, the legal system, through "science," expands its influence from the body to the soul. Therefore, judges actually not only adjudicate behavior but also adjudicate things beyond behavior, which requires a series of auxiliary authorities. "Criminal justice can only operate and legitimize itself through this constant reference to something outside itself, through this continuous embedding into non-judicial systems. Its fate needs to be constantly redefined by knowledge." "A whole set of knowledge, techniques, and 'scientific' discourses has formed and become increasingly entangled with the practice of punitive power."
- The Purpose and Principles of This Book
The purpose of Foucault's book is to "discuss the historical relationship between the modern soul and a new power of judgment, to discuss the genealogy of the current scientific-legal complex. In this complex, punitive power has gained its own foundation, proof, and rules, expanded its effects, and concealed its extraordinary uniqueness with this complex." In this book, Foucault follows several principles: first, not only seeing the negative aspects of punishment but also the positive aspects, viewing it as a complex social function; second, not only viewing the methods of punishment as legislative consequences or social results but as a more general field with its own distinctive techniques within other forms of exercising power, treating it as a political strategy; third, not treating the history of criminal law separately from the history of humanities but seeing them as derivatives of the "knowledge-justice" mother body, transforming "power technology" into the common principles of the humanization of the penal system and the understanding of people; fourth, attempting to discover whether the entry of the soul into the criminal justice field and the entry of scientific knowledge into judicial practice are indeed interventions of power relations in the structure of the body. In short, what Foucault wants to study is to treat the leniency of criminal law as a form of power technology, analyzing "how a particular mode of conquest can create a person as an object of knowledge that is treated as a certain 'scientific' status."
- The Concept and Characteristics of Micro-Power
The view that punishment is a means of reducing crime is an illusion; punishment also has corrective and reparative purposes and cannot be considered solely in terms of basic moral choices or social judicial structures; they should be considered within the realm of their operation.
The question is, can we describe the history of punishment's soul through the history of the body? Descriptions of the history of the body have been very rich. Generally speaking, the intervention of power in the political realm is closely linked to "the economic use of the body." The body is intervened by power and domination relations as a productive force, but only after it is conquered and controlled can it form a labor force (for example, slaves). This conquest can be violent or the result of a power struggle. Thus, it is possible to form a science of the functioning of the body, a knowledge of the body. The power technology attached to the body is fragmented; it "is not fixed in any particular institutional or state apparatus." This is vividly referred to by Foucault as a "micro-physics of power." Regarding this power technology, Foucault makes the following assumptions: first, it is not a form of ownership, not an effect based on possession, "but should be attributed to deployment, strategy, tactics, techniques, operations; one should decipher a network of relationships that is always in a state of tension and activity, rather than interpret the privileges that people may possess; its model should be eternal struggle, rather than a contract for some transaction or conquest of a territory. In short, it is a power that is exercised rather than possessed. It is not a 'privilege' obtained or maintained by the ruling class, but a comprehensive effect of its strategic position—an effect displayed by the position of the ruled, sometimes even expanded." Secondly, this power spreads as it is exercised; it is not fixed between entities but continuously spreads and disperses through some mechanism. Finally, they are not singular but determine countless points of collision, even leading to the subversion of power, but this subversion "does not follow the principle of 'either all or none'; this subversion is not caused by the state apparatus being controlled by new forces or existing institutional mechanisms exercising new functions or being destroyed all at once; on the other hand, these local episodes will not be recorded in history unless they impact the entire network that constrains them." Therefore, power technology is very difficult to perceive.
- Power-Knowledge
Foucault believes that "power encourages knowledge not only because knowledge serves power, but also because power uses knowledge because it is useful; power and knowledge are directly interconnected; it is impossible to construct a field of knowledge without corresponding power relations, and power relations cannot be presupposed and constructed without knowledge." "It is not the activity of the knowing subject that produces a knowledge system that aids power or resists power; rather, power-knowledge, through the development and contradictions of power-knowledge, determines the form of knowledge and its possible fields." We must abandon the opposition of violence-ideology, the concept of ownership, the contract and conquest model; on the issue of knowledge, we must abandon the opposition of harmful relationships-harmless relationships, the primacy of the knowing subject, and Foucault's focus is on "the political body," "they serve as weapons, relays, pathways, and support means for the relationship between power and knowledge, and that relationship intervenes and conquers the human body by turning it into an object of knowledge." For example, the body of the king has both temporality and eternity, and around this duality, a portraiture (symbolic), political theory, and legal mechanism are formed. The king's surplus of power projected onto the punished person reveals the latter's lack of power, becoming a meaning-opposite replica. In this sense, the soul is defined. That is, "people should not see this soul as a remnant of some ideological residue, but as an existence related to a certain power technology that dominates the body." It differs from the theological definition of the soul; "it is born from various methods of punishment, surveillance, and coercion. This non-corporeal reality of the soul is not an entity but a factor. It embodies a certain effect of power, a certain reference of knowledge, a certain mechanism." Around this "reality-reference," a series of knowledge can be produced, and various concepts can be distinguished. Thus, "the person described to us, the person we are told to liberate, embodies a much deeper effect of conquest than he himself feels. There is a 'soul' occupying him, allowing him to exist—it itself is a factor of power controlling the body. This soul is an effect and tool of the anatomy of power; this soul is the prison of the body."
What Foucault analyzes is not only that material prison but also the "prison" as a tool of power, a technology of domination over the body.
Chapter Two: The Scene of the Guillotine#
- Torture
What is torture? First, torture is a technique, not a lawless violent performance; second, torture should be part of a certain ritual; finally, public torture is the most eye-catching, designed as a triumphant ceremony announcing victory.
As a technique, torture meets three criteria: "First, it must produce a certain degree of pain, which must be measurable, at least calculable, comparable, and graded. Second, the death penalty is also a form of torture because it not only deprives a person of the right to live but also represents the peak of calculated pain levels... Finally, the extreme penalty is an art of prolonging the pain of life, dividing a person's life into 'thousands of deaths,' producing 'the most exquisite and intense pain' before life ceases."
Torture is part of corporal punishment, functionally speaking, it has two aspects: one is torture as an investigative tool, and the other is torture as a method of public execution.
- Torture as an Investigative Tool
(1) The significance of torture in the investigative tool mechanism
An important function of the legal ritual involving torture is to announce the truth to everyone, "establishing the truth is the absolute and exclusive power of the monarch and their judges." To this end, a series of evidence rules were established during the Renaissance, aimed at creating a mechanism for establishing the truth even if the defendant does not attend (remains silent or resists). In this mechanism, the importance of confessions is central; a confession almost requires no supplementary evidence, and "this procedure uses all its unambiguous authority to truly conquer the defendant, the only way for the truth to fully display its power is to make the criminal confess." However, upon careful analysis, confessions themselves have dual ambiguities: first, a confession is both evidence and the object of investigation, as the suspect may speak nonsense for various reasons, and the authenticity of the confession remains to be examined; second, a confession is both a result of coercion and retains a certain transactional characteristic, as confessions must be "voluntary," and the suspect's confession is clearly detrimental to themselves, but they can speak out for their own reasons. This explains the two rituals of ancient judicial investigations: one is swearing an oath, and the other is torture. Both are used to guarantee "truth" and "voluntariness." "People require the defendant to play the role of a willing collaborator in this procedure, and to achieve this, the most extreme deterrent measures are necessary." Judicial investigations produce factual truths through a mechanism that includes two factors: "one is the secret investigation conducted by the judicial authority, and the other is the ritual behavior of the defendant. The defendant's body, which can speak and is tortured when necessary, unites these two factors."
(2) The operational mode of torture in the investigative tool mechanism
"First, interrogation is not a way to obtain the truth at any cost, nor is it the unlimited torture found in modern interrogations. It is indeed very cruel, but it is not barbaric. It is a constrained activity that follows clearly defined procedures... Interrogation is a strict judicial activity... There remains a competitive element between the judge who orders the punishment and the suspect being punished. The punished person faces escalating tests; if they 'hold on,' they succeed; if they confess, they fail... However, the interrogator takes certain risks when using torture; they are betting on evidence already collected." "In interrogation, pain, struggle, and truth are interconnected. They jointly act on the body of the punished person... This is also a battle, where one side's victory over the other will 'produce' a truth that conforms to a certain ritual. In the torture used to obtain confessions, there is an investigative component, but also a duel component." It is not difficult to see that in investigations, the use of torture has already combined investigation and punishment. We not only raise the question: how can a punishment serve as a means of investigation? This must return to the "real" way of producing truth in classical justice. In genuine judicial investigations, "each piece of evidence will evoke a certain degree of aversion towards the suspect. The determination of guilt does not begin when all evidence is gathered together. Rather, it gradually forms as each possible element that could lead to the conviction of the suspect accumulates... The criminal litigation argument does not follow a binary system of true or false, but follows a principle of gradual escalation... A person who becomes an object of suspicion cannot be completely innocent. Suspicion inherently contains the judge's argumentative factor, a certain degree of guilt of the suspect, and a limited criminal punishment. A suspect who is always under suspicion will not be declared innocent but will receive partial punishment. When people's reasoning reaches a certain level, they have every reason to initiate an activity with dual effects: imposing punishment based on the information collected while simultaneously using this initial punishment to obtain the unclear factual truth." Thus, the interrogation of the 18th century became a peculiar spectacle: "The ritual of producing factual truth synchronizes with the ritual of imposing punishment. The tortured body is both the object of punishment and the place where factual truth is forcibly obtained. Moreover, just as reasoning is both an element of investigation and a fragment of determining guilt, the regulated pain caused by judicial interrogation serves as both a means of punishment and a means of investigation." Furthermore, both factors are applied to the human body.
- Torture as Public Punishment
(1) Characteristics of public punishment
In public punishment, the body once again becomes the object of torture; everything revealed in the secret investigation process is publicly displayed through the body. This practice can take several forms: 1) making the criminal the announcer of their own crime; 2) reviving the scene of confession; 3) linking public punishment with the crime itself, such as executing the criminal at the crime scene; 4) the slow process of execution, the sudden dramatic moments, and the cries and sufferings of the criminal can become the final evidence of the judicial ceremony's conclusion. "Every moment of pain at the moment of death expresses a certain truth. However, at the execution site, this expression is even stronger because the pain of the body promotes this expression."
It is noteworthy that from torture to execution, the body of the criminal repeatedly produces or replicates the truth of the crime, highlighting that "the defendant bears this crime with their own body." The body is subjected to multiple tortures, thus becoming a composite that bears the reality of the act and the results of the investigation, the litigation documents, and the statements of the criminal. Therefore, it is a fundamental factor in the sacred criminal procedure. It must be a collaborator arranged around the terrifying power of the monarch, that is, the plaintiff and the right to confidentiality.
(2) Public execution as a political ritual
In ancient law, criminal behavior not only offended the victim but was also seen as an offense against the monarch, as the law embodies the power of the monarch. The monarch does not arbitrate between the two parties or distinguish the exercise of individual rights; rather, it is a direct response to those who offend him. The punishment of the defendant, for the monarch, serves both as compensation for the offense against the monarch and as a direct revenge for such an offense. "The material-political power of the monarch is embodied through the law... In the most ordinary punishment, in the most trivial details of legal forms, the active force of revenge occupies a dominant position." Thus, public execution has a "judicial-political" function; "it is a ritual for restoring the monarch's power that has been harmed," a "significant ceremony for demonstrating the regained power," "it implements overwhelming force against the criminal who has humiliated the monarch's power in front of everyone. Its purpose is less about restoring some balance than about developing the stark contrast between the subjects who dare to trample on the law and the all-powerful monarch who demonstrates his might." "Public execution is not about restoring justice but about reviving power." Eighteenth-century jurists believed that public execution was to "kill a chicken to scare the monkeys," while Foucault believed that this "demonstrative economy" emerged during the Enlightenment but originated from much earlier times. Therefore, public execution "is a policy of terror, using the body of the criminal to make everyone aware of the monarch's infinite existence."
From this perspective, it is not difficult to identify several characteristics of this public execution ritual. First, "the disparity and irreversible tilt of power between the two parties is a fundamental element of public execution. The body, erased and turned to ashes by the monarch's infinite power, is gradually destroyed; this body, which is eliminated little by little, is not only the theoretical limit of punishment but also the practical limit." Second, public execution is not only a ceremony celebrating victory but also includes or reproduces the scene of conflict, that is, the executioner's direct action against the criminal. Third, the monarch often unilaterally halts the execution during the process (granting clemency), demonstrating that he "not only represents the power to carry out legal revenge but also the power to suspend the law and revenge. He should be the unique sovereign, the only one who can wash away the offenses against him. Although he indeed authorizes the court to exercise his power of justice, he does not transfer this power. He still retains this power completely. He can arbitrarily revoke or intensify the sentence."
- The reasons for the existence of torture and public execution
First, some have noted that the existence of torture and public execution is a result of a production system; in earlier societies, labor power and even the human body did not have the utility and value of a commercial society. Second, from a demographic perspective, low birth rates and high mortality rates, along with constant natural and man-made disasters, made people accustomed to death. Third, the ancient regime faced constant uprisings and civil wars, requiring the monarch to continuously consolidate his power. In addition, Foucault believes that we should see that "the truth-power relationship is always at the core of all punishment mechanisms, and it remains so in current penal practices, albeit in different forms and with different effects." Therefore, it is always the stage necessary for revealing the truth and displaying power. Enlightenment thinkers criticized their brutality, but this brutality has a dual effect: "It serves both as a principle connecting crime and punishment and intensifies the punishment of crime. It provides a scene for displaying truth and power. It is also the climax of the investigative ritual and the monarch's victory celebration. It combines the two through the tortured body." Enlightenment thinkers' efforts to expel violence are actually attempts to prove the heterogeneity between "punishable crimes" and "punishments imposed by power." Foucault believes that the violent factors in torture and public execution are not simply a product of a "revenge law," but essentially "the effect of a certain power mechanism in the punishment ritual"—"this power does not need to explain why it implements the law, but it should demonstrate who its enemies are and show them its released terrifying power. This power strives to restore its effects through its unique scene without continuous supervision. This power presents itself as 'supreme power' to gain new strength." This seems similar to a "state of civil war."
- Why did humane punishment replace brutal punishment? — The role of the public
Foucault believes that the primary reason to analyze is the functional application of public execution and its long-standing chaotic disorder, which is the issue of the public's role. First, the transformation of the public's role. "In the ritual of public execution, the main role is the public. Their actual and direct presence is essential for holding such a ritual," but in this scene, the public's role is ambiguous. The first role of the public is as spectators; the right to witness is their due right. The second role of the public is as participants; in public executions, "the public's revenge is summoned, becoming a secondary component of the monarch's revenge," "for the onlookers, the criminal is both a warning example and a target of attack." There is no shortage of direct attacks on the criminal by the public during public executions. In the third role, the public becomes another participant, an attacker denying the judgment and the power. "When the public gathers around the guillotine, they are not only there to witness the suffering of the criminal and stir the executioner's blood but also to hear a person who has lost everything curse the judge, the law, the government, and religion." These execution rituals should only display the monarch's deterrent power, but they also have a carnival aspect, where the law is subverted, authority is mocked, and the criminal becomes a hero, with honor and disgrace reversed. The most important reason these disadvantages are politically dangerous is that the public feels closer to those being punished than ever before during the ritual of displaying the terror of evil and the invincible power, and like those people, the public feels more severely threatened by unrestricted legitimate violence than ever before. Therefore, the public gathered at the execution site becomes an indirect "victim."
The "role" is only one aspect of the problem. When new crime literature replaces the glorification of criminals in past crime literature with investigation and clever plotting, the interest of the audience shifts from the bloody scene to the intellectual battle of discovering the crime.
Part Two: Punishment#
Chapter One: Universal Punishment#
- Further Discussion on Humane Punishment Replacing Brutal Punishment
(1) The Reformist's Perspective
In the late 18th century, protests against public executions increased, and reformers put forward many reasons, one of which is that public execution "provides a stage for the struggle between royal violence and public violence, so it is dangerous." "In this dangerous ritualized violence, both sides exceed the legitimate exercise of power. In their view, tyranny faces rebellion, and the two are mutually causal. This is a dual danger. Therefore, criminal justice should not retaliate but should only punish." This is clearly related to the social crisis of the 17th and 18th centuries. Additionally, reformers also proposed that "even when punishing the most despicable murderer, there is at least one thing about him that should be respected, namely his 'humanity'." This is clearly influenced by Enlightenment thought, which "contrasts humanity with the barbarity of public execution, not as a subject of empirical knowledge but as a legal limitation, a boundary of the legitimacy of punitive power. What is said here is not a goal that must be achieved to reform people but something that should not be touched to respect humanity." The famous saying of the ancient Greek philosopher Protagoras, "Man is the measure of all things," is brought up again, but this time, humanity becomes the measure of power.
Historically, the process of leniency in punishment in the 18th century coincided with a historical period in which the intensity of crime seemed to weaken. This is a dual movement but has a profound background. From the perspective of crime trends, property crimes have significantly increased, and large criminal organizations have disbanded. This is related to several historical processes. The first process is the change in economic pressures; the rapid development of capitalism in the 17th and 18th centuries and the rapid population growth led to increased pressure for wealth. The second process is that the law has become more severe than in the past. Crime has gradually shifted from personal injury to property infringement. The concentrated outbreak of this crime has led to a demand for a more refined and efficient judiciary. Upon careful analysis, critics' attacks on past judicial practices are less about the abuse of power and more about "being linked to a certain lawless state." The situation in France is a typical representative, where power is too chaotic and dispersed, accompanied by excessive monarchic power. "The judiciary combines weakness and tyranny, both showing off and full of loopholes." Reformers keenly see that the root of this problem lies in the monarch's supreme power. Therefore, criminal law reform actually calls for a brand new power strategy, and various interests are involved in this reshuffling process. Everyone reached a consensus on the goal of reform: "The right to judge should no longer depend on the countless, disjointed, and sometimes contradictory privileges of royal power, but should depend on public power with continuous effects." Therefore, the primary goal of reform is: "To transform the punishment and suppression of illegal activities into a regulated function that develops in sync with society; not to punish less, but to punish more effectively; perhaps to mitigate the severity of punishment, but the goal is to make punishment more universal and necessary; to embed punitive power more deeply into society itself."
(2) Illegal Activities and Criminal Law Reform
"Illegal activities" is a very important concept in this book. In Foucault's view, it is not just a behavior but a trend of action belonging to a specific group, even a "condition of political and economic operation in society at that time," that is, "under the old system, various social classes had their own tolerated illegal activities: laws were not followed, orders were not obeyed." Illegal activities have two extremes: one extreme is the privilege of the upper class, which becomes a completely legal form; the other extreme is the general disobedience of the lower class. Here, Foucault keenly observes: "In principle, the most despised class among the residents has no privileges, but they gain a space of tolerance at the margins of the laws and customs imposed on them. This is something they obtain through violence or stubborn persistence. This space is their necessary condition for survival, and thus they are often prepared to fight to defend it. Every so often, various attempts to compress this space arise, either by reiterating old laws or improving arrest methods. Such efforts cause public unease, just as the reduction of certain privileges causes unease among the nobility, clergy, and bourgeoisie." "Each class has its own unique necessary illegal activities." Criminal law incorporates a large number of illegal activities belonging to the lower classes into the definition of crime. For example, tax evasion and smuggling are ways for the lower classes to survive, so it is not surprising that the public has a dual attitude towards crime. "A mixed atmosphere forms around crime. The public sometimes provides effective help and sometimes harbors fear; these two attitudes are only a stone's throw apart... The illegal activities of the public contain a series of criminal factors. These factors are both extreme forms of illegal activities and inherent threats to illegal activities."
In the early expansion of capitalism, capitalism needed these illegal activities, so the attitude towards illegal activities shifted from tolerance to encouragement, such as smuggling. However, in the later period, the situation reversed. During this time, society shifted from "judicial-political oppression" to "deprivation of means of labor-deprivation of labor products," and the target of crime shifted from personal injury to property, which capitalism could not allow, so illegal activities had to be punished. However, the large-scale infringement of property is difficult to enforce, so a more effective and continuous strategy is needed to replace the temporary and unregulated mechanisms. "In short, criminal law reform arises at the intersection of the struggle against the supreme power of the monarch and the struggle against the underground power (infrapower) of commonplace illegal activities."
In fact, "supreme power-illegal activities" is a pair of symbiotic entities, and a complete network forms between them. It is hard to say who is the cause of whom, but the two seem to be mutually conditional. The most obvious is that in the form of public execution, "the monarch's infinite power and the public's ever-active illegal activities converge in the most vivid way. The humanity of the judgment is a criterion for the punishment system, which should establish the boundaries between the monarch and the public. The 'human' that should be respected in the judgment is the judicial and moral form of this dual definition." In the actual historical process, the focus of criminal law reform is indeed on suppressing illegal activities, but not to eliminate them, as it lacks the capacity to do so: "Any criminal law system should be seen as a mechanism for managing illegal activities in a differentiated manner, rather than a mechanism aimed at completely eliminating illegal activities."
(3) The Symbolization of Punitive Power
In criminal law reform, the theory of contract is an important rationale. The criminal is seen as violating the social contract, becoming an enemy of society. Therefore, "the power of punishment has shifted from the monarch's revenge to the defense of society." However, not all members of the public agree to impose unrestrained punishment on criminals; this is actually another return to supreme power. Therefore, it is necessary to impose necessary limits on punishment.
The principle of moderation in punishment is first expressed as a "mental discourse." Humanity is reintroduced, which is clearly influenced by Enlightenment thought. Behind this discourse is a consideration of "the consequences of regulating power," which must measure the costs and benefits of punishment in "economic" terms; "humanity" is merely a "decent name" for this calculation.
The focus of punishment is whether it is based on the past—the consequences of crime—or the future—the possibility of increasing daily illegal activities. A consensus quickly emerges: "What people need to consider is not past crimes but future chaos. The effect they should aim for is to make the wrongdoer unable to have the desire to re-offend, and also to prevent imitators. Therefore, punishment should be an art of producing effects. People should not use a large amount of punishment to deal with a large number of crimes but should correspond the two series according to the effects of crime and punishment. Crimes without successors do not need punishment."
This is not a new viewpoint; in past tortures, the function of preventing future crimes also existed, but there are distinctions between the two. "In the use of public torture and execution, punishment is a response to crime. It demonstrates a dual phenomenon, showcasing the crime while also displaying the monarch's power to subdue it. In the punishments based on their own effects, punishment must be attributed to the crime, but it is expressed in the most cautious and restrained manner. The ideal outcome should be to prevent the reappearance of either. Punishment is no longer a display ritual but a symbolic representation of obstacles. This symbolic tendency of punishment tends to subvert the entire field of worldly criminal activities."
That is, a change from "visualization" to "symbolization."
The principles related to the symbolic technology of punitive power include the following: first, the principle of minimalism (proportionality), "to make the desire to avoid punishment slightly stronger than the desire to commit crimes." Second, the principle of sufficient imagination. "Punishment should utilize not the body but the representation. More accurately, if it utilizes the body, then the body is mainly an object of some representation rather than an object of pain." "Denying public execution provides a possibility for rational expression: the representation of punishment should be expanded as much as possible, rather than the fact of corporal punishment." Third, the principle of side effects. The most important aspect of punishment is to be displayed to the audience, thus producing a "decentralized reinforcement effect," where the criminal becomes the least important. According to Beccaria, "when sentencing according to the crime, people should choose the punishment that leaves the most lasting impression on the public's mind while being the least cruel to the body of the criminal." Fourth, the principle of absolute certainty. "Nothing weakens the legal mechanism more than the hope of leniency." A close connection between "crime-punishment" must be established, and absolute certainty must be given to the punishment imposed. Fifth, the principle of common truth. The proof method of torture has deviated from the general theory of proof. This difference, "when the punitive power needs to create an atmosphere of undeniable evidence for its own sake, will instead lead to wrongful convictions." To establish a necessary connection between "crime-punishment," convictions must be based on the facts of the crime, thus maintaining consistency with general proof theory in reasoning and providing evidence. Sixth, the principle of detailed regulations. "The law should not cultivate hopes of acquittal through silence." Seventh, the principle of intervening in criminal tendencies. For repeat offenders, the goal is not the responsible party but their obstinate tendencies.
- The Arrangement of Punitive Power
Thus, the seemingly "humane" penal system is behind "a carefully calculated economy of punitive power." However, these principles also lead to changes in the points of power: no longer through the ritual games of excessive pain and public humiliation in public executions but rather through the spirit, more precisely, through the careful dissemination of representations and symbols in the minds of all people.
Starting from the eradication of illegal activities, a boundary of punishment has been designed to control punitive power. From this starting point, two routes that objectify crime and criminals have emerged. On one hand, criminals are treated as public enemies, opposing society, detached from the collective, becoming "abnormal" individuals, ultimately becoming "scientific" objects subject to "treatment." On the other hand, the effectiveness of punitive power is measured. In both cases, it is not difficult to find that the power relations supporting punitive activities begin to increase a corresponding "object relation," and this process of objectification is seen by Foucault as originating from "the strategies of power and its use arrangements." However, these two processes are not synchronized; the concept of "criminal" takes time to emerge, but the objectification of crime synchronizes with the reorganization of punitive power and is aided by the discourse of Enlightenment thought. This discourse provides a universal prescription: "Power uses semiotics as a tool, treating 'spirit' (mind) as a surface available for inscription; conquering the body by controlling thought; analyzing representations as a principle of bodily politics." "The foolish tyrant binds his slaves with iron chains, while the true politician binds them more tightly with the chains of their own thoughts. It is from this solid rational basis that he tightly grasps the ends of the chains." In this political anatomy, the body will be redefined and re-allocated roles. This new political anatomy combines two opposing routes: on one hand, it uses natural cases to exclude criminals; on the other hand, it uses carefully calculated punitive economics to control crime.
Chapter Three: The Scene of the Guillotine#
- Torture
What is torture? First, torture is a technique, not a lawless violent performance; second, torture should be part of a certain ritual; finally, public torture is the most eye-catching, designed as a triumphant ceremony announcing victory.
As a technique, torture meets three criteria: "First, it must produce a certain degree of pain, which must be measurable, at least calculable, comparable, and graded. Second, the death penalty is also a form of torture because it not only deprives a person of the right to live but also represents the peak of calculated pain levels... Finally, the extreme penalty is an art of prolonging the pain of life, dividing a person's life into 'thousands of deaths,' producing 'the most exquisite and intense pain' before life ceases."
Torture is part of corporal punishment, functionally speaking, it has two aspects: one is torture as an investigative tool, and the other is torture as a method of public execution.
- Torture as an Investigative Tool
(1) The significance of torture in the investigative tool mechanism
An important function of the legal ritual involving torture is to announce the truth to everyone, "establishing the truth is the absolute and exclusive power of the monarch and their judges." To this end, a series of evidence rules were established during the Renaissance, aimed at creating a mechanism for establishing the truth even if the defendant does not attend (remains silent or resists). In this mechanism, the importance of confessions is central; a confession almost requires no supplementary evidence, and "this procedure uses all its unambiguous authority to truly conquer the defendant, the only way for the truth to fully display its power is to make the criminal confess." However, upon careful analysis, confessions themselves have dual ambiguities: first, a confession is both evidence and the object of investigation, as the suspect may speak nonsense for various reasons, and the authenticity of the confession remains to be examined; second, a confession is both a result of coercion and retains a certain transactional characteristic, as confessions must be "voluntary," and the suspect's confession is clearly detrimental to themselves, but they can speak out for their own reasons. This explains the two rituals of ancient judicial investigations: one is swearing an oath, and the other is torture. Both are used to guarantee "truth" and "voluntariness." "People require the defendant to play the role of a willing collaborator in this procedure, and to achieve this, the most extreme deterrent measures are necessary." Judicial investigations produce factual truths through a mechanism that includes two factors: "one is the secret investigation conducted by the judicial authority, and the other is the ritual behavior of the defendant. The defendant's body, which can speak and is tortured when necessary, unites these two factors."
(2) The operational mode of torture in the investigative tool mechanism
"First, interrogation is not a way to obtain the truth at any cost, nor is it the unlimited torture found in modern interrogations. It is indeed very cruel, but it is not barbaric. It is a constrained activity that follows clearly defined procedures... Interrogation is a strict judicial activity... There remains a competitive element between the judge who orders the punishment and the suspect being punished. The punished person faces escalating tests; if they 'hold on,' they succeed; if they confess, they fail... However, the interrogator takes certain risks when using torture; they are betting on evidence already collected." "In interrogation, pain, struggle, and truth are interconnected. They jointly act on the body of the punished person... This is also a battle, where one side's victory over the other will 'produce' a truth that conforms to a certain ritual. In the torture used to obtain confessions, there is an investigative component, but also a duel component." It is not difficult to see that in investigations, the use of torture has already combined investigation and punishment. We not only raise the question: how can a punishment serve as a means of investigation? This must return to the "real" way of producing truth in classical justice. In genuine judicial investigations, "each piece of evidence will evoke a certain degree of aversion towards the suspect. The determination of guilt does not begin when all evidence is gathered together. Rather, it gradually forms as each possible element that could lead to the conviction of the suspect accumulates... The criminal litigation argument does not follow a binary system of true or false, but follows a principle of gradual escalation... A person who becomes an object of suspicion cannot be completely innocent. Suspicion inherently contains the judge's argumentative factor, a certain degree of guilt of the suspect, and a limited criminal punishment. A suspect who is always under suspicion will not be declared innocent but will receive partial punishment. When people's reasoning reaches a certain level, they have every reason to initiate an activity with dual effects: imposing punishment based on the information collected while simultaneously using this initial punishment to obtain the unclear factual truth." Thus, the interrogation of the 18th century became a peculiar spectacle: "The ritual of producing factual truth synchronizes with the ritual of imposing punishment. The tortured body is both the object of punishment and the place where factual truth is forcibly obtained. Moreover, just as reasoning is both an element of investigation and a fragment of determining guilt, the regulated pain caused by judicial interrogation serves as both a means of punishment and a means of investigation." Furthermore, both factors are applied to the human body.
- Torture as Public Punishment
(1) Characteristics of public punishment
In public punishment, the body once again becomes the object of torture; everything revealed in the secret investigation process is publicly displayed through the body. This practice can take several forms: 1) making the criminal the announcer of their own crime; 2) reviving the scene of confession; 3) linking public punishment with the crime itself, such as executing the criminal at the crime scene; 4) the slow process of execution, the sudden dramatic moments, and the cries and sufferings of the criminal can become the final evidence of the judicial ceremony's conclusion. "Every moment of pain at the moment of death expresses a certain truth. However, at the execution site, this expression is even stronger because the pain of the body promotes this expression."
It is noteworthy that from torture to execution, the body of the criminal repeatedly produces or replicates the truth of the crime, highlighting that "the defendant bears this crime with their own body." The body is subjected to multiple tortures, thus becoming a composite that bears the reality of the act and the results of the investigation, the litigation documents, and the statements of the criminal. Therefore, it is a fundamental factor in the sacred criminal procedure. It must be a collaborator arranged around the terrifying power of the monarch, that is, the plaintiff and the right to confidentiality.
(2) Public execution as a political ritual
In ancient law, criminal behavior not only offended the victim but was also seen as an offense against the monarch, as the law embodies the power of the monarch. The monarch does not arbitrate between the two parties or distinguish the exercise of individual rights; rather, it is a direct response to those who offend him. The punishment of the defendant, for the monarch, serves both as compensation for the offense against the monarch and as a direct revenge for such an offense. "The material-political power of the monarch is embodied through the law... In the most ordinary punishment, in the most trivial details of legal forms, the active force of revenge occupies a dominant position." Thus, public execution has a "judicial-political" function; "it is a ritual for restoring the monarch's power that has been harmed," a "significant ceremony for demonstrating the regained power," "it implements overwhelming force against the criminal who has humiliated the monarch's power in front of everyone. Its purpose is less about restoring some balance than about developing the stark contrast between the subjects who dare to trample on the law and the all-powerful monarch who demonstrates his might." "Public execution is not about restoring justice but about reviving power." Eighteenth-century jurists believed that public execution was to "kill a chicken to scare the monkeys," while Foucault believed that this "demonstrative economy" emerged during the Enlightenment but originated from much earlier times. Therefore, public execution "is a policy of terror, using the body of the criminal to make everyone aware of the monarch's infinite existence."
From this perspective, it is not difficult to identify several characteristics of this public execution ritual. First, "the disparity and irreversible tilt of power between the two parties is a fundamental element of public execution. The body, erased and turned to ashes by the monarch's infinite power, is gradually destroyed; this body, which is eliminated little by little, is not only the theoretical limit of punishment but also the practical limit." Second, public execution is not only a ceremony celebrating victory but also includes or reproduces the scene of conflict, that is, the executioner's direct action against the criminal. Third, the monarch often unilaterally halts the execution during the process (granting clemency), demonstrating that he "not only represents the power to carry out legal revenge but also the power to suspend the law and revenge. He should be the unique sovereign, the only one who can wash away the offenses against him. Although he indeed authorizes the court to exercise his power of justice, he does not transfer this power. He still retains this power completely. He can arbitrarily revoke or intensify the sentence."
- The reasons for the existence of torture and public execution
First, some have noted that the existence of torture and public execution is a result of a production system; in earlier societies, labor power and even the human body did not have the utility and value of a commercial society. Second, from a demographic perspective, low birth rates and high mortality rates, along with constant natural and man-made disasters, made people accustomed to death. Third, the ancient regime faced constant uprisings and civil wars, requiring the monarch to continuously consolidate his power. In addition, Foucault believes that we should see that "the truth-power relationship is always at the core of all punishment mechanisms, and it remains so in current penal practices, albeit in different forms and with different effects." Therefore, it is always the stage necessary for revealing the truth and displaying power. Enlightenment thinkers criticized their brutality, but this brutality has a dual effect: "It serves both as a principle connecting crime and punishment and intensifies the punishment of crime. It provides a scene for displaying truth and power. It is also the climax of the investigative ritual and the monarch's victory celebration. It combines the two through the tortured body." Enlightenment thinkers' efforts to expel violence are actually attempts to prove the heterogeneity between "punishable crimes" and "punishments imposed by power." Foucault believes that the violent factors in torture and public execution are not simply a product of a "revenge law," but essentially "the effect of a certain power mechanism in the punishment ritual"—"this power does not need to explain why it implements the law, but it should demonstrate who its enemies are and show them its released terrifying power. This power strives to restore its effects through its unique scene without continuous supervision. This power presents itself as 'supreme power' to gain new strength." This seems similar to a "state of civil war."
- Why did humane punishment replace brutal punishment? — The role of the public
Foucault believes that the primary reason to analyze is the functional application of public execution and its long-standing chaotic disorder, which is the issue of the public's role. First, the transformation of the public's role. "In the ritual of public execution, the main role is the public. Their actual and direct presence is essential for holding such a ritual," but in this scene, the public's role is ambiguous. The first role of the public is as spectators; the right to witness is their due right. The second role of the public is as participants; in public executions, "the public's revenge is summoned, becoming a secondary component of the monarch's revenge," "for the onlookers, the criminal is both a warning example and a target of attack." There is no shortage of direct attacks on the criminal by the public during public executions. In the third role, the public becomes another participant, an attacker denying the judgment and the power. "When the public gathers around the guillotine, they are not only there to witness the suffering of the criminal and stir the executioner's blood but also to hear a person who has lost everything curse the judge, the law, the government, and religion." These execution rituals should only display the monarch's deterrent power, but they also have a carnival aspect, where the law is subverted, authority is mocked, and the criminal becomes a hero, with honor and disgrace reversed. The most important reason these disadvantages are politically dangerous is that the public feels closer to those being punished than ever before during the ritual of displaying the terror of evil and the invincible power, and like those people, the public feels more severely threatened by unrestricted legitimate violence than ever before. Therefore, the public gathered at the execution site becomes an indirect "victim."
The "role" is only one aspect of the problem. When new crime literature replaces the glorification of criminals in past crime literature with investigation and clever plotting, the interest of the audience shifts from the bloody scene to the intellectual battle of discovering the crime.
Part Two: Punishment#
Chapter One: Universal Punishment#
- Further Discussion on Humane Punishment Replacing Brutal Punishment
(1) The Reformist's Perspective
In the late 18th century, protests against public executions increased, and reformers put forward many reasons, one of which is that public execution "provides a stage for the struggle between royal violence and public violence, so it is dangerous." "In this dangerous ritualized violence, both sides exceed the legitimate exercise of power. In their view, tyranny faces rebellion, and the two are mutually causal. This is a dual danger. Therefore, criminal justice should not retaliate but should only punish." This is clearly related to the social crisis of the 17th and 18th centuries. Additionally, reformers also proposed that "even when punishing the most despicable murderer, there is at least one thing about him that should be respected, namely his 'humanity'." This is clearly influenced by Enlightenment thought, which "contrasts humanity with the barbarity of public execution, not as a subject of empirical knowledge but as a legal limitation, a boundary of the legitimacy of punitive power. What is said here is not a goal that must be achieved to reform people but something that should not be touched to respect humanity." The famous saying of the ancient Greek philosopher Protagoras, "Man is the measure of all things," is brought up again, but this time, humanity becomes the measure of power.
Historically, the process of leniency in punishment in the 18th century coincided with a historical period in which the intensity of crime seemed to weaken. This is a dual movement but has a profound background. From the perspective of crime trends, property crimes have significantly increased, and large criminal organizations have disbanded. This is related to several historical processes. The first process is the change in economic pressures; the rapid development of capitalism in the 17th and 18th centuries and the rapid population growth led to increased pressure for wealth. The second process is that the law has become more severe than in the past. Crime has gradually shifted from personal injury to property infringement. The concentrated outbreak of this crime has led to a demand for a more refined and efficient judiciary. Upon careful analysis, critics' attacks on past judicial practices are less about the abuse of power and more about "being linked to a certain lawless state." The situation in France is a typical representative, where power is too chaotic and dispersed, accompanied by excessive monarchic power. "The judiciary combines weakness and tyranny, both showing off and full of loopholes." Reformers keenly see that the root of this problem lies in the monarch's supreme power. Therefore, criminal law reform actually calls for a brand new power strategy, and various interests are involved in this reshuffling process. Everyone reached a consensus on the goal of reform: "The right to judge should no longer depend on the countless, disjointed, and sometimes contradictory privileges of royal power, but should depend on public power with continuous effects." Therefore, the primary goal of reform is: "To transform the punishment and suppression of illegal activities into a regulated function that develops in sync with society; not to punish less, but to punish more effectively; perhaps to mitigate the severity of punishment, but the goal is to make punishment more universal and necessary; to embed punitive power more deeply into society itself."
(2) Illegal Activities and Criminal Law Reform
"Illegal activities" is a very important concept in this book. In Foucault's view, it is not just a behavior but a trend of action belonging to a specific group, even a "condition of political and economic operation in society at that time," that is, "under the old system, various social classes had their own tolerated illegal activities: laws were not followed, orders were not obeyed." Illegal activities have two extremes: one extreme is the privilege of the upper class, which becomes a completely legal form; the other extreme is the general disobedience of the lower class. Here, Foucault keenly observes: "In principle, the most despised class among the residents has no privileges, but they gain a space of tolerance at the margins of the laws and customs imposed on them. This is something they obtain through violence or stubborn persistence. This space is their necessary condition for survival, and thus they are often prepared to fight to defend it. Every so often, various attempts to compress this space arise, either by reiterating old laws or improving arrest methods. Such efforts cause public unease, just as the reduction of certain privileges causes unease among the nobility, clergy, and bourgeoisie." "Each class has its own unique necessary illegal activities." Criminal law incorporates a large number of illegal activities belonging to the lower classes into the definition of crime. For example, tax evasion and smuggling are ways for the lower classes to survive, so it is not surprising that the public has a dual attitude towards crime. "A mixed atmosphere forms around crime. The public sometimes provides effective help and sometimes harbors fear; these two attitudes are only a stone's throw apart... The illegal activities of the public contain a series of criminal factors. These factors are both extreme forms of illegal activities and inherent threats to illegal activities."
In the early expansion of capitalism, capitalism needed these illegal activities, so the attitude towards illegal activities shifted from tolerance to encouragement, such as smuggling. However, in the later period, the situation reversed. During this time, society shifted from "judicial-political oppression" to "deprivation of means of labor-deprivation of labor products," and the target of crime shifted from personal injury to property, which capitalism could not allow, so illegal activities had to be punished. However, the large-scale infringement of property is difficult to enforce, so a more effective and continuous strategy is needed to replace the temporary and unregulated mechanisms. "In short, criminal law reform arises at the intersection of the struggle against the supreme power of the monarch and the struggle against the underground power (infrapower) of commonplace illegal activities."
In fact, "supreme power-illegal activities" is a pair of symbiotic entities, and a complete network forms between them. It is hard to say who is the cause of whom, but the two seem to be mutually conditional. The most obvious is that in the form of public execution, "the monarch's infinite power and the public's ever-active illegal activities converge in the most vivid way. The humanity of the judgment is a criterion for the punishment system, which should establish the boundaries between the monarch and the public. The 'human' that should be respected in the judgment is the judicial and moral form of this dual definition." In the actual historical process, the focus of criminal law reform is indeed on suppressing illegal activities, but not to eliminate them, as it lacks the capacity to do so: "Any criminal law system should be seen as a mechanism for managing illegal activities in a differentiated manner, rather than a mechanism aimed at completely eliminating illegal activities."
(3) The Symbolization of Punitive Power
In criminal law reform, the theory of contract is an important rationale. The criminal is seen as violating the social contract, becoming an enemy of society. Therefore, "the power of punishment has shifted from the monarch's revenge to the defense of society." However, not all members of the public agree to impose unrestrained