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In the penal system of the Classical period, one reencounters, mixed together, four great forms of punitive tactics - four forms having different historical origins, each having played if not an exclusive role then a privileged one:

1. exile, cast out, banish, expel beyond the borders, forbid certain places, destroy the home, obliterate the birthplace, confiscate the possessions and properties;
2. arrange a compensation, impose a redemption, convert the damage caused into a debt to repay, turn the offense into a financial obligation;
3. expose, mark, wound, amputate, make a scar, stamp a sign on the face or the shoulder, impose an artificial and visible handicap, torture - in short, seize hold of the body and inscribe upon it the marks of power;
4. confine.

As a hypothesis we may distinguish, in terms of the types of punishment they privileged, banishment societies (Greek society), redemption societies (Germanic societies), marking societies (Western societies at the end of the Middle Ages), and confinement societies - our own?

Ours, but only since the end of the eighteenth century. For one thing is certain: detention and imprisonment do not form part of the European penal system before the great reforms of the years 1780-1820. The jurists of the eighteenth century are unanimous on this point: “Prison is not regarded as a penalty according to our civil law ... although the princes, for reasons of State, sometimes go so far as to inflict this penalty, these are decisive blows, and civil courts do not make use of these kinds of sentences” (Serpillon, Code criminel, 1767).i But it can already be said that such an insistence on denying that imprisonment has any penal character indicates a growing uncertainty. In any case, the confinements that are practiced in the seventeenth and eighteenth century remain on the fringe of the penal system, even if they are close by and drawing ever closer.

  • surety confinement, employed by the courts during the investigation of a criminal matter, by the creditor until repayment of the debt, or by the royal power when it fears an enemy. This is not so much a matter of punishing an offense as of making sure of a person.
  • substitute confinement, imposed on someone who doesn’t come under criminal justice (either because of the nature of his offenses, which are only moral or behavioral in nature; or due to a privileged status: the ecclesiastical courts, which since 1629 no longer have the right to pass prison sentences in the strict sense, may order the guilty to withdraw to a monastery; the lettre de cachet is often a means for the privileged to escape criminal justice; women are sent to houses of detention for mistakes that men will pay for on the convict ships).

It should be noted, except in this last case, that this substitute confinement is characterized in general by the fact that it is not decided by judicial authority, that its duration is not set once and for all, and that it depends on a hypothetical purpose - correction. Punishment rather than penalty.

Now, fifty years or so after the great monuments of Classical criminal law (Serpillon, Jousse,ii Muyart de Vonglansiii), prison became the general form of penalty.

In 1831, Rémusat, in a speech to the Chamber, said: “What is the penal system authorized by the new law? It is incarceration in all its forms. Compare in fact the four main penalties that remain in the Penal Code. Forced labor is a form of incarceration. Penal servitude is an open-air prison. Detention, hard labor, and correctional imprisonment are in a way just different names for the same act of punishment.”iv And, Van Meenen, opening the Third Penitentiary Conference at Brussels, recalled the time of his youth when the land was still covered with “wheels, gibbets, gallows, and pillories,” with “skeletons hideously spread.”v It looks as if prison, parapenal punishment, had, at the end of the eighteenth century, made its entry into penal practice and had very quickly occupied the entire space. The Austrian Criminal Code, drafted under Joseph II, offers the most obvious evidence of this immediately triumphant invasion.

The organization of a penal system of confinement is not simply recent, it is enigmatic.

At the very time of its planning, it was the object of vehement criticism - criticism formulated in terms of basic principles; but also formulated with a view to the dysfunctions that prison might induce in the penal system and in society as a whole.

1. Prison prevents judicial authority from supervising and verifying the application of penalties. The law does not penetrate into the prisons, said Decazes in 1818.
2. Prison, by intermingling convicts who are both different and isolated, forms a homogeneous community of criminals who become comrades in confinement and who will remain such on the outside. Prison manufactures a veritable army of domestic enemies.
3. By giving convicts shelter, food, clothing, and often work, prison provides them with a condition preferable at times to that of workers. Not only may it fail to have a dissuasive effect, but it fosters delinquency.
4. Leaving prison are people who are doomed by their habits and by the infamy with which they are stamped to a life of crime.

Right away, then, prison is denounced as an instrument that, in the margins of justice, manufactures those whom that justice will send or send back to prison. The carceral circle is clearly denounced as early as the years 1815-1830. To this criticism there were three successive replies:

  • imagine an alternative to prison which retains its positive effects (the segregation of criminals, their removal from circulation in society) and eliminates its dangerous consequences (their return to circulation). One will take up the old system of transport, which the British had suspended at the time of the War of Independence and reinstated after 1790, in the direction of Australia. The great debates about Botany Bay took place in France around the years 1824-1830. In actual fact, deportation-colonization will never take the place of imprisonment; during the period of the great colonial conquests, it will play a complex role in the controlled circuits of delinquency. A whole ensemble constituted by the groups of more or less voluntary colonists, the colonial regiments, the battalions of Africa, the Foreign Legion, and Cayenne will come to function, during the nineteenth century, in correlation with a penal practice that will remain essentially carceral.
  • reform the internal system of the prison so that it stops manufacturing that army of domestic perils. This is the goal that was pointed to throughout Europe as “penitentiary reform.” We can give as chronological markers for it the Lessons on Prisons by Julius (1828),vi on the one hand, and on the other the Brussels Conference in 1847. This reform includes three main aspects: complete or partial isolation of prisoners inside the prisons (debates about the systems of Auburn and Pennsylvania); moral reform of convicts through work, instruction, religion, rewards, sentence reductions; development of parapenal institutions of prevention, or cooptation, or supervision. Now, these reforms, which the revolutions of 1848 put an end to, did not have the slightest effect on the prison dysfunctions that were denounced in the preceding period;
  • finally, give an anthropological status to the carceral circle; replace the old project of Julius and of Charles Lucasvii (to establish a “science of prisons” capable of giving the architectural, administrative, and pedagogical principles of a “correctional” institution) with a “science of criminals” that would be able to characterize them in their specificity and define the modes of social reaction suited to their case. The class of delinquents, to which the carceral circuit gave at least part of its autonomy and whose isolation and closure it ensured, appears then as a psychosociological deviation. A deviation that comes under a “scientific” discourse (into which will rush psychopathological, psychiatric, psychoanalytic, and sociological analyses); a deviation about which people will wonder if prison constitutes a response or an appropriate treatment.

What prison was reproached for in other terms at the beginning of the nineteenth century (its forming a “marginal” population of “delinquents”) is now considered as an inevitability. Not only is it accepted as a fact, but it is constituted as a primary assumption. The “delinquency” effect produced by prison becomes a delinquency problem to which prison must give a suitable response. A criminological turning of the carceral circle.

It must be asked how such a turning was possible; how effects that were denounced and criticized managed, after all, to be assumed as fundamental data for a scientific analysis of criminality; how it came about that prison, a recent, unstable, criticizable and criticized institution, was planted so deep in the institutional field that the mechanism of its effects could be posited as an anthropological constant; what prison’s ultimate reason for being was; what functional requirement it happened to meet.


So, to return to the question posed right at the start - "Why this strange institution of the prison, why this choice of a penalty whose dysfunction was denounced so early?" - perhaps the answer should be sought along these lines: prison has the advantage of producing delinquincy, an instrument of control over and pressure on illegality, a sunstantial component in the exercise of power over bodies, an element of that physics of power which gave rise to the psychology of the subject.

[i] F. Serpillon, Code criminel, ou commentaire sur l'ordonnance de 1670 (Lyon: Perisse, 1767), vol. 2, title 35: Des sentences, judgments et arrêts, art. 13, §33, p.1095.

[ii] D. Jousse, Traité de la criminelle de France (Paris: Debure, 1771), 4 vols.

[iii] P. Muyart de Vouglans, Institutes au droit criminel, ou Principes généraux en ces matières (Paris: Breton, 1757).

[iv] C. Rémusat, "Discussion du projet de loi relatif à des réformes dans la législation pénale" (Chambre des deputés, December 1, 1831), Archives parlementaires, 2d ser. (Paris: Dupont, 1889), p. 185.

[v] Van Meenen (Presiding Judge of the Supreme Court of Appeals of Brussels), "Discours d'ouverture du IIe congrès international pénitentiaire" (September 20-23, 1847, Brussels), Débats du Congrès pénitentiare de Bruxelles (Deltombe, 1847), p.20.

[vi] N.H. Julius, Vorselungen über die Gefängnisskunde (Berlin: Stuhr, 1828): Leçons sur les prisons, présentées en forme de cours au public de Berlin en l'année 1827, trans. Lagarmitte (Paris: Levrault, 1831), 2 vols.

[vii] C. Lucas, De la Réforme des prisons, ou de la théorie de l'emprisonnement, de ses principes, de ses moyens et de ses conditions pratiques (Paris: Legrand and Bergouinioux, 1836-1838), 3 vols.


 Foucault, Michel.  Ethics: Subjectivity and Truth.  Ed. Paul Rabinow. The New Press, 1994. p. 23-27, 36.

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image Code criminel, ou commentaire sur l'ordonnance de 1670

pdf Jury Independence Illustrated (1.40 MB)  



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