Punishment Keti Chukhrov
Punishment as a concept is usually considered in a juridical context, in which it stands for an abrupt suspending of the rights of an individual or group. Punishment is justified because it corresponds to the norms (rules, standards, principles) that determine the institutional practice delimited by the classical norms of Roman law, which states that no penalty is possible without a law and that punishment should be applied only in those cases when a crime is committed (nulla poena sine leges and nulla poena sine crimen).
In the 20th century, the concept of punishment was investigated in philosophy, political theory, and social sciences by many thinkers from very different and, at times, paradoxical points of view. Punishment, as is held in legal discourse, terminates violence and protects one from it. The basic conflict in the interpretation of the concept of punishment occurs, however, because of the ambiguity inherent in its very genealogy: as Michel Foucault demonstrated in his work Discipline and Punish, punishment is inseparable from violence.
Walter Benjamin was among the first to reveal the paradoxes of the legal aspect in the genealogy of punishment. In his unfinished article, “Critique of Violence” (“Zur Kritik der Gewalt,” 1921) he locates the common source for law, punishment, and violence. He considers violence on the one hand as legislative (rechtsetzende) action, which originates either from a natural right (for instance, when violence is declared as a remedy toward a fair end—such a position has its historical origins in the rhetoric of French Revolution), or from a positive, legal right. A positive right, which allows violence a right-preserving (rechtserhaltende) function (on behalf of the police, state politics, etc.), on the contrary insists on the primacy of legality over justice, and in so doing it declares itself a justifiable penalty. In other words, in the first case, violence itself generates the law, and in the latter case, violence is presumed as a legal execution of punishment. Benjamin, for example, believed that legal right abolishes the right to violence exercised on behalf of natural aims—i.e., it has a veto on natural right. But “the interest of the law in monopolizing violence toward an individual is not explained by its aiming to render legal protection but by its attempt to preserve the law itself with the help of legal protection.”
Moreover, punishment itself (for example, capital punishment) is considered to be both law enforcement and protection. Accordingly, accommodation with the law often requires the settling of conflicts through violence.
The problem is that the state initially appropriates natural right, transforming it into the law, and thus it assumes the right to punish. Sanction to violence and punishment is legally provided by the state, in other words, it is, per se, a legislative action (compared the view of Carl Schmitt, according to whom a decision taken by a sovereign or a sovereign power on any extraordinary practice will de facto generate the law). Hence, almost all legislative strategies (which in certain cases may allow violence for the sake of justice) are one-sided; that is, they are taken from an individual, a citizen, or a group of citizens and appropriated by the state under the pretense of upholding the law, but are realized mainly in the form of the right to punishment. At the same time, it is interesting that a “pure means of politics,” a general strike by workers for example—which, according to Benjamin, is nonetheless a constitutional right—is abolished by state law. In Discipline & Punish (written in the late 1960s but not published until 1975), Michel Foucault concludes that punishment is not—or not, solely—generated by the right to uphold the law by the representative institutes of the state, but generally by discipline and discourse, in other words, by language. In this seminal work, Foucault reproduces the genealogy of punishment, which starts with torture, continues with child rearing and soul correction, and finishes with drills and discipline. According to Foucault, the army, the mental hospital, and the prison are not simply heterotopic areas extruded from public life, but, on the contrary, a model of the whole (new European) society.
If from the time of the Inquisition right up to the middle of the 18th‑century punishment had been realized as a triumph of justice primarily in the form of public execution, it later gradually comes to reject the spectacle, the use of torture, the theater of pain and death and begins to regard its goal as atonement for crime and soul correction. In other words, punishment as a correctional tool gradually shifts from the body and heads to the extracorporeal qualities of a person: thoughts, will, soul, focusing not on the sight of real pain, but on the presumption of imaginary pain. What Foucault considers most important is the subsequent stage when the disciplinary society is formed. The structure of punishment in such a society is based on four rules:
1. Punishment turns into a complicated social function which is not limited by the concrete realization of repression.
2. Punishment does not become a simple “consequence of legislation,” but a political tactic whereby power is not appropriated but exercised.
3. The history of criminal law and the history of humanities, following which the technology of power appears as the beginning of the humanization of criminal law and the cradle of the new methodology in the perception of a human being.
4. The appearance of the soul on the stage of criminal justice and, at the same time, the introduction of “scientific” knowledge in the court, which means that the penitentiary power is interested in capturing the life of the body, but not in meting out its death.
Thus, from this point on the brutality of violence is not opposed to the brutality of punishment. “It is not the symmetry of vengeance, but the transparency of a token with regard to its significance,” Foucault states; “disciplinary punishment is anyway ‘humanly.’”
If during the public executions of the past the human body had neither utility nor commercial value, and was cruelly “used up,” then in the industrial era, the body of the convict takes on the cost of his labor. The convict becomes the “revenue-producing property,” “the slave in the service of everybody.” Society no longer needs to destroy life, as now it is much more profitable to appropriate it, to drill it, and to make it “serve the state, creating slavery, which is more or less lengthy depending on the character of the crime.”
The new technology of pursuit, the creation of a new surveillance architecture and optics, appears to be one of the most important biopolitical methods of the disciplinary society, which largely replaces the very fact of punishment. Foucault calls this new technology a panopticon and quotes Jeremy Bentham, an 18th‑century English jurist and creator of the panopticon. A panoptical structure of surveillance, it allows one person (an observer) to use the panoptical architecture (a surveillance tower in the center of a circular building consisting of transparent rooms of people under surveillance) to watch a great number of bodies: convicts, the sick, military personnel—i.e., all those whose lives must be controlled in order to prevent crime. In this situation, the individual under surveillance is the object of information, but no longer the subject of communication. The observer can see all; the observed cannot see each other or the observer. This invisibility guarantees biopolitical order. A society in which surveillance takes the place of punishment is not founded on community and social life but on separate individuals on the one hand and the state on the other. Moreover, the new “transparency” results in power being exercised by the whole society.
Foucault offers a paradoxical conclusion: an individual is as much a product of power as of the communal collective oppressed by sovereign power. Besides, philanthropic undertakings, such as attempts to improve hygiene, prevent epidemics, etc., often result in the establishment of strong disciplinary environments where the individual becomes both an object and a subject of biopolitical oversight. Knowledge, discourse, therapeutic environments, methods of education and examination, are all the offshoots of discipline, which itself springs from the new system of punishment—the disciplinary system of prison. Thus, in contrast to Benjamin, for whom punishing violence originated in the penal system or generated this system, Foucault claims that punishment (prison) is discipline, in which power and punishment are in the context of the institutes of normalization.
“And that is what is ultimately most important for all these mechanisms: such notions as institutes of repression, seizure, exclusion, and marginalization are unsuitable for the description of education, in the very heart of the lock-city, amid the guileful gentleness, implicitly biting words, petty ruses, deliberate methods, techniques, and at last, ‘sciences,’ which allow the creation of a disciplinary individual.”
Having providing a thorough analysis of the disciplinary society in his book Discipline & Punish, Foucault did not dedicate a separate chapter to the postdisciplinary present. Yet it still contains the signs of transformation of the disciplinary society to the postindustrial society of control. These signs were especially sharply defined in Society Must Be Defended, a collection of Foucault’s lectures given at the Collège de France during 1975–1976.
Giorgio Agamben focused his analysis on the control society. Guided extensively by Benjamin and Foucault, Agamben nevertheless inclined to the more pessimistic and at times catastrophic interpretation of postdisciplinary management, control, and optimization in the globalized world. Foucault’s control society does not suppress. It is equally effective because its authorities produce a positive impact at the level of desire and knowledge. It even generates pleasure (Intellectuals and Power). Even when discussing the phenomena of governmentalization, Foucault regards power as a micropower which is not limited by the state apparatus. As such, any individual is in one way or another the crystallization of the experiences of a number of authorities.
In Homo Sacer and State of Exception Agamben concedes that power is “sovereign” and that the right to declare a state of emergency is not exercised by the micropower but by the integral “body” of the sovereign state. The right to suspend the law belongs to those who produce the law and the right—namely, the sovereign. So Agamben not only notes the return to the paradigm of governmentalization already outlined by Foucault, but also the return to the paradigm of etatism, the police state, where the principle of the division of powers peculiar to liberal democracy failed completely and gave way to the general paradigm of security control, which became the technology of state and government.
As a result, executive power absorbs the legislative and rights-preserving powers. This paradigm of the suspension of the law caused by a state of emergency becomes the permanent paradigm of state rhetoric, which allows the consideration of violence, punishment, and control toward individuals of its own, or even of some other state, as a permitted legal action in the complete absence of the law.
This is why the paradigm of Foucault’s micropower is relevant to a developed civil society or a society that is developing in this direction. At present, as the politics of the sovereign nation-state recedes and etatism grows, the state permits itself to execute extralegal punishment. Interestingly, both the American and Russian presidents became the supreme commanders-in-chief after September 11, 2001. This means that as an instrument of foreign policy they took the right to declare war without recourse to legal means or the law. Thus, this was done without the law, without right.
The result is a paradoxical situation whereby the law and its absence (anomy) exist simultaneously, and society is divided into two zones: in one zone the sovereign execution of the majority of political functions takes place, in the other, where state executive power is de facto absent, is the absolute absence of politics. As such political power becomes biopower. No life is possible without this power-taking root being found in a minimal unit of organic life. The minimum left for an individual beyond this permanent extraordinary control is what Agamben calls “bare life.” Bare life is the life that remains apart from the life seized by control. This control, according to Agamben, is not implemented in a civil state but in a state that follows a concentration-camp model. The unit of “bare life” is Homo Sacer, an individual without rights and law, one whose punishment or annihilation is permissible beyond the boundary of law; as this annihilation is not accountable to the law, it is not considered punishment, violence, or crime. The model of such punishment is implemented in institutions such as the prison at Guantanamo, the Abu Ghraib prison, and refugee camps.
Michel Foucault, Discipline & Punish: The Birth of the Prison, Vintage, New York 1977.
Walter Benjamin. “Critique of Violence,” Selected Writings, Volume 1: 1913–1926, ed. Marcus Bullock and Michael W. Jennings, Belknap Press of Harvard University, Cambridge 1996.
Michel Foucault, “Society Must Be Defended”: Lectures at the Collège de France, 1975–1976, Picador Press, New York 2003.
Giorgio Agamben, State of Exception, University of Chicago Press, Chicago 2005.
Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Stanford University Press, Palo Alto 1998.
Carl Schmitt, Four Chapters on the Concept of Sovereignty, University of Chicago Press, Chicago 2005.