The Body of the Condemned

Foucault's inversion of the cause for the transformation of punishment is quite brilliant. Instead of punishment's object progressing from the body to the soul for humanitarian reasons, it is simply due to the nature of punishment as a technology of power. Power produces knowledge, so it is by this method that the soul is invented/created. Foucault calls the punishment of the soul "expansionist." It is so in that the punishment of the soul creates a whole body of knowledge, a "scientia," around which psychoanalysis and other psycho-medical practices can converge. The soul is an object and a creation of science, and has become so through the judicial process.

The means by which science has dissociated punishment from the crime itself is through the crossover from act to intention, and accordingly, from punishment of the body to that of the soul. Punishment no longer has any real connection to crimes as they occur on their own. In judgment, the collective jury treats the man. We extrapolate from his crime and his character what needs to be done for him, not to him. By the collective jury, I here mean what Foucault talked about when he said that there is much outside help in judging an offender. Psychiatrists are called on so that we might understand the criminal's possible insanity, and judge him accordingly. The devolution of the implication of the code of insanity from one of there being no crime to one where there are gradations of guilt according to the degree of madness is the focal point of Foucault's enmeshment of the penal and psychiatric systems. These gradations imply much more than a diagnosis of insanity or non-insanity at the time of the offense. Rather, as Foucault somewhat vaguely claims, the gradations themselves directly imply the judgment of the soul at all times, along with its potential for danger and rehabilitation (p. 20).

This reading is overtly Nietzschean. Nietzsche criticized "punishment" in itself as counter to the individual economy of justice. It was contrary to the power in master morality, and a formation of the power of the slaves. The institutionalization of punishment removed the individual debts that resulted from every "crime," and made offenses inherently wrong. Nietzsche claims that punishment is a contrivance and an inversion, in that it is a method and power structure of slave morality. Here Foucault echoes Nietzsche insofar as he claims that punishment is being removed from the crime itself, and is dealing more and more with the intention, not the act. Intentionality, for Nietzsche, is also a characteristic of the slaves. The masters do not analyze themselves intentionally. They act, and the act is the beginning and end of any "crime" ("offense" is the proper word in Nietzsche's case). Intention is a contrivance of the slaves, and is created/appropriated in order to create bad conscience and guilt. Nietzsche's economy of the body sees debts paid in flesh. This is precisely what Foucault is claiming no longer happens. Debts are now paid by the soul. The soul is an invention/creation of the "psychologico-judicial" system, which can be viewed as analogous to Nietzsche's slaves. Since the creation of the soul by the judicial system is an act of power/knowledge, in order to maintain the analogy between Foucault and Nietzsche, we must look at the transition of power from the masters to the slaves through tools such as intentionality and guilt. Nietzsche does not have the thesis of power/knowledge, so there is a bit of a dissociation, but the basic analogy holds. So Foucault in this case is a reinterpretation of Nietzsche's genealogy applied to the modern psychologico-judicial system.