Abstract
The concept of the penitentiary as ‘disciplinary apparatus’ emerges almost overwhelmingly from the analysis conducted here of the organisational structure of American prisons in the first half of the nineteenth century.
The luminaries who invented liberty also invented discipline.
(M. Foucault, Surveiller et punir. Naissance de la prison, Paris, 1975, p. 247)
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Notes
- 1.
‘It [the Panopticon] will be found applicable, I think without exception, to all establishments whatsoever, in which within a space not too large to be covered or commanded by buildings, a number of persons are meant to be kept under inspection. No matter how different, or even opposite the purpose … whether it be applied to the purposes of perpetual prisons in the room of death, or prisons for confinement before trial, or penitentiary-houses, or houses of correction, or work-house, or manufactories, or mad-houses, or hospitals, or schools’ in J. Bentham, Panopticon or the Inspection House, in J. Bowring (ed.), The Works of J. Bentham, vol. iv (New York, 1962) p. 40.
- 2.
J. Bentham, An Introduction to the Principles of Morals and Legislation, in J. Bowring (ed.), The Works of J. Bentham, vol. i, pp. 1–194.
- 3.
‘If the infinite and obscure combinations admitted of mathematical treatment, there ought to be a corresponding scale of punishments, varying from the severest to the slightest penalty … If pleasure and pain are the motors of sensitive beings, if the invisible lawgiver of humanity has decreed rewards and punishments as one of the motives to impel men to even their noblest endeavours, the inexact distribution of these motives, will give rise to that contradiction as little noticed as it is of common occurrence, namely, that the laws punish crimes which are entirely of their creation. If an equal penalty is attached to two crimes of unequal injury to society, the greater crime of the two, if it promise a greater advantage than the other, will have no stronger motive in restraint as of its perpetration.’ C. Beccaria, Crimes and Punishments (London, 1880) pp. 196, 198.
- 4.
From the Introduction by F. Venturi to C. Beccaria, Dei Delitti e delle pene (Torino, 1970) p. xvii.
- 5.
See pp. 123 ff.
- 6.
P. Costa, Il progetto giuridico. Ricerche sulla giurisprudenza del liberalismo classico, vol. I: Da Hobbes à Bentham (Milano, 1975) p. 267.
- 7.
Costa, Il progetto giuridico, p. 366.
- 8.
‘Value as the inner identity of things specifically different, has already been made use of in connection with contract, and occurs again in the civil prosecution of crime. By it the imagination is transferred from the direct attributes of the object to its universal nature. Since the essential character of crime lies in its infinitude, i.e. in the breach of its own right, mere external details vanish. Equality becomes only a general rule for determining the essential, namely, a man’s real desert, not for deciding the special external penalty. Only when we limit ourselves to equality in the external details are theft and robbery unequal to fine and imprisonment. But from the standpoint of their value and their general capacity to be injuries, they can be equated. To approach as nearly as possible to this equality in value is, as has been remarked, the task of the understanding.’ In G. W. F. Hegel, Philosophy of Right, trans. S. W. Dyde (London, 1896) para. 101, pp. 98, 99, 100.
- 9.
D. Melossi, The Penal Question in ‘Capital’ (see note 1 to 1981 Editors’ Introduction).
- 10.
‘Deprivation of freedom, for a period stipulated in the court sentence, is the specific form in which modern, that is to say bourgeois-capitalist, criminal law embodies the principle of equivalent recompense. This form is unconsciously yet deeply linked with the conception of man in the abstract and abstract human labour measurable in time. It is no coincidence that this form of punishment became established precisely in the nineteenth century, and was considered natural (at a time, that is, when the bourgeoisie was able to consolidate and develop to the full all its particular features).’ In E. B. Pashukanis, Law and Marxism: A General Theory, (London, 1978) pp. 180–1.
- 11.
Ibid., p. 181.
- 12.
See Melossi, The Penal Question in ‘Capital’.
- 13.
Costa, Il progetto giuridico, p. 377.
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Pavarini, M. (2018). Conclusions: Contractual Reason and Disciplinary Necessity at the Basis of Punishment by Deprivation of Liberty. In: The Prison and the Factory (40th Anniversary Edition). Palgrave Studies in Prisons and Penology. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-56590-7_6
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