24 January 1973

Abstract

WE COULD ALSO HAVE cited other signs of this emergence of the criminal as social enemy,† for example, the debate on the death penalty in May 1791 when Le Peletier de Saint-Fargeau presented his draft Penal Code.¹ The arguments actually started from the principle that everyone considered to be fundamental: crime is an attack on society and the criminal is a social enemy.² Thus, faced with those who evoked the principle formulated by Rousseau in the Social Contract—since the criminal is the enemy of society, he must be exiled or killed³—Robespierre, in an apparently anti-Rousseauist manner yet from the same theoretical basis, objected that inasmuch as the criminal is an enemy of society, the latter precisely does not have the right to kill him, because once it has seized hold of a criminal the battle is over; society is faced with an enemy prisoner, as it were, and it would be as barbaric for society to kill an enemy it has already vanquished as it would for a warrior to kill his captive or an adult to kill a child: the society that kills the criminal it has judged is like an adult who would kill a child.⁴ Such a debate allows us to study the theoretical-political effect of this principle of the criminal-social enemy It also provides a reference for the analysis of a theoretical-political discussion. This analysis would, for example, have to take into account what Marx wrote regarding the discussion of the theft of wood,⁵ and what Blanqui, fifteen years later, wrote on what took place regarding rights over wine.⁶ Starting from these models, we could maybe see how to analyze political discussions, oppositions, and struggles of discourse within a given political situation.

(III) Other signs of the emergence of the criminal-social enemy. Debate on the death penalty in 1791. (IV) Relationship between the theoretical-political effects of a discourse and punitive tactics in the same period. Main system of punishment: in England, organization of penitentiary system in 1790–1800; in France, 1791–1821. Heterogeneity of criminal-social enemy and the prison: rift between the penal and the penitentiary. ∽ According to penal theory, punishment as social defense; hence these four principles: relativity; gradation; continuous supervision (surveillance); publicity and infallibility;* and three models of punishment: infamy, talion, slavery. ∽ In prison: time the only graduated variable. The prison-form and the wage-form: twin historical forms. Capitalist power and system of penality: power’s hold on time.