AN ANALYSIS OF MICHEL FOUCAULT’S THEORIES ON POWER AND PUNISHMENT AND THE CONCEPT OF DEATH PENALTY

AN ANALYSIS OF MICHEL FOUCAULT’S THEORIES ON POWER AND PUNISHMENT AND THE CONCEPT OF DEATH PENALTY

Author: Smrithi Ramakrishnan,
3rd year law student,
School of Law, CHRIST (Deemed to be University), Bengaluru.

ABSTRACT
Michel Foucault heavily criticised the previously concretised structures of punishments and exercise of power. He propagated the exercise of ‘normalising power’ rather than ‘repressive power’—while the latter led, albeit indirectly, to people committing more crimes and in turn gave the sovereign or the monarch (or the “central controlling force”) the power to control people’s lives by forcing them to do what they did not wish to do and impose capital punishment, the former merely allows people to do what the society (and morality) expects them to do, that is, it conditions people to do what is merely considered as ‘normal’ in society.
Foucault supported the establishment of prisons and believed that the concept of prisons and reforming the criminal justified and corrected the concept of discipline, which otherwise was considered as a counter-law. On the concept of death penalty, Foucault believed it to be a contradiction to the role of power, since power was created to ensure, sustain and multiply life and not put people to death. Death penalty could only be justified by focusing on the monstrosity of the criminal rather than the crime itself. He further questioned whether the paradigm shift of the power of the sovereign from ‘take life, let live’ to ‘make live, let die’ really protected the liberties of the people.

This research paper notably looks into these aforementioned contentions of Michel Foucault. Its underlying purpose is to analyse Foucault’s notions on the concept of death penalty and draw a connection between this and his theories on power, knowledge and discipline. Death penalty, which is defined as a legal process of inflicting death on a person as a punishment for a crime, is an intensely debated concept and has been criticised due to its gross violation of fundamental human rights. The main objective of this paper is to deduce, from the philosophies of Foucault, whether death penalty is justified or not. The research in this paper is descriptive in nature.
Keywords: Death penalty, discipline, Foucault, knowledge, power
INTRODUCTION
Michel Foucault was a Poststructuralist. He criticised previously established structures and institutions of the state or the sovereign. Foucault wrote in detail on his theories on power, knowledge and punishment. He believed that law was not a condition for the liberation of the individual nor was it the sole result of class domination.[1] He believed that law could not be understood from the standpoints and static structures, but as it is exercised—as productive of social structures and knowledge, and as multiple and decentralized.[2] With respect to his theories on power, he wrote about the power of the sovereign and about how the forms of exercising power (by the sovereign) had shifted from one sort of punishment to the other. In his book Discipline and Punish, Foucault talks about how the penal system shifted from a brutal, public version to a more reformatory private version. In an example he explains how in the 17th century, people were guillotined publicly and it was a societal affair where people would look at the disturbing action of the sovereign punishing the criminal, to the punishment taking place within a prison or some headquarters and ensuring that it remains private and not open to the public. This way, the main aim was only reformation, not repression or inciting fear. He propagated the exercise of ‘normalising power’ rather than ‘repressive power’[3]—while the latter led, albeit indirectly, to people committing more crimes and in turn gave the sovereign or the monarch (or the central controlling force) the power to control people’s lives by forcing them to do what they did not wish to do and impose capital punishment, the former merely allows people to do what the society (and morality) expects them to do, that is, it conditions people to do what is merely considered as ‘normal’ in society. He interpreted power not as centralized in core structures such as legal institutions or the State but as productive of social structures and knowledge (biopower).
Foucault supported the establishment of prisons and believed that the concept of prisons and reforming the criminal justified[4] and corrected the concept of discipline, which otherwise was considered as a counter-law[5].
Death penalty is a topic of intense debate, with respect to whether those in power have the right to sentence a criminal to death while their main objective is actually to protect all the citizens, especially in India with various cases supporting as well as going against the concept of death penalty. Therefore, in this paper one will see the concept of death penalty as it is in India and also an analysis of what post-structuralist Michel Foucault thought about the concept of death penalty. The paper aims to, as much as possible, try to confront the debate through the philosophical views of Foucault.

WHAT IS DEATH PENALTY?

Death penalty is a process whereby a person is lawfully put to death by the State as a punishment for a crime or wrongful act committed by him/ her. Various countries around the world have abolished the process of death penalty as it is considered to be a human right violation of the criminal. The main aspect of death penalty that makes it so severe and extreme a punishment is the fact that it is irreversible and irrevocable[6]. Once a person has been put to death by the state, he has no chance to return and reform himself after the commission of the crime[7]. The basic nature of humans is to correct themselves, and the concept of death penalty erases such an ability of the individual who is subject to such punishment. Rather than deterring the person from merely committing the crime, it deters the person from changing or reforming, and doing anything good in his life, as death penalty takes away the very life of the individual. In the modern-day scenario, most countries and legal systems focus not solely on punishing or retribution, but reformation.
Moreover, another aspect that is vital when it comes to extreme punishments such as the death penalty, is the power of the State. This is where Foucault’s ideas on the power exercised by the State, methods of punishment and the sovereign’s power while providing these punishments and his general theories on death penalty come in. Article 21 of the Indian Constitution enshrines the right to life and personal liberty of all individuals[8]. This means that the duty of the State lies in protecting the individual’s right to life and ensuring that the individual’s life is not taken away unfairly or unlawfully. It has often been argued that the process of death penalty takes away an individual’s right to life. It is true, on the one hand, that the State has the power and the duty to punish those who commit wrongful acts. However, the nature of the act must be considered, and moreover, it must be debated as to whether any crime is so heinous as to lawfully kill the person who commits the crime. In the Indian Penal Code, death sentence awarded as a punishment for various capital offences such as Murder[9], Criminal Conspiracy[10], Murder with Dacoity[11], waging or attempting to wage war against the Government of India[12] etc. Now another primary issue with the concept of death penalty and it being provided as a punishment for the aforementioned crimes, is that one vital part of a crime is the intention to do so. Intention and level of intention varies with each commission. Further, each crime is different from another with respect to this intention and the type of crime that it is. For instance, murder and waging a war against the Government cannot be compared or placed on the same scale as each other. Therefore, the question of on what basis can death penalty be given as a punishment for various crimes arises. There exists no particular common yardstick to measure whether a crime comes under the ambit of death penalty or whether it does not.
A case that is necessary to be mentioned in this regard is that of Jagmohan Singh v. State of Uttar Pradesh[13] which was he first ever case in India that dealt with the constitutional validity of the process of death penalty. The three cornerstones of the Constitution were kept in mind, that is, Articles 19, 14 and 21. Another aspect that was highlighted was the discretion and power of the judges. It was held by the Court that the discretion exercised by the judges were fair enough to decide to whom and under what scenario can death penalty be provided, and it was deemed constitutionally valid. A Law Commission Report was also established on the topic of abolition of death penalty and it stated that given the variety of the social upbringing of its inhabitants, the disparity in the level of morality and education in the country, the vastness of its area, diversity of its population and the paramount need for maintaining law and order in the country at the present juncture, India could not risk the experiment of abolition of capital punishment[14].
Article 6(2) of the ICCPR states that- “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.”[15] Other various international conventions also talk about the abolition of death penalty and advocate more reformative rather than retributive methods of justice and punishment. Therefore, although death penalty still remains a topic of raging debate, it is necessary not only to view the social effects of the same but also the reasoning as to whether death penalty is, all in all, good or bad and whether it is justified or not.

FOUCAULT ON DEATH PENALTY

In his book, The History of Sexuality Volume 1: The Introduction, Foucault states that death penalty was another power of the sovereign to further his will onto the citizens[16]. He believed that this power of deciding life and death arose from the concept of ‘patria potestas’ which gave the father in a Roman family the power to dispose off the life of his son just the same way he could for slaves and just like how he had the power to bring his son to life, he had the power to put him to death.[17] The same power was in the hands of the State. The sovereign had the power to decide how a person would be punished for going against the will of the sovereign. Therefore, while on the one hand, the sovereign had the power to wage wars and make citizens fight in those wars to protect his will, he also could punish any individual by giving him or her the death penalty. However, the major contradiction in this respect was that a State was formed to protect the rights of the people and to life, ensure good and safe living. Therefore would it not be contradictory for the very same State to, almost arbitrarily and in so harsh a manner, sentence people to death for committing offences that could be reformed in the system instead of punishing the individual to such an extent that it left no scope for the improvement and reformation of the individual. This was where Foucault states that death penalty could only be justified by focusing on the monstrosity of the criminal rather than the crime itself.[18] In a situation where the state is going against the very principles it was formed upon, the state will automatically focus more on the criminal and how to punish the criminal due to the intensity of his wrongful act rather than focusing on the crime committed and how to ensure that such crimes will not be committed again. This is also where one could connect the theory of ‘repressive power’ that Foucault was severely against. The State taking such repressive and ruthless measures, did in no way stop others from committing such crimes. It merely brought fear in the minds of people, which does not bring about a change in their attitude towards the commission of such crimes but just despise towards the system and the State, which will lead them to committing more crimes.
 Foucault believed that the death penalty was at the apex of the criminal justice system not because of the attitudes or the norms the judges followed but because the aim was to protect the sovereignty and the power exercised by the sovereign[19]. Two points of debate can arise mainly from death penalty, at least according to Foucault. The first is the fact that such easy and quick provision of the death sentence might lead to the death of innocent individuals. But the more important point of debate is the fact that no public authority has the power to take someone’s life, or rather decide who gets to live and who doesn’t and what basis is provided for the same.
Foucault, lastly, supports the penitentiary system or the concept of the prison[20]. He believes that it is the only way to properly reform a criminal and to make discipline bearable. He states that the penitentiary should be the first solution to punish the criminal, and if the criminal does not reform or correct his ways, then death penalty could probably be the answer. He supports this system also to state that the authority or those in power must keep in mind ethical and political reasons and it must thus be ensured that they are never too sure of their rights. For a pot-structuralist like Foucault, this becomes an extremely vital pint, due to his utter disdain and disbelief in the concretised structures and systems in a State.
CONCLUSION
 Foucault states that, for a justice system to be unjust, it does not need to convict the wrong person, it merely has to judge in the wrong way.[21] Foucault tributes the concept of death penalty to judicial laziness. In his works, he has brought out examples where people have been punished with death penalty without even being fully proven to have committed said crime. The judicial system, by furthering the concept of the death penalty, focuses more on the criminal, and considers the criminal to be a danger to society in order to give them the death sentence. It focuses less on the crime committed and why it was committed, how to ensure that it is not committed again, but rather on what the particular criminal did, regardless of the reasoning behind the act. For the judiciary, sentencing a person to death penalty is the easiest for of punishment, both socially and economically. Another aspect that he highlights is that of the power of the sovereign, because all said and done, the sovereign, or those in power, merely aim to protect their will.
However, the main reasoning to be considered while looking into the debate of the validity and justification of death penalty is its social effects. Is providing death penalty with no chance given to the criminal to reform or correct himself or herself correct? What does it show of the judicial system of the country and other countries that support death penalty? At the end of the day, does the judiciary and the Government wish to erase those who commit crimes and make their jobs easier or focus on the development of the society as a whole, protecting the rights of each and every person, helping the criminals reform and further the needs of the people? These are the questions that one must keep in mind whilst confronting the debate on the death penalty. While Foucault’s views are only one among million other views, his reasoning behind the concept of death penalty is extremely vital on the political, psychological, philosophical as well as social front. The debate on the death penalty will always stay at the edge of the principles of law, structures and morality, and its justification will rely very heavily upon the systems and rules followed in a particular country and the importance the state places on the protection of the rights of the citizens of that State.  
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[1] Gary Gutting et al., “Michel Foucault”, the Stanford Encyclopedia of Philosophy (May 22, 2018), https://plato.stanford.edu/archives/spr2019/entries/foucault/.  

[2] Gerald Turkel, Michel Foucault: Law, Power and Knowledge, 17 Journal of Law and Society 170, 179 (1990).

[3] Asli Daldal, Power and Ideology in Michel Foucault and Antonio Gramsci: A Comparative Analysis, 2 review of History and Political Science 149, 163 (2014).

[4] supra note 2 at 180.

[5] Michel  Foucault, Discipline & Punish: The Birth of the Prison, 195-228 (Vintage Books) (1995).

[6] Furman v Georgia, 408 US 238 (1972); Aditi Agarwal, Death Penalty: An Overview of Indian Cases, Academike: Articles on Legal Issues (Sept. 2, 2014), https://www.lawctopus.com/academike/death-penalty-an-overview-of-indian-cases/.

[7] Gurvail Singh v State of Punjab, (2013) 2 SCC 713 (India); Shankar Kisanrao Khade v State of Maharashtra, (2013) 5 SCC 546 (India); Suhrith Parthasarathy, Law Commission Report on ‘Death Penalty’: A Chance to Overcome Incoherence in Indian Jurisprudence? 49  Economic and Political Weekly 15, 17 (2014).

[8] India Const. art. 21.

[9] Pen. Code, §302.

[10] Id. at §120B.

[11] Id. at §396.

[12] Id. at §121.

[13] Jagmohan Singh v. State of Uttar Pradesh, (1973) 1 SCC 20 (India).

[14] Bachan Singh vs State of Punjab, AIR 1980 SC 898 (India).

[15] International Covenant on Civil and Political Rights, Art. 6(2), Dec. 16, 1966, 999 U.N.T.S. 171.

[16] Michel Foucault, The History of Sexuality, Volume 1: An Introduction 135 (1st ed., Pantheon Books) (1978)

[17] Id.

[18] Id. at 138; Michael Meranze, The Death Penalty and the Crisis of Historical Understanding, 29 Historical Reflections 191, 204 (2003).

[19] Michel Foucault (edited by James D Faubion), Essential Works of Foucault 1954- 1984 Vol. 3, 459 (Penguin Books, 1994).

[20] Bryan H. Druzin, The Theatre of Punishment: Case Studies in the Political Function of Corporal and Capital Punishment, Wash. U. Global Stud. L. Rev. 357, 359 (2015).

[21] supra note 19 at 435. I
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