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It proved necessary, therefore, to control these illicit practices and introduce new legislation to cover them. The offenses had to be properly defined and more surely punished; out of this mass of irregularities, sometimes tolerated and sometimes punished with a severity out of all proportion to the offense, one had to determine what was an intolerable offense, and the offenders had to be apprehended and punished. With the new forms of capital accumulation, new relations of production and the new legal status of property, all the popular practices that belonged, either in a silent, everyday, tolerated form, or in a violent form, to the illegality of rights were reduced by force to an illegality of property. In that movement which transformed a society of juridico-political levies into a society of the appropriation of the means and products of labour, theft tended to become the first of the great loopholes in legality. Or, to put it another way, the economy of illegalities was restructured with the development of capitalist society. The illegality of property was separated from the illegality of rights. This distinction represents a class opposition because, on the one hand, the illegality that was to be most accessible to the lower classes was that of property – the violent transfer of ownership – and because, on the other, the bourgeoisie was to reserve to itself the illegality of rights: the possibility of getting round its own regulations and its own laws, of ensuring for itself an immense sector of economic circulation by a skillful manipulation of gaps in the law – gaps that were foreseen by its silences, or opened up by de facto tolerance. And this great redistribution of illegalities was even to be expressed through a specialization of the legal circuits: for illegalities of property – for theft – there were the ordinary courts and punishments; for the illegalities of rights – fraud, tax evasion, irregular commercial operations – special legal institutions applied with transactions, accommodations, reduced fines, etc. The bourgeoisie reserved to itself the fruitful domain of the illegality of rights. And at the same time as this split was taking place, there emerged the need for a constant policing concerned essentially with this illegality of property. It became necessary to get rid of the old economy of the power to punish, based on the principles of the confused and inadequate multiplicity of authorities, the distribution and concentration of the power correlative with actual inertia and inevitable tolerance, punishments that were spectacular in their manifestations and haphazard in their application. It became necessary to define a strategy and techniques of punishment in which an economy of continuity and permanence would replace that of expenditure and excess. In short, penal reform was born at the point of junction between the struggle against the super-power of the sovereign and that against the infra-power of acquired and tolerated illegalities. (en) |
