By Austin Sarat
ISBN-10: 0472097679
ISBN-13: 9780472097678
Read Online or Download Pain, Death, and the Law PDF
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Extra resources for Pain, Death, and the Law
Example text
After all, the prisoner whose "hostility to divine and human law" is subdued and the prisoner who comes to see "the wisdom of the laws of his country" is likely to be the prisoner who ceases his wrongful ways. But a deeper commitment linked the Enlightenment juristic and religious reformers. This deeper grounding, or at least one strand of it, was a shared understanding of the essence of the pain imposed in punishment. The language regarding pain in the paradigmatic Enlightenment era writings allows for a fairly singular articulation of the pain's meaning.
Perhaps the most famous account of modern penal transformations has been presented by Michel Foucault in Discipline and Punish. There, Foucault rejects in forceful terms the thesis that penal history is marked first and foremost by heightened moral attitudes and sensibilities that prompted a move from less humane to more humane forms of punishment. Foucault, instead, places penal history primarily within the dynamics of social power, knowledge, and the structures of the state. The move away from the scaffold and public corporal punishments and toward incarceration is driven, he argues, by an urge to make punishment better, more efficient and more effective, in terms of social control, not by an emergent moral sensibility.
The crushing pain of punishment, then, also serves to reveal what is right; indeed, what is absolutely good. 49 For Hegel, this moment of the most crushing despair in the pain of punishment holds the significance of the pain in punishment. For pain leads the way to despair, and through that necessary course, shows the way to the redemption of the wrong. "5 0 In the end, pain holds the promise of showing the way to the release of the innermost discord within the self. In some ways, Hegel's thought, which speaks not in the language 48.