According to Foucault, the language of the enemy-criminal comes into conflict with the language of the prison, which is more scientific in aim and which leads towards criminology. The problem appears in a text from the Minister of the Interior to the King in 1818, which refers to the prison as the place where the law stops. In this case imprisonment cannot be derived from penal theory or judicial practice, because it is the place where they do not exist. In previous judicial practice, prison was a means of assuring the availability of the prisoner to the courts rather than a punishment in itself. The influential criminal-enemy idea in the late eighteenth century does not lead to imprisonment, it just justifies the penal system as protecting society rather engaging in vengeance, reparation, punishment, or penitence. The new way of thinking about criminality means the punishment is more oriented to the usefulness to society of the punishment, rather than the seriousness of the crime. The idea develops that a society less vulnerable to crime can have less serious punishments. At this point the discussion moves from sovereignty to Utilitarianism.
Four principles appear at this time.
The first is that the punishment of crime should be carefully related to the state of society. In this way of thinking there is less wish for harsh punishment than if punishment is based on an idea of penitence, and the harsh punishment can be seen as a an abuse of power.
The second is that the punishment of crime must be carefully graduated as counter-attacks against attacks on society.
The third principle is the surveillance of the individual throughout the punishment and throughout the time of reeducation.
The fourth principle is that if the punishment is for the protection of society, it must not encourage new enemies. It must be exemplary, public, and infallible.
Three models of punishment are possible other than prison as a result of the principles above, and which appear in juridical reformist discourse.
One. The model of infamy. Society judges immediately by its reaction to the crime, so there is no need for a judicial instance. This is the dissolve of judicial power into the collective judgement of individuals. It is a theme reactivated in the idea of popular justice. There is no tribunal or legal code by completely gradated reactions which allow for reconciliation. There is no physical trace of the punishment. It is transparent, immediate, and constant.
Two. The model of the Talion (early Roman law). Punishment in complete proposition to the nature and force of the crime. Society turns the criminal’s attack back on the criminal. There is complete gradation of the crime and no excess. The idea is proposed in 1791, but at the same time as the prison.
Third. The model of slavery. This refers to the social contract between individual and society, resting on the idea of a repayment to society, which itself creates a gradation of punishment. The idea of slavery creates a powerful fear in the public.
Prison, the dominant tactic of punishment, lacks the collective aspect of infamy, the proportionality of the Talion, and the reformist aspect of slavery. It is a monotonous, rigid, abstract system. Time is the only variable for imprisonment as the dominant mode of the penal system. It has the logic of salaried work, time is the basis of the exchange. The relation with salaried work is not a necessary connection, but is a strong relation, which cannot be admitted to in the public discourse about prison. The time for no money in the prison is the inverse of how the official discourse likes to think of the relation between money and time in paid work, but rests on the dominance of measurement through time.
There is an implicit reference to Marx’s understanding of the relation between labour and capital, though for Marx the fundamental aspect of this is not time, but the labour theory of value and the exchange of labour power for wages. The regimented control of time in the factory is one consequence of the wage labour situation as one which transfers labour value to the employer while directing labour power. Marx’s account in the chapter on the working day, in Capital, volume I, refers to the purchase of labour power, and the need for the worker to work sufficient hours to reproduce that labour power (that is be generate the wealth necessary for the worker to purchase the means of life, and therefore to continue to have labour power to offer). Marx defines labour after this period is over as the extraction of surplus value, adding to the time the worker must spend in the place of work. This is the mechanism by which labour both reproduces itself and transfers value to the capitalist employer. The labour theory of value is not endorsed by Foucault, as can be seen in Archeology of Knowledge, where he assumes the superiority of the marginal theory of value developed by Jevons, Walras, and Menger, and which is fundamental to economics as it exists now. Marx’s social and phenomenological account of labour and the factory is important to Foucault, not the theory of value, which underlies that account for Marx. The labour theory of value of course precedes Marx, though it is Marx who makes it part of a theory of exploitation as inherent to capitalism, rather than as part of a largely desirable commercial society, as understood by John Locke, Adam Smith, and the other classical economists. Concern for the human affects of the division of labour in factory conditions can already be found in Adam Smith’s well known account of the match factory, so anticipating some part of what Marx has to say about factory labour, though not suggesting the same political solutions.