This legible lesson, this ritual recording, must be repeated as often as possible; the punishments must be a school rather than a festival; an ever-open book rather than a ceremony. The duration that makes the punishment effective for the guilty is also useful for the spectators. They must be able to consult at each moment the permanent lexicon of crime and punishment. A secret punishment is a punishment half wasted. Children should be allowed to come to the places where the penalty is being carried out; there they will attend their classes in civics. And grown men will periodically relearn the laws. Let us conceive of places of punishment as a Garden of the Laws that families would visit on Sundays.

In the old system, the body of the condemned man became the king's property, on which the sovereign left his mark and brought down the effects of his power. Now he will be rather the property of society, the object of a collective and useful appropriation.

Beneath the humanization of the penalties, what one finds are all those rules that authorize, or rather demand, 'leniency', as a calculated economy of the powder to punish. But they also provoke a shift in the point of application of this power: it is no longer the body, with the ritual play of excessive pains, spectacular branding in the ritual of the public execution; it is the mind or rather a play of representations and sings circulating discreetly but necessarily and evidently in the minds of all. It is no longer the body, but the soul, said Mably. And we see very clearly what he meant by this term: the correlative of a technique of power. Old 'anatomies' of punishment are abandoned, But have we really entered the age of non-corporal punishment?

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.

This dysfunction of power was related to a central excess: what might be called the monarchical 'super-power', which identified the right to punish with the personal power of the sovereign.

The criticism of the reformers was directed not so much at the weakness or cruelty of those in authority, as at a bad economy of power.

The condemned man found himself transformed into a hero by the sheer extend of his widely advertised crimes, and sometimes the affirmation of his belated repentance. Against the law, against the rich, the powerful, the magistrates, the constabulary or the watch, against taxes and their collectors, he appeared to have waged a struggle with which one all too easily identified. The proclamation of these crimes blew up to epic proportions the tiny struggle that passed unperceived in everyday life. If the condemned man was shown to be repentant, accepting the verdict, asking both God and man for forgiveness for his crimes, it was as if he had come through some process of purification: he died, in his own way, like a saint.

Not only must people know, they must see with their own eyes. Because they must be made to be afraid; but also because they must be the witnesses, the guarantors, of the punishment, and because they must to a certain extent take part in it.

In the ceremonies of the public execution, the main character was the people, whose real and immediate presence was required for the performance.

If torture was so strongly embedded in legal practice, it was because it revealed truth and showed the operation of power. It assured the articulation of the written on the oral, the secret on the public, the procedure of investigation on the operation of the confession; it made it possible to reproduce the crime on the visible body of the criminal.