(Commentary on Theories et institutions pénale. Cours au Collège de France, 1971-1972. Paris: Seuil/Gallimard, 2015)
16th February, 1972
Another embarrassingly large gap between posts. I really am hoping to get the rest of these lectures done very soon and then that the summer will be a good time to build up a good blogging rhythm.
At it’s heart penal practice (the exercise of criminal law) is a translation of wealth, the circulation of goods, and all movement of property. The penal mobilises and displaces wealth.
The results obtained through punishment: fines and confiscations
The results obtained through redemptions: redemption/reduction of fines and confiscations which threaten the hierarchy of social relations; the remissions purchased from superiors, particularly the king.
The results obtain through judicial charges: the guarantees left in the hands of judicial officials, purchases of judicial complaisance, soon when written procedures allow the proper judicial expenses.
These are all ways in which the movement of wealth is channeled by the judicial system.
Penal measures are inscribed between civil litigation and violent seizure. (Foucault emphasises that legal measures are not far from both arbitrary confiscation and civil law procedures, penal must then refer to criminal law which is of course what ‘code pénal’ refers to in France).
Foucault suggests that penality/the criminal code restrained arbitrary state seizures, but is also rooted in the most violent arbitrary acts of medieval kings. He mentions the persecution of Jewish and lombard (north Italian) lenders by Louis IX in the thirteenth century. That is Saint Louis, the Crusader king. This emphasis on the violence present in the rule one of the most sacral figures in the history of the French state, and even the modern European state is presumably no accident. Not only was Louis a canonised crusader, he appears in Montesquieu’s Spirit of the Laws with regard to the revival of Roman law and the formation of the modern French monarchy.
There is a brief indication in the text that Foucault mentioned Philip IV’s persecution of the Knights Templars. This was a notoriously bloody use of state power by someone who was label ‘le Bel’ (handsome) and was a major figure in consolidating the French state as a major European presence. Philip reacted to the power and the wealth of this order of crusader knights which also acted as a trans-European and Mediterranean bank with a explosion of torture and tortuous death, destroying the Templars on the pretext of heresy and seizing their considerable wealth. Foucault it seems thinks these should be remembered when thinking of the consolidation of the legalistic and centralising French state in the seventeenth century.
Foucault continues these reflections on the French state in the high Middle Ages, with some oblique but recognisable references to the consolidation of southern France as part of the French state in the anti-Cathar (Albigensian) crusades of the early thirteenth century in which the autonomy of southern lords was crushed and property was transferred to new lords. The background to this is that southern lords protected both Jews and Cathar (Gnostic leaning) ‘heretics’ from the power of the Catholic Church. Under the leadership of the northern lord, Simon de Montfort, the political and religious autonomy of these areas were destroyed and the Cathars were persecuted into non-existence. De Montfort and his followers were greatly enriched. It should also be mentioned here that de Montfort was Earl of Leicester (in the east of the English Midlands) as well as a French territorial lord. His son, who had the same name, lead a baronial rebellion in England against the crown, called the first Parliament while in practice holding autocratic powers and was an aggressive anti-semite.
As Foucault points out in relation to France, usury was illegal but tolerated for Jewish financiers until kings found it convenient to cancel their own debts and expel Jews while seising their debts. This could create peasant support for the crown since the peasants ofter borrowed from Jews. There is a pattern here of tolerate illegality followed by violent arbitrary confiscation in the behaviour of the state which Foucault wants us to associate with the emergence of the early modern state.
Foucault’s suggestion for the early modern state is that ‘penality’ be seen as the development of state violence and an ambiguous relation with law into a regular system for circulating wealth at a time when there was not much circulation through an exchange economy. Wealth locked in landed property reaches other parts of society through a legal system of fines and confiscations accompanied by bribes and negotiated remissions of a kind which reinforce the authority of the royal state.
Foucault proceeds to give a background to seventeenth century penality going back even further into the Middle Ages. He sketches the process in which eleventh century nobles began to accept institutions of peace, that is limits on their personal and family struggles for land and wealth, so the constant wars between nobles. First families reached voluntary agreements. Then courts of mediation established peace agreements. Then the church imposed peace agreements. Finally the monarchy, Philippe Le Bel returns here, enforces peace particularly when it goes to war. This tension between aristocrats who assumed a right to pursue private wars and a monarchy which thought it should decide when there was a war, and that should only be against an enemy of the kind, therefore the state, went on until the seventeenth century. Foucault does not mention this prolongation of the medieval feuds, but presumably expected a French audience at least to have some idea about this.
Seventeenth century penality then emerges from a long process of regularisation of violence, now regulated by the state, primarily exercised by the state, as an instrument of state power and of a national economy with circulation wealth throughout all the land under the king.
(Commentary on Theories et institutions pénale. Cours au Collège de France, 1971-1972. Paris: Seuil/Gallimard, 2015)
9th February, 1972
The lecture continues theme of medieval law growing out of German law and coming into tension with it and looks towards modern law, alluding to the kind of analysis Foucault used in Discipline and Punish. Again Montesquieu’s The Spirit of the Laws is relevant, but there is more political economy of law and the state, so that Adam Smith’s Lectures on Jurisprudence as well as An Inquiry into the Nature and Causes of the Wealth of Nations are relevant along with later work by Karl Marx and Max Weber, or stemming from them, or from political economy as in public choice theory.
Medieval law built on German law and also contrasted with it in the three following points:
1. Institution of a permanent and specific legal apparatus
2. The legal apparatus did not just have the power of imposing decisions. It had the right of intervention within itself
3. There was a distinction established between private litigation which individuals determine themselves before a judge; and the delinquencies and crimes for which the public power insisted on its own judicial intervention.
Elements of German law remained within the system in the following three areas.
1. Accusatory procedure. The legal process was a battle between two individuals. Even the intervention of the public power took the form of supporting one side in this battle.
2. System of proof.
The trial reached a close through the choice of the adversaries between peace and victory, peace or a test to decide the victor. It was not a question of demonstration and truth. There were three medieval proofs.
a. Oaths. These were generalised in German law in the Carolingian period (8th to 10th centuries) and still existed in the 12th century. Swearing oaths with others willing to swear and oath was an alternative to the evidence of witnesses if no witnesses were available. The accuser, the accused, and guarantors all swore oaths.
b. Ordeals. Ordeals by boiling water, hot water, cold water, cauldron, red hot iron, the cross (accuser and accused stood either side of a cross and held up hands to see who could last longest).
c. Judicial duel/trial by armed combat.
The theatre of judgement was a continuation of war though ideological and religious influences favoured truth as the goal of the judicial process.
3. Private wars [heading appears to have been added by the editors]
Private war between feudal lords continued embedded with law or at its margins. The state was too weak to suppress justice of this kind, so had to tolerate it within the aristocracy even it it was not recognised in law. These were feuds which were individual and hereditary, undermining the role of the central state.
There was a transformation in law undermining private individual disputes that included the following elements.
All justice absorbed into the judiciary.
A distinction between common law and politics in which private wars became criminal and other wars were public.
A completely ordered legal procedure.
The power of public action to intervene.
Truth replacing struggle between litigants.
This transformation came about because of the influence of Roman Law and of Christianity.
The role of Roman law increased with the power of monarchs as it provided an instrument for imposition of public law. Late Roman law as in the Institutes of Justinian was the dominant influence.
The influence of Christianity was in the conception of sin, individual fault and punishment.
However, penal practice did not just come from legal or religious ideas. It was inscribed directly into the games played in the relations of appropriation and force.
Relations of appropriation
Germanic law in one part regulated private war
In another part it allowed the possibility of compensatory justice
Compensatory justice had two parts
Wergeld [also known as Wirgild] damages paid to injured party by guilty party
Fredum fine to avoid imprisonment paid to the judicial authority
The compensatory justice was a first partial step in elevating the authority of the state in the Merovingian kingdom [5th to 8th century Franks in what is now France] and the Carolingian Empire [8th to 10th century Franks in France and neighbouring territories]
Justice is an element of capital power. It fixes rights, properties, fees, legacies, dependencies.
Justice is also itself an aspect of economic distribution. Judgements are party to the circulation of goods.It controls them through contracts, marriages, legacies, trusts, and fees. In criminal matters it controls through its actions on infractions, theft, illicit commerce and appropriations. Justice contributes to circulation of goods because it is itself lucrative through bribes as well as imposing fines, compensation and surrender of goods.
Justice controls the circulation of wealth as civil justice
Justice contributes to the circulation of wealth as criminal justice
Justice weighed more heavily on peasants because the aristocrats had more power to resist judgements by ignoring them, turning them into an individual war, or appealing to another judicial body willing to enter into a judicial duel with the initial body.
There is an increase of the power of state justice from the 10th to 13th centuries, putting economic pressure on the base of the system in the peasants, but in the context of different centres of judicial power: seigneurial (lordly), ecclesiastical, urban, royal. Judicial rights could be detached from land rights. Increasing judicial pressure was relieved by population movement, including the clearance of forests to create farmland.
The situation evolved in the 14th century due to new land running out, which put pressure on peasants, but also because of plague which raised wages by reducing the availability of manual labour to work on seigneurial land. These movements are reflected in political conflict including peasant revolts and changes in the administration of justice which always took place in the context of associated force to apply law. [Presumably Foucault’s point is that law becomes caught up in political and social struggles].
The medieval penal system was largely fiscal, concerned with economic appropriation, and tied to Christianity in its ideology. The modern penal system is largely carceral, concerned with sedition, and tied to psychological ideas in its ideology.
2nd February, 1972
One of various Foucault texts on Medieval law, which would benefit from comparison with Montesquieu on the spirit of the laws.
The new repressive system (established in response to uprisings in seventeenth century Normandy) had the following features
It protected private property though it was involved in the appropriation of property
It guaranteed the tax system without raising taxes itself.
It was an element of political power but not an instance of it (presumably that is to say it upheld political power, but was not part of it).
It favoured capitalist production but favoured feudal rents.
This is the fulfilment of several hundred years of attempts by Frankish and French kings to create a centralised system of justice independent of feudalism, which previously had been absorbed by feudal institutions (presumably the domination of landowners who strongly influenced local politics and administration of justice, living from the financial fees and obligatory service of their feudal inferiors).
Foucault goes back to the Carolingians and the formation of ‘cours comtales’. There is remarkably little information about this institution online, certainly not to be found even by checking every result of a Google word search. They appear to be courts, officered by scribes, associated with the counts appointed by Charlemagne to provide uniform centrally accountable administration across his lands. That is Charles the Great, King of the Franks from 762 and Emperor of the Romans from 800 until his death in 814.
This key figure in the development of the Medieval state is then associated with the first notable attempt to limit feudal particularism through a centrally directed court system. These courts appear to have been in decline by the tenth century, fitting in with Foucault’s account of the failure of attempts by Medieval monarchs to limit Feudal decentralisation of power.
The new system of the ‘Classical Age’ (seventeenth century France) was still caught between:
The specific nature of law and the forms of private property
A statist apparatus but not specific in its judicial functions
There were conflicts of:
Conflicts of financial interests, particularly round the Law affair (French financial bubble of the early eighteenth century)
Religious conflicts round Jansenism in the parlements (parlement was a French law court of a kind explained in earlier posts. Jansenism was a seventeenth century Catholics religious current in France, based round the writing of the Belgian bishop Jansenius, which was based on a radical reading of Augustine, had a lot of influence on thinkers and writers, and which was condemned by the Pope. It tended to have a political aspect as a point of resistance to Royal and Papal power).
The new repressive apparatus was caught in the political tension between power and opposition to power, including
Bourgeois attempts at domination
Social resistance, that is banditry.
These conflicts and the general contradiction determine diverse discursive traumas round
Literary representations of justice
Popular literature on crimes, criminals, brigands.
What Foucault finds behind the difficulties in creating a centralised royal system of justice is the persistence of Germanic law in criminal matters. The revival of Roman law (from the thirteenth century onwards) was first experienced in private (private disputes) and state (sovereignty and treason) law.
Foucault here refers to the process at the heart of Montesquieu’s Spirit of the Laws (1748), that of the evolution from a Frankish monarchy based on Germanic law after the fall of the Roman Empire in the west, to a French state based on revived German law. All of Foucault’s discussions of the development of law in various places can be best understood with regard to the relation of his thought with that of Montesquieu.
The persistence of German law in criminal matters meant that the court was not seeking an absolute truth, but a mediating rule in disputes. There was no permanent peace, but only the resolution of recurrent violent conflicts. The courts determined compensation rather than imposing punishment for criminal guilt. It was intervening in private conflicts rather than subordinating them to public law.
The public legal system only dealt with those crimes which could be regarded as affecting sovereignty, including treason and cowardice in battle. The royal law and courts also took over sexual crimes of rape and sodomy, which were punished in the same way as treason (presumably both representing some crime against nature, with the king’s power considered to be part of the natural order).
I’ve decided to start posting papers here as well as at my academia.edu account. Not everyone has an academia.edu account and it is necessary to have one to look at papers posted there. It is free and no real trouble to open an account, and does not require a university affiliation. Nevertheless some people would prefer not or will never get round to it. There are some people who might not use it out of principle which strikes me as unnecessary, but that is the reality. There is also the possibility that academia.edu might disappear of change in nature so abruptly, I would not longer wish to use it.
Anyone with any interest in looking at my work in draft or pre-publication form through the blog will be increasingly able to do so in the section ‘My Texts Posted’ at the head of the blog. I am posting just one paper today ‘Ethical Life, the Individual and Austen’ (The novels of Jane Austen in relation to the ethics of Kierkegaard. Some consideration of ethics in Aristotle, the Scottish Enlightenment and Hegel.). I will not post everything at academia.edu as their algorithms scoop up stuff I’m not very interested in posting or which is not available as an electronic file. Anyway, increasingly there will be just as much posted here as as academia.edu which I want to share and for which I have a pdf.
(Commentary on Theories et institutions pénale. Cours au Collège de France, 1971-1972. Paris: Seuil/Gallimard, 2015)
I’m picking up on this after an unintended break since November last year. I should now be able to keep going at a regular pace (at least on post a week) until I reach the end.
26th January 1972
Foucault refers to the role of the royal official Philippe Séguir in putting down a popular rebellion in seventeenth century Normandy, which he describes in the previous lectures.
He lists three aspects of the process:
- The use of the central state and the impossibility of using local authority.
- The central state lack its own means of repression
- He has to use old means which were not adapted to the repression
These problems led to the creation of three new institutions.
- Intendants of justice forming a centralised system under the king.
- The use of the police for repression rather than the army, less expensive and more preventative than the army.
- The use of deportation or imprisonment as a means of punishment not involving destruction of wealth.
This new system reacted to new forms of popular struggle and was reacting to popular struggle against power rather than simple law breaking. Delinquency itself is a product of this system. The system created constant surveillance. The newness of the system was concealed in the form of laws and customs for bans and threats. It defines the nature of delinquency. It allowed the prevention of popular sedition through through the punishment of delinquency. of penal-delinquency is an effect of the duality repressive-seditious. In this case effect is to be taken as product, condition of maintaining in existence, displacement and concealment.
The new institutions were juxtaposed with the old localised forms of justice, so that they were contained but not eliminated. The new system of justice and power protected the old system of feudal rents. The feudal system had judicial institutions appropriate both to direct feudal fees or in the indirect feudal system of sale and purchase of offices. The justice system within feudalism itself generated profits protected by the new system. However, the new system pushed the old system to become one purely concerned with profits from land and commerce, so reduced what it was protecting.
The new system was not a means of raising money as the feudal system of justice was. Unlike the feudal system of justice (in which offices were bought and sold for the fine collection possibilities), it was not a form of private property. The new system increased the separation between justice and political power, since local notables had less power as
judges and the monarchy was appointing judges, not making judgements.
The new system was tied to the birth of capitalism. The old system privileged the land owners and took money from the bourgeoisie. The new system was more favourable to capitalism as it reduced the importance of local feudal courts and gave the bourgeoise new opportunities for investment. The reduction of local sedition created favourable conditions for the growth of capitalism. Decisions were more favourable to capitalism. The system was more oriented towards the mobile productive capital of the bourgeoisie. It formed an essential part of the bourgeois nineteenth century state.
This system progressed through the Maupeou Conciliation (reducing the power of traditional courts, parlements in favour of the monarchy, 1768), the measures of the 1789 Revolution) and the Imperial Reaction (presumably Napoleon Bonaparte’s rule as Emperor of the French from 1804 to 1814, perhaps to be taken to cover the entire period of his supremacy which goes back to 1798). These completed the work of separating justice from the local raising of revenue and making it part of state administration rather than the property of landowners.
(Click for Part I) In Austen’s novels, we find something ‘unheroic’ in that they are concerned with the search of upper class women, bound by codes of gentility, for both a satisfying place in the world and emotional authenticity through marriage. Though there is none of the religious fervour of Pilgrim’s Progress, the message is sent that an ideal community is a small rural community guided by sincerely godly priest, concerned with the daily lives of his congregation.
There is none of the extremism of Quixote’s fantasies and adventures, but the simultaneous process of triumph over illusion and the growth of inner authenticity, is there in Pride and Prejudice, Sense and Sensibility, Mansfield Park, Emma, Persuasion, and Northanger Abbey, as the characters find marriages worthy of their growing ethical capacities in self-judgement and judgement of others.
Ethical growth means confirming a place in the landowning classes and taking a decidedly ambiguous attitude to making new money in trade. Landed property and religion are the starting points of an ethically tolerable community for Austen. We can see the growth there of what we might now think of as social and political values based on self-ownership and individual responsibility though somewhat constrained by respect by earlier aristocratic expression of these values.
We can see a version of Lukács’ split between heroic progressive bourgeoise and backward looking conformist bourgeoise there. Though it is absurdly crude to take 1848 as the line of of separation between the two tendencies, it is useful to think about the distinction as it evolved over time, including the events of 1848. Over time the basic bourgeois goals of rule of law, individual rights, representative government, and free trade tend to be achieved. The word radical is used less and less for the advocate of bourgeois individualism and more and more for advocates of a socialist state.
In literature the themes of the individual triumphing over circumstances, enduring disaster, awaking from illusions, developing individual moral strength and finding some moment of authenticity continues. The novel keeps developing as a form, but in many people’s opinion, including my own, it reaches a peak in the early twentieth century (James Joyce, Franz Kafka, Marcel Proust, Virginia Woolf, Thomas Mann) which it has never matched, though ambitious and admirable novels continue to be written.
The more straight forward kinds of heroism are not so prevalent as in earlier novels, but the irony and ambiguity about heroism develops what was already in the genre and intensifies individualism, even while questioning it. Some of these writers were sympathetic to socialism though born into a largely bourgeois liberal world, at least compared with developments after World War One.
Coincidentally or not, this coincides with the transitions from a limited state individualist nineteenth century liberal politics to the welfarist administrative state we now know and which is stronger than ever despite all the cries of ‘neoliberalism’ and ‘market fundamentalism’, that arise in reaction to any attempt to limit the statist drift.
There is a danger of rivalling Lukács’ tendency towards a moralising tendentious Marxism from a pro-liberty point of view, but I am anyway tempted to say that the reduction of the significance of the novel is a symptom of societies which aim to remove individual responsibility in the struggle with circumstances. Or I can put it in terms more amenable to those who welcome the welfarist-administrative tendency. The novel has lost some part of its significance as individualists ways of thinking are less influential in politics.
In fact I can wholly agree with this stereotypical imaginary progressive that Ayn Rand’s attempts to revive the grand individualist heroic aspects of the earlier novel are rather embarrassing. The Peruvian novelist Mario Vargas Llosa (Aunt Julia and the Scriptwriter,The War of the End of the World, The Feast of the Goat etc), who is an eloquent liberty advocate, is a far better novelist, and is as good as anyone currently active, so still not rising to the level of the Modernist greats of about one hundred years ago. Liberty advocates are also part of this cultural shift or loss, however you prefer to see it.
(Crossposted at Notes on Liberty)