(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.