Reply to ‘Classical Liberalism, Cosmopolitanism and Nationalism’

Cross posted from the group blog Notes On Liberty. Go to Notes On Liberty for the full debate on the European Union and the other issues discussed here.

 

I write in reply to Edwin van de Haar’s post ‘Classical Liberalism, Cosmopolitanism and Nationalism’, which contains some generous remarks about my social media posts while putting forward a view different from my own about the role of the nation state. Edwin argues that the nation state is foundational to classical liberalism in that post. I have previously argued for the benefits of the United Kingdom staying in the European Union, just before the referendum which has put the UK on the path to leaving.

I will start with the doctrinal issues of how far classical liberalism might be considered as something that is embedded in the emergence of the nation state as we know it. It is true that classical liberalism arose as the nation state emerged and consolidated and it did not occur to classical liberals, on the whole, to question the state system as they knew it. That is a system defined in early modern natural law and contractual theory about law and state as one of a very unified system of sovereignty in a world of ‘a state of nature’, anarchy, or lawlessness between states.

We have to note at least one major deviation in the familiar list of classical liberal authors, which is Immanuel Kant, thinking of his essays ‘Idea for a Universal History with a Cosmopolitan Purpose’ (1784) and ‘Perpetual Peace: a philosophical sketch’ (1795), which do not question the internal  sovereignty of states, but does argue for a law governed set of relations between states with a global institution of some sort to prevent republics going to war with each other.

We should consider John Stuart Mill’s thoughts on federal states in Considerations on Representative Government (1861), particularly chapter XVII, ‘Or Federal Representative Governments’ which looks at the possibility of a state with decentralised decision making functions. A nation state can be federalised, at least in principle, but what are the components of the federation other then sub-nations, where the population may even regard them as nations within the state. Mill was building on the experience of the United States since the constitution of 1787, and Switzerland, particularly since the federal constitution of 1848.

The United States and Switzerland did not come out of nowhere. The US consolidated the links between thirteen colonies of Great Britain while federal Switzerland built on the Swiss Confederation and its links with places like Geneva which were associated with the confederation, but were not part of it until the restructuring of European states in the Napoleonic period. The point here is that modern states may be federal as well as unitary states and that includes continuity with pre-modern links between at last partly self-governing regions-nations. We could even say that kind of state of associated states was the Medieval norm.

The example, and even idealisation, of this Medieval structure enters classical liberalism via Montesquieu’s The Spirit of the Laws (1748), along with the work of Swiss jurists of the time, particularly in Berne. Montesquieu was building on the experience of the kind of medieval and early modern monarchy where he thought there was liberty, moderation in government, distinguishing it from tyranny. In such situations different laws and assemblies for towns and for historic regions was quite normal under the monarchy. In so far as such states, like France, were tending to evolve in states based on the absolute sovereignty of the centre, in the formation of what we call a nation state, Montesquieu saw the danger of despotism.

The historical experience that Montesquieu was drawing on was the way that Medieval monarchies were constructed through assembling  patch work of  the monarch’s personal domains, regions with their own lords and institutions, and church domains, along with increasingly self-governing towns. He also looked at the antique experiences of allying republics in a federation, which he thought was preserved in the Netherlands and Switzerland of his time. Germany, which at that time was a kind of federal/confederal empire of very varied forms of sub-imperial sovereign units including princes with lands outside the Empire, was also a form of federation for Montesquieu.

If we go back to the German history of the century before Montesquieu, the idea of the modern nation state is strongly associated with the Treaty of Westphalia (1648), which ended the Thirty Years war, focused on Germany, but drawing in most of Europe. ‘Westphalian state system’ has become a label for an internal system of states which are completely sovereign internally and face each other as equal legal personalities with no higher instance of sovereignty or collective instrument for enforcing the laws of nations, which do have some basis in the natural law doctrines of the time, and earlier.

The trouble with this understanding of Westphalia is that though it has some truth for Europe outside the German Empire (officially known as the Holy Roman Empire), it is very misleading for the Empire, and therefore for those European powers, including Sweden and Denmark, which had land within the Empire. The princes, cities and other territorial units within the Empire were under the legal authority of the Emperor, who largely served as a judge of interstate disputes though with far greater powers in the lands of the Habsburg family (consolidated as the Austrian Empire in the Napoleonic era) which always had the Emperor, though the Emperor was legally an elective office. The Habsburgs land extended outside the Empire into central Europe so the Westphalian system of Imperial authority brought in other European nations and extended outside the Empire strictly speaking.

Westphalia modified a system rooted in the Middle Ages of Germany as a middle European federation or confederation, drawing in other parts of Europe and therefore anchoring a European system of some kind. Periods of dominance by France or Spain complicate this story, but French claims always overlapped with Imperial claims and the peak of Spanish power was when the Spanish monarchy was from the same family as the German Emperors.

The Napoleonic era disrupted these arrangements severely, but we can see Napoleon as trying to revive the original Empire of the Romans under Charlemagne in the ninth century, which united France, Germany and neighbouring territories under a Frankish over-king. Charlemagne was know as ‘father of Europe’ in his time, perhaps more in connection with Europe as Christendom and his wars against Muslims in Spain, then with Europe as we might think of it now, but this is part of the story of what it is for there to be a Europe and a European system. Coronation by the Pope and recognition of the Frankish kingdom as heir to ancient Rome connects the medieval German Empire with the first great European political system, the Roman Empire.

The aftermath of the Napoleonic period in Germany was a confederation, which again included those European powers (the United Kingdom was one) which had lands in Germany. This evolved into the German Empire founded in 1871, which was itself an extraordinary mixture of Greater Prussia, federation, democracy, aristocracy, monarchy, and so on. It was more of a nation state than German predecessor systems in that it was a sovereign unified part of the international state system. The size and growing economic power of the Kaiserreich, incorporating Polish, French and Danish speaking areas, made it a destabilising force in Europe. Too big for the security of other European states, too small to anchor a European system.

The First World War and the Second World War were both consequences of this unstable system. The European Union is in large part an attempt to solve the problem by creating a European system which Germany anchors, though since unification the dominance of Germany has become an issue again. Whatever the problems, the EU provides a better framework for structuring a European system in which Germany is both contained and can exert influence in a consensual manner.

Returning to the issue of the nation state, Germany was never a nation state in the strictest sense of a very unitary state with a single language and ethnicity. France has usually been taken as the model of the nation state ‘strictly speaking’, but even so it has only been a country of speakers of standard French since the late nineteenth century. As it is now, it includes speakers of Breton, Basque, Occitan and Alsace German. Corsica has special status and Alsace-Lorraine also has some special arrangements in recognition of its specificities.

The European world before the First World War was more of a Europe of multi-national Empires than nations, with four Empires (German Hohenzollern, Austrian Habsburg, Turkish Ottoman, Russian Romanov) dominating the centre and east. Spain in practice has always been an extended Castille in which other regions-nations have played variable distinct roles. The United Kingdom never completely integrated as a nation state; even at the peak of integration in the nineteenth century, Scotland kept its own legal, state church and educational system and since then in a rather complicated way the UK has become more loosely integrated and may lose Scotland in a few years.

Even with the imminent departure of the UK from the EU, Europe continues to be a political system, not just an aggregate of nation states. The larger European states are not nation states in the strictest sense. Even without the EU, European states accept various kinds of obligation with regard to north Atlantic security and global trade which limit sovereignty. The UK will negotiate some kind of membership of the internal market of the EU and its passport union aspect, as well as participation in various EU schemes. It will therefore continue to be part of a European system anchored by Germany.

Ever since the Romans, Europe has needed a European system of some kind, and the German anchor schemes going back to 800 have recognised the Roman precedent. In reality there has never been a Europe of nation states and the periods closest to that model ended in catastrophic wars. Disaggregation of the European system as it is now may not result in war, but it has the potential to unleash trade wars, protectionism, competitive currency devaluation, erosion of chances to live, work, and study abroad, associated labour market sclerosis, destabilising struggles for political-diplomatic dominance, and an incapacity to ally in order to deal with global and strategic issues affecting Europe, including migration flows, Russian expansionism, and Middle Eastern conflict and terror.

(more on the consequences of the UK leave referendum soon)

Blogging Foucault’s most recently published lectures, Théories et institutions pénales. XIV 1972 Final Post

(Commentary on Theories et institutions pénale. Cours au Collège de France, 1971-1972. Paris: Seuil/Gallimard, 2015)

8th March, 1972

Foucault finishes the lecture series with some very general thoughts about the relations between the late Medieval development of the judicial state and the development of power-knowledge, a phrase which is the one most associated with Foucault. In this combination  Foucault brings his most epistemological ideas into relation with the evolution of the institutions of law.

Foucault suggests that we can understand the idea of the ‘epistemological break’ through this historical institutional process. The idea of the epistemological break comes from the French philosopher and historian of science, Gaston Bachelard. For Bachelard, science begins where facts are organised in a way in which we can say that we are engaged in science not just observing. Laws and objects of knowledge are defined distinctly from unorganised experience. For Bachelard this was about the birth of science.

For some time, the idea of the ‘epistemological break’ was largely understood, at least in English speaking countries, as something to do with making a sharp distinction between early and late Marx in the thought of Louis Althusser (one of Foucault’s teachers at the École Normale Supérieure). The issue in Althusser of defining the relation between early and late Marx arises from the attempt to define the emergence of a science of society. That his efforts and the phrase ‘epistemological break’ were understood so much in terms of Marx exegesis, is to some degree down to his assumption that the science of society must have begun at some point in Marx’s intellectual development.

Despite his background in Bachelard’s epistemology and Althusser’s own development of it, Foucault reveals a dislike for the term, or at least a belief that it rests on a over idealisation of abstract science. Returning to the issue of law, the the idea of a judicial system above individual disputes is strongly implicated in the idea of pure science distinct from the merely empirical, in Foucault’s account. The idea of an epistemological break between the merely empirical and science makes sense when a sharp divide has developed between truth as understood in the judicial system and what people say outside the court or in older forms of dispute resolution. For Foucault, we should give more weight to the less formal aspects of knowledge and less weight to finding the purest forms of knowledge.

The emergence of the judicial system includes procedures to get the truth spoken in court and assumptions that what is said in court can be taken as true. Issues come up of speech and truth in court which come back in work in the last few years of Foucault’s life on juridification, truth-telling and confession. The court establishes the idea of speech which is both privileged and forced on the speaker. The forcing the speaker includes the use of torture in inducing a confession, which Foucault discusses. He also not the context of the Inquisition as a weapon against heresy.

The use of torture itself is not widespread brutality for its own sake. At least in principle, the court limits torture to some final moment in which the most complete truth can be established after other inquires and investigations are complete. So torture itself is part of the system of ideal knowledge guiding empirical measures to gather less forms of truth and arrive at something like judicial truth. The prisoner resisting torture was in a kind of duel with knowledge-power. Foucault does not say so here, but this seems like a trace of the feudal forms of justice in which there isa  fight, a duel of some kind in which the winner has truth. The struggle with knowledge-power continues as a popular struggle with the state in later history. This kind of high truth of juridical and scientific language itself becomes the motivation for struggle which can be seen in popular movements of the nineteenth century which promote other kinds of knowledge, or recognition that those in the lower classes can have knowledge.

Foucault suggests differences between the French and English judicial system in which the English system can be seen as linked with English empiricism. The English trial relied less on a new kind of state prosecutor-investigator and more on older forms of questioning and investigation. This may be so, but I would qualify what Foucault says with reference to the more interrogatory and prosecutorial role of the English judge at this time. The current status of the judge as a referee of the legal process came later. The church did not provide a model of interrogation and investigation in England which is another distinction from France.

The feudal pattern of justice was one in which an apparent harm lead to an individual making a complaint against a defendant. There is a test or event (the duel, negotiations, an ordeal) leading to a result. The new pattern of justice is disorder followed by a prosecutor bringing a case against an accused, followed by an inquiry searching for truth and then a judgement. In this pattern the modern judicial system is the source of order and therefore the foundation of society, while the older pattern more suggests means to help individual s resolve disputes between them so keeping justice individualised with no third party.

THE END 

 

 

 

 

 

 

 

 

Blogging Foucault’s most recently published lectures, Théories et institutions pénales. XIII 1972

(Commentary on Theories et institutions pénale. Cours au Collège de France, 1971-1972. Paris: Seuil/Gallimard, 2015)

1st March, 1972

Centralised royal power was the only way to face the popular movements of the thirteenth and fourteenth centuries. The centralisation comprised: a professional army, state taxation/revenue, royal justice which controlled the tax/revenue system and was part of it.

Centralised justice appeared first of all in the institution of the ‘parlement’ (form of French court preceding the 1789 Revolution, extensively discussed in many previous posts on Foucault). That is ‘parlement’ as the council of the king or the King in his council. The ‘parlement’ made the king a judge as not just as a suzerain (on top of the feudal hierarchy of obligations) but as a sovereign.

The ‘parlement’ established the king as not just the highest level of justice, but as the source of justice itself. The state of justice has the characteristics that it is universal, obligatory and can be delegated and this is what has now emerged. (Foucault’s point is also perhaps that what the modern world assumes to be justice has only existed since the late Middle Ages).

The role of the king in the system of justice evolves from the earlier one in which he (the Frankish laws of inheritance in the French monarchy excluded female succession, so there are no French queens though of course at times Queen Mothers and wives exerted a high level of influence) exercised justice only within the lands directly owned by the monarchy as a feudal/private property holding. The late Medieval emergence of a state of justice brings the king’s justice outside his family domains establishing a central judicial supervision of trade, armies and legal prescriptions.

What Foucault suggests in the paragraph above is the emergence of national professional armies, a national economy, and a regularised system of laws and judgements. This is all part of the ways in which a judicial state imposed peace, extracted revenues through fines, and established some kind of state protected national trading system.

The royal system of justice, the juridical state, moved away from the idea of justice as between an injuring party and and injured party. It was no longer necessary for the injured party to bring a case, as the state took over the prosecuting function. The person accused of causing some harm was now seen as in conflict with the state more than with any individual. The royal state becomes the universal accuser/prosecutor as well as the universal judge.

The kings is thought to be harmed by all crime and occupies the place of the individual harmed. Even where the harm is purely private, the king is defined as co-vitim and therefore as co-accuser. The individual victim becomes victim twice, once as private individual and once as subject of the king. The king is represented twice in his justice, as a judge and as a prosecutor. This double representation also happened for the lord in feudal justice, so was not a new ‘paradox’, but was new in appearing at the universal level, the level of a royal system of justice applied to the whole nation.

There was no clear line between civil cases (cases concerning private harms) and criminals cases (cases concerning the public good/universal justice), but here was a tendency royal justice to define harms as infractions which could be judged by royal courts and removed from the sphere of private damages.

Power, obedience and punishment take over from vengeance, reply, war and reparation. ‘Penality’, the penal system/criminal justice is political in basis. The politics includes a moral aspect. Crime is assimilated to moral fault, substituting punishment for vengeance, moral correction for reparation. It is this moralisation which enables the penal system to be ordered as a political structure. Christian morality penetrates the system in this way.

Power considers itself harmed by crime. Crime is defined as what suspends the laws of power. Crime then is always defined as an attack on power, a war on power, and a suspension of laws. Crime becomes at its heart what the Romans called ‘crimen majestatis’ (lese majesty, high treason). Foucault jumps ahead to the nineteenth century, arguing that the crime as treason is displaced into power as repression of crime in which crime is defined not as an attack on power, but as an attack on nature, morality, natural law and the general interest.

The nineteenth century formulation defines power under attack as the universal law and nature, while acting in pursuit of crime, power becomes the generality of desire (Foucault comes close to ‘general will’ without using the term). The contrast made in the nineteenth century between political crime and and common law has a political function, masking the following: crime is defined in relation to power, the sphere of criminal punishment is defined and delimited by power, power is the determining element in the functioning of the penal system.

 

 

 

 

 

Blogging Foucault’s most recently published lectures, Théories et institutions pénales. XII 1972

(Commentary on Theories et institutions pénale. Cours au Collège de France, 1971-1972. Paris: Seuil/Gallimard, 2015)

23rd February, 1972

Institutions of Peace

First function

Private wars are forbidden

They are forbidden by a collective or singular authority

This authority imposes what can be placed before a judicial body, that is private war or what provokes private war

Justice is now not what comes after injury, arbitration and peace. The court is under the control of an authority establishing peace.

Public authority has separated injury from justice (presumably Foucault means injury cannot be a reply to an injury, that the injury can only be punished in the public court).

Justice is confiscated by the judiciary (from the private agreements between aristocrats at war with each other)

Second Function

Establish region where taxation/state revenues are better organised, more stable, and generate more income.

 

The period of private wars within the aristocracy generated revenue for the supreme authority through payment of fredum (fines for breaking the peace) which are close to wergeld (that is financial compensation for injuring or killing a man, coming from pre-feudal origins). This kind of revenue is exceeded by what is raised through a public judicial system emerging in the Middle Ages, reaching a peak in the France of the late seventeenth century.

The institutions of peace are creators of infractions, since they define not only initial injuries but also any non-judicial response to the injury. This serves to increase revenue and Foucault implies becomes a movement from institutions of peace to a dominant public judiciary.

The institutions of peace finally have the function of protecting some individuals from attack, for example merchants, participants at a fair, whole towns. This is in exchange for money.

This appearance of institutions of peace requires war to force individuals to give up the means of waging war.

As a landowner, the Medieval church had an interest in peace. As it was a suzerain (had some claims to sovereignty) and claimed rights of legal immunity, it had an interest in imposing justice itself, particularly since it did not the direct control of force (there were exceptions to this in the Middle Ages, i.e. there were Bishops commanding armies whatever the theological problems, but on the whole of course the church did not command armies).

After the collapse of the Carolingian state (presumably after the death of Louis the Pious in 84o which effectively killed off the idea of a Frankish-Roman Imperial domain incorporating France as well as Germany), the church sought peace through by using one lord against another, using the people, or using the monarchy.

Urban communities also needed peace, but have more capacity for armed self-defence than the church. They sought justice independent of overlords, whether in the church or the aristocracy.

The aristocracy and the monarchy sought peace on terms suiting them. Foucault suggests that the sectional interests of church, urban communities, aristocracy and monarchy all led to greater weight for institutions of peace, leading to a public judicial system.

Medieval wars relied on vassals fighting for lords, a system which extended to using vassals of other lords and free peasants. This meant everyone was armed. This made it difficult to impose peace and led to a higher army of paid soldiers, as the start of a state army. This brought advantages but weakened those without arms in relation to the state, who had to pay taxes.

The tendency towards taxation through judicial fines and towards professional soldiers benefitted the most powerful and made them stronger (presumably because they could pay the fines and employ soldiers).

Foucault now gets into  a discussion of emergence of a strong monarchical state, mostly referring to France, with occasional reference to England. The evolution of institutions of peace and of a royal judiciary make the monarchy stronger behind the disguise of aristocratic wars, which are partly about control of the monarchy. The process of internal colonisation of France is ended by the fourteenth century (presumably referring to the thirteenth century incorporation of the Languedoc and the south in general in  the Crusade against Cathar ‘heretics’ and their aristocratic protectors).

Any stabilisation of the royal and feudal system is undermined by the Black Death. Foucault refers to the well known economic upheavals caused by this plague as wages were pushed up by the death of so much of the workforce. There were peasant and urban revolts reflecting the more restless attitude of the lower classes to authority when they had become more economically powerful. This is a situation which favoured both popular power and royal power in relation to feudal power.

The questions of peace and justice always bring up questions of class, economy and political power. As the public judicial system advances, Foucault finds that the relation between economy and political power becomes tighter. The economy and politics invest each other. This comes from the way that the judicial system maintains political peace by extracting revenue from the society itself reinforcing a distribution of wealth and political power (presumably towards the state, those who work for the state, the individuals whose wealth is large enough to survive new impositions). In this system, Foucault suggests we need to distinguish between the reproductive and repressive aspects of the system, so between the system over time and the system at one moment.

The last part of the lecture deals with the evolution of the ‘parlements’, a type of French court, in the late Medieval period under discussion. Later on they become associated with feudal and localist rights in opposition to a centralising absolutist monarchy. Foucault points out that the origin of the ‘parlement’ was in the king’s judicial powers and his delegation of those powers to some selected members of the royal court (court as in place of residence and gathering place of royal associates), so that at least at this point, the ‘parlement’ (and there was only one in Paris) was the expression of royal power, part of the political economy of a royalist judicial state as it emerges in the late Middle Ages.

Reply to a comment by Suzanne Smith concerning my book Kierkegaard on Politics

I’ve suffered the likely fate of anyone who brings out a book, a comment I don’t think fairly represents the book. Of course the one thing worse than a comment about a book that misrepresents is no comment, so I should not complain very much. It is also the case that if you put work into circulation you defend it and if you think a misleading representation is in circulation you try to act against it. This is what I am doing in this post.

A book review of three recent books about Kierkegaard ‘From Martyr to Tyrant: Politics and Love in Kierkegaard’, by Suzanne Smith (who appears to be this Dr Suzanne Smith, a Lecturer on History and Literature in Harvard)   in Perspectives on Political Science (published online June 22 2016, http://www.tandfonline.com/doi/full/10.1080/10457097.2016.1190262, accessed July 3 2016) refers briefly to my work on Kierkegaard. It does not include my book as one of the titles reviewed and the journal has not reviewed my book at all.

My book does feature briefly in Suzanne Smith’s review as a example of a predictable way of looking at Kierkegaard and with an implicit sneer for bringing together ‘apolitical’ and ‘conservative’. You may have difficulty in viewing this article if you don’t have access to the online resources of an institution which subscribes to some version of the Taylor & Francis Online package which includes the journal concerned. Anyway, here is the vital passage, which you can most find readily online by going to the first place that ‘7’ appears in the text.

 He has variously been seen as “antipolitical,” “conservative,” or even, confusingly, “apolitical and conservative.”7 The notion that this is the standard narrative of Kierkegaard’s politics, which conceals a much less conservative politics perceptible to those who have eyes to see is itself the basis of the “standard narrative” of Kierkegaardian politics in the past twenty-five years

The ‘7’ gives the publication details of Kierkegaard on Politics. No page reference is given to justify this interpretation of my book, but the blurb on the back of the book does contain the comments mentioned. So Dr Smith has judged my book and implicitly  used it as an example of the mediocre and habitual in the interpretation of Kierkegaard’s politics, purely on the basis of the blurb.

What would Dr Smith, or anyone else, see in my book were they to take the radical step of going beyond looking at the blurb on the back cover or on the publisher’s website or an online book seller, and actually read some of the book itself? Let us say Dr Smith, or anyone else were to go so far as to look at the contents page. There it can be seen that chapter three is devoted to ‘Previous Perspectives on Kierkegaard and Politics’. This is surely a bit of a clue that I try to rise above saying previous commentators have only seen Kierkegaard as apolitical and/or conservative and I reveal another truth, for the first time!

A section on ‘Liberalism and conservatism’ (pp 30-37) does indeed refer to the conservative and even reactionary ways of reading Kierkegaard’s politics, which are quite widespread and real and not the mere product of the imagination of mediocre Kierkegaard commentators. A section in the same chapter on ‘The limits of politics’ (pp 37-42) explores existing non-conservative readings of Kierkegaard, so it is clearly unfair and a misrepresentation to suggest that I misrepresent previous commentators as only referring to conservative readings.

It is difficult to be sure in such a brief comment, but Dr Smith appears to be dismissing my linkage of conservative of apolitical as unnoticed paradox. I have to say, I am very puzzled by this. It is surely nothing strange to say that conservatism claims to be apolitical, to prefer existing habits and institutions to the innovations and changes which are the stuff of political thought. It is a familiar claim whether or not one agrees with it.  Of course there is a paradox here, but it is the paradox put forward by conservatives. The classic text here is Edmund Burke’s Reflections on the French Revolution. Hans-Georg Gadamer’s Truth and Method can be added, along with many other conservative classics. I take a critical view of this in chapter three in Kierkergaard on Politics as I also take a critical view of a kind of left moralism, which claims to be apolitical that I present as an important part of the ways in which Kierkegaard has been treated politically.

All of the above three paragraphs would come as a great surprise to anyone who relied on Dr Smith’s brief remarks as guidance to what my book argues. I expect readers to maybe not have as high an opinion of my work as I hope. I can surely also expect that fellow scholars will read my work, and show some evidence of doing so, before circulating a dismissive and misleading summary.

I am referring to

Kierkegaard on Politics 

Basingstoke: Palgrave Macmillan

2014

ISBN 978-1-137-37233-8 EPUB

ISBN 978-1-137-37232-1 PDF

ISBN 978-1-137-37231-4 Hardback

Blogging Foucault’s most recently published lectures, Théories et institutions pénales. XI 1972

(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.