Foucault on crime, truth, confession and justice: Post Two

On to my second post on Mal faire, dire vrai [Doing bad, telling truth], published a few weeks ago by Presses Universitaires de Louvain, based on lectures Foucault gave in Louvain in 1981.  English edition out in December of next year.  This is not the latest volume based on Foucault’s lectures, more on the most recent one soon.

The lecture of April 22nd sets up the idea of a connection between truth and justice which will be explored first with reference to Ancient Greece, then Late Antique and Medieval Christianity, and finally modern penal procedures.  Foucault explains that he will concentrate on the ‘confession’ wit regard to penal codes, for the sake of simplicity, since other forms of speech used in court (e.g.  witness evidence) could only be covered by complicating the argument.  I presume we could add to Foucault’s explanation that he finds the confession of more interest as a way of dealing with subjectivity.  He also explains that considerations of simplicity lead him to restrict himself to criminal law, though again I suspect the real reason is that in general criminal law is of the most interest to him, as he is concerned with the moments of the most intense confrontation between the guilty subject and legal power.

This lecture looks at Greek law, which Foucault clarifies as an analysis of pre-law.  Pre-law because he goes back to literary sources which precede what we understand as legal codes (Homer) or refer back to a time before such legal codes (Sophocles).  That might raise the question of whether there is ever law in Ancient Greece, certainly in comparison with Rome which seems like the starting point of modern legal codes.  I would prefer to see this as more the history of different forms of law, in which there is no clear break between law and pre-law, and I think that is Foucault’s underlying assumption.

The use if Homer is in the discussion of Iliad 23 , where there is a chariot race.  I won’t attempt to summarise Foucault’s own detailed account, just comment that the reading of various texts of Ancient Greek literature is highly useful for understanding Foucault, which is just one small part of the reasons for reading the literature.  The points that Foucault makes with regard to his view of truth, confession, and law is that law comes out of agonism (competition) and the regulation of agonism.  Law is an emergent phenomenon, which emerges from competition and the need for regulation of competition.  The emergence has distinct hints of Heidegger’s approach to antiquity where sees Greek words, in their original usage, capturing sone pure phenomenal aspect of the world, including the way it surges up from a self-concealing origin.  Foucault’s approach is much more detailed and much less tied up with assumptions of the authenticity of antique Greek experience.

The need to regulate a race, brings us to justice, because we see an issue of how a dispute is settled.  We also see a concern with facts since the question of justice is also the question of facts, of saying what is the case about the contest.  Foucault starts off the lecture with the connection between verification of facts and legal process.  In doing so he shifts the understanding of truth and facts away from a scientific-perceptual model to a model of the social institutions concerned with establishing facts so far as they are relevant to socially authorised punishment.

In the history of Greek (pre-)law, Foucault moves onto Hesiod, who i generally assumed to have been active around the same time as Homer, that is in the 8th century BCE.  We are talking about archaic Greece, the period lasting from Homer and Hesiod until the classical time of Athens at its peak.  Homer refers back to Mycenaean (bronze age) Greece from which he is separated by a ‘dark age’.  Hesiod refers both to mythical origin stories which have roots in very old eastern Mediterranean culture and the Greece of his time.  What Foucault is concerned with is what Hesiod suggests about the development of law in his time.  Hesiod differentiates between two kinds of law: a worse one which is the law of kings and aristocrats; a better one which is more universal law for all people.  Foucault sees this as the emergence of   law from pre-law of the move from the edicts of aristocrats and kings to more stable forms of legal power.

Later on in the lectures, Foucault gets onto ‘juridification’, which he otherwise mentions in The Hermeneutics of the Subject very briefly (if he mentions it anywhere else I have overlooked it).  Juridification is a Medieval process for Foucault, focused on the 13th century rise of Canon (church) law, based on Justinian and which also affected civil (state)  law.  What we see in the present lecture is that in some way ‘juridification’ is a much longer process in Foucault, beginning with the earliest expressions of pre-law arising from the regulation of contests.  The agonism which gives rise to law, is for Foucault always somewhere in law because what he often emphasises about law is the struggle between the accused individual and the sovereignty of law.

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