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

On to my seventh 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.

The lecture of twentieth May is the last in these series, but there is an interview in this volume, which I will discuss in my next post.

The last Louvain lecture deals with the development of confession as part of the criminal justice system since the sixteenth century.  The story goes back to the medieval Inquisition, that is the activities of the Catholic church in hunting for, punishing and eliminating heretics.  Foucault does not get into the history of the Inquisition, but it starts in the twelfth  century campaign in France against Alibigensians (Cathars), which involved a complete armed crusade against their mountain communities.  Behind these dramatic events, the Inquisition was engaged in methodical work in detaining suspected heretics and torturing them for confessions.  Unpleasant though this was, it did not always involve the extremes of torture, and as Foucault indicates serves as a kind of truth drug.  That is if suspected heretics maintain their innocence despite the pain incurred for a period as a result of not making a confession, then their innocence is confirmed.  Foucault refers to this as a duel between the suspect and the ecclesiastical power.  This takes us back to Foucault’s discussion in his 1977 book Discipline and Punish (Surveillir et Punir) of torture, and even spectacular execution, as a form of duel between suspect or convict and the sovereign punishing power.  The suspect or criminal has the chance to establish some kind of heroism in resistance to pain and death.

The Inquisitorial interest in a confession is the analogue of the confession as activity of the believer.  In both case the confession should bring what is hidden in the depths of the conscience into pubic view and verbalise t.  There is the shared belief of what is hidden deeply, and the same importance attached to the act of confession.  The communication of information is not the dominant concern, which is that the individual participates in the community according to its moral standards and ritualises this.

The work of the Inquisition coincides with the juridificaiton of church and state, so that respect for regular and impersonal rules becomes more and more embedded.  That process is part of the emergence of the modern state as what is strongly sovereign according to civil law, as what is the source of law, judgement and the power to punish.  That intensifies the use of torture by civil courts, who are applying the sovereignty of the central state against its enemies.  The criminal is seen as a general enemy of the prince, the state, and the good of the community.

Enlightenment acts as a counterforce to the interest in confession since it is more concerned with the truth about the criminal act than ritualised admissions of guilt and subordination to the legal authorities.  The element of the confession in criminal justice comes back through the psychiatric discussion of criminal personality.  The starting point is the idea of the compulsive killer, the individual who lacks any responsibility and is just that one thing.  This gives way to a concern with the different forms of criminal mentality, which leads to different kinds of crimes.  There is an interest of this kind in what is going on in the mind of the criminal, and penal codes start incorporating recognition that criminal guilt is reduced, or eliminated, by psychiatric disturbance.  Defining the disturbance requires a psychiatric inquiry into the consciousness of the suspect or criminal.  This has roots in the Christian hermeneutics of the subject, but takes a new direction which is of textual decoding.  In that case we can connect psychiatry, including psychoanalysis with the interpretation of texts in studies of the Bible and in classical philology.  What Foucault does not quite say here is that we move beyond the question of the relation between subjective truth and rational truth which he sees as central to Descartes’ philosophy, and philosophy after Descartes, and might make us think of both Schleiermacher’s hermeneutics, and Nietzsche’s philosophy rooted as it is in classical philology.

The criminal justice system now has to deal with an antinomy between establishing who committed the crime, and the state of responsibility of the person who committed that crime.  If that person was a in a disturbed mental state, then that person may not be considered guilty of the crime.  Foucault begins the lecture with the difficulty of defining the relation between individual, the individual who committed the crime, and the individual who is responsible for the crime.  He ends with the example of a recent French lawyer, who Foucault does not name.  The reason he offers for not naming the lawyer concerned is that the lawyer was a campaigner against the death penalty, so Foucault does not want to embarrass that person given his own opposition to the death penalty (which he takes to include life without parole).  The lawyer was acting in a case of child kidnapping and murder.  His address to the court is that the suspect committed the crime, but we cannot convict the suspect as guilty of the crime without knowing that person.  If we do not known the inner state of consciousness of that person, we cannot find them guilty of responsibility for a crime.  Foucault’s point is that we can never find such knowledge for sure, so we could never convict any criminal if we follow that argument


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