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

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

At last I’ve managed to pick up this series of posts again. I hope to get the rest of this out without much interruption, but I can’t guarantee it.

12th January 1972

Foucault continues with a detailed discussion of the reaction of the French monarchy to an uprising in Normandy in the seventeenth century, in the reign of Louis XIII, when the effective head of the French government was Cardinal Richelieu. The king is not mentioned by name in this lecture and even Richelieu, who has a mythical aura himself as the Great European Statesman of the 17th century and as the architect of the French State, is absent.

Deliberately or not, Foucault adds emphasis in this way to the theme of the growth of a depersonalised state detached from the person of the king, and certainly his body. Foucault refers to the Medieval political theology of the monarch and the idea of the two bodies of the king. This is an idea associated with the work of the German historian Ernst Kantorowicz in his book of the 1950s, The King’s Two Bodies: A Study in Medieval Political Theology. It is the editors of the lectures who add the reference, but Foucault’s invocation is clear enough.

There are some questions here about how Foucault regards Kantorowicz’ study and his whole career (in short Kantorowicz was more than just another academic Medievalist) and as he does refer to ‘political theology’ in the lecture, there is an issue of his attitude to Carl Schmitt, who did write a well known book with that title and comes to most minds pretty quickly in connection with ‘political theology’. I won’t follow up these issues in this series of posts, but they are certainly worth considering and might guide some of my future inquiries.

Foucault alludes to the political theology of Medieval kings to emphasise a transition from a state that in significant part exists in the body of the king to a state that exists in an apparatus of appointed career bureaucrats. The ‘two bodies’ idea is that the king exists as a normal human body and as a sacred body, so is like Christ, combining the physical and sacred. The power of the Chancellor Séguier who restores ‘order’ in Normandy is distinctly removed from the presence of the king.

Of course it is not a new type of arrangement for a representative of the king to handle local affairs, it was never possible for the king to be simultaneously present everywhere. What is different, as Foucault explains, is that the Normandy judicial, business, municipal and church elites had no opportunity to appeal directly to the king. The power of his representative, and of the administrative apparatus in general, was absolute and beyond appeal.

Séguier is described as arriving in Normandy combining the military and judicial powers of the state and breaking down the boundaries between them, so is both an occupying force and a constituting form of authority, suggesting that legality and sovereignty are expressions of state military force and the product of civil war and conquest. Foucault refers indirectly here to the distribution of state powers in Medieval conceptions between bodies which were under the monarchy, but could not be overthrown by the monarch. The fusion of the judicial and military power is itself a major departure from Medieval tradition.

Foucault’s account is possibly shaped by Montesquieu’s understanding of the distinction between monarchy and despotism in The Spirit of the Laws, which is a speculative comment on my part, but there is no doubt that Montesquieu represents an important stage in thinking about these issues and that Foucault is in some way part of a tradition of French thinking that includes Montesquieu, a figure discussed by Émile Durkheim, whose sociological theory is certainly part of the background to Foucault’s work, and Louis Althusser who was one of Foucault’s teachers.

The powers that Séguier combines are the central functions of the state as understood by a various thinkers, and can be found in even the most minimal state. One implication of Foucault’s historical account is that the liberalism, or art of government, he will later describe for the eighteenth century and had already discussed to some degree in work in the 60s on the history of political economy, which emphasises the distinction between law and state force emerges from the kind of ‘absolutist’ royalist state Foucault is describing in the 17th century.

The situation for liberal theory, certainly in 18th century theories of civil society is a bit more complex than a naive belief in the absolute separation of law and force. I can’t get into that here, but it can at least be said that a naive formalist kind of liberalism does not fit with all the early liberal classics. Where Foucault’s own thinking fits in here is another question to big for the present series of posts, but we should be careful about where we place him. It is also an idea of early liberal classics, John Locke and Wilhelm von Humboldt spring to mind, that the king (executive governmental branch) is chief judge and army commander, in which case Séguier became a version of the king, even if his crude fusion of powers overrode Medieval sensibilities.

The full significance of Séguier’s ‘reign’ (not a word used by Foucault, but an appropriate extension of his commentary, if not necessarily a ‘correct’ interpretation of his ‘real’ meaning) then is that the Medieval restraints are overthrown as local elites are ignored along with normal legal procedures and rules for composing local bodies. The elites cannot appeal to the king (or even Richelieu). Suspected rebels are given tortuous forms of death sentence without right of appeal, without more than one judge, and without a written judgement, all violations of procedure. Parlements (see previous posts for discussion of these bodies which combined judicial and representative functions) were packed with men chosen by Séguier, who were not members of the families who traditionally filled these posts. The poor were fined to a level they could not pay and the aristocracy was held responsible for the debt.

After the rebellion was quashed to the satisfaction of Séguier and his masters in Paris, some normality returned including respect for local institutions and elites. There was no taking back the demonstration of centralised power though, which was expressed in more regularised way through the already present centralisation of feudal rents in the hands of the state. Later rebels had to work on the basis of the knowledge that they had to strike at a power above the local institutions which were no longer absolutely guaranteed in their authority. Foucault here maybe alludes to the French Revolution of 1789, a long way in the future, or possibly the Fronde of the 1660s, an aristocratic uprising against the new absolutism at a time when the boy Louis XIV was king, while his mother Anne of Austria (who was Spanish), ruled in conjunction with Richelieu’s disciple and replacement Cardinal Mazarin (who was Italian).

Assessing Elections in Poland and Argentina in the Context of Populism and Liberalism in Europe and South America II (liberalism in the classical sense of course).

Reblogged from my recent post at the group blog  Notes on Liberty.

The Argentine election was for the state president, who is head of government as well as head of state. An expected first round victory for the Peronist party (formally known as the Justicialist Party) candidate Daniel Scoli disappeared as he failed to clear 45%. He is clearly ahead of Mauricio Macri, Mayor of Buenos Aires, running on behalf of a three party centre-right alliance which contains the less statist, and populist elements of Argentine politics, but at least the hope exists of a second round triumph over the Peronists.

The third candidate is also a Peronist, showing the difficulty of overcoming that legacy and why even just turning the Presidential election into a competition between a Peronist and a non-Peronist is a victory of some kind. The sitting President Christine Kirchner pushed at the limits of the Argentine constitution, which prohibits more than two terms for any President, by alternating in power with her late husband Nestór Kirchner. If he had not died in 2010, we might now be looking forward to a fourth consecutive term in power for team Kirchner.

For the rest read on here.

Any comments should be posted at Notes on Liberty, not here.

Assessing Elections in Poland and Argentina in the Context of Populism and Liberalism in Europe and South America I (liberalism in the classical sense of course).

Reblogged from my recent post at the group blog  Notes on Liberty

Election results I’ve seen today from weekend elections in Argentina and Poland and the more general thoughts they have inspired. Rather longer than I anticipated so posted in two parts, though not separated in time given that I am articulating immediate reactions.

The Polish parliamentary election has been bad news for those who share the perspective of Notes on Liberty in that Law and Justice, a social-national-religious sort of conservative party with strongly statist and populist inclinations, has taken over from the more open market/open society inclined Civic Platform. However, a new party, Modern (strictly speaking ‘.Modern’, but I’ll ignore that in the future as too likely to be mistaken for a typo, it is at least worth noting as suggesting a technocratic commitment to a digital age, reminiscent of the development of the e-state in post-Communist Estonia) which leans towards liberty in economic and social spheres, in comparison with most of Civic Platform and even more in comparison with Law and Justice, has entered the National Assembly, compensating for some of the votes lost by Civic Platform to the populist right.

For the rest read on here.

Any comments should be posted at Notes on Liberty, not here.

Barry Stocker on Foucault’s Théories et institutions pénales lecture course

Progressive Geographies

c9d71a6be7Barry Stocker has been making a series of posts on Foucault’s Théories et institutions pénales lecture course, which appeared earlier this year – an English translation is likely to be a couple of years away, since The Punitive Society has just come out, and Subjectivity and Truth will be the next one.

Dates below are those of Foucault’s lectures, with links to Barry’s posts on them.

24th November, 1971 – includes a useful discussion of the notion of a parlement

1st December, 1971 – part onepart two; part three

15th December, 1971

22nd December, 1971

I’ll add further links as they become available.

My review of the course was published at Berfrois earlier this year.

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Blogging Foucault’s most recently published lectures, Théories et institutions pénales. VI 1971

(Commentary on Theories et institutions pénale. Cours au Collège de France, 1971-1972. Paris: Seuil/Gallimard, 2015)
22nd December, 1971

There is quite a lot of recapitulation of the previous lecture, perhaps suggesting that Foucault was particularly eager to maintain the unity of his discussion in the previous lecture with the discussion he now enters into of the claims of the central state. As he repeats from the previous lecture the entry of ‘armed justice’, that is external military units enforcing central state authority in Normandy with the old archbishop’s seat Rouen as the central concern here, results in summary execution and torture of supposed rebels.

As Foucault mentioned in  the previous lecture, there is a return of civil order and what Foucault expands on the latter part of this lecture is the way that the local agents of civil order are subordinated to the crown, or in practice the figures at the head of the state judicial, administrative and governmental apparatus. The subordination and the central rejection of traditional local mediation represents a shift in the functioning of power that Foucault emphasised in the previous lecture.

He refers now to a sixteenth century understanding of a monarchy restrained by three elements: religion, justice, ‘police’. These three elements look like the central supports of monarchy, so suggest a view of government as depending on elements that also limit it. It seems like an anticipation of Montesquieu, and that may not be an accidental outcome of Foucault’s design. Even if it is an accident, it is highly meaningful with regard to the context in which we might evaluate Foucault’s thought.

The three restraints are attributed to Seyssel, who appears to be the archbishop Claude de Seyssel, living in the late fifteenth and early sixteenth century, and who was a tutor to King Louis XII as well as a translator of Thucydides, though Foucault himself does not make this clear. The idea of restraint by religion in Foucault’s account refers to the right of even a simple preacher to challenge the king. Justice refers to the role of the parlements, the local courts who registered royal edicts as law and sometimes issued remonstrances against those edicts which offended them. ‘Police’ does not refer to ‘police’ as understood in modern English but to the structure and hierarchy of offices in the realm, over which the king presided but which he could not dissolve.

Foucault suggests that the suppression of the revolt in Normandy undermined and even directly contradicted those restraints which were deeply rooted in medieval France, if not necessarily in exactly the forms late seventeenth century rebels and local notables might have assumed appropriate. Foucault presents what is in outline a familiar picture of the world of feudal privileges and particularisms distributed between localities and within the social hierarchy giving way to a world of the centralised state underneath autocratic monarchies. The France of this time, with the  centrality of Richelieu also indicates that monarchist ‘despotism’ could include a redistribution of power from the monarchy to the chief minister as head of a state machine.

The particularities emphasised by Foucault are that in Rouen the archbishop appeals to Séguier, Richelieu’s subordinate so twice removed from the place of the king to mediate between people and king. This hope is denied as Séguier’ expectation is that all the people of Normandy will submit directly to the ‘King’ (in practice the state directed by Richelieu), so that all the guilty will be punished and the innocent protected, according to the administration of royal justice. So the archbishop has no role in either protecting the people, or notables, in general, or in those cases where he believes they should be spared from royal justice.

All three restraints on monarchy have been eroded away here, as the archbishop represents religion and traditional social hierarchy in direct ways, and maybe in a less direct way justice, since the Catholic church had a long tradition of cannon law and judicial privileges. More directly the archbishop is the ally of the  class of those who sit in the parlements. Generally all intercession by local notables and attempts to identify a limited class of people who revolted and deserve punishment is rejected. The representatives of the monarchy demand the application of ‘equity’, of general principles of justice which apply to all equally and must be applied without privilege or exemption.

In this respect, Foucault alludes to a genuine ideal which has some value in comparison with the demands of traditional authority for special recognition. The ideal has some genuine value but is applied with extreme violence which in itself lacks restraint by principles of justice.  There is a clear allusion here to future popular revolutionary ideals which will take up the claims of the monarchist state to represent pure justice and will claim to have a superior basis for equity in new political institutions to represent the nation or the people.

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

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

15th December, 1971

Picking up from a post of 1st September.

The crushing of the seventeenth Normandy revolts focused on Caen and Rouen was both severe and lenient, legal and savage. Pierre Séguier (senior legal official of King Louis XIII, working in practice for Cardinal Richelieu who was the king’s chief minister and the real head of government, in which role he was famously the model of early modern statecraft) referred to the armed justice of the king. He was drawing on ideas of vigour and justice in medieval political theory and on a well established idea that the royal army was an instrument of justice. However, the combination of the apparatus of justice and the apparatus of repression, their  articulation, was new.

The strategy of armed justice was intermittent and variable, and no less important in understanding the repressive apparatus of the state, and the formation of the relevant institutions. In Normandy armed force came first in breaking the revolts and was followed by ‘justice’ (the operation of state courts). There was a tendency for greater leniency over time, but the courts were also part of the violent repression in the early part of the process, if coming into operation a bit later than the state army.

Foucault refers to the differences between Aquitaine and Normandy. In Aquitaine the governor put down revolt with his own troops, which were available because of the proximity of the border with Spain (Spain and France were principle antagonists in a struggle for the status of leading state in Europe for a large part of the seventeenth century, a classic inter-state power struggle of early modern Europe). In Normandy, the army comes in as an more external factor since there are no large permanent garrisons in this area less sensitive from the point of view of war (though England across the English Channel was also an often antagonistic power). The use of the army in putting down internal revolt in an area away from the threat of invasion showed its importance for the policing, political control and internal repression aspects of the state.

Without troops in  Normandy both the central state and the local notables in the form of the aristocracy, bourgeoisie and members of parlements (local courts with a representative function), were unable to benefit from the centralisation of feudal rents practiced by the state apparatus of that period. This role of the royal army already existed in the Middle Ages, what was new was that was it now clear that the high aristocracy could not mobilise sufficient organised force to play the part it used to in ensuring that rents were paid. Centralised state force was now applied to the privileged as well as the poor in the region. It was now clear that the taxes necessary to pay for war could only be raised by centralised force, not the feudal aristocracy, there was a new role of the central state including its army.

The state was now in conflict with the parlements which as local centres of power had become divided from the financiers. A council of state in which financiers were present was now directing enforcement of authority agains the traditional local source of authority in the parlements, now divided from another source of local authority, the financiers. The council of state served the financiers in sending armed justice to Normandy, in a unified political-military intervention in which the tactics were guided by the need to maintain two separations. That is the separation between town and countryside; the separation between poor and privileged classes.

The dependence of the state on a centralised form of feudal rents meant that the biggest danger to it was of an alliance of the poor and the bourgeois against feudalism, both of whom had reasons to regard feudalism, or at least its impact on them, as parasitic. The military and political operations to separate town and country were associated with the separation between poor and bourgeois. The revolt in Aquitaine showed the dangers of rural and urban rebels coming together and reinforcing each other. The armed operation in Normandy served a political purpose in the tactics and strategy of power. Capitalism was growing in the interstices of feudalism, so that the armed operations both prevented a bourgeois-popular resistance to feudalism and maintained the conditions for this growth of capitalism.

There was a highly violent imposition of order without justice (without the presence of judges and courts) which then gives way to the normal functioning of civil order without a complete end to the violence used to destroy the revolts. In the repression of the revolt, the state upheld a hierarchy as described with regard to its supremacy over local notables and the poor, disguised in theatre. In the theatre, armed force was sent to Normandy to punish the enemies of the king, outlaws and external enemies who could be exposed to unlimited violence.

The more normal agents of civil order such as judges and bishops reappear promising submission to the king and the punishment of his enemies. However, this did not suit Séguier as the agent of royal power, who did not want a collective submission of the people as offered by the Archbishop of Rouen. This would mark the king as external to the people, Séguier wanted royal power inserted as what belonged within the community to separate between the guilt and the innocent, rather than accepting a generalised submission to a king now cast an external force.

War and Philosophy of Violence: Girard on Clausewitz V (final part)

The idea of a Kantian Europe, federal and peaceful, as the nucleus of a post-Cold War world becoming more Enlightened was part of the high point of European and European Union enthusiasm at the Fall of the Berlin Wall, as part of the end of totalitarian Communism. Current crises economic, and others, have certainly tempered the 1989 kind of enthusiasm. The decline in relations with post-Soviet Russia has been associated with low intensity wars between Russia, including its agents and local allies, on one side and nations looking to break with Russia and become part of an EU centred Europe, which has culminated recently in Ukraine, accompanied by a military build up focused round the Baltic states.

Despite the EU’s economic problems, notably including the failure of a single currency to promote a broad and direct road to deepening economic harmonisation and prosperity, it continues to be attractive to migrants from low income countries, particularly those escaping from violence and political repression. The consequence has been violence at the frontier of the EU, as member states have even involved the national military to keep migrants out (or appear to be keeping them out), violence which is reaching the internal frontiers of the EU as states react to the presence of unpopular migrant populations moving across national frontiers.

Some of the apparent militarisation may have been exaggerated for effect in the public sphere, but there is still a strong tendency here  for nation states to reveal their more violent aspects, the extent to which the state itself exists in a state of war with enemies of various kinds, internal as much as external. Terrorism partly reflecting tensions between extreme forms of religious communalism and secular tolerance, is a constant threat if not in itself a major source of death, legitimising to some degree militarisation, but perhaps more significantly a more low level kind of war by the state apparatus against inhabitants a surveillance state.

European nations are militarily involved in those nations where non-state religious fundamentalism groups have established areas of provisional sovereignty, or threaten to do so, a European  (including Turkish) involvement itself reflecting colonial history, a history of government based on military conquest which conditioned state formation and reproduction in the colonising countries. A purely pacifist and passive policy of military withdrawal is however unlikely to end the multi-faceted and multi-causal antagonisms of the current situation.

Most of the above is remote from Clausewitz’ own concerns though the tensions between Russia and other European powers would have been a very recognisable interstate phenomenon for him. Clausewitz’ thought has been adapted to other aspects of recent history and this should be no exception. Girard does not really have a suitable approach for these issues, since while he has a strong interest in the idea and history of Europe it is far too focused on France and Germany with regard to their mimetic rivalries to be brought into topics other than the centrality of the French-German relationship to the existence of the European Union.

At this point Girard is open to criticism of a reductive and abstract approach coming from the more schematic aspects of his interest in mimetic rivalry accompanied by strong tendencies towards French and Catholic centred ideas of Europe. Girard of course writes with all kinds of humane intentions, but his theology could as much as anything lead to a passive expectation of the Second Coming in reaction to the growth of social and state violence, and in a disturbing parallel the political theology of ISIS is to attempt to hasten the Koranic Day of Judgement.

The recent tendencies in European politics, including its relations with neighbouring regions, can be more fully grasped if we remember that the state is driven by war as well as war driving the state, and if we think of the multiple zoners and forms of violence. Clausewitz is key here and though his analysis oriented towards organised state armies and their commander in open battle, his understanding of politics and violence is more applicable then Girard’s form of idealisation of violence in history.