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

(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.

Public action.

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.

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

2nd February, 1972

One of various Foucault texts on Medieval law, which would benefit from comparison with Montesquieu on the spirit of the laws.

 The new repressive system (established in response to uprisings in seventeenth century Normandy) had the following features

It protected private property though it was involved in the appropriation of property

It guaranteed the tax system without raising taxes itself.

It was an element of political power but not an instance of it (presumably that is to say it upheld political power, but was not part of it).

It favoured capitalist production but favoured feudal rents.

This is the fulfilment of several hundred years of attempts by Frankish and French kings to create a centralised system of justice independent of feudalism, which previously had been absorbed by feudal institutions (presumably the domination of landowners who strongly influenced local politics and administration of justice, living from the financial fees and obligatory service of their feudal inferiors).

Foucault goes back to the Carolingians and the formation of ‘cours comtales’. There is remarkably little information about this institution online, certainly not to be found even by checking every result of a Google word search. They appear to be courts, officered by scribes, associated with the counts appointed by Charlemagne to provide uniform centrally accountable administration across his lands. That is Charles the Great, King of the Franks from 762 and Emperor of the Romans from 800 until his death in 814.

This key figure in the development of the Medieval state is then associated with the first notable attempt to limit feudal particularism through a centrally directed court system. These courts appear to have been in decline by the tenth century, fitting in with Foucault’s account of the failure of attempts by Medieval monarchs to limit Feudal decentralisation of power.

The new system of the ‘Classical Age’ (seventeenth century France) was still caught between:

The specific nature of law and the forms of private property

A statist apparatus but not specific in its judicial functions

There were conflicts of:

Judicial attribution

Conflicts of financial interests, particularly round the Law affair (French financial bubble of the early eighteenth century)

Religious conflicts round Jansenism in the parlements (parlement was a French law court of a kind explained in earlier posts. Jansenism was a seventeenth century Catholics religious current in France, based round the writing of the Belgian bishop Jansenius, which was based on a radical reading of Augustine, had a lot of influence on thinkers and writers,  and which was condemned by the Pope. It tended to have a political aspect as a point of resistance to Royal and Papal power).

The new repressive apparatus was caught in the political tension between power and opposition to power, including

Royal centralisation

Bourgeois attempts at domination

Anti-tax revolts

Political resistance

Social resistance, that is banditry.

These conflicts and the general contradiction determine diverse discursive traumas round

Penal theory

Judicial practice

Literary representations of justice

Popular literature on crimes, criminals, brigands.

What Foucault finds behind the difficulties in creating a centralised royal system of justice is the persistence of Germanic law in criminal matters. The revival of Roman law (from the thirteenth century onwards) was first experienced in private (private disputes) and state (sovereignty and treason) law.

Foucault here refers to the process at the heart of Montesquieu’s Spirit of the Laws (1748), that of the evolution from a Frankish monarchy based on Germanic law after the fall of the Roman Empire in the west, to a French state based on revived German law. All of Foucault’s discussions of the development of law in various places can be best understood with regard to the relation of his thought with that of Montesquieu.

The persistence of German law in criminal matters meant that the court was not seeking an absolute truth, but a mediating rule in disputes. There was no permanent peace, but only the resolution of recurrent violent conflicts. The courts determined compensation rather than imposing punishment for criminal guilt. It was intervening in private conflicts rather than subordinating them to public law.

The public legal system only dealt with those crimes which could be regarded as affecting sovereignty, including treason and cowardice in battle. The royal law and courts also took over sexual crimes of rape and sodomy, which were punished in the same way as treason (presumably both representing some crime against nature, with the king’s power considered to be part of the natural order).

My Texts Posted section added at top of blog

I’ve decided to start posting papers here as well as at my academia.edu account. Not everyone has an academia.edu account and it is necessary to have one to look at papers posted there. It is free and no real trouble to open an account, and does not require a university affiliation. Nevertheless some people would prefer not or will never get round to it. There are some people who might not use it out of principle which strikes me as unnecessary, but that is the reality. There is also the possibility that academia.edu might disappear of change in nature so abruptly, I would not longer wish to use it.

Anyone with any interest in looking at my work in draft or pre-publication form through the blog will be increasingly able to do so in the section ‘My Texts Posted’ at the head of the blog. I am posting just one paper today ‘Ethical Life, the Individual and Austen’ (The novels of Jane Austen in relation to the ethics of Kierkegaard. Some consideration of ethics in Aristotle, the Scottish Enlightenment and Hegel.). I will not post everything at academia.edu as their algorithms scoop up stuff I’m not very interested in posting or which is not available as an electronic file. Anyway, increasingly there will be just as much posted here as as academia.edu which I want to share and for which I have a pdf.

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

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

I’m picking up on this after an unintended break since November last year. I should now be able to keep going at a regular pace (at least on post a week) until I reach the end.

26th January 1972

Foucault refers to the role of the royal official Philippe Séguir in putting down a popular rebellion in seventeenth century Normandy, which he describes in the previous lectures.

He lists three aspects of the process:

1. The use of the central state and the impossibility of using local authority.
2. The central state lack its own means of repression
3. He has to use old means which were not adapted to the repression

These problems led to the creation of three new institutions.

1. Intendants of justice forming a centralised system under the king.
2. The use of the police for repression rather than the army, less expensive and more preventative than the army.
3. The use of deportation or imprisonment as a means of punishment not involving destruction of wealth.

This new system reacted to new forms of popular struggle and was reacting to popular struggle against power rather than simple law breaking. Delinquency itself is a product of this system. The system created constant surveillance. The newness of the system was concealed in the form of laws and customs for bans and threats. It defines the nature of delinquency. It allowed the prevention of popular sedition through through the punishment of delinquency. of penal-delinquency is an effect of the duality repressive-seditious. In this case effect is to be taken as product, condition of maintaining in existence, displacement and concealment.

The new institutions were juxtaposed with the old localised forms of justice, so that they were contained but not eliminated. The new system of justice and power protected the old system of feudal rents. The feudal system had judicial institutions appropriate both to direct feudal fees or in the indirect feudal system of sale and purchase of offices. The justice system within feudalism itself generated profits protected by the new system. However, the new system pushed the old system to become one purely concerned with profits from land and commerce, so reduced what it was protecting.

The new system was not a means of raising money as the feudal system of justice was. Unlike the feudal system of justice (in which offices were bought and sold for the fine collection possibilities), it was not a form of private property. The new system increased the separation between justice and political power, since local notables had less power as

judges and the monarchy was appointing judges, not making judgements.

The new system was tied to the birth of capitalism. The old system privileged the land owners and took money from the bourgeoisie. The new system was more favourable to capitalism as it reduced the importance of local feudal courts and gave the bourgeoise new opportunities for investment. The reduction of local sedition created favourable conditions for the growth of capitalism. Decisions were more favourable to capitalism. The system was more oriented towards the mobile productive capital of the bourgeoisie. It formed an essential part of the bourgeois nineteenth century state.

This system progressed through the Maupeou Conciliation (reducing the power of traditional courts, parlements in favour of the monarchy, 1768), the measures of the 1789 Revolution) and the Imperial Reaction (presumably Napoleon Bonaparte’s rule as Emperor of the French from 1804 to 1814, perhaps to be taken to cover the entire period of his supremacy which goes back to 1798). These completed the work of separating justice from the local raising of revenue and making it part of state administration rather than the property of landowners.

 

Liberty and the Novel II (Austen and After)

(Click for Part I) In Austen’s novels, we find something ‘unheroic’ in that they are concerned with the search of upper class women, bound by codes of gentility, for both a satisfying place in the world and emotional authenticity through marriage. Though there is none of the religious fervour of Pilgrim’s Progress, the message is sent that an ideal community is a small rural community guided by sincerely godly priest, concerned with the daily lives of his congregation.

There is none of the extremism of Quixote’s fantasies and adventures, but the simultaneous process of  triumph over illusion and the growth of inner authenticity, is there in Pride and Prejudice, Sense and Sensibility, Mansfield Park, Emma, Persuasion, and Northanger Abbey, as the characters find marriages worthy of their growing ethical capacities in self-judgement and judgement of others.

Ethical growth means confirming a place in the landowning classes and taking a decidedly ambiguous attitude to making new money in trade. Landed property and religion are the starting points of an ethically tolerable community for Austen. We can see the growth there of what we might now think of as social and political values based on self-ownership and individual responsibility though somewhat constrained by respect by earlier aristocratic expression of these values.

We can see a version of Lukács’ split between heroic progressive bourgeoise and backward looking conformist bourgeoise there. Though it is absurdly crude to take 1848 as the line of of separation between the two tendencies, it is useful to think about the distinction as it evolved over time, including the events of 1848. Over time the basic bourgeois goals of rule of law, individual rights, representative government, and free trade tend to be achieved. The word radical is used less and less for the advocate of bourgeois individualism and more and more for advocates of a socialist state.

In literature the themes of the individual triumphing over circumstances, enduring disaster, awaking from illusions, developing individual moral strength and finding some moment of authenticity continues. The novel keeps developing as a form, but in many people’s opinion, including my own, it reaches a peak in the early twentieth century (James Joyce, Franz Kafka, Marcel Proust, Virginia Woolf, Thomas Mann) which it has never matched, though ambitious and admirable novels continue to be written.

The more straight forward kinds of heroism are not so prevalent as in earlier novels, but the irony and ambiguity about heroism develops what was already in the genre and intensifies individualism, even while questioning it. Some of these writers were sympathetic to socialism though born into a largely bourgeois liberal world, at least compared with developments after World War One.

Coincidentally or not, this coincides with the transitions from a limited state individualist nineteenth century liberal politics to the welfarist administrative state we now know and which is stronger than ever despite all the cries of ‘neoliberalism’ and ‘market fundamentalism’, that arise in reaction to any attempt to limit the statist drift.

There is a danger of rivalling Lukács’ tendency towards a moralising tendentious Marxism from a pro-liberty point of view, but I am anyway tempted to say that the reduction of the significance of the novel is a symptom of societies which aim to remove individual responsibility in the struggle with circumstances. Or I can put it in terms more amenable to those who welcome the welfarist-administrative tendency. The novel has lost some part of its significance as individualists ways of thinking are less influential in politics.

In fact I can wholly agree with this stereotypical imaginary progressive that Ayn Rand’s attempts to revive the grand individualist heroic aspects of the earlier novel are rather embarrassing. The Peruvian novelist Mario Vargas Llosa (Aunt Julia and the Scriptwriter,The War of the End of the World, The Feast of the Goat etc), who is an eloquent liberty advocate, is a far better novelist, and is as good as anyone currently active, so still not rising to the level of the Modernist greats of about one hundred years ago. Liberty advocates are also part of this cultural shift or loss, however you prefer to see it.

(Crossposted at Notes on Liberty)

Liberty and the Novel I (Before Austen)

I’ve been working on Jane Austen and ethics recently. These ethical investigations have overlapped with considerations of politics and liberty, with regard to the progress of such ideas in the early nineteenth century when Austen was writing, along with the immediately preceding and following periods.

There is a well known Marxist view of the history of literature, which is that the novel (and other literary genres, but mostly the novel) can be seen as developing along with the development of the bourgeoisie, so  that is progressive and emancipatory until the turning point year of 1848 when the bourgeois class at least in part turns against the progressive democratic, working class and national revolutions of the European Springtime of the Nations.

At this point the capitalist class flees from democracy, allying with the royalist and aristocratic forces to prevent a revolution that might overturn property relations as well as pre-democratic political forms. After 1848, the novel largely becomes inward looking and alienated from social reality, because of the ties of writers and readers to a bourgeois class trying to hold back socialist working class politics, or at least fears to ally with it.

The classic exponent of this view is the Hungarian philosopher Georg Lukács who was born into the Habsburg Empire and so wrote in German, very much continuing themes from German language philosophy, literary studies and social science. The relevant texts include The Historical Novel and Studies in European Realism.

I do not write to advocate Lukács’ literary history and of course even less do I advocate his Leninist politics. However, he undoubtedly make an important contribution. Not many people now, Marxist or otherwise, would advocate the more schematic elements of his literary history. Nevertheless he was continuing ideas he had before his turn to Marxism, as expressed in Theory of the Novel and Soul and Form and he was onto something with regard to the heroic and less heroic phases of literature.

The novel itself has non-heroic and even anti-heroic aspects. If we take Miguel de Cervantes’ Don Quixote (1605 and 1615) as the starting point of the modern novel, a debatable proposition but not outrageously so, then the novel is something that starts with the mockery of the heroes of medieval knightly romance through a character trying to imitate them in real life Castile. It is a crude piece of social history to say this, but nevertheless it is roughly true that Don Quixote coincides with the growth of commercial Europe, trading across the Mediterranean and the Atlantic, as there is a growth of cities along with the increase in member of the merchant and financial classes.

This is the sweet commerce rightly advocated by Charles-Louis de Secondat, Baron Montesquieu, but also the violent consolidation of European states and the growth of their overseas empires. This is not all pleasant, but then that makes it to some degree ‘heroic’, as heroism refers to struggle and triumph with limited regard for other concerns. The ‘heroism’ of Quixote is to observe the Spain of his time in his bizarre adventures, learning from experience and awakening from his illusions, if only on the point of death. He becomes disillusioned by experience so achieving a more inner awareness freed from the illusions of romances in an idea of authenticity which has its own romance. A romance that is very visible in the subsequent development of the novel.

Other inputs into the development of the novel include John Bunyan’s The Pilgrim’s Progress (1678), a religious story from England of salvation in an allegory focused on a hero called Christian. There was nothing new about texts of salvation, but this is a novel length narrative devoted to individual struggles with externalised representations of distractions from faith. It was read very widely in the English speaking Protestant world, turning theological concerns into a popular heroic narrative of release of the self from ungodly illusions, and references to it abound in later literature of a kind less guided by strict Reformation Protestantism. (to be continued)

Also posted at Notes on Liberty