(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:
- The use of the central state and the impossibility of using local authority.
- The central state lack its own means of repression
- He has to use old means which were not adapted to the repression
These problems led to the creation of three new institutions.
- Intendants of justice forming a centralised system under the king.
- The use of the police for repression rather than the army, less expensive and more preventative than the army.
- 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.