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).

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