(Commentary on Theories et institutions pénale. Cours au Collège de France, 1971-1972. Paris: Seuil/Gallimard, 2015)
16th February, 1972
Another embarrassingly large gap between posts. I really am hoping to get the rest of these lectures done very soon and then that the summer will be a good time to build up a good blogging rhythm.
At it’s heart penal practice (the exercise of criminal law) is a translation of wealth, the circulation of goods, and all movement of property. The penal mobilises and displaces wealth.
The results obtained through punishment: fines and confiscations
The results obtained through redemptions: redemption/reduction of fines and confiscations which threaten the hierarchy of social relations; the remissions purchased from superiors, particularly the king.
The results obtain through judicial charges: the guarantees left in the hands of judicial officials, purchases of judicial complaisance, soon when written procedures allow the proper judicial expenses.
These are all ways in which the movement of wealth is channeled by the judicial system.
Penal measures are inscribed between civil litigation and violent seizure. (Foucault emphasises that legal measures are not far from both arbitrary confiscation and civil law procedures, penal must then refer to criminal law which is of course what ‘code pénal’ refers to in France).
Foucault suggests that penality/the criminal code restrained arbitrary state seizures, but is also rooted in the most violent arbitrary acts of medieval kings. He mentions the persecution of Jewish and lombard (north Italian) lenders by Louis IX in the thirteenth century. That is Saint Louis, the Crusader king. This emphasis on the violence present in the rule one of the most sacral figures in the history of the French state, and even the modern European state is presumably no accident. Not only was Louis a canonised crusader, he appears in Montesquieu’s Spirit of the Laws with regard to the revival of Roman law and the formation of the modern French monarchy.
There is a brief indication in the text that Foucault mentioned Philip IV’s persecution of the Knights Templars. This was a notoriously bloody use of state power by someone who was label ‘le Bel’ (handsome) and was a major figure in consolidating the French state as a major European presence. Philip reacted to the power and the wealth of this order of crusader knights which also acted as a trans-European and Mediterranean bank with a explosion of torture and tortuous death, destroying the Templars on the pretext of heresy and seizing their considerable wealth. Foucault it seems thinks these should be remembered when thinking of the consolidation of the legalistic and centralising French state in the seventeenth century.
Foucault continues these reflections on the French state in the high Middle Ages, with some oblique but recognisable references to the consolidation of southern France as part of the French state in the anti-Cathar (Albigensian) crusades of the early thirteenth century in which the autonomy of southern lords was crushed and property was transferred to new lords. The background to this is that southern lords protected both Jews and Cathar (Gnostic leaning) ‘heretics’ from the power of the Catholic Church. Under the leadership of the northern lord, Simon de Montfort, the political and religious autonomy of these areas were destroyed and the Cathars were persecuted into non-existence. De Montfort and his followers were greatly enriched. It should also be mentioned here that de Montfort was Earl of Leicester (in the east of the English Midlands) as well as a French territorial lord. His son, who had the same name, lead a baronial rebellion in England against the crown, called the first Parliament while in practice holding autocratic powers and was an aggressive anti-semite.
As Foucault points out in relation to France, usury was illegal but tolerated for Jewish financiers until kings found it convenient to cancel their own debts and expel Jews while seising their debts. This could create peasant support for the crown since the peasants ofter borrowed from Jews. There is a pattern here of tolerate illegality followed by violent arbitrary confiscation in the behaviour of the state which Foucault wants us to associate with the emergence of the early modern state.
Foucault’s suggestion for the early modern state is that ‘penality’ be seen as the development of state violence and an ambiguous relation with law into a regular system for circulating wealth at a time when there was not much circulation through an exchange economy. Wealth locked in landed property reaches other parts of society through a legal system of fines and confiscations accompanied by bribes and negotiated remissions of a kind which reinforce the authority of the royal state.
Foucault proceeds to give a background to seventeenth century penality going back even further into the Middle Ages. He sketches the process in which eleventh century nobles began to accept institutions of peace, that is limits on their personal and family struggles for land and wealth, so the constant wars between nobles. First families reached voluntary agreements. Then courts of mediation established peace agreements. Then the church imposed peace agreements. Finally the monarchy, Philippe Le Bel returns here, enforces peace particularly when it goes to war. This tension between aristocrats who assumed a right to pursue private wars and a monarchy which thought it should decide when there was a war, and that should only be against an enemy of the kind, therefore the state, went on until the seventeenth century. Foucault does not mention this prolongation of the medieval feuds, but presumably expected a French audience at least to have some idea about this.
Seventeenth century penality then emerges from a long process of regularisation of violence, now regulated by the state, primarily exercised by the state, as an instrument of state power and of a national economy with circulation wealth throughout all the land under the king.