(Commentary on Theories et institutions pénale. Cours au Collège de France, 1971-1972. Paris: Seuil/Gallimard, 2015)
23rd February, 1972
Institutions of Peace
Private wars are forbidden
They are forbidden by a collective or singular authority
This authority imposes what can be placed before a judicial body, that is private war or what provokes private war
Justice is now not what comes after injury, arbitration and peace. The court is under the control of an authority establishing peace.
Public authority has separated injury from justice (presumably Foucault means injury cannot be a reply to an injury, that the injury can only be punished in the public court).
Justice is confiscated by the judiciary (from the private agreements between aristocrats at war with each other)
Establish region where taxation/state revenues are better organised, more stable, and generate more income.
The period of private wars within the aristocracy generated revenue for the supreme authority through payment of fredum (fines for breaking the peace) which are close to wergeld (that is financial compensation for injuring or killing a man, coming from pre-feudal origins). This kind of revenue is exceeded by what is raised through a public judicial system emerging in the Middle Ages, reaching a peak in the France of the late seventeenth century.
The institutions of peace are creators of infractions, since they define not only initial injuries but also any non-judicial response to the injury. This serves to increase revenue and Foucault implies becomes a movement from institutions of peace to a dominant public judiciary.
The institutions of peace finally have the function of protecting some individuals from attack, for example merchants, participants at a fair, whole towns. This is in exchange for money.
This appearance of institutions of peace requires war to force individuals to give up the means of waging war.
As a landowner, the Medieval church had an interest in peace. As it was a suzerain (had some claims to sovereignty) and claimed rights of legal immunity, it had an interest in imposing justice itself, particularly since it did not the direct control of force (there were exceptions to this in the Middle Ages, i.e. there were Bishops commanding armies whatever the theological problems, but on the whole of course the church did not command armies).
After the collapse of the Carolingian state (presumably after the death of Louis the Pious in 84o which effectively killed off the idea of a Frankish-Roman Imperial domain incorporating France as well as Germany), the church sought peace through by using one lord against another, using the people, or using the monarchy.
Urban communities also needed peace, but have more capacity for armed self-defence than the church. They sought justice independent of overlords, whether in the church or the aristocracy.
The aristocracy and the monarchy sought peace on terms suiting them. Foucault suggests that the sectional interests of church, urban communities, aristocracy and monarchy all led to greater weight for institutions of peace, leading to a public judicial system.
Medieval wars relied on vassals fighting for lords, a system which extended to using vassals of other lords and free peasants. This meant everyone was armed. This made it difficult to impose peace and led to a higher army of paid soldiers, as the start of a state army. This brought advantages but weakened those without arms in relation to the state, who had to pay taxes.
The tendency towards taxation through judicial fines and towards professional soldiers benefitted the most powerful and made them stronger (presumably because they could pay the fines and employ soldiers).
Foucault now gets into a discussion of emergence of a strong monarchical state, mostly referring to France, with occasional reference to England. The evolution of institutions of peace and of a royal judiciary make the monarchy stronger behind the disguise of aristocratic wars, which are partly about control of the monarchy. The process of internal colonisation of France is ended by the fourteenth century (presumably referring to the thirteenth century incorporation of the Languedoc and the south in general in the Crusade against Cathar ‘heretics’ and their aristocratic protectors).
Any stabilisation of the royal and feudal system is undermined by the Black Death. Foucault refers to the well known economic upheavals caused by this plague as wages were pushed up by the death of so much of the workforce. There were peasant and urban revolts reflecting the more restless attitude of the lower classes to authority when they had become more economically powerful. This is a situation which favoured both popular power and royal power in relation to feudal power.
The questions of peace and justice always bring up questions of class, economy and political power. As the public judicial system advances, Foucault finds that the relation between economy and political power becomes tighter. The economy and politics invest each other. This comes from the way that the judicial system maintains political peace by extracting revenue from the society itself reinforcing a distribution of wealth and political power (presumably towards the state, those who work for the state, the individuals whose wealth is large enough to survive new impositions). In this system, Foucault suggests we need to distinguish between the reproductive and repressive aspects of the system, so between the system over time and the system at one moment.
The last part of the lecture deals with the evolution of the ‘parlements’, a type of French court, in the late Medieval period under discussion. Later on they become associated with feudal and localist rights in opposition to a centralising absolutist monarchy. Foucault points out that the origin of the ‘parlement’ was in the king’s judicial powers and his delegation of those powers to some selected members of the royal court (court as in place of residence and gathering place of royal associates), so that at least at this point, the ‘parlement’ (and there was only one in Paris) was the expression of royal power, part of the political economy of a royalist judicial state as it emerges in the late Middle Ages.