(Commentary on Theories et institutions pénale. Cours au Collège de France, 1971-1972. Paris: Seuil/Gallimard, 2015)
1st March, 1972
Centralised royal power was the only way to face the popular movements of the thirteenth and fourteenth centuries. The centralisation comprised: a professional army, state taxation/revenue, royal justice which controlled the tax/revenue system and was part of it.
Centralised justice appeared first of all in the institution of the ‘parlement’ (form of French court preceding the 1789 Revolution, extensively discussed in many previous posts on Foucault). That is ‘parlement’ as the council of the king or the King in his council. The ‘parlement’ made the king a judge as not just as a suzerain (on top of the feudal hierarchy of obligations) but as a sovereign.
The ‘parlement’ established the king as not just the highest level of justice, but as the source of justice itself. The state of justice has the characteristics that it is universal, obligatory and can be delegated and this is what has now emerged. (Foucault’s point is also perhaps that what the modern world assumes to be justice has only existed since the late Middle Ages).
The role of the king in the system of justice evolves from the earlier one in which he (the Frankish laws of inheritance in the French monarchy excluded female succession, so there are no French queens though of course at times Queen Mothers and wives exerted a high level of influence) exercised justice only within the lands directly owned by the monarchy as a feudal/private property holding. The late Medieval emergence of a state of justice brings the king’s justice outside his family domains establishing a central judicial supervision of trade, armies and legal prescriptions.
What Foucault suggests in the paragraph above is the emergence of national professional armies, a national economy, and a regularised system of laws and judgements. This is all part of the ways in which a judicial state imposed peace, extracted revenues through fines, and established some kind of state protected national trading system.
The royal system of justice, the juridical state, moved away from the idea of justice as between an injuring party and and injured party. It was no longer necessary for the injured party to bring a case, as the state took over the prosecuting function. The person accused of causing some harm was now seen as in conflict with the state more than with any individual. The royal state becomes the universal accuser/prosecutor as well as the universal judge.
The kings is thought to be harmed by all crime and occupies the place of the individual harmed. Even where the harm is purely private, the king is defined as co-vitim and therefore as co-accuser. The individual victim becomes victim twice, once as private individual and once as subject of the king. The king is represented twice in his justice, as a judge and as a prosecutor. This double representation also happened for the lord in feudal justice, so was not a new ‘paradox’, but was new in appearing at the universal level, the level of a royal system of justice applied to the whole nation.
There was no clear line between civil cases (cases concerning private harms) and criminals cases (cases concerning the public good/universal justice), but here was a tendency royal justice to define harms as infractions which could be judged by royal courts and removed from the sphere of private damages.
Power, obedience and punishment take over from vengeance, reply, war and reparation. ‘Penality’, the penal system/criminal justice is political in basis. The politics includes a moral aspect. Crime is assimilated to moral fault, substituting punishment for vengeance, moral correction for reparation. It is this moralisation which enables the penal system to be ordered as a political structure. Christian morality penetrates the system in this way.
Power considers itself harmed by crime. Crime is defined as what suspends the laws of power. Crime then is always defined as an attack on power, a war on power, and a suspension of laws. Crime becomes at its heart what the Romans called ‘crimen majestatis’ (lese majesty, high treason). Foucault jumps ahead to the nineteenth century, arguing that the crime as treason is displaced into power as repression of crime in which crime is defined not as an attack on power, but as an attack on nature, morality, natural law and the general interest.
The nineteenth century formulation defines power under attack as the universal law and nature, while acting in pursuit of crime, power becomes the generality of desire (Foucault comes close to ‘general will’ without using the term). The contrast made in the nineteenth century between political crime and and common law has a political function, masking the following: crime is defined in relation to power, the sphere of criminal punishment is defined and delimited by power, power is the determining element in the functioning of the penal system.