(Commentary on Theories et institutions pénale. Cours au Collège de France, 1971-1972. Paris: Seuil/Gallimard, 2015)
8th March, 1972
Foucault finishes the lecture series with some very general thoughts about the relations between the late Medieval development of the judicial state and the development of power-knowledge, a phrase which is the one most associated with Foucault. In this combination Foucault brings his most epistemological ideas into relation with the evolution of the institutions of law.
Foucault suggests that we can understand the idea of the ‘epistemological break’ through this historical institutional process. The idea of the epistemological break comes from the French philosopher and historian of science, Gaston Bachelard. For Bachelard, science begins where facts are organised in a way in which we can say that we are engaged in science not just observing. Laws and objects of knowledge are defined distinctly from unorganised experience. For Bachelard this was about the birth of science.
For some time, the idea of the ‘epistemological break’ was largely understood, at least in English speaking countries, as something to do with making a sharp distinction between early and late Marx in the thought of Louis Althusser (one of Foucault’s teachers at the École Normale Supérieure). The issue in Althusser of defining the relation between early and late Marx arises from the attempt to define the emergence of a science of society. That his efforts and the phrase ‘epistemological break’ were understood so much in terms of Marx exegesis, is to some degree down to his assumption that the science of society must have begun at some point in Marx’s intellectual development.
Despite his background in Bachelard’s epistemology and Althusser’s own development of it, Foucault reveals a dislike for the term, or at least a belief that it rests on a over idealisation of abstract science. Returning to the issue of law, the the idea of a judicial system above individual disputes is strongly implicated in the idea of pure science distinct from the merely empirical, in Foucault’s account. The idea of an epistemological break between the merely empirical and science makes sense when a sharp divide has developed between truth as understood in the judicial system and what people say outside the court or in older forms of dispute resolution. For Foucault, we should give more weight to the less formal aspects of knowledge and less weight to finding the purest forms of knowledge.
The emergence of the judicial system includes procedures to get the truth spoken in court and assumptions that what is said in court can be taken as true. Issues come up of speech and truth in court which come back in work in the last few years of Foucault’s life on juridification, truth-telling and confession. The court establishes the idea of speech which is both privileged and forced on the speaker. The forcing the speaker includes the use of torture in inducing a confession, which Foucault discusses. He also not the context of the Inquisition as a weapon against heresy.
The use of torture itself is not widespread brutality for its own sake. At least in principle, the court limits torture to some final moment in which the most complete truth can be established after other inquires and investigations are complete. So torture itself is part of the system of ideal knowledge guiding empirical measures to gather less forms of truth and arrive at something like judicial truth. The prisoner resisting torture was in a kind of duel with knowledge-power. Foucault does not say so here, but this seems like a trace of the feudal forms of justice in which there isa fight, a duel of some kind in which the winner has truth. The struggle with knowledge-power continues as a popular struggle with the state in later history. This kind of high truth of juridical and scientific language itself becomes the motivation for struggle which can be seen in popular movements of the nineteenth century which promote other kinds of knowledge, or recognition that those in the lower classes can have knowledge.
Foucault suggests differences between the French and English judicial system in which the English system can be seen as linked with English empiricism. The English trial relied less on a new kind of state prosecutor-investigator and more on older forms of questioning and investigation. This may be so, but I would qualify what Foucault says with reference to the more interrogatory and prosecutorial role of the English judge at this time. The current status of the judge as a referee of the legal process came later. The church did not provide a model of interrogation and investigation in England which is another distinction from France.
The feudal pattern of justice was one in which an apparent harm lead to an individual making a complaint against a defendant. There is a test or event (the duel, negotiations, an ordeal) leading to a result. The new pattern of justice is disorder followed by a prosecutor bringing a case against an accused, followed by an inquiry searching for truth and then a judgement. In this pattern the modern judicial system is the source of order and therefore the foundation of society, while the older pattern more suggests means to help individual s resolve disputes between them so keeping justice individualised with no third party.