Penal Theories And Institutions: Lectures At The Collège De France, 1971-1972 3319992910, 9783319992914, 9783319992921

Table of contents :
Contents......Page 6
Foreword......Page 14
Notes......Page 19
Translator’s Note......Page 20
Rules for Editing the Text......Page 22
Introduction: Read Everything......Page 23
Notes......Page 29
No introduction......Page 30
THE NU-PIEDS UPRISING
......Page 34
Notes......Page 40
Summary......Page 46
Characteristics[22/2]......Page 47
Notes......Page 59
The Repression......Page 65
Comment......Page 66
The army before justice......Page 67
Notes......Page 78
Summary......Page 84
B. THE FINAL JUDGMEN T......Page 87
Notes......Page 92
C. The Body Of The State......Page 94
D. ORDER AND THE GAGES......Page 100
Notes......Page 106
I. INTERNAL COHERENCE......Page 111
II. THE MANIFEST PRECARIOUSNESS OF SÉGUIER’S REPRESSION......Page 115
III.......Page 119
Notes......Page 123
Characteristics of the new repressive system......Page 126
Notes......Page 133
eight: 2 FEBRUARY 1972......Page 136
germanic law......Page 139
Notes......Page 145
Introduction......Page 151
In relations of appropriation......Page 157
General remarks......Page 162
Notes......Page 164
Introduction......Page 172
Methodological conclusions......Page 175
PENALITY AND THE DISTRIBUTION OF ARMS......Page 176
Summary......Page 183
Notes......Page 184
A. Continuation of peace institutions......Page 189
Notes......Page 199
Introduction......Page 205
Comments......Page 208
2. Establishment of royal procurators.
......Page 210
Notes......Page 214
thirteen: 8 MARCH 1972......Page 218
1. Confession and test......Page 225
2. Inquiry and measure......Page 229
4.......Page 234
A final remark.......Page 236
Notes......Page 237
Course Summary ......Page 249
Ceremony, Theater, and Politics in the Seventeenth Century......Page 254
Course Context......Page 259
I The Condition of the Manuscript: The Dossier......Page 260
II The Context......Page 262
III The Penal Theories and Institutions Moment in Foucault’s Work......Page 271
A. Foucault, Althusser, and Marxism......Page 273
B. Power, law, war......Page 279
C. And After …......Page 284
Notes......Page 287
Letter from Étienne Balibar to the Editor......Page 297
Foucault and the Historians: The Debate on “Popular Uprisings”
......Page 302
A. An enfeoffed bourgeoisie: Porchnev’s thesis......Page 303
B. The dust and the cloud: Mousnier’s analysis......Page 305
II Event and Change: the Foucauldian Reading of the Nu-pieds......Page 307
A. The Nu-pieds event......Page 308
B. “To give a rigorous form to the analysis of change”......Page 311
Notes......Page 314
Index of Concepts and Notions......Page 319
Index of Names......Page 335

Citation preview

Michel Foucault Pena l Th eo r ies and Ins t it ut io ns

Lectures at the Collège de France

1971–1972

Edited by Bernard E. Harcourt General Editors: François Ewald & Alessandro Fontana English Series Editor: Arnold I. Davidson

Translated by Graham Burchell

Penal Theories and Institutions

Also in this series: Society Must Be Defended (North America & Canada)

Abnormal (North America & Canada)

Hermeneutics of the Subject (North America & Canada)

Psychiatric Power Security, Territory, Population The Birth of Biopolitics The Government of Self and Others The Courage of Truth Lectures on the Will to Know On the Government of the Living The Punitive Society Subjectivity and Truth

Mi c h e l F o u cau lt

Penal Theories and Institutions Lectures at the Collège de France 1971–1972

Edited by Bernard E. Harcourt With: Elisabetta Basso (transcription of the text) Claude-Olivier Doron (notes and critical apparatus) and the assistance of Daniel Defert. General Editors: François Ewald and Alessandro Fontana English Series Editor: Arnold I. Davidson Translated by Graham Burchell

Michel Foucault Paris, France Translated by Graham Burchell Independent Translator Fano, Italy

Michel Foucault, Lectures at the Collège de France ISBN 978-3-319-99291-4    ISBN 978-3-319-99292-1 (eBook) https://doi.org/10.1007/978-3-319-99292-1 Library of Congress Control Number: 2018967860 © Éditions du Seuil/Gallimard 2019, edition established under the direction of François Ewald and Alessandro Fontana, by Bernard E. Harcourt, with the collaboration of Elisabetta Basso (transcription of the text), Claude-Olivier Doron (notes and critical apparatus) and with Daniel Defert’s assistance. Exclusively published by Springer Nature Switzerland AG for the following markets: Europe, the Commonwealth, the United States of America and the Republic of the Philippines. Translation © Graham Burchell 2019, under exclusive licence to Springer Nature Switzerland AG, part of Springer Nature. Introduction © Arnold I. Davidson 2019, under exclusive licence to Springer Nature Switzerland AG, part of Springer Nature. The author(s) has/have asserted their right(s) to be identified as the author(s) of this work in accordance with the Copyright, Design and Patents Act 1988. First published in France by Éditions du Seuil/Gallimard under the title Théories et institutions pénales: Cours au Collège de France (1971-1972). © Éditions du Seuil/Gallimard 2015. All Rights Reserved. This work is subject to copyright. All rights are solely and exclusively licensed for sale in Europe, the Commonwealth, the United States of America and the Republic of the Philippines by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: Cover photograph of Michel Foucault © Jerry Bauer / Opale / Retna Ltd. Cover design by Sarah Delson This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Contents

Foreword—François Ewald and Alessandro Fontana    xiii Translator’s Note   xix Rules for Editing the Text   xxi Introduction: Read Everything—Arnold I. Davidson   xxiii one

24 NOVEMBER 1971   1

Methodological principle: analysis of the penal system (penal theory, institutions and practice) to be set in the context of systems of repression in order to throw light on the historical development of moral, sociological, and psychological notions; political crime and common law crime. ~ Historical object: to study the repression of popular riots at the beginning of the seventeenth century in order to trace the birth of the State; the penal ritual deployed by the Chancellor Séguier against the uprising of the Nu-pieds (Barefeet) in Normandy (1639). ~ The Nu-pieds uprising: an anti-tax riot against a system of power (against the tax collector, against the homes of the wealthy); the attitude of the privileged classes, of members of the Parlement: neutrality, refusal to intervene.

vi 

      C O N T E N T S

two

1 DECEMBER 1971  17

Summary of stages: (1) a popular revolt aimed at the State tax system; (2) evasion of nobility, bourgeoisie, and members of the Parlement; (3) the army as sole guarantor: towards the century of “armed justice”; (4) royal power introduces the new repressive system. ~ How to do the history of this new repressive system? Objection: earlier existence of the State apparatus of repression. Answer: continuous development of legislative institutions, but break within those concerning justice; on the one hand, attachment to the old system; on the other, production of a new system. In contrast with the post-­revolutionary bourgeoisie which, behind the mask of the independence of justice, establishes a unitary repressive system of State, justice, and police at the same time. ~ Return to the Nu-pieds of Normandy. They take on the signs of power and assume its prerogatives. Rejection of the law by the imposition of a law. Rejection of justice as exercise of a justice. ~ The signs of this exercise of power: their name with reference to their “beggary”; their symbolic leader, chimerical personage; their orders “in the name of the King”. ~ The acts committed in this exercise of power (military, administrative, financial, of justice). ~ Repression is really carried out against a different power. three

15 DECEMBER 1971  37

An “armed justice”: the repressive tactic as series of circumstantial operations; deferred doubling of the military by the civil: chronological gap between slow intervention by the army and the entry on the scene of the civil power. ~ Analysis in terms of relations of force: formation of an armed repressive apparatus, distinct from the body of the army, controlled by the civil State and not by the privileged ~ Analysis in terms of politico-military strategy: separation of town and country, of the people and bourgeoisie enabling the violent repression of popular strata, then a punitive treatment of the privileged and members of the Parlement. ~ Analysis in terms of manifestation of power: dramatization of power hiding the strategy pursued, designating the rebels as enemies of the king, therefore subject to the custom of war, and not as civil

 

Contents

delinquents. Each performs his role, and the Chancellor the role not of victor, but as dispenser of justice who discriminates and differentiates between the good and wicked. four

22 DECEMBER 1971  57

Reminder: Analysis at three levels of the first episode of repression by armed justice (relations of force, strategic calculations, manifestations of power). ~ Development on the basis of the third level: a dramatization in four acts. (1) Royal power designates the population as “social enemy”. (2) The local powers bring their submission but try to limit and moderate royal power: an application of the theory of the three checks. (3) The Chancellor’s refusal and his invocation of the Final Judgment in his support: “the good will be rewarded, the wicked will be punished”. (4) The privileged protect themselves by accusing “the low populace” and dividing it into good and wicked. ~ Dramatization which produces a redistribution of the repressive instruments and powers. five

12 JANUARY 1972  67

I. Entry of the civil power into Rouen and formation of the visible body of the State. ~ The Chancellor goes beyond the traditional judicial rules and unites the orders of justice and military force: the State takes on a repressive power. ~ Appearance of that third purely repressive function of the State assured, independently of the King, by the Chancellor (member of the King’s Council). Replacement of royal power and the absent king by a visible body of the State. The fiscal apparatus is doubled by a repressive apparatus. II. New forms of control without new institutions. ~ Questioning of local authorities: provisional suspensions. Provisional replacement of local institutions by commissioners. ~ Military measures and system of tax penalties in order to bind the privileged to their engagement. All in all, an unstable system of control which still depends upon feudal structures, anticipating the creation of a specialized repressive State apparatus.

vii

viii 

      C O N T E N T S

six

19 JANUARY 1972  85

A remarkable system of repression for several reasons. I. Internal coherence: interplay of differentiated sanctions aiming to break the previous alliances of social groups; financial profit given to the privileged in return for maintenance of order; formation of a third (neither military nor juridical) instance as (juridico-military) administrative instrument of the State, but basic lack of a specific apparatus of repression. II. Visible precariousness: differentiated arming (problems of bourgeois militias and popular arming), ruinous intervention by the army; drop in income from property as from tax levies; rent/taxes antinomy; bringing two contradictions into play. III. Resolution of the rent/taxes antinomy and stabilization of the army. From 1640, setting up of a new institution and distinct repressive apparatus within the State apparatus (intendants of justice, police and finance), acting as administrative tribunal and exceptional jurisdiction; establishment of a centralized and local police; a levy on the “dangerous population”, confinement and deportation. ~ Birth of the prison conjointly with birth of capitalism. seven

26 JANUARY 1972101

The failure of the repression carried out by the Chancellor Séguier and then the Fronde gave rise to the setting up of three new institutions: a centralized justice (intendants of justice); the police; a punitive system by removal from the population, confinement, deportation. In response to popular struggles, the repressive penal system produces the notion of delinquency: the penal system—delinquency couple as effect of the repressive system—sedition couple. ~ The new institutions do not replace the feudal institutions, they are juxtaposed to them. ~ The exercise of political power is linked to nascent capitalism. The new repressive system, conceived of as an element of protection of the feudal economy, is linked functionally to the development of the capitalist economy. It takes shape in the penal code and will be ratified at the end of the eighteenth century: production of the penality/ delinquency coding.

 

eight

Contents

2 FEBRUARY 1972111

Opposition of the new repressive system to the old one: antagonism between processes which gives rise to the birth of justice as both a specific and a state controlled apparatus. I. History of the judicial apparatus in the eighteenth century: political struggles, operational conflicts, and determinant contradictions forged the different discourses of penality, crime, and penal justice. ~ Need to return to feudal justice and Germanic law. II. History of Germanic penal law. The juridical order defined by the rules of the dispute; the act of justice is not organized by reference to the truth, nor by the judicial instance, but through a regulated struggle. ~ Closure of war by payment of an indemnity (rachat), and not sanction for the offense. ~ The activity of judging as risktaking, the danger of private war producing a system of assurances (oaths, compensations, pledges (gages)). nine

9 FEBRUARY 1972127

I. History of Germanic penal law (continued): its residues in penal law of the Middle Ages. (A) The accusatory procedure, the diffamatio. (B) The system of proof: a test which determines the winner. The truth is not at stake in the oaths, ordeals, and judicial duel. (C) Private war as modality of law in the Middle Ages. The dispute outside the judicial. II. History of the transformation into judicial penal system with public action and establishment of a truth of the crime. (A) Not simply due to the influence of Roman law or Christianity, it is inscribed rather in the interplay of relations of appropriation and relations of force. (B) Criminal justice carries out a significant economic levy and contributes to the circulation of wealth. ~ Elements of this circulation: pledges (gages), dues, fines, confiscation, compensation. ~ Consequences: circulation of wealth and concentration of political power. ~ General remarks: The penal system of the Middle Ages produces its major effects at the level of the levy of goods; the contemporary penal system, at the level of the removal of individuals; comparison: fiscal/carceral, exchange/ exclusion, compensation/prisons.

ix

x 

      C O N T E N T S

ten

16 FEBRUARY 1972149

Distinction between medieval pre-State structures and the State apparatuses which replace them. Penal practice in the Middle Ages, which is inserted between civil dispute and violent despoilment, consists in a political-­economic correlation; it redistributes property, wealth, and goods: it is the “joust of fortunes”. ~ Fiscalization of justice. Importance of peace institutions and peace pacts (suspension of acts of private war, pacts, contracts; ritualized development). Pax et justitia, principle of peace councils. Social war falls under penality. ~ System of penality linked to the problem of the possession, concentration, and distribution of arms. ~ Crisis of the thirteenth to fourteenth century: toppling of feudalism; call for foreign mercenaries; seigneurs rely on royal justice. Application of a system with an anti-seditious function to the parlementary apparatus and fiscal apparatus. Development of royal justice, as first form of an institutionalized power, into judicial State apparatus. eleven

23 FEBRUARY 1972167

I. Endogenous process. The function of peace institutions in the Middle Ages: 1/ constitution of a space of justitia guaranteed by the judiciary as public authority; 2/ constitution of better assured zones of taxation which double the procedure; 3/ distribution of arms, intervention of force, and formation and development of the professional army. Concentration, centralization, and virtual State takeover of justice. II. Exogenous processes. The fourteenth and fifteenth century crises and major social struggles transform justice. Important phenomena: 1/ the functioning of Parlement as center of every practice of justice; 2/ the king is justiciar as sovereign; 3/ Parlement becomes a component of a State apparatus. twelve

1 MARCH 1972183

Summary: crises and social struggles of the thirteenth and fourteenth centuries lead to the centralization of royal power and the setting up of a royal justice which appears in the institution of a Parlement. Three characteristics of State

 

Contents

justice: universal, compulsory, delegated. ~ Two other measures: 1/ The development of cases coming under the king: extension of his jurisdiction with, as effects, a new definition of the kingdom-State and a new dimension of penality for breaches of public order. New domain of penality which sanctions breaking a rule stated by the public power. 2/ Establishment of royal procurators: extension of their role to indictment, with the consequences that every crime is an offense against the public power, and the king becomes both judge and interested party. ~ Double effect on the functioning of the penal system: (1) Separation of the penal and the civil; (2) replacement of war and redress by obedience and punishment. Penality is organized by reference to a political structure. Crime becomes an attack on the public power. Opposition between political crime and common law crime as central component of the penality of the nineteenth century, concealing the political function of the penal system. thirteen 8 MARCH 1972197

I. After analysis of the function and power relations of penal justice in the Middle Ages, studying its knowledge effects: not in the sense of ideological operations, but of production of truth. ~ In Germanic law, the test establishes the superiority of one over the other. ~ In the new penal regime with royal procurators, the inquiry establishes the truth that makes it possible to pass from accusation to sentence. The inquiry as restoration of order. ~ The test is replaced by the truth established by witnesses and writing which records. II. Complementary comments. Inquiry and confession (aveu) as privileged sources of the discovery of truth in the new penal regime. ~ Torture’s point of insertion. ~ The system of legal proofs. Contrast between inquiry and measure. Measure as the instrument and form of a power of distribution; inquiry as instrument and form of a power of information. Inquiry— bureaucratic system in the Middle Ages. ~ Analysis of the types of extraction of surplus-­power. Relation to the 1970–1971 lectures on “the will to know”. Final comment on the appearance of the examination form in the eighteenth– nineteenth century. The birth of the human sciences.

xi

xii 

      C O N T E N T S

Course Summary229 Ceremony, Theater, and Politics in the Seventeenth Century235 Course Context241 Letter from Étienne Balibar to the Editor279 Foucault and the Historians: The Debate on “Popular Uprisings”285 Index of Concepts and Notions303 Index of Names319

Foreword

MICHEL FOUCAULT TAUGHT AT the Collège de France from January 1971 until his death in June 1984 (with the exception of 1977 when he took a sabbatical year). The title of his chair was “The History of Systems of Thought”. On the proposal of Jules Vuillemin, the chair was created on November 30, 1969 by the general assembly of the professors of the Collège de France and replaced that of “The History of Philosophical Thought” held by Jean Hyppolite until his death. The same assembly elected Michel Foucault to the new chair on April 12, 1970.1 He was 43 years old. Michel Foucault’s inaugural lecture was delivered on December 2, 1970.2 Teaching at the Collège de France is governed by particular rules. Professors must provide 26 hours of teaching a year (with the possibility of a maximum of half this total being given in the form of seminars3). Each year they must present their original research and this obliges them to change the content of their teaching for each course. Courses and seminars are completely open; no enrolment or qualification is required and the professors do not award any qualifications.4 In the terminology of the Collège de France, the professors do not have students, only auditors. Michel Foucault’s courses were held every Wednesday from January to March. The huge audience made up of students, teachers, researchers

xiv 

   FOREWORD

and the curious, including many who came from outside France, required two amphitheaters of the Collège de France. Foucault often complained about the distance between himself and his “public” and of how few exchanges the course made possible.5 He would have liked a seminar in which real collective work could take place and made a number of attempts to bring this about. In the final years he devoted a long period to answering his auditors’ questions at the end of each course. This is how Gérard Petitjean, a journalist from Le Nouvel Observateur, described the atmosphere at Foucault’s lectures in 1975: When Foucault enters the amphitheater, brisk and dynamic like someone who plunges into the water, he steps over bodies to reach his chair, pushes away the cassette recorders so he can put down his papers, removes his jacket, lights a lamp and sets off at full speed. His voice is strong and effective, amplified by the loudspeakers that are the only concession to modernism in a hall that is barely lit by light spread from stucco bowls. The hall has three hundred places and there are five hundred people packed together, filling the smallest free space … There is no oratorical effect. It is clear and terribly effective. There is absolutely no concession to improvisation. Foucault has twelve hours each year to explain in a public course the direction taken by his research in the year just ended. So everything is concentrated and he fills the margins like correspondents who have too much to say for the space available to them. At 19.15 Foucault stops. The students rush towards his desk; not to speak to him, but to stop their cassette recorders. There are no questions. In the pushing and shoving Foucault is alone. Foucault remarks: “It should be possible to discuss what I have put forward. Sometimes, when it has not been a good lecture, it would need very little, just one question, to put everything straight. However, this question never comes. The group effect in France makes any genuine discussion impossible. And as there is no feedback, the course is theatricalized. My relationship with the people there is like that of an actor or an acrobat. And when I have finished speaking, a sensation of total solitude …”6 Foucault approached his teaching as a researcher: explorations for a future book as well as the opening up of fields of problematization were formulated as an invitation to possible future researchers. This is why the courses at the Collège de France do not duplicate the published books.

 

Foreword

They are not sketches for the books even though both books and courses share certain themes. They have their own status. They arise from a specific discursive regime within the set of Foucault’s “philosophical activities.” In particular they set out the program for a genealogy of knowledge/ power relations, which are the terms in which he thinks of his work from the beginning of the 1970s, as opposed to the program of an archeology of discursive formations that previously orientated his work.7 The course also performed a role in contemporary reality. Those who followed his courses were not only held in thrall by the narrative that unfolded week by week and seduced by the rigorous exposition, they also found a perspective on contemporary reality. Michel Foucault’s art consisted in using history to cut diagonally through contemporary reality. He could speak of Nietzsche or Aristotle, of expert psychiatric opinion or the Christian pastorate, but those who attended his lectures always took from what he said a perspective on the present and contemporary events. Foucault’s specific strength in his courses was the subtle interplay between learned erudition, personal commitment, and work on the event. * The text of the course is followed by the summary published by the Annuaire du Collège de France. Foucault usually wrote these in June, some time after the end of the course. It was an opportunity for him to pick out retrospectively the intention and objectives of the course. It constitutes the best introduction to the course. Each volume ends with a “context”: It seeks to provide the reader with elements of the biographical, ideological, and political context, situating the course within the published work and providing indications concerning its place within the corpus used in order to facilitate understanding and to avoid misinterpretations that might arise from a neglect of the circumstances in which each course was developed and delivered. * No recordings of the lectures Michel Foucault gave for the 1971–1972 course have been found. This edition of Penal Theories and Institutions gives the transcript of the notes Foucault used as preserved by Daniel Defert and recently given to the Bibliothèque nationale de France. The principle of the transcription has been the most scrupulous respect for Foucault’s notes, reproducing as much as possible the presentation of the

xv

xvi 

   FOREWORD

manuscript sheets, with its meaningful layout. We thank Nathalie Mauriac for her advice on the presentation of the course. The precise rules for editing the text are given before the first lecture. Michel Foucault developed elements of this course on two specific occasions: in a lecture at the University of Minnesota on April 7, 1972 on “Ceremony, Theater, and Politics in the Seventeenth Century”, and in a series of lectures at the Pontifical Catholic University of Rio de Janeiro from May 21 to 25, 1973 (published May 1974 in Brazil with the title “A verdade et as formas juridicas”). The French translation of A verdade e as formas juridicas was published in Dits et Écrits, volume II, no. 139 as, “La vérité et les formes juridiques”, and an English translation of this was published in Essential Works of Foucault 1954–1984, Volume Three, as “Truth and Juridical Forms”. This volume is edited by Bernard E.  Harcourt. Elisabetta Basso transcribed the manuscript under the supervision of Alessandro Fontana. The text has been fully checked, corrected, and edited by Daniel Defert and Bernard Harcourt on the basis of the original manuscript notes which are now kept in the Bibiliothèque nationale de France. Claude-Olivier Doron edited the critical apparatus which contains many contextual elements including a note on how Michel Foucault’s analysis of the Nu-pieds sedition may be situated with regard to the debate between Boris Porchnev and Roland Mousnier (reproduced as an appendix to the “Course context”). * Those responsible for this edition would like to express their gratitude to Bruno Racine and the team of the manuscript department of the BNF, and in particular to Marie-Odile Germain, General Keeper of the Libraries, responsible for the “Manuscripts modernes et contemporains” collections, for having facilitated their access to the sources in conditions as excellent as those that Daniel Defert had previously provided for them. The editors also benefited from exchanges with Yves-Marie Bercé, distinguished specialist of French popular movements in the seventeenth century. Albert Riguadière, distinguished historian law in the Middle Ages, who kindly helped us establish the bibliography for the eighth (2 February 1972) and subsequent lectures. Arnaud Teyssier provided us with his knowledge of Richelieu. We have also had enlightening exchanges with Jacques Krynen and Dominique Lecourt. Étienne

 

Foreword

xvii

Balibar, who read the manuscripts of the lectures, offered us an analysis of the relations between this course, Marxism, and the work of Louis Althusser (also reproduced as an appendix to the “Course context”). This volume brings to a close the publication of Michel Foucault’s courses at the Collège de France which began almost 20 years ago with the publication of “Il faut défendre la société” by Alessandro Fontana and Mauro Bertani. * This edition of the Collège de France courses was authorized by Michel Foucault’s heirs who wanted to be able to satisfy the strong demand for their publication, in France as elsewhere, and to do this under indisputably responsible conditions. The editors have tried to be equal to the degree of confidence placed in them. FRANÇOIS EWALD AND ALESSANDRO FONTANA Alessandro Fontana died on 17 February 2013 before being able to complete the edition of Michel Foucault’s lectures at the Collège de France, of which he was one of the initiators. Because it will maintain the style and rigor that he gave to it, the edition will continue to be published under his authority until its completion. —F.E.

 xviii     FOREWORD

NOTES 1. Michel Foucualt concluded a short document drawn up in support of his candidacy with these words: “We should undertake the history of systems of thought.” “Titres et travaux,” in Dits et Écrits, 1954–1988, four volumes, eds. Daniel Defert and François Ewald (Paris: Gallimard, 1994) vol. 1, p. 846; English translation by Robert Hurley, “Candidacy Presentation: Collège de France” in The Essential Works of Michel Foucault, 1954–1984, vol. 1: Ethics: Subjectivity and Truth, ed. Paul Rabinow (New York: The New Press, 1997) p. 9. 2. It was published by Gallimard in May 1971 with the title L’Ordre du discours, Paris, 1971. English translation by Ian McLeod, “The Order of Discourse,” in Robert Young, ed., Untying the Text (London: Routledge and Kegan Paul, 1981). 3. This was Foucault’s practice until the start of the 1980s. 4. Within the framework of the Collège de France. 5. In 1976, in the vain hope of reducing the size of the audience, Michel Foucault changed the time of his course from 17.45 to 9.00. See the beginning of the first lecture (7 January 1976) of “Il faut défendre la société”. Cours au Collège de France, 1976 (Paris: Gallimard/Seuil, 1997); English translation by David Macey, “Society Must be Defended.” Lectures at the Collège de France 1975–1976 (New York: Picador, 2003). 6. Gérard Petitjean, “Les Grands Prêtres de l’université française,” Le Nouvel Observateur, 7 April 1975.

7. See especially, “Nietzsche, la généalogie, l’histoire,” in Dits et Écrits, vol. 2, p.  137; English translation by Donald F.  Brouchard and Sherry Simon, “Nietzsche, Genealogy, History” in The Essential Works of Michel Foucault 1954– 1984, vol. 2: Aesthetics, Method, and Epistemology, ed., James Faubion (New York: The New Press, 1998) pp. 369–392.

Translator’s Note

The lack of recordings for Foucault’s 1971–1972 course at the Collège de France, and so having to work with a text based on what are his occasionally quite cryptic notes for the lectures, adds to the normal difficulties faced by the translator. The difficulties increase when the text contains numerous terms referring to French institutions and practices in the seventeenth century and earlier. Most of these institutions and practices are described at various points in the endnotes. It seems likely that in the lectures themselves Foucault would have elaborated orally at greater length and in more detail regarding some of these practices than he does in his notes. The lack of his oral presentation adds a degree of uncertainty to the precise sense in which he employs certain terms. This is particularly the case for two important terms referring to practices for which, exceptionally, no account is provided in the endnotes: engagement and gages. Foucault refers to “the feudal form of engagement”. In its more restricted sense, engagement refers to a quasi-contractual, or exchange relationship between lord and vassal in which part of the former’s domain is provisionally ceded or sold to someone, the engagiste, for private exploitation and profit. The engagement could be in the form of both physical property—a fief along with its dues and rents—and incorporeal property— offices, jurisdictions, public functions. Broadly speaking it was, on the one hand, a way to raise finance (especially by the king, for example), and, on the other, it was often the way for a bourgeois or member of the

xx 

   TRANSLATOR’S

NOTE

lesser gentry to acquire a fief, become a noble, and/or purchase public authority. Based on this form, engagement refers more generally to a much wider historical field of quasi-contractual exchange between lord and vassal, in which privileges or benefits are ‘exchanged’ for obligatory undertakings, with penalties in cases of failure to perform the undertaking or engagement. The term gage has a restricted sense of the sum paid annually to the purchaser of a venal office, or the latter’s income from the purchase of an office. However, in some contexts it also has the more general sense of a pledge, in the sense of a surety or guarantee regarding an obligation (as in the sense of the English term ‘gage’). The following abbreviations are used in the footnotes and endnotes: DÉ, I-IV

Dits et écrits, 1954–1988, ed., D. Defert et F. Ewald, avec la collaboration de Jacques Lagrange (Paris: Gallimard, 1994) 4 volumes “Quarto”, I Dits et écrits, 1954–1975, ed., D. Defert et F. Ewald, avec la collaboration de Jacques Lagrange (Paris: Gallimard, “Quarto”, 2001) “Quarto”, II Dits et écrits, 1976–1988, ed., D. Defert et F. Ewald, avec la collaboration de Jacques Lagrange (Paris: Gallimard, “Quarto”, 2001) EW, 1 The Essential Works of Foucault, 1954–1984. Volume 1: Ethics, Subjectivity and Truth, ed., Paul Rabinow (New York: New Press, 1997) EW, 2 The Essential Works of Foucault, 1954–1984. Volume 2: Aesthetics, Method, and Epistemology, ed., James D. Faubion (New York: New Press, 1998) EW, 3 The Essential Works of Foucault, 1954–1984, Volume 3: Power, ed., James D. Faubion (New York: New Press, 2000) BNF Collections of the Bibliothêque nationale de France

Rules for Editing the Text

The principle of the transcription has been the most scrupulous respect for Foucault’s manuscript, reproducing as much as possible the presentation of the manuscript sheets, with their meaningful layout. The editors take full responsibility for the presentation of the text (format and content). The double pagination in the margin correspond, for the first number, to the pagination of the manuscript conserved at the BNF and, for the second number, to Foucault’s manuscript pagination. Important passages which have been crossed out in the manuscript have been restored in footnotes. Some indications on the state of the manuscript are also noted. Subdivisions (dashes and numbering) are those used by Foucault in the manuscript. The use of quotation marks reproduces those of the manuscript; passages underlined in the manuscript are indicated in footnotes. Every intervention in the manuscript is indicated by square brackets. Footnotes clarify the editors’ choices wherever they have encountered a difficulty.

Introduction: Read Everything* Arnold I. Davidson

Penal Theories and Institutions brings to a close the English language edition of Foucault’s courses at the Collège de France. We all owe a deep debt of gratitude to Graham Burchell, who has translated all but the first volume of this series. Graham’s extraordinary translations, combining philosophical depth and literary elegance, have set a new standard for the translation of Foucault, and, indeed, for the translation of French philosophical works more generally. When I first agreed to serve as the series editor of this project, I had no concrete idea how long it would take to publish these thirteen volumes nor how time-consuming it would be. After more than fifteen years of work, I am relieved to say that the remarkable richness of Foucault’s courses justifies the time, sweat, and occasional tears that went into producing this edition. Who could have imagined a body of lectures that ranges from ancient Greek practices of truth-telling to contemporary economic neoliberalism, from medieval Christianity’s organization of pastoral power to modern psychiatry’s construction of abnormality, from the history of sexuality and marriage to the emergence of the punitive society? Whatever else one might say about Foucault, he never learned the common academic vice of being boring. Looking back over these courses, I am reminded of

* All translations are my own unless otherwise indicated. I dedicate this introduction to the people who have most sustained me during the many years of my work on this project—Diane Brentari, Daniele Lorenzini, Roberto Righi and Bianca Torricelli.

xxiv 

   INTRODUCTION:

READ EVERYTHING

Foucault’s remarks in the “Introduction” to the second volume of his history of sexuality, The Use of Pleasures. He is speaking of the “quite simple” motive that drove him to undertake these studies: It is curiosity—the only kind of curiosity, in any case, that is worth the trouble of being put into practice with a bit of obstinancy: not that curiosity that tries to assimilate what it is advisable to know, but that which allows one to detach oneself from oneself.1 It is this detachment that provokes one’s losing one’s way or going astray in the search for knowledge (l’égarement de celui qui connaît), a thoroughly positive intellectual virtue in Foucault’s eyes. This straying curiosity allows one to “think differently than one thinks and perceive differently than one sees,” and thus to go on looking and reflecting.2 And Foucault adds, in a beautiful moment of self-description: As to those for whom to create difficulties for themselves, to begin and begin again, to try, to be mistaken, to take everything up again from top to bottom, and still find the means to hesitate from one step to the next, as to those for whom, in short, to work while behaving with reserve and restlessness is tantamount to resignation, well we are not, it is obvious, from the same planet.3 The inhabitants of Foucault’s planet do not yield to the temptation of static complacency, they are unafraid to get lost in the unknown, taking the chance, and the risk, of emerging with a genuinely different perspective. In his last course at the Collège de France, at the very end of his final lecture, and after telling us that he has more to say, Foucault concludes: But, well, it is too late. So, thank you.4 Quite apart from the retrospective pathos of these words, thanks to the continuing posthumous publication of his work, it was not too late for Foucault—his voice continues to resound—and it is most certainly not too late for us. The scholarly exegesis of Foucault’s work will persist as long as scholars do. Yet surely it is time to think more intensively and systematically about the uses of Foucault. Rereading his work opens up new possibilities, not always envisioned by Foucault himself, and it is

 

Introduction: Read Everything

xxv

the active creation of these new, Foucault-inspired possibilities that remains critical to our work. I am not at all surprised that some of the most accomplished Foucault scholars have also been the most creative users of his work. I am thinking, for example, of Daniele Lorenzini, Judith Revel and Frédéric Gros. With respect to Foucault, scholarly interpretation and productive use ought to go together. Foucault is not only a corpus, but also an attitude. In the famous debate on “Philosophy and Truth,” in which Foucault participated, Georges Canguilhem scandalously argued that philosophies cannot be judged according to a criterion of truth and falsity. On Canguilhem’s view, philosophies can be great or small and narrow, but not true or false: … perhaps a great philosophy is a philosophy that has left an adjective in popular language: the Stoics have given us stoic, Descartes has given us cartesian, Kant has given us kantian and the categorical imperative; otherwise put, there are philosophies that have indeed totalized the experience of an epoch, that have succeeded in being diffused into that which is not philosophy, into the modes of culture…and that which have had in this sense a direct impact on everything that one can call ordinary life, everyday life.5 Foucault has indeed bequeathed us “foucauldean”; it is not uncommon to hear people talk about the panoptic gaze or the repressive hypothesis who have no clear idea that these are terms of foucauldean provenance. Our modes of culture are suffused with Foucault. If these courses have helped to solidify Foucault’s adjectival status, their publication has been justly rewarded. Anyone who attended Foucault’s courses felt the electricity of his lectures. His voice, his laugh, his gestures, his movements, even his pauses, all worked together to produce his unforgettable éclat. Listening to and reading Foucault was (and still is) an experience that left us with those vibrations of intensity, a sort of, as it were, physical enthusiasm, that revived one from his or her intellectual torpor.6 It was as if his very presence was a field of energy that agitated one into action. Gilles Deleuze once remarked that when Foucault entered a room, the atmosphere changed—that is what I think of as the Foucault effect.

xxvi 

   INTRODUCTION:

READ EVERYTHING

Foucault did not like to talk directly about himself, but one of those moments that I think best describes his own attitude occurs in his hommage to Gaston Bachelard. Entitled “Piéger sa propre culture” (“Trapping one’s own culture), and less than a page long, this text is— and in more than one way—a miniature masterpiece: What very much strikes me about Bachelard is that, so to speak, he plays against his own culture with his own culture. In traditional teaching—and not only in traditional teaching, in the culture we receive—there are a certain number of established values, things that one should say and others that one should not say, works that are respectable and then others that are negligible, the great and the unimportant; there is, in short, a hierarchy, this entire celestial world with its Thrones, Dominations, Angels, and Archangels!… All of this is very hierarchical. Well, Bachelard undertakes his own detachment (se déprendre) from this entire set of values, and he brings about his own detachment from it by reading everything and playing off everything against everything. He makes one think, if you like, of those skillful chess players who succeed in taking the important pieces with the little pawns. Bachelard does not hesitate to oppose to Descartes a minor philosopher or a scientist… a scientist of the eighteenth century, well, a bit … a bit imperfect or whimsical. He does not hesitate to put into the same analysis the greatest poets and then a little minor one that he will have discovered like that, by chance, at a secondhand bookseller…And while doing this, it is not at all for him a matter of reconstituting the great global culture which is that of the West, or of Europe, or of France. It is not a matter of showing that it is always the same great spirit that lives, swarms everywhere, that finds itself the same; I have the impression, on the contrary, that he is trying to trap his own culture with its cracks, its deviancies, its minor phenomena, its little discordencies, its false notes.7 Foucault himself never inhabited a celestial world of fixed values; he did not believe in an immobile or intrinsic hierarchy, one determined, for example, by the intrinsic value of the texts one reads—Descartes versus a whimsical eighteenth-century scientist. In some contexts a “minor”

 

Introduction: Read Everything

xxvii

figure or an ordinary, seemingly banal, set of texts may be more significant than the works of the “great” philosophers. Reading everything and playing everything off against everything ensures that the hierarchy is not already established, given in advance, frozen in stone; when one chooses to ­discuss certain texts and particular events, and not others, as one inevitably does, it is due to one’s questions, one’s diagnosis, one’s perspective or angle of thought, and not because of some purportedly fixed hierarchy of values. Historie de la folie à l’âge classique and Surveiller et punir, for instance, are full of so-called “minor” events whose status is overturned in Foucault’s account: the minor becomes major. Foucault played history against philosophy and vice versa. He challenged philosophical claims with historical archives, and subjected supposedly ‘bare’ historical events to philosophical diagnosis and analysis. He was, at one and the same time, both a philosopher and an historian, or, as he sometimes liked to say, neither a philosopher nor an historian. In the contemporary academic world, Foucault was atopos, unclassifiable and disconcerting. No doubt that that is one of the reasons why his work is loved by some and despised by others, a source of both admiration and anathema. I distinctly remember one California evening when, over dinner, a quite unremarkable pizza, Foucault smiled and said to me: “I have only one methodological rule.” I was a young Assistant Professor and I took a deep breath of youthful naiveté, and asked: “Well…” Foucault’s smile became a laugh, and he replied: “Read everything.” I didn’t realize the seriousness, the full significance, of that remark until much later; it was not a mere witticism nor a vague personal aspiration, but a genuine, if ideal, rule of method. Foucault, like Bachelard, lived by this precept. We can see how central it was to his work by focusing on an extraordinary moment at the end of the conversation, “Le jeu de Michel Foucault.” We can discern a person’s deepest commitments by seeing what provokes his or her shame. At the very conclusion of this discussion, a question comes up about the date of the invention of the modern baby bottle. Foucault confesses to not knowing this date. When he is given the answer, he responds with these forever memorable words: I renounce all my public and private functions! Shame rains down on me! I cover myself with ashes! I did not know the date [of the invention] of the baby bottle!8

xxviii 

   INTRODUCTION:

READ EVERYTHING

I can imagine no other philosopher who would be ashamed of not knowing such a date. Even Foucault could not read everything, but he inflicted a price on himself for this failure. This is the foucauldean attitude that I find not only singular but exemplary, and that I continuously admire as I read through his courses. In Pirkei Avot, a tractate of the Mishnah, one finds the following remark: Ben Zoma says: Who is wise? He who learns from every person…9 If we pursue this idea of being wise, Foucault radiated wisdom. He learned from everyone, every book, every event. His life was, until the very end, a model of transformative knowledge: But what therefore is philosophy today—I mean philosophical activity—if it is not the critical work of thought on itself? And if it does not consist, instead of legitimating what one already knows, in undertaking to know how and to what extent it would be possible to think differently… The “essay”—which one should understand as a modifying test of oneself in the game of truth, and not as the simplifying appropriation of others for the ends of communication—is the living body of philosophy, as long as philosophy is still now what it was in the past, that is an “ascesis,” an exercise of oneself, in thought.10 Testing and transforming himself, Foucault also put us to the test. Whether, and how, we respond to his example is a constant challenge that remains for each of us: the restless energy of ascesis or the somnolent inertia of self-satisfaction—restiveness or repose.

 

Introduction: Read Everything

xxix

NOTES 1. Michel Foucault, Histoire de la sexualité 2, L’usage des plaisirs (Paris: Éditions Gallimard, 1954) p. 15. 2. Ibid., pp. 15–16. 3. Ibid., p. 14. 4. Michel Foucault, The Courage of Truth: Lectures at the Collège de France, 1983–1984 (Hampshire: Palgrave Macmillan, 2011) p. 338. 5. Michel Foucault et al, Philosophie et vérité” in Dits et écrits I, 1954–1975 (Paris: Éditions Gallimard, 2001) pp. 488–489. 6. I have in mind here the opening pages of Michel Foucault, “La vie des hommes infâmes” in Dits et écrits II, 1976–1988 (Paris: Éditions Gallimard, 2001) pp. 237–239. 7. Michel Foucault, “Piéger sa propre culture” in Dits et écrits I, 1954–1975, op. cit. p. 1250. 8. Michel Foucault, “Le jeu de Michel Foucault” in Dits et écrits II, 1976–1988, op. cit. p. 329. 9. Pirkei Avot (Brooklyn: Artscroll Mesorah Series, 1989) 4,1. 10. Michel Foucault, Histoire de la sexualité 2, L’usage des plaisirs, op. cit. p. 16. On a related theme, see my essay “Hilary Putnam: cambiar de idee como ejercicio espiritual” in Arnold I. Davidson and Hilary Putnam, Una espiritualidad no dogmática (Barcelona: Ediciones Alpha Decay, 2017).

one

24 NOVEMBER 1971 Methodological principle: analysis of the penal system (penal theory, institutions and practice) to be set in the context of systems of repression in order to throw light on the historical development of moral, sociological, and psychological notions; political crime and common law crime. ~ Historical object: to study the repression of popular riots at the beginning of the seventeenth century in order to trace the birth of the State; the penal ritual deployed by the Chancellor Séguier against the uprising of the Nu-pieds (Barefeet) in Normandy (1639). ~ The Nu-pieds uprising: an anti-tax riot against a system of power (against the tax collector, against the homes of the wealthy); the attitude of the privileged classes, of members of the Parlement: neutrality, refusal to intervene.

No introduction – The reason for these lectures? –– One has only to open one’s eyes. –– those who may find this distasteful will find the same thing in what I will be talking about.1 – The object: –– penal theory and institution –– a missing third term: practice –– seventeenth and eighteenth centuries – The method: to approach it neither on the basis of penal theories nor on the basis of penal legislation or institutions but to situate both of these in their overall operation, that is to say in systems of repression: –– double-sided systems: who represses and who is repressed the means of repression and what is repressed

[1/-]

2

 

Penal theories and institutions

–– systems which correspond to strategic intentions within relations [-/-] of force –– systems which provide a force with instruments that enable it to destroy, eliminate, weaken, isolate, or disarm another force. Simple principles. Situating the analysis of penality in systems of repression makes it possible for us to avoid posing the problem –– in terms of morality (good/evil)* –– in sociological terms (deviance, integration) –– in psychological terms (delinquency …). Or rather, it is on the basis of the analysis of systems of repression that we see how historically these themes or notions emerge or are reformulated. – The events of 16392 in Normandy belong to a long series of popular [2/1] riots at the beginning of the seventeenth century: Aix 1630 Bordeaux 1635 and all Guyenne Poitou 1624–1625; 1631–1632; 1639–1640 Lyon 1632 Beauvais 16453 Marillac: “There is sedition everywhere in France” (1630).4 – More precisely they belong to a series of riots, revolts, and movements which took place in Normandy. –– Some of these movements were seditions in the strict sense, involving an entire stratum of the population and responding specifically either to a government measure or to a deterioration of the economic situation. a. In 1623, an edict turned certain trades like those of carter, clothes dealer, wood merchant, marsh worker, into offices. 4000 at [3/2] Rouen.5 b. In 1630 it was food shortage; riot when two boats are seen being loaded with wheat for export (Caen). –– But some of these movements have entirely different characteristics: limited and more or less permanent groups of people resistant to public authority and living outside the law.†

* In the manuscript, the dash is before: “avoid posing the problem”. † Here, the end of the sentence is crossed out: “or rejecting the agents responsible for applying particular laws”.

 

24 November 1971 

3

The land was criss-crossed by bands like the one that, in February 1614, attacked a convoy taking a sizeable tax revenue from Pont-­ Audemer to Rouen. Or like the one that, under the command of “Buisson-Cornu”, occupied the region of Évreux, “committing excessive acts of violence and inhumanity, countless horrors and acts for which heaven and earth cried out for vengeance.”6 The Grand Prévôt of Normandy was forced to join battle. –– We should also take into account more or less numerous and per- [4/3] manent bands of people engaged in smuggling. Especially in the traffic in salt (difference between the regions of the grande gabelle and those of the quart-bouillon).7 For example: around Avranches a traffic in salt was organized by the nobles of the region (the comte de Ducey, the chevalier de Lorges, the Montgomery brothers). In March 1637 they engaged in a real battle with the carabiniers. Or again, the band led by Laurent de Thou, seigneur of Quesnay, councilor of the Caen Présidial. Several of these salt smugglers were judged at Rouen, at the Cour des Aides, and were treated with considerable leniency.8 –– Finally, there were centers of resistance to tax. Chronic, more or less stubborn, more or less violent centers of resistance depending on the year, political circumstances, and external support. Example: Mantilly, Cérences.9 [5/4] So we have here a whole continuous series of refusals to accept the law and struggles against the public power. –– Behavior certainly differs according to the case (passive tax refusal; armed attack), and different social groups no doubt employed different forms of struggle (the nobility hardly adopt the organized robbery practiced by outlaws). –– But there is nonetheless considerable contact and continuity of behavior between these groups: –– those banished after the trials for sedition remained in the region, but in outlaw bands; –– the nobles recruited their bands of salt smugglers from insolvent peasants (sometimes their own);

4

 

Penal theories and institutions

–– to practice smuggling or attack tax convoys, some peasants learned military tactics and how to handle arms, which they later found useful in the revolts. [It is true, however, that in the trials of rioters which took place in Normandy in 1640, there are no former brigands or smugglers among [6/5] the leaders of the riots.]* In any case, in all these forms of refusal of the law we can see how difficult it is to distinguish between those that are political and those that are a matter of common law. In fact, the penal system (= penal theory, institutions, and practice) will carve up this almost continuous gradation to extract what will be given the status of political crime and what will have the status of common law crime.† I do not mean that the distinction dates from then, or that the distinction is established once and for all at that point. The political/common law opposition had been at work in criminal [7/6] law and practices of repression for a long time before then; it will frequently be reshaped after. But the end of the sixteenth and the seventeenth century (with the great conspiracies extending from the War of Religion to the Fronde, the individual or collective regicides, the great popular revolts) is certainly a decisive period in the formation of this opposition. The moment at which the State reorders justice. In any case, it was on the basis of all these refusals of the law‡ and all these struggles against power that the revolt of the Nu-pieds arose in 1639. –– It was buttressed by the old points of active or passive resistance to tax. –– It called upon the tactics of armed intervention which had been developed.

* Sentence enclosed in brackets in the manuscript. † Passage crossed out: “For example, apart from any clearly formulated theory, one only needs to see how Séguier suppressed the riots of 1639, to recognize […]. To tell the truth, it had constantly made this distinction;” ‡ Foucault had written: “these refusals of power”.

 

24 November 1971 

*

THE NU-PIEDS UPRISING10

5

[8/7]

Noting some of its characteristics: those of a kind that make the penal tactic applied to it comprehensible. The suppression may be called “wild”, or lenient. It juxtaposes features of “blind” violence and a whole punctilious ritual. It mixed battle and military occupation with a whole juridical etiquette. In actual fact this curious mixture conforms to a complex system.† I would like to show that the very strange “penitential ceremony”, “penal ritual”, deployed by the Chancellor [Séguier] corresponded both [9/8] –– to a political distribution of the repression: a whole game of alliances conceded and submissions imposed, a strategy of points of support and points of oppression, and –– to a theatrical representation of power: that is to say the unfolding in time and space, in a visible and ceremonial form, of the men, signs, and discourses through which the exercise of power passes.11 In short, we have to analyze “a manifestation of power” in this “repressive pomp”, that is to say: how can we capture the subjection, the re-­subjection of an oppressed and insurgent class, and, at the same time, the first major deployment of the “arms” of the State independently of the person of the king. The “triumph” of the State. 1. It is an anti-tax riot. The occasion of the riot was the suppression of a privilege possessed by Lower Normandy—the privilege of the quart-bouillon (free extraction of salt, a quarter of the product going to the king).12

* Subtitle preceded in the manuscript by an “A” indicating a subdivision (deleted due to the absence of “B”). † The text that follows corresponds to a crossed out passage: –– not that of a penal theory (there was no penal theory at the time that could justify what happened); –– not that of positive legislation (many more things were illegal, absolutely innovative at any rate); –– but that of a system of power which subsequently gave rise to theories and bodies of legislation.

[10/9]

6

 

Penal theories and institutions

– This was one of the many measures by which the public power then increased fiscal pressure.* –– There was the tax on wine which provoked the Poitiers uprising in 1631–1632. –– There was the wish to introduce the provincial tax regime of the élection which provoked the 1630 uprising at Aix. –– At Laval, tax on cloth and canvas → revolt.14 –– In 1634, the rate of the taille was increased by a quarter. In total, the tailles, which were seventeen million in 1610, were forty-four million in 1642.15 – Now this increased taxation weighs mainly on the peasants and town plebeians.16 There are several reasons for this: –– the way the taxes are distributed; –– the predominant part of indirect taxation; –– the number of privileges. This means that any increase in taxation jeopardizes the possibilities of survival for the poorest classes. [11/10] – The wealthy are affected, but indirectly –– by the impossibility of collecting their own rents, –– by the reduction of purchasing power. This means that the bourgeois, the landowners readily let themselves be drawn into the anti-tax revolts, or let them run their course. They only oppose them openly when threatened by them. – Maybe it should be allowed that this taxation system is only the centralized form of feudal rent (subsequently paid back to the feudal lords in the form of pensions).17 But at this point, royal taxation (a) is quantitatively much more important than seigneurial taxation, (b) is much more variable than feudal rent (which is generally fixed for the year and, if monetized, suffers from depreciation of the coin), (c) is demanded by its beneficiaries with a much greater apparatus of forces. So it is above all royal taxation that is attacked by popular riots. And it is the agents of royal taxation who are seen as the prime enemy by peasants and workers in the towns.

* The manuscript has in the margin: “Guy Patin in 16[37]: ‘We will end up taxing people who warm themselves in the sun’.”13

 

24 November 1971 

7

2. It unfolds according to a schema found in many other [cases] in the [12/11] same period. a/ Whereas in the Middle Ages the attack was directed against the seigneur, beneficiary of rents and services, it is now directed against the tax agent, or at least those who are taken to be such. –– 16 July, the first attack was directed against a certain Ch. Le Poupinel, “lieutenant particulier of the Coutances bailliage”, who had come to Avranches to attend the trial of a relative:18 –– the arrival of a man of the law19 –– they were leasing the taxes. Shortly after, the collector of the quatriesmes of salt is attacked at Saint-­Léonard (but without killing him).20 –– Killing of a rich man (brother-in-law of Nicolle21). –– 5 August at Rouen, a certain Rougemont, who had arrived shortly before as dye inspector, is killed (new tax of four sous per ell of dyed cloth, established in May 1639).22 –– Seizure of tax receipts: at the end of July, at Avranches, 9000 livres are seized.23 (At the Caen Town Hall, return of the fortune is demanded).24 –– Above all, pillage and destruction of the archives of the tax collector (either in their personal homes or in the offices). In total, nine offices of the Aides.25 At Vire, 12 August, the crowd attacks the officers of the élections [13/12] (dispensing justice regarding tax matters). They push them around: the president Sarcilly dies as a result.26 Then pillage and setting fire to the houses of Sarcilly and Jourmain, collector of the tailles (bonfire of their furniture and papers).27 The old struggle against paper and writing. b/ Second stage: this is the attack on the homes of the wealthiest. The furniture, crockery, and tapestry are thrown out and a bonfire made in the street. Without anything being stolen. At Rouen 21 August, pillage and demolition [of the home] of Hugot, collector of franc fiefs. Its contents are burned in the street “but without anything being taken”.28 Gorin, artisan clockmaker, who led the Rouen revolt, is supposed to have passed through the streets with a metal bar capped with a leather ball, striking the doors of the houses to be pillaged.29

8

 

Penal theories and institutions

c/ For reasons we shall see, there was no attack (like that which took place elsewhere) on the municipal authorities and organizations of justice (apart from tax justice). However, at several points there were interventions to prevent the [14/13] operation of justice: After the pillage of the office of the cinq grosses fermes [the five main tax farms; G.B.] at Pont-Gilbert and that of the collector of the quatriesmes at Saint-Léonard, the people in arms march past the homes of the judges crying out to them that “if they report what has happened, their houses will be burned down”.30 Or again, after the execution of Rougemont (collector for dyeing), the witnesses refuse to say what they have seen. They claimed only to have seen “some people, some wearing red caps, others white, some porters, carters, women, and children”.31 Or much later, after Gorin’s arrest, which took place on August 23, a gallows erected on the square was torn down and burned.32 3. What were the opposing forces in this agitation? – On the one hand, a peasant mass which rose up as entire communes (27 parishes in the Avranches and Coutances regions; 9 [other] parishes including Mantilly).33 From July to November, permanent insurrection in which the peasants took turns so as to alternate military service and work in the fields. Grotius said 20,000 men.34 –– On the other hand, the workers and journeymen of the towns –– who were affected by the indirect taxes, –– who were also burdened by taxes that hindered their occupations. In the Spring the government had decreed taxes on dyeing; shortly after, on leather. There was contact between peasants and workers in the suburbs and the immediate surroundings of the towns. And this was how, at the beginning of August, the workers of Darnétal invaded the streets of Rouen and occupied them for several days.35 –– What was the attitude of the privileged classes when confronted with this?

[15/14]

 

24 November 1971 

9

–– A certain number of nobles and bourgeois no doubt joined forces [16/15] on an individual basis. –– Among the military chiefs one notes the names of Ponthébert, La Basilière, Reffuveille (grandson of Duplessi-Mornay); of the son of the lawyer Ménardière, of the lawyer Routry, and of Lalouey (son of a bailiff).36 –– As long as the riot was directed at the tax collectors the Rouen bourgeoisie remained neutral. On several occasions it even refused to intervene.37 During the pillage of Hugot’s home (general collector of the francs fiefs), some officers of the fiftieth wish to intervene. The townspeople prevent them: “What, you want to prevent the public good!” Arquebusiers are sent; their captain is wounded, struck on the head by a stone.38 The same thing during the pillage of Le Tellier de Tourneville’s home: “We are armed to protect ourselves, not for the defense of the monopolists, and we will not kill for them”.39 –– As for members of the Parlement, they are no more immediately and openly opposed to the popular movements. They sought to profit [17/16] from them in their conflict with the Royal tax collector.40 –– As landowners, drawing a rent, they were in competition with the tax office which was always seeking to increase the part levied by the king. –– But as taxpayers they were not in conflict with the tax system directly, but through the intermediary of their offices: –– paulette –– multiplication of offices. The Cour des Aides had already refused to register the taxes. On June 7 it is forced to do so by the duc de Mercœur. The procurator general declares: “Since H.M. demands blind obedience from his officers, I require the registration”.41 At the time of the great Rouen riot in August, the Parlement put itself forward much more as a mediator than as the guarantor of order, as another power distinct from that of the royal agents, even though it too came from the king.

10

 

Penal theories and institutions

And, in the interplay of the contending forces, the Parlement really did want to function as a distinct authority and be represented by the signs of its power. –– Justifying themselves by their refusal to register the edicts, the members of the Parlement passed through the streets dressed in their robes and all the sartorial marks of their rank, asking the rioters to stay at home.42 –– At several points they ask Le Tellier de Tourneville (general collec- [18/17] tor of gabelles) to leave his hôtel and the town. –– He does not want to, resists, and arms his home. When the crowd arrives to pillage it, he shoots: the child of a bourgeois is killed. The Parlement immediately sets up an “inquiry regarding the violence committed against the townspeople by persons barricaded in Le Tellier’s house”.43 –– When Gorin, leader of the rioters, is arrested, he benefits from legal protections and is not immediately executed.44 –– In fact and above all, when the riot at Rouen calmed down at the end of August, the Parlement, despite being pressed by the royal power, did nothing to reconstitute the tax offices.45 So that at the end of the year no tax was levied in the Rouen region.* *

* The manuscript has here three quotations on two sheets: At Caen: “There were around 36 prisoners for light punishment for salt smuggling; [19/-] some so wretched that no beggar arouses more pity, and such poor octogenarian women who were not charged with a 10 sols contravention” (Diaire, p. 329). Marillac: “If the kings frequently listened to the remonstrations of the wise men of [20/-] the Parlements against their ordinances, it was as if they had listened to those of the least of their subjects” [Histoire du Parlement de Normandie, IV, pp. 499–500]. Laubespine (Keeper of the Seals): “You are established only to dispense justice to individuals and to make yourself familiar with affairs of State” [Ibid., p. 500].

 



24 November 1971 

NOTES

1. Foucault is referring here to the context in which he is giving this lecture. See below, “Course context”, p. 244 sq. 2. This is the Nu-pieds (Barefeet) revolt (1639–1640), to which Foucault devotes the first part of his course. On this uprising, Foucault relies upon the following sources (see BNF, Box 2, Envelope 7, Dossiers “Les Nu-pieds” and “Mouvements populaires au XVIIe siècle”): the Diaire, ou Journal du voyage du Chancelier Séguier en Normandie, carried out in order to suppress the movement between December 15, 1639 (when Séguier was ordered to go to Normandy) and March 27, 1640 (when he returned to Paris). It was written by François de Verthamont, maître de requêtes at the Council of State, formerly intendant in Guyenne, who accompanied Séguier throughout the repression, and was published in 1842 by Amable Floquet (1797–1881), Normandy archivist and historian. Foucault systematically compares the information provided by the Diaire and that given by the other main printed source on the movement and its suppression, namely the Mémoires written by one of the members of the Rouen Parlement, Alexandre Bigot de Monville (1607–1675), which were edited in 1876 by the vicomte d’Estaintot (Foucault uses this edition) and later reedited in 1976 by the historian Madeleine Foisil. This text offers a narrative of the revolt and its suppression which is not without partiality, Bigot de Monville being both hostile to the Premier Président of the Parlement, Faucon de Ris, and, as member of the parlement, very committed to defending it against the “financiers” and the new members of the parlement who came from Paris after the suppression. In addition to these two testimonies of the period, Foucault mainly calls upon volumes IV and V of the Histoire du Parlement de Normandie published by Amable Floquet between 1840 and 1842 and which is a very wellinformed collection relying upon numerous unpublished sources (secret reports of the Rouen Parlement or of the municipality, etcetera) or other publications of the period. The same is true of the notes written by Floquet in his edition of the Diaire. But, above all, Foucault relies upon Boris Porchnev’s work, Les Soulèvements populaires en France de 1623 à 1648, drawn from the thesis written by the Soviet historian at the end of the 1930s, published in Russian in 1948, in German in 1954, and finally in France in 1963 (Paris: SEVPEN/EPHE,VIe Section, Centre de recherches historiques, “Œuvres étrangères” IV) the whole of the second part of which is devoted to the Nu-pieds movement (pp. 305–502). Foucault was strongly inspired as much by Porchnev’s reading of the Nu-pieds as by his more general interpretation of popular movements in the seventeenth century. Having said that, he was familiar with and regularly used Roland Mousnier’s works on the subject: Fureurs paysannes. Les paysans dans le révoltes au XVIIe siècle (France, Russie, Chine), (Paris: Calmann-Lévy, 1967); English translation by Brian Pearce as Peasant Uprisings in SeventeenthCentury France, Russia and China (London: George Allen & Unwin, 1971) which devotes Fr., pp. 97–121; Eng., pp. 87–113 to the Nu-pieds, and La Plume, la Faucille et le Marteau (Paris: PUF, 1970), in which, pp.  335–368, Mousnier takes up and clarifies his criticisms of Porchnev’s reading. For further details on the polemic between Porchnev and Mousnier and Foucault’s position, see the Appendix below: C.-O. Doron, “Foucault and the historians”, pp. 285–301. Finally, for factual elements, Foucault very broadly bases himself on the monograph La Révolte des Nu-Pieds et révoltes normandes de 1639 (Paris, PUF, 1970) by Roland Mousnier’s student, the historian Madeleine Foisil. This text is now considered the indispensable reference on the subject.

11

12

 

Penal theories and institutions

For a more recent reading of popular revolts in general and of the Nu-pieds in particular, see the works of Yves-Marie Bercé, especially Croquants et Nu-Pieds: les soulèvements paysans en France du 16e au 19e siècle (Paris: Gallimard, 2013 (1974)) and Révoltes et Révolutions dans l’Europe Moderne (Paris: PUF, 1980), and of Jean Nicolas, especially La Rébellion française. Mouvements populaires et conscience sociale (1661–1789), (Paris: Seuil, 2002), on the period after the Nu-pieds. 3. The chronology of these different riots is given in B. Porchnev, Les Soulèvements populaires en France, pp.  133–134. The Aix uprising, of the “Cascavéoux”, was linked to the attempt to establish the system of élection at Aix. It was put down by troops commanded by the Prince of Condé in 1631 (see ibid., pp. 143–151; R. Mousnier, La Plume, la Faucille et le Marteau, pp. 377–378). The movement that affected Guyenne began with riots at Niort and Dax in 1633. Significant riots follow at Bordeaux in 1635, due to the progressive increase of different royal taxes and more especially of a new tax on wine, then revolts at Agen and Périgueux in 1635. These revolts are suppressed by the intendant Verthamont (future author of the Diaire) and the duc d’Épernon (see Porchnev, Les Soulèvements populaires, pp. 157–186; R. Mousnier, Fureurs paysannes, pp. 54–57; Peasant Uprisings, pp. 45–47). The Lyon uprising was linked to a surcharge of customs tariffs on goods imported and exported in December 1632 (see Porchnev, pp. 151–156). The movements at Poitou and Poitiers are described in Mousnier’s Fureurs paysannes, pp.  53–54 and pp.  63–85; Peasant Uprisings, pp. 43–44 and pp. 53–76: these were basically revolts linked to poor harvests and speculation on the price of wheat. 4. “I do not believe that anything more harmful to the King’s authority or business can be imagined (…) There is sedition everywhere in France. The parlements do not punish anyone” (letter from Marillac to Richelieu, July 15, 1630. Foucault quotes from Porchnev, Les Soulèvements populaires en France, p. 294). 5. The figure of 4000 at Rouen refers to the “four thousand poor” that the 1623 edict, according to Floquet, condemned to “die of hunger” at Rouen, by transforming their trades into “domanial offices” which would either be taxed or subject to resale. See A. Floquet, Histoire du Parlement de Normandie (Rouen: Édouard Frère, 1841), vol. IV, pp. 521–522; see also p. 447 and pp. 520–521. 6. Ibid., pp.  444–445. “A gang, established near Évreux and led by one called Buisson-Cornu and his son La Bouillinière, held sway for several years, ‘committing excessive acts of violence and inhumanity, endless horrors and acts for which heaven and earth cried out for vengeance’” (p. 445). 7. See R. Mousnier, Fureurs, paysannes, pp. 104–105; Peasant Uprisings, pp. 95–96: “The greater part of the généralités of Rouen and Alençon and a large part of the généralité of Caen were pays de grande gabelle, where salt was a royal monopoly, associated with heavy taxes. The Cotentin, however,” and various other vicomtés “were pays de quart-bouillon. That is to say, the salt makers evaporated sea-water, collected the salt, handed over one-quarter of the product to the king, and sold the rest as they pleased”. This production of salt “gave rise to a considerable amount of salt smuggling. Salt was transported from the pans to where a number of dealers were waiting for it, near the frontier of the privileged area, at the edge of the parishes of the pays de grande gabelle”. 8. On these episodes see ibid., Fr., p. 105; Eng., p. 95. 9. See ibid., Fr., p. 121; Eng., p. 112 (for Cérences) and Fr., p. 109; Eng., p. 100 (for Mantilly). See also M.  Foisil, La Révolte des Nu-Pieds et les révoltes normandes, pp. 75–78 (on Cérences).

 

24 November 1971 

10. To assist the reading of the events described by Foucault in the first five lectures, we add a brief chronology of the Nu-pieds revolt and its suppression. For a more detailed chronology see M. Foisil, La Révolte des Nu-Pieds, pp. 163–171 and 287–301; A. Floquet, ed., Diaire ou Journal du voyage du Chancelier Séguier en Normandie après la sédition des Nu-pieds, 1639–1640 (Rouen: Éduard Frère, 1842) (hereafter cited as Diaire), pp. 451–461. For convenience’s sake we distinguish the chronology of the revolts and that of their suppression. (1) The revolts. July 16, 1639: at Avranches and in its region, the murder of Poupinel and attack on an agent responsible for the collection of the sol pour livre, then pillage of different offices: start of the revolt; August 4, 1639: at Rouen, assassination of Rougemont, responsible for controlling dyes; 8 August 1639: at Caen, start of the revolt against the inspector of the marking of hides. From August 12 to 20, various revolts at Caen, Vire, and in the Avranches region. From August 20 to 24, extensive revolt at Rouen: pillage of several houses under leadership of Gorin; attack on the house of the gabelles collector, Le Tellier de Tourneville. From August 26 to 30 new revolt at Caen: pillage of various houses under leadership of Branu. In September 1639, the revolt persists in the Avranches and Coutances regions. In October and November 1639, the revolt continues more sporadically in the Avranches region; On November 30, the insurgents are defeated in a battle with the troops of Colonel Gassion. According to Foisil, the breakdown of the days of revolt between July 16 and the end of November 1639 is as follows: five in July, seventeen in August, eleven in September, two in October, and two in November. (2) The suppression. In reality three missions of repression should be distinguished. In his lectures Foucault concentrates on those of Colonel Gassion and the Chancellor Séguier at Rouen and in Lower Normandy (the Avranches region in particular), but we should not forget that, from October 20, 1639, Charles Le Roy de La Potherie was appointed as intendant of justice in the Caen généralité, where he will remain throughout November before rejoining Gassion. On November 16, 1639, Gassion receives the order to leave for Normandy: he enters Caen on November23. On November 30, he engages in battle with the insurgents near Avranches and on December 1 and 2 carries out executions in the town. On December 14, he is ordered to Rouen where his troops, however, do not enter until December 31. On December 15, the Chancellor Séguier is in turn appointed at Rouen: he leaves Paris on the 19th and establishes himself at Gaillon (20 kilometers from Rouen) on the 21st. There he receives various deputations of the Rouen notables (members of the parlement, the archbishop, the mayor …) between December 23 and 30. From December 30, 1639 to January 1, 1640 he establishes himself at the Pont-de-­l’Arche (10 kilometers from Rouen) where he continues to receive deputations while Gassion’s troops enter Rouen on December 31, 1639. Séguier himself enters Rouen on January 2, 1640 and secures the suppression of the town until February 11. He then goes to Lower Normandy and to Caen (where he stays from February 16 to 28) and then Coutances, where he stays from March 4 to 14. He returns to Paris on March 27, 1640. 11. The Chancellor Pierre Séguier (1588–1672), President à mortier [referring to the special black velvet toque worn by Presidents of the Parlement; G.B.] of the Paris Parlement and intendant of Guyenne 1621–1624, was appointed Keeper of the Seals by Richelieu in 1633 and Chancellor of France in 1635, an office he held (with an interruption during the Fronde) until his death in 1672. In this dual capacity he was one of the main components of the absolutist State and its administration, responsible, moreover,

13

14

 

Penal theories and institutions

for the functions of justice and repression. In particular he will conduct several important trials (against Cinq-Mars, against Fouquet) and direct the suppression of the Nu-pieds. The archives accumulated by Séguier will form the basis of Porchnev’s and Mousnier’s studies of the repression of the various popular disturbances in the seventeenth century (see below, C.-O. Doron, “Foucault and the historians”, pp. 285–289. On Séguier, see D. Richet, “Une famille de robe: les Séguier” and “Carrière et fortune du Chancelier Séguier” in D. Richet, De la Réforme à la Révolution. Études sur la France moderne, Preface by Pierre Goubert (Paris: Aubier, “Histoires”, 1991), pp. 155–316; F. Hildesheimer, “Richelieu et Séguier, ou l’invention d’une créature”, in Bernard Barbiche and YvesMarie Bercé, eds., Études sur l’ancienne France (Paris: École des Chartes/ Champion, 2003), pp. 209–226. 12. See B. Porchnev, Les Soulèvements populaires en France, p. 313; R. Mousnier, Fureurs paysannes, pp. 104–107; Peasant Uprisings, pp. 96–99. It involved the rumor that the gabelle would be established in Lower Normandy, suppressing the privilege of the pays de quart-bouillon. 13. “I fear that we will end by [taxing] the beggars who warm themselves in the sun” – Guy Patin, quoted in André Chéruel, Histoire de l’administration monarchique en France, depuis l’avènement de Philippe-Auguste jusqu’à la mort de Louis XIV (Paris: Desobry, 1855) vol. 1, p. 210. 14. All these dates are taken from B. Porchnev, Les Soulèvements populaires en France, pp. 266–267, as well as the data on the causes of the taxes. At Poitiers, the taxes on wine are the cause of revolts in 1625, 1631–1632, 1638–1639–1640; at Laval, the revolt is provoked by the “institution of offices of inspection and control of the production of canvasses and cloth” (p. 267). For Aix, see above. 15. See B. Porchnev, Les Soulèvements populaires en France, p. 394. 16. This concept of “town plebeians” is taken from Porchnev, who takes it from the work of Engels on the peasant war in Germany of 1525: Der Deutscher Bauernkrieg (1850); French translation Émile Bottigelli La Guerre des paysans en Allemagne (Paris: Éditions Sociales, 1974); English translation The Peasant War in Germany (London: George Allen and Unwin, 1927). Following Engels, Porchnev employs the term to describe the “populace”, the “rabble” and the “dregs”, according to the terms of the period (see Les Soulèvements populaires en France, pp. 269–275), that is to say, a heteroclite amalgam covering “a pre-proletariat of craft industry and manufacture”; “the mass of small craftsmen”; “the mass of people without definite profession or fixed abode”, and in particular all that Engels (dis)qualifies with the term Lumpenproletariat, while taking care however to note that the Lumpenproletariat at this time was “healthier”, less depraved and less venal than the nineteenth-century Lumpenproletariat. The concept of “plèbe” was very important for Foucault in the same period because he saw abolition of the “divide” created between the “non-proletarianized common people (plèbe)” and the proletariat, for which the penal system was responsible from the nineteenth century, as a fundamental stake which cut across various problems referred to in the lectures (in particular the ­genealogy of the division between “political crime” and “common law crime” and the manifestation of the fact that all delinquency is political). See below, “Course context”, pp.  241–245 and pp.  253–255, as well as DÉ, II/“Quarto”, I, 105, “La grand enfermement”; 107, “Table ronde”, 108; “Sur la justice populaire. Débat avec les maos”, English translation John Mepham, “On Popular Justice:

 

24 November 1971 

A Discussion with Maoists” in Power/Knowledge. Selected Interviews and Other Writings 1972–1977, ed., Colin Gordon (Brighton: The Harvester Press, 1980); and 125, “Prisons et révoltes dans les prisons”. From 1973 Foucault begins to distance himself from the notion of the “seditious” and “non-­proletarianized plèbe”, particularly in La Société punitive. Cours au Collège de France, 1972–1973, B. E. Harcourt, ed., (Paris: EHESS–Gallimard– Seuil, “Hautes Études, 2013); English translation Graham Burchell, The Punitive Society. Lectures at the Collège de France 1972–1973, English series editor Arnold I.  Davidson (Basingstoke: Palgrave Macmillan, 2015), and in “À propos de l’enfermement pénitentiaire”, interview with A.  Krywin and F.  Ringelheim, Pro Justitia. Revue politique de droit, vol. I, nos. 3–4: La Prison, October 1973, pp. 5–14; DÉ, II/“Quarto”, I, 127. 17. This is Porchnev’s well-known thesis. See, for example, Les Soulèvements populaires en France, pp. 395–396. “It should again be noted that the taxes on the population collected by a feudal State were nothing other than a centralized form of feudal rent, just as in origin royal power was only the central link of feudal hierarchy” (p. 395). For further clarification, see below, C-O. Doron, “Foucault et les historiens”, pp. 286–287. 18. See B.  Porchnev, Les Soulèvements populaires en France, p.  314; A Floquet, ed., Diaire, pp. 397–400 and pp. 422–424. The date is July 16, 1639. 19. The homme de robe designates Besnardière-­Poupinel, who is lieutenant particulier in the bailliage and présidial seat. As such, and in the context of rumors about the introduction of the gabelle, he was associated with the “monopolists and gabelleurs” leasing taxes on behalf of the king. On this subject, see M. Foisil, La Révolte des Nu-Pieds, pp. 198–199. 20. See Diaire, p. 424. 21. This was Goaslin, dragged for three days by a horse’s tail and then finished off with two pistol shots. See Diaire, p. 305. 22. Ibid., p. 365. 23. Ibid., p. 399. 24. See B. Porchnev, Les Soulèvements populaires en France, p. 353. On August 26, the crowd demands the reimbursement of the tax levied for the subsistence of the people of war and which the “partisans” (i.e., the financiers) had appropriated. 25. See R.  Mousnier, Fureurs paysannes, p.  118. The offices of the Aides were the offices where the agents responsible for collecting various indirect taxes on consumption, notably drink (“aides”), lived. 26. See Diaire, p. 410. Regarding pushing and shoving, it is actually a matter of “so many blows of stone and fist hailing on the sieur de Sarcilly … that he was left for dead on the spot.” 27. See Histoire du Parlement de Normandie, IV, p. 574, which refers to the “bonfires around which they danced, shouting, cursing the gabelleurs and monopolists”. According to the Diaire, p. 437, it was “Jouvain” rather than “Jourmain”. 28. Histoire du Parlement de Normandie, IV, p. 602. Hugot was the collector of domanial rights, francs fiefs and new acquêts, reliefs and demi-reliefs. 29. Ibid., pp. 605–608. Noël du Castel, called Gorin, artisan clockmaker of Rouen, is presented as the main leader of the Rouen disturbances. 30. Diaire, p. 424: “if they make an official report about what happened, they would burn the houses of the officers”. 31. Histoire du Parlement de Normandie, IV, p. 600. The exact quotation is: “a number of people, some with red caps, others white, some porters, carters, women, and children”.

15

16

 

Penal theories and institutions

32. Diaire, p. 25. 33. The revolt extended over two zones. The first is the region of Avranches and Coutances where 27 out of 97 parishes took part in the revolt. The second zone is the region situated between Mortain and Domfront, where nine parishes were in revolt, including Mantilly, which was famous for its reluctance to pay the taille. See R. Mousnier, Fureurs paysannes, pp. 108–109; Peasant Uprisings, p. 100. 34. This is from the Lettres of Hugo Grotius, Swedish ambassador to France, to Chancellor Oxenstiern. Hugonis Grotii Espistolae (Amsterdam: 1687): “seditiosorum numerus in inferiori Normannia crescit ad viginti (ut dicitur) milia” (letter of 3 December 1639); see B. Porchnev, Les Soulèvements populaires en France, p. 322. 35. See Histoire du Parlement de Normandie, IV, p. 604. 36. See M. Foisil, La Révolte des Nu-Pieds, p. 182. See also R. Mousnier, Fureurs paysannes, pp. 111–113; Peasant Uprisings, pp. 103–104. 37. See B. Porchnev, Les Soulèvements populaires en France, pp. 380–381: “in reality, the bourgeoisie initially appeared to support and sanction the uprising”. The examples which follow are found in Porchnev. 38. See Histoire du Parlement de Normandie, IV, p. 604; B. Porchnev, Les Soulèvements populaires en France, p. 380. 39. Diaire, p. 353: “that they were armed to protect themselves and not to protect some monopolists, and that they would not be made to kill for them”; B. Porchnev, Les Soulèvements populaires en France, p. 381: Nicholas Le Tellier, sieur de Tourneville, secretary of the King, and one of the main “financiers” in Rouen as general agent of the gabelles. Enriched by his responsibilities, in 1648 he will succeed in marrying his daughter, Catherine, to François de Harcourt, one of the main families of the Norman nobility. 40. Foucault here diverges somewhat from Porchnev, who merely stresses the fact that Parlement is torn between its bourgeois and popular “roots” and its close link with “the dominant feudal nobility”, its interests pushing it to “the nobiliary and absolutist state” (B. Porchnev, Les Soulèvements populaires en France, p. 382). 41. Histoire du Parlement de Normandie, IV, p.  598. Exact quotation: “Since H.M. demands a blind obedience from his officers (the procureur général had said) I require the registration, on the very express command of the king” (emphasis in the text). This is 7 June 1639. 42. Ibid., pp. 618–619. 43. Ibid., pp. 611–612; B. Porchnev, Les Soulèvements populaires en France, p. 384. 44. See Diaire, pp. v–vi. 45. See ibid.

two

1 DECEMBER 1971 Summary of stages: (1) a popular revolt aimed at the State tax system; (2) evasion of nobility, bourgeoisie, and members of the Parlement; (3) the army as sole guarantor: towards the century of “armed justice”; (4) royal power introduces the new repressive system. ~ How to do the history of this new repressive system? Objection: earlier existence of the State apparatus of repression. Answer: continuous development of legislative institutions, but break within those concerning justice; on the one hand, attachment to the old system; on the other, production of a new system. In contrast with the post-­revolutionary bourgeoisie which, behind the mask of the independence of justice, establishes a unitary repressive system of State, justice, and police at the same time. ~ Return to the Nu-pieds of Normandy. They take on the signs of power and assume its prerogatives. Rejection of the law by the imposition of a law. Rejection of justice as exercise of a justice. ~ The signs of this exercise of power: their name with reference to their “beggary”; their symbolic leader, chimerical personage; their orders “in the name of the King”. ~ The acts committed in this exercise of power (military, administrative, financial, of justice). ~ Repression is really carried out against a different power.

A popular revolt Summary – It was a response to increased tax pressure which had crossed the threshold of tolerance of the poorest populations. – It successively involved peasant and urban populations: –– the peasant populations more or less continuously from July to November 1639; –– the urban populations more sporadically: Rouen in the first three weeks of August; Caen in the middle of October. – But although they were not sparked off at the same time or for the same reasons (salt in the countryside, dyeing at Rouen, leatherwork at Caen),1 although the strategy was different (in the towns the revolt came up

[21/1]

18

 

Penal theories and institutions

against the militias and troops; in the countryside there was greater freedom of maneuver), they recognized that they were part of one and the same movement: they rally under the same sign: the Nu-pieds (Barefeet). Characteristics[22/2] – The sedition is aimed selectively, if not exclusively, at the representatives of the State taxation system: –– those who are supposed to have contributed to setting it up (Beaupré),2 –– those who come to enforce it, –– those who profit from it through the system of tax farms, –– those who control its application, distribution, and settlement (the Cour des Aides).3 It is only at the end of the day, and by extrapolation, that the revolt becomes an undifferentiated attack on the wealthy. Now, when it comes under attack, the State tax apparatus sees the social groups around it, on which it depended, shying away: –– a good part of the nobility do not intervene, State taxation being in competition with its own and benefiting only the big nobility; –– there is the same shying away in the bourgeoisie because taxation hinders export and excessively reduces the purchasing power of the populations; –– members of the Parlement also shy away because they are in com[23/3] petition with State taxation –– as landowners themselves having to collect their own rent –– as dispensers of justice, since the exercise of justice was a sort of tax levy on those subject to it. 1 – No doubt this was not the first time that State taxation came into conflict with the nobility, the bourgeoisie, and even the Parlement. It can even be said that there had been constant conflict since Philip the Fair [Philippe IV], with the nobility and bourgeoisie at least; and the State apparatus had prevailed in these conflicts only insofar as it was controlled by and served the interests of one part of the nobility (at the cost of the other), of one part of the bourgeoisie (at the cost of the other).

 

1 December 1971 

19

2 – But at the launch of the great economic expansion of the sixteenth century, Henry IV had restored [the order]* of the State, soon after the Wars of Religion†: –– by depending upon the landowners, and the bourgeoisie, for his economic policy, –– by depending upon the members of the Parlement, to whose advantage he will systematize the sale of offices. So that at the beginning of the seventeenth century, the order of the [24/4] State was secured by three instances: –– the very old body of seigneurial agents (the agents of administration, tax, and justice).4 This was in decline for centuries, but very slowly. It [will] still [be] active and weighty in the eighteenth century; –– the equally old body of the bourgeois militias which were trained by the better-off classes and which, directed by the municipalities, thus found themselves in the hands of the urban patriciate5; –– finally, the scarcely less old body of Parlement, but which, in comparison with the Parlement of Saint Louis, [was] largely autonomized, divided up, and implanted in the provinces; at the same time other judicial bodies, either fiscal (cours des Aides), or general and lower (like the présidial), multiplied alongside it, beneath it.6 These were the three instances that ensured order, together with, obviously, the ever-possible back-up of the army. 3 – Now, as the great depression of the seventeenth century gathers pace, as the local nobility, the parlementary bourgeoisie, the merchant bourgeoisie begin to suffer the collapse of prices, depreciation of rents, and contraction of the market, these three bodies for keeping order [25/5] refuse, at least for a time, to answer the call of the State apparatus. The only force prepared to do so unconditionally is the force that directly benefits from the concentration of feudal rent in the hands of the central power: the army. The army, which in the seventeenth century

*  Missing word restored on the basis of what follows. †  In the margin Foucault refers to “the Croquants”, regarding whom: “to confront the riot, the lords, members of the Parlement, and bourgeois had found in Henry IV …”

20

 

Penal theories and institutions

will be the institution in which the nobility will most easily and directly be able to benefit from that delayed and concentrated feudal rent that royal power levies instead of them and pays back to them; and that also [becomes] the major institution ensuring the maintenance of order and so of the levy of that rent from which it benefits. From Richelieu to Louis XIV we are in the century of “armed justice”.7 A century which begins with the suppression of the riots of the 1630s and ends with the suppression of the Camisards. 4 – Following in the wake of this army and shielded by this force, royal power will set up a new repressive system: [26/6] –– which increasingly pushes back seigneurial justice and repression; –– which overlays (and controls when it does not replace) the bourgeois jurisdictions and militias; –– which limits, at the price of serious conflicts, Parlement’s powers. What we see appearing in this period of “armed justice” is a new system of repression, which is set up in order to take over the three failing repressive bodies, and so to protect not only the State apparatus, [but also]* the tax levy of which it becomes the agent. This new system –– works itself into the faults of the old system, –– overlays it, pushes it back, disrupts it, –– will finally prevail over it. It is the history of this new system that we have to do. Now one may immediately object that a State-controlled repressive [27/7] apparatus, linked to the extension of taxation, emerged much earlier. After all, royal justice played this role for a long time. –– Let us be quite clear: there is no question of saying that royal justice appeared at the beginning of the seventeenth century. After all, the king was in essence dispenser of justice; and in fact for a long time the king’s justice extended beyond the domains in which he exercised his seigneurial justice.

*  The manuscript has: “and”

 

1 December 1971 

21

–– Parlement, the parlements, took themselves to be a direct emanation of royal power (and, they claimed, of all the aspects of that power)8; –– from the sixteenth century prévôtal justice was also a royal justice9; –– the présidiaux, from 1551.10 –– But what really has to be seen is the development in the seventeenth century of a new system of repression at the very heart of royal justice.* In its parlementary, présidial, or prévôtal form, royal justice was super- [28/8] imposed on feudal justice; it was coordinated with it (not without conflict, no doubt, but by conforming to the same model and the same type of functioning). The new system of repression may well be in the hands of the king, and much more so than the first, but its mode of operation is entirely different; and it is heterogeneous to the old system. “The functions of justice and police were often incompatible” (edict of 1667 […]†).11 So maybe we should not accept the schema of those historians who see the slow continuous rise of royal justice from the twelfth–thirteenth century to the end of the eighteenth century, with the successive appearance of parlements, prévôtal justice, présidiaux, lieutenants of police, etcetera; an evolution marked by the great legislative corpus of 1447–1499, 1539, 1670.12 We should acknowledge that from the seventeenth century royal justice was split: –– on one side, a royal justice which is superimposed on feudal jus- [29/9] tice in order to limit and control it, and which together with the latter forms part of could be called “the feudal repressive system”; –– and a new royal justice, even more directly attached than the old to the person of the king, but falling under a new repressive system: “State-controlled repressive system”. So: –– at one level of reading, a continuous institutional development, with identifiable and regular legislative divisions; –– and at another level, a profound break within institutions concerning justice. A break which pushes some of these institutions *  Underlined in the manuscript. †  Three illegible words.

22

 

Penal theories and institutions

onto the side of the old system of repression and attaches others to a new system: (1) on one side: parlements and présidiaux, (2) on the other: lieutenants of police, confinement, lettres de cachet, Ordinance of 1670. At the point of division: the great popular revolts of the seventeenth century. So we would have this kind of schema: [10]* [10]* Thirteenth century Royal justice

Feudal justice ecclesiastical/seigneurial

parlementary présidial prévôtal

Feudal repressive system

X

State-controlled repressive system 1639

[According to notes taken by Daniel Defert during the lecture]

Now, certain facts are clarified if we adopt this schema: 1. The popular revolts were directed against the imposition of centralized feudal rent. Suppression of the revolts was intended to protect this rent, its imposition, and the State apparatus which assured it. Now this suppression put to work an apparatus and developed in forms which were incompatible with the feudal system. 2. To start with this explains a first contradiction: –– This State apparatus was violently attacked by the bourgeoisie on account of its purpose† (maintenance of a feudal type of taxation), and in this struggle the bourgeoisie had allies in people who were not hostile to [30/11]

*  Lacking sheet 10 of the manuscript deposited at the BNF, the text has been established according to a photocopy made earlier. †  Emphasis on the photocopy of the manuscript.

 

1 December 1971 

23

the purpose of this repressive apparatus, but to its form (those who controlled the old repressive system): basically members of the parlements. Hence the lengthy opposition, from the rebellious members of the parlements of the period of Richelieu, up to the parlementary revolt which preceded the Revolution, with the episodes of the Fronde, Jansenism, and the failure of the Maupeou reform. –– But despite this tactical alliance, feudal parlementary justice, not only in its purpose but in its form, was just as much the “enemy” for the bourgeoisie: –– The bourgeoisie even came to form an alliance with the king against members of the parlements; –– in the eighteenth century the bourgeoisie conducted a lengthy ideological and political struggle against the Parlement (Calas, Beccaria), and –– after the Revolution it got rid of the parlements. The bourgeoisie therefore struggled simultaneously against the two forms of royal justice. Denouncing the lettres de cachet and ridiculing the parlements, as if they were two elements of a single system. Whereas there were two different repressive systems (supporting each other [31/112nd] moreover within a single political regime). [31/112nd] –– Now, under cover of this general (actually double-front) critique, the bourgeoisie under the Revolution, but especially in the Napoleonic period, carried out a separation: –– it truly got rid of feudal (seigneurial or parlementary) justice, which, due to its form and purpose it could not use; –– it rejected the purpose of the new repressive system which was established in the seventeenth century (imposition of feudal rent) but not the form (or certain formal elements at least: the police element). It uses these elements for its own ends. And these ends are no longer the imposition of feudal rent, but the maintenance of capitalist profit.13 But whereas the monarchical regime had juxtaposed two heterogeneous repressive systems, even though both were intended to preserve feudal taxation,* the bourgeoisie will give itself a unitary repressive system: State-controlled, juridical, and police.

*  Line break and indent here in the manuscript.

24

 

Penal theories and institutions

A unitary system which the bourgeoisie will seek to hide beneath the [32/113rd] assertion that justice is independent –– of political control by the State –– as well as the armed police force. And this is in order to get it to function as if it were an arbitral and neutral power between the social classes. We must take up again the events of 1639. [33/12] –– What we have said about them until now links them to all those that precede or follow them: –– like elsewhere, popular movement; –– as frequently, anti-tax movement; –– as frequently, evasion of the bourgeoisie, members of the parlement, and part of the nobility. At the most we can say that in Normandy the absence of the governor and the weakness of the troops allowed the revolt to develop; they also allowed the weakness of the Parlement, bourgeoisie, and local nobility to appear much more clearly than in Aquitaine, for example, where the duc d’[Épernon]* was able to intervene very early on. –– But, apart from this difference in the duration and extent of the process, there is a very specific feature of the Nu-pieds revolt:† this is the way in which royal power was attacked. Here again, it may well be that certain external circumstances which, by allowing the process to develop, made visible retrospectively, but also already to contemporaries and to the power of the time, what had existed [34/13] elsewhere, but in a more veiled and hidden way.‡

* The manuscript has “d’Aiguillon”.14 †  Underlined in the manuscript. ‡  On the verso of a sheet numbered “18” and crossed through, Foucault presents this section in these terms: “4. But the most singular feature of this revolt is certainly not the opposing forces, the system of alliances and supports. We find these again, with some modifications, in most of the popular movements in the seventeenth century. Perhaps the most characteristic feature is the whole relatively strict organization which the forms, modes of action, and signs of power took on. This organization of another power is visible, maybe existed, and no doubt had meaning only in the peasant revolt (more durable in time and dispersed in space than the urban riot).”

 

1 December 1971 

25

No matter. In any case, by attacking royal power—or at least the representatives of its most intolerable aspect: taxation—the Nu-pieds of Normandy appeared as seizing at least a part of power; they explicitly adopted the signs of power and exercised its prerogatives. This was not the pure and simple struggle against the established power. Nor did the Nu-pieds act like a manipulable mass fighting for the nobility or bourgeoisie and yielding to them the power taken from the king. They took themselves to be a (military, political, judicial, and financial) power.15 That this other power appeared—not silently and hidden, but openly—may explain –– the effect of alarm it produced in some (members of the Parlement, for example, who saw themselves as the only alternative to royal power); –– the desire (of some nobles) to take it over, but their very early withdrawal (see Ponthébert)16; –– the violent reaction in the social group of those who held [35/14] power; –– the need they felt to establish a specific reaction and to mark the visible forms of a State power in all the episodes of this reaction; –– the fact that at the time of this suppression, not only did the nobiliary, parlementary, and bourgeois powers not defend themselves, but they agreed to enter into the game of this suppression, asking only to save some of their power by taking part in the suppression; –– the fact that this other power, its sudden and precarious emergence, has been hidden for so long by historians.17 In fact, what can we know about this other power? Not much, given the nature of the documents (all or almost all of them coming from the other side). As a symbol of this fleeting passage of another power and [36/15] the scandalized and frightened amazement of the other powers:

26

 

Penal theories and institutions

–– this phrase of Bigot de Monville at the end of the chapter in which he recounts the defeat of the Nu-pieds: “Thus this rabble which had held the countryside for several months was dispersed in a moment. Their standard was an anchor sable in a vert field”.18 What signs or traces can we find of this exercise of power? a. They present themselves explicitly as the poorest, as having nothing to lose because they have nothing, having been completely shorn by the rich19; and the rich (in the two or three texts which have been found about them) are not so much the propertied, as the “partisans”, those directly involved in tax collection.20 They are beggars who present themselves as beggars and who wish to exercise, as beggars, a certain power. Importance of their name: –– according to the Diaire, it would come from a poor wretch seen running barefoot on the beach.21 –– According to the Mémoires de Montglat, the insurgents wished “to [37/16] signify thereby that what they were granted had reduced them to the condition of having to go without shoes”. –– Bernard, councilor of the King (Histoire de Louis XIII, book 12, p. 437), says that by this they sought “to show their beggary by their name”.22 Importance also of the reference to the region, to the province, both –– as land “of suffering”, –– as a region having had in other times its exemptions, freedoms, and charters, and having lost them despite its loyalty to the King.23 b. The revolt presents itself as having a leader: not only giving orders, of course, but signing commands in the ritual forms, having them read out in churches in sermons, having them posted, affixing his seal and arms at the bottom of documents he sent or published.24 Now all these rites and signs of power not only referred to an anonymous holder of power, but we now know that this character did not [38/17] exist. (No doubt there were a number of leaders, maybe with little coordination between them, but each of them manipulated the signs of power which were supposed to belong to him).

 

1 December 1971 

27

It is as if the most visible, traditional, ritual signs of power were set out around an empty space, a faceless name which designated the movement itself.25 What is going on in this game of the signs of power? –– It was no doubt a case of giving the form of authority to a leadership which no doubt lacked cohesion, –– but it involved showing that the acts committed (pillage, arson, killing) were acts of power; that it was a matter of punishments, confiscations, executions. –– And the sign that for them it was indeed a question of the exercise of power is that Jean Nu-pieds gave orders “in the name of the King”.26 This reference to the King in no way indicated that the insurgents recognized the king’s decisions, or invoked, beyond his [39/18] servants, the king’s power of arbitration. This invocation of the King referred to the King as substance of power, as source of the emanation of power. In order to exercise power it had to be taken from the King, its source, it had to be removed from the King’s “political body”.27 They did not submit to the king: they took possession of him. –– Moreover, in saying in his device “Missus a Deo”, Jean Nu-Pieds based his authority on a divine mission which corresponded to the divine right of the King.28 c. Acts of power performed by the Nu-pieds[40/19] [40/19] 29 1. Conscription of troops (see the command). Military organizations (with districts and captains). Strict discipline: hanging for a disobedient soldier.30 2. Administrative and financial acts. –– Near Cancale, officers of the salt storehouse are authorized to unload their stock only on payment of a tax of 30 pistoles. After which they are given a passport with the seal of Jean Nu-pieds.31 –– Fair at Gavray, 18 October: the Nu-pieds arrive and read a declaration which states that “the fair is free; no duty need be paid: we come to deliver you from the monopolists”.32

28

 

Penal theories and institutions

3. Acts of justice. –– Fining individuals: September 10, Lalouey and Morel summon someone called Chenevelles and fine him 100 livres, failing which his house will be destroyed. –– He pays 70 livres; but since he delays paying the rest he is referred [41/20] to the Nu-pieds who partially pillage and destroy his house.33 –– Or again, they seize hold of someone called Goaslin, brother-­in-­ law of Nicolle (a gabelles farmer): they tie him to a horse, take him through the countryside for two days and force him to watch his own houses burned. This is the punishment of the rack.34 –– This is how the fires and pillaging took place at Rouen. Gorin (according to a statement written at the time of his trial) had a list of the houses which had to be pillaged; he led the rebels to each of the houses, and he had a standard with the king’s arms placed before them: he struck the door with an iron bar and said: “Companions, to work, fear nothing, we are acting on authority”. And he added: “this is the day we must exterminate the monopolists”.35 So, identity of the signs of power: identity of the forms, rituals and sometimes even acts.* Identical power—or rather power which manifests itself as power by [42/21] the appropriation of the signs, forms, and instruments of established power. All these marks of power circulated, were taken over and reversed in a change of relations of force. There is something important here: –– Difference from tax strikers, smugglers, salt smugglers, and highway robbers who formed the background and to a certain extent the condition of possibility of the revolt. For these it was a case of breaking the law and escaping the authorities. But for the Nu-­pieds, rejection of the law is at the same time a law (it is like the other side of the law; see the proclamation abolishing duties on hay); the rejection of justice is like the exercise of a justice; the struggle against power takes place in the form of power.

*  A sentence crossed out here: “But at the same time it is a power which advances in exactly the opposite direction”.

 

1 December 1971 

29

–– Difference from the struggle of members of the parlement or of the bourgeois who used (customary or legal) institutional resources against royal power (refusal to register taxes; obtaining privileges). For the Nu-pieds an entirely different law is proclaimed in a completely different way on the basis of a completely different relation of force. They do not utilize an existing law; they create a completely different [43/22] one. (Note the “homo missus a Deo [a man sent from God: Saint John; G.B.]” which serves as the device of J[ohn] Nu-pieds, and which counterbalances the signs of attachment to royal power: it is a different law that will break the old law, as Saint John announced the new Kingdom.) We can see why, under these conditions, it was not enough to suppress the revolt in the forms of the existing law (as if it was purely and simply a case of brigandage); no more than it sufficed to modify the legislative system (as if it was only a matter of a use, abuse, or corruption of the law). Repression had to be carried out as at once: –– the reconquest of a land which has become enemy territory, since a different power was being exercised in it; –– the reappropriation of the forms of power, since they had been taken over by another social class; and, –– finally, a redistribution of the bodies through which that power was traditionally exercised: since they had let slip the powers they exercised.*

*  The manuscript includes here a sheet of smaller size on which is written: “Regarding practices of justice Burning down houses is an old judicial practice of punishment. “Commune charter granted by Charles V, 28 January 1368, to the town of Péronne: … ‘si quis aliquem … occiderit et captus duerit, capite plectetur … et domus ejus … diruetur et mittetur ad HANOI or HANOT’.” [Diaire, p. 316, n. 1; emphasis in the text.] Grand Coustumier of the land and Duchy of Normandy …: “The houses of bandits, and perjurers must be burned down as testimony of their damnation, so that the memory of their felony gives an example of good and fear of evil to those who come after” [Ibid.]. If there is a danger of other houses catching fire, “the roofing and the timber must be taken and burned in a place where no damage is done to anyone else.” ([Ibid.; emphasis in the text] De Assise, XXIV). The Glosser notes: “It is no longer used in the present.” [Ibid., p. 317; emphasis in the text.]”

[44/-]

30

 

Penal theories and institutions

NOTES 1. At Rouen, it is a matter of an edict of May 1639 establishing a new duty taxing all dyed cloth at 4 sous an ell and deploying official inspectors of dyeing; the edict was adopted under duress by the Cour des Aides (see above) on 7 June 1639; see A. Floquet, Histoire du Parlement de Normandie, IV, pp. 597–598; B. Porchnev, Les Soulèvements populaires en France, pp.  438–439; M.  Foisil, La Révolte des Nu-Pieds normandes de 1639, pp. 158–163). At Caen the immediate starting point of the riot was an attack on the homes of a leather brander and a collector of the sol per livre on leatherwork; see P. Carel, Une émeute à Caen sous Louis XIII et Richelieu (Caen: Valin, 1886) pp. 28–29; B. Porchnev, p. 350; M. Foisil, pp. 268–269. A more general cause was the creation of a Cour des Aides (July 1638) and the rumor that it had to establish the gabelle in various Normandy élections; see P.  Carel, pp.  14–15. With regard to salt, see Histoire du Parlement de Normandie, IV, pp.  560–564; R.  Mousnier, Fureurs paysannes, pp.  104–109; Peasant Uprisings, pp. 95–100; B. Porchnev, pp. 433–435; M. Foisil, pp. 152–158. One of the triggers of the revolt was the Ordinance on the gabelle of December 1638 (definitively registered by the Cour des Aides in 1642), which in particular restricted the privileges granted to various regions of Normandy which to some extent enabled the inhabitants to escape the monopoly of the royal storehouses and procure salt without paying the gabelle. 2. See Diaire, pp. 401–402. See also the printed lines of the appeal “To Normandy” produced by the Nu-pieds: “It is he [Beaupré], he cannot deny it / who created the gabelle / and the tax on paper” (p. 416). Jean Fortin, sieur de Beaupré, a trésorier de France, councilor of the Rouen Cour des Aides, was a “financier” who was responsible for creating the élection of Saint-Lô and had a hand in the sale of offices in that élection. Although he was in fact worried about a possible uprising and went to the King to beg for annulment of the gabelle, a rumor nevertheless made him out to be a “partisan”, responsible for establishing the gabelle. He had to flee Normandy to escape the revolt; see B. Porchnev, Les Soulèvements populaires en France, pp. 345–346; R. Mousnier, Fureurs paysannes, pp. 107–108; Peasant Uprisings, pp. 99–100. 3. The cours des Aides dealt with various disputes, both civil and criminal, concerning direct and indirect impositions (tailles, aides, gabelles, various duties), disputes over tax farms and tax exemptions (nobiliary privileges, for example), as well as crimes regarding taxation. See F. Lot and R. Fawtier, Histoire des institutions françaises au Moyen Âge, vol. II: Institutions royales (Paris: PUF, 1958) pp. 279–284 (regarding the Middle Ages); G. Zeller, Les Institutions de la France au XVIe siècle (Paris: PUF, 1948) pp. 293–294 (on the sixteenth century) (BNF). 4. The “seigneurial agents”, or ministeriales, are in origin those who managed the estate on behalf of the seigneur: their main function was to collect dues and supervise the carrying out of services the tenants owed to the lord. They were, for example, the “villici” (mayors or intendants) and prévôts, but also a whole series of intermediaries who intervened in the levying of dues. See, for example, M. Bourin and P. Martineq Sopena,

 

1 December 1971 

Pour une anthropologie du prélèvement seigneurial dans les campagnes médiévals, vols. I and II (Paris: Publications de la Sorbonne, 2007). Regarding the history of these seigneurial agents and justices in the Middle Ages and modern times, Foucault bases himself above all on: A. Allard, Histoire de la justice criminelle au seizième siècle (Gand: H. Hoste / Paris: Durand & Pédone / Leipzig: Alphonse Durr, 1868); G.  Duby, “Recherches sur l’évolution des institutions judiciaires pendant le Xe et le XIe siècle dans le sud de la Bourgogne”, Le Moyen Âge, vol. 23, 1921; G. Fourquin, Seigneurie et Féodalité au Moyen Âge (Paris: PUF, 1970); F.-L. Ganshof, “Étude sur l’administration de la justice dans la région bourguignonne de la fin du Xe au début du XIIIe siècle”, Revue historique, vol. 135 (2), 1920, p. 13 sq.; B. Guenée, Tribunaux et Gens de justice dans le bailliage de Senlis à la fin du Moyen Âge (vers 1380–1550), Publications de la Faculté des Lettres de Strasbourg, fasc. 144, 1963; F. Lot and R. Fawtier, Histoire des institutions françaises au Moyen Âge, vol. I: Institutions seigneuriales (Paris: PUF, 1958) (BNF). 5. The bourgeois militias are linked to the right and duty of towns to defend themselves: the inhabitants had to keep watch over their gates and walls, and restore order in the event of riots. Some trace them back to the communal militias of the twelfth century (Bouteiller), others (Babeau) to the sixteenth-century watch, reorganized on a military model, with control organized by quarters. On the bourgeois militias, see A. Babeau, La Ville sous l’Ancien Régime, vol. II (Paris: Didier, 1884) p. 21 sq., and, in particular at Rouen, H.  Bouteiller, Histoire des milices bourgeoises et de la garde nationale de Rouen (Rouen: Haulard, 1850) (BNF). For a more recent synthesis, see, for example, L. Coste, “Les milices bourgeoises en France” in Jean-Pierre Poussou, ed., Les Sociétés urbaines au XVIIe siècle (Paris: Presses de l’université Paris-­Sorbonne, 2007) pp. 175–190. 6. On the parlements, see below lecture of 23 February 1972, pp. 174 [209/13]–175 [211/15] where Foucault returns to their creation and development. The Paris Parlement was fully constituted at the beginning of the fourteenth century, but it is not until the sixteenth century that the Rouen Parlement is instituted (by an edict of 1515), one of the eleven provincial parlements existing at the time of the Nu-pieds revolt. The provincial cours des Aides (see above, note 3) were subsidiaries of the Paris Cour des Aides instituted at the beginning of the fourteenth century; the first provincial court was established in Languedoc at the beginning of the fifteenth century and a second, at Rouen, under Charles VII. In several other regions the functions of the Cour des Aides was exercised by the parlements. For the history of the provincial parlements, see, for example, J. Poumarède and J. Thomas, eds., Les Parlements de province: pouvoirs, justice et société (Toulouse: Framespa, 1996). On the présidial, see below note 10. 7. Diaire, p. VII: “It was armed justice, in the person of Chancellor Séguier, that Louis XIII, that Richelieu wanted to demonstrate to long-rebellious Normandy” (emphasis in the text). 8. See above, note 6. To the extent that they derived from the Paris Parlement, itself an emanation of the Curia Regis, of the King’s court, the parlements took themselves to be emanations of his sovereign power. In theory, all the parlements together formed just one and the same body enabling the king to exercise his sovereign justice over the whole of the kingdom. See G. Zeller, Les Institutions de la France au XVIe siècle, pp. 147–148. 9. Regarding the prévôts, Foucault relies upon G.  Zeller, pp.  166–167. See also F. Lot and R. Fawtier, Histoire des institutions françaises au Moyen Âge, II, Institutions roy-

31

32

 

Penal theories and institutions

ales, pp. 141–144; Y. Bongert, Recherches sur les cours laïques du Xe au XIIIe siècle (Paris: Picard, no date [1949], republished L’Harmattan, 2012) pp. 150–152, for the earlier period (BNF). The prévôts (“praepositi”) were first of all seigneurial agents responsible for administering a châtellenie before designating more specifically royal agents. They represented the king as much from the administrative and financial as the judicial point of view. Their roles were nonetheless limited, in particular after the institution of the baillis at the end of the twelfth century. There was regular rivalry between prévôts and baillis, or sénéchaux, and their respective jurisdictions were not precisely fixed until the edict of Crémieu (1536). The prévôts could also hear, in the first instance, any matter not concerning the gentry and, in appeal, civil cases judged by the seigneurial tribunals. They also had general administrative competence in police matters (occupations, markets, etcetera). 10. On the présidiaux, see E. Laurain, Essai sur les présidiaux (Paris: Larose, 1896); G.  Zeller, Les Institutions de la France au XVIe siècle, pp.  175–177; more recently, C. Blanquie, Les Présidiaux de Richelieu: justice et vénalité, 1630–1642 (Paris: Christian, 2000); C. Blanquie, Les Présidiaux de Daguesseau (Paris: Publisud, 2004). The présidiaux, created by Henry II by two edicts of 1552 and 1553, were a judicial institution intermediary between the bailliages or sénéchaussées and the parlements, established in the most important sénéchaussées. Their establishment aroused strong hostility, on the part of the parlements in particular, deprived of their profit from a part of their appeal jurisdiction. They exercised a civil jurisdiction of last resort for disputes below 250 livres and with right of appeal to Parlement (non-­suspensive) for matters between 250 and 500 livres. They also had competence in criminal matters, but only in the first instance. It was a court for management of small conflicts and above all a way for the Crown to create new offices and procure money. 11. “And as the functions of Justice and Police are often incompatible, and of too great extent to be exercised by a single officer in Paris, We have resolved to divide them.” This is the edict of March 1667 creating the office of “lieutenant of police” in Paris, which made a clear distinction between litigious and distributive justice and the function of police, which was clearly defined for the first time. For more details on this edict and its context, see V. Denis, “Édit de mars 1667 créant la charge de lieutenant de police de Paris”, Criminocorpus (online), “Histoire de la police”, article posted 1 January 2008. URL: http://criminocorpus.revues.org/80; DOI: https://doi.org/10.4000/criminocorpus.80. 12. Foucault is referring to the reform of justice undertaken by Charles VII through the ordinances of 1446 and above all 1454 (Montils-lès-Tours) which organized the competences of Parlement and ordered the compiling of customs; then by Louis XII in 1499 (Ordinance of Blois), which notably defined ordinary and extraordinary procedure. The other dates correspond to Ordinance of Villers-Cotteret (1539) and the Ordinance of 1670, both devoted to criminal procedure. Regarding these ordinances, Foucault relies especially on: A. Chéruel, Histoire de l’administration monarchique en France, vol. I, pp. 151–152; A. Esmein, A History of Continental Criminal Procedure, with special reference to France (Boston: Little, Brown & Co, 1913) pp. 148–151 (BNF). 13. In the next course of lectures Foucault will clarify the way in which the new repressive system (police, confinement, etc.) established in the seventeenth century was taken up by the bourgeoisie at the end of the eighteenth century in order to maintain capitalist profit. See La Société Punitive; The Punitive Society, and Surveiller et Punir. Naissance

 

1 December 1971 

de la prison (Paris: Gallimard, “Bibliothèque des Histoires”, 1975; English translation by Alan Sheridan, Discipline and Punish. The Birth of the Prison (London: Allen Lane, 1977). Meanwhile, his position of the subject will have changed somewhat, as he explains in an interview on penitentiary confinement in 1973: “it is to correct a little what I said” when “I was talking in particular about the seditious ­common people (plèbe). In fact, I do not think the seditious plèbe is the fundamental problem, it is the fact that bourgeois wealth, due to the very necessities of economic development, was invested in such a way that it was in the hands of the very ones who were responsible for producing it.”; DÉ, II, no. 127, p.  438; “Quarto”, I, p.  1306. For the hypothesis that the main function of the repressive apparatus (dispositif) was to create contradictions between the delinquent plèbe and the proletariat, Foucault substitutes the idea that, from the eighteenth century, bourgeois capital being threatened by a whole series of traditionally tolerated illegalisms, a general system of surveillance and penal repression was established to make these illegalisms impossible. This latter hypothesis is formulated in La Société Punitive, pp. 143– 145 and p. 155, n.2; The Punitive Society, pp. 141–143 and p. 152, n.2. 14. The duc d’Épernon was responsible for the suppression of the revolt in Guyenne. See B. Porchnev, Les Soulèvements populaires en France, p. 155, n.2. 15. See B. Porchnev, p. 321: “The struggle against the tax yoke had to take a welldefined form. To confront the authorities, the Nu-pieds had to organize themselves like a real army”. Or again, p. 328: “the embryo of a power which was opposed to the official power.” On this idea of another power and its organization, see ibid., pp. 327–348. The insistence on the fact that the Nu-pieds constitute another power and are engaged in a struggle for power is close to some of Foucault’s comments in his interview with school students entitled “Par-­delà le bien et le mal” and published in Actuel, no. 14, November 1971 (DÉ, II, no. 98, p.224/“Quarto”, I, p.  1092; English translation Donald F.  Bouchard and Sherry Simon, “Revolutionary Action: ‘Until Now’” in Michel Foucault, Language, Counter-Memory, Practice. Selected Essays and Interviews, ed., Donald F. Bouchard (Oxford: Basil Blackwell, 1977) p. 219: official knowledge presents popular movements as arising “from famines, taxes, or unemployment; and they never appear as the result of a struggle for power, as if the masses could dream of a full stomach but never of exercising power”. 16. See B.  Porchnev, pp.  325–327; R.  Mousnier, Fureurs paysannes, pp.  111–112; Peasant Uprisings, pp. 102–104. Jean Quétil, squire of Ponthébert was a Norman noble sometimes presented as one of the instigators of the Nu-pieds revolt and held by some reports to be their leader. He will dissociate himself from them from September 1639 and flee to England. He was later condemned in his absence to torture on the wheel. 17. Foucault here takes up one of Porchnev’s theses (p.  29 sq.) concerning popular revolts in the seventeenth century, according to which bourgeois historians of the nineteenth and early twentieth century ignored these revolts and focused on “the Great Century” and the parallel rise of the bourgeoisie and absolutism. Ironically, according to Porchnev, one of those responsible for this reading is Augustin Thierry, who, however, would not have rejected Foucault’s formula: “what can we know about this other power? Not much, given the nature of the documents (all coming from the other side)” (see below). 18. Mémoires du président Bigot de Monville sur les séditions des Nu-pieds et l’interdiction du Parlement de Normandie en 1639 (Rouen, C. Métérie, 1876) p. 167. Foucault puts this sentence as an epigraph in his files, on a special sheet: “note: Bigot de Monville, end of

33

34

 

Penal theories and institutions

chapter in which he recounts the battle of Avranches: “thus this rabble which had held the countryside for several months was dispersed in a moment. Their standard was an anchor sable in a vert field”. 19. See, for example, the appeal “To Normandy”, in Histoire du Parlement de Normandie, IV, p. 586: “after no longer having anything at all … we are in desperate straits”; see more generally pp. 580–590 where various documents left by the Nu-pieds are brought together; see also B. Porchnev, Les Soulèvements populaires en France, pp. 336–348. 20. See the list of names in the appeal “To Normandy” and above all the “Manifesto of the high and indomitable captain Jean Nudpiedz, general of the army of suffering” (Histoire du Parlement de Normandie, IV, pp. 583–585), which takes aim at the “people enriched with their taxes”, the “partisans”, “the gabeleurs, true tyrants of Hircanie”. 21. Diaire, p. 400: “Thus, the name Jean Nudz-­piedz was given to a wretched poor young salt-worker who bore that fine description because he usually went barefoot on the sand of the seashore”. 22. It is called the army of the Nu-pieds “to signify … that what they were granted had reduced them to the condition of having to go without shoes”, Mémoires de François de Paule de Clermont, marquis de Montglat (coll. Petitot, 2nd series), vol. XLIX, p. 261; or again, “in order to show their beggary by their name”, Histoire du roy Louis XIII, composée par messire Charles Bernard (Paris: chez la Vve N. de Sercy, 1646), Book XII, p. 437. These quotations and references are taken from the Histoire du Parlement de Normandie, IV, p. 580. 23. See the appeal “To Normandy”, pp. 585–586: “My dear land, you can take no more // what good has it done you being loyal?”, and p. 416: “if you do not preserve your charters, Normans, you have no heart at all”. 24. See Histoire du Parlement de Normandie, IV, pp. 580–590 where this is described in detail; Diaire, p. 428; B. Porchnev, Les Soulèvements populaires en France, pp. 327–336, which expounds at length on this. 25. See Diaire, p. 440; Histoire du Parlement de Normandie, IV, pp. 580–581. 26. Thus an ordinance of Jean Nu-pieds found at the gates of Saint-Lô: “In the name of the general NU-PIEDS it is commanded to the parishioners … to furnish themselves with arms and munitions of war, for the service of the KING and the maintenance of his Estate”; Histoire du Parlement de Normandie, IV, p. 589. See below, note 29. 27. A transparent reference to E. H. Kantorowicz, The King’s Two Bodies: A Study on Medieval Political Theology (Princeton, NJ: Princeton University Press, 1957) regarding the King’s “political body”. The analysis here is very close to Porchnev’s: “the very style of the orders, imitating that of royal orders, had to prove that they issued from a real authority which had replaced the old one”; Les Soulèvements populaires en France, p. 332. In a general way all this section is inspired by Porchnev, pp. 320–348. 28. Diaire, p. 401: “Many of these printed commands were seen, and all countersigned by the said Morel, under the name Des Mondrins, and sealed with the seal on which are seen two bare feet on the horns of the crescent, with this device: HOMO MISSUS A DEO”; see also Histoire du Parlement de Normandie, IV, p. 582. 29. This is the order of general mobilization, Histoire du Parlement de Normandie, IV, pp. 589–590: “In the name of general NUD-PIEDS, the parishioners and inhabitants of this parish, of whatever quality and condition they may be, are commanded to furnish

 

1 December 1971 

themselves with arms and munitions of war for the service of the KING, and maintenance of his Estate, in two weeks, in order, at the first command or warning of the said seigneur, to go, in good order and style, to the place to which they will be ordered, for the defense and freedom of the fatherland oppressed by partisans and gabeleurs; enjoined also to not suffer traitors in their parish, nor unknown persons to pass through, without warning the said seigneur, or any of his officers, promptly; and, failing this, the delinquents will be taken and punished as accomplices and members of the monopolists; and curates and vicars are enjoined to have this read. // Given to our field, the calends of the month of August. // And sealed with the seal of our arms. // By my said Seigneur, // Signed, LES MONDRINS” 30. On all these points, see Histoire du Parlement de Normandie IV, pp.  647–649; B. Porchnev, Les Soulèvements populaires en France, pp. 321–323. See also Diaire, p. 414: “The general Jean Nudz-Piedz strongly prohibited all soldiers, on penalty of death, from exercising any act of hostility without express order … Following which the sieur Delaporte Jouvinière, lieutenant of the prévost, was obliged to condemn to death one of the soldiers, who was, in fact, hung as an example.” 31. See B. Porchnev, pp. 331–332. 32. Ibid., pp. 328–329. See Diaire, p. 430: “The 18th of the said month, those from Avranches, Cérences, and Coustances went to Gavray, where there was a fair, armed with muskets and pikes … saying that no duties need be paid, that the fair was free of all … telling them that they came to deliver them from the monopolists” (emphasis in the text). 33. On all these acts, see B. Porchnev, Les Soulèvements en France pp. 330–331, which lays great stress on “the imposition of special kind”, the contributions and fines “in the first place of enemies of the people, finance agents, State employees, the wealthy”. The case of Chenevelles is described in Diaire, pp. 427–428. 34. See Diaire, p. 305. On the punishment of the claie, see, for example, P.-F. Muyart de Vouglans, Institutes au droit criminel, ou Principes généraux en ces matières (Paris: Le Breton, 1757) pp. 409–410 (BNF). This punishment was normally inflicted on the cadaver of a criminal guilty of (divine or human) lese-majesty, dueling, killing oneself, or rebellion against open justice. “The cadaver is dragged on a rack, face down, through the streets and crossroads of the place where the judgment of condemnation was given, after which it is hung on a gallows and dragged to the rubbish dump”. 35. Diaire, p. 354: “one named GORIN, son of a Rouen artisan, was the leader, who, with a list of the houses which had to be pillaged, led the rebels to each of the said houses, carrying a guidon bearing the king’s arms; and when he arrived at the house to be pillaged, he struck on the door with some tongs he had in his hand, had the guidon placed in front of the house, indicated to the rebels that this was where they had to work; and said to them that this was the day on which all the monopolists had to be exterminated” (emphasis in the text).

35

three

15 DECEMBER 1971 An “armed justice”: the repressive tactic as series of circumstantial operations; deferred doubling of the military by the civil: chronological gap between slow intervention by the army and the entry on the scene of the civil power. ~ Analysis in terms of relations of force: formation of an armed repressive apparatus, distinct from the body of the army, controlled by the civil State and not by the privileged ~ Analysis in terms of politico-military strategy: separation of town and country, of the people and bourgeoisie enabling the violent repression of popular strata, then a punitive treatment of the privileged and members of the Parlement. ~ Analysis in terms of manifestation of power: dramatization of power hiding the strategy pursued, designating the rebels as enemies of the king, therefore subject to the custom of war, and not as civil delinquents. Each performs his role, and the Chancellor the role not of victor, but as dispenser of justice who discriminates and differentiates between the good and wicked.

The Repression One is hard put to define it. –– Severe or lenient? –– with the arrival of the army, summary executions, those hung swinging for a long time along the Caen promenade, gallows with four arms1 –– and yet even the exceptional tribunal established by Séguier seems to have been lenient. Numerous acquittals. –– From […],* Séguier himself proposes the abolition of penalties.2 –– Unrestrained or legal? –– unrestrained in certain respects: the execution of Gorin;3 –– legal: great diligence of the authorities in observing certain rules.

* The date is left blank in the manuscript.

[45/1]

38

 

Penal theories and institutions

In fact what is important is not to define it, but to analyze the repressive tactic brought into play.* Tessereau, Chronologie de la Grande Chancellerie (1676), says of Séguier’s journey: “The king sends his armed justice”.4

[46/2]

We find this theme of an armed justice formulated quite explicitly in the texts of Séguier: –– in his harangues addressed to the Normandy authorities. –– to the P[remier] P[résident] Faucon de Ris, who came to Gaillon to ask his indulgence in favor of the Parlement, he replied that he “was sent to the Province to dispense justice with arms”.5 –– on entering Rouen, Séguier declares to the lieutenant géneral of the bailliage, Godart (maire perpétuel), that “they cannot ignore the King’s just indignation, owing their position to his arms; but that they are employed only to enforce his justice”.6 Certainly, neither the idea nor the practice is new. –– vigor et justitia in the political theory of the M[iddle] A[ges]; –– in the kingdom, the king’s army exercises a function of justice. But what is important is the way in which the relationships between [47/3] the two apparatuses are defined, or rather the way in which this apparatus of repression, which contemporaries themselves described as “armed justice”, functioned. Comment† – This apparatus of armed justice was complex, heterogeneous; anyway, it was episodic and transitory; and even though we find it at work several

* At the top of the following sheet [46/2], Foucault noted, and then crossed out this subtitle: “1. Armed justice”. † The manuscript contains two comments marked “A” and “B”, of which the second (see next page footnote †) is interrupted and crossed out. We give below the text of  the  first comment, although the  first two paragraphs are also crossed out in  the  manuscript. The  crossing out of  the  two comments does not appear to  have been done at the  same time (two different pens are used). Moreover, Foucault had removed the  “s” from  the  first word “Comments” and  the  “A”, which attests that he kept this first comment before removing it.

  15 December 1971 

39

times in the century (with a certain number of variants), each time its appearance was linked to exceptional circumstances. – It remains nonetheless that it brought into play a number of strategies, types of functioning, and power relations which persisted and remained constant. And it is in order to execute all these strategies, fulfill these functions, and fix these power relations that the institutions which constituted the “State repressive system”* were established. “Armed justice” was the circumstantial, but always systematic response which determined the points to which the State repressive sys- [48/4] tem, endowed with permanence, had to be hitched. Armed justice is not an institution, it is an operation: a series of operations which ran through, and up to a point disrupted, the existing institutions; but different episodes or aspects marked the point of formation of still inexistent institutions or the point of crystallization of institutions still insufficiently formed. Hence the importance of these operations of armed justice.† ‡

The army before justice

The first aspect of this event is the chronological gap between the arrival of the army and arrival of Justice on the scene, Reminder of the chronology:7 –– Gassion is sent at the beginning of November. He occupies Caen on the 15th. Battle of Avranches, December 17. Enters Rouen, December 31, two weeks later.

* The manuscript had: “new State repressive system”; Foucault crossed out the word “new”. † The two following paragraphs are (weakly) crossed out: B. Second comment In the movement of these episodes or stases, the operation of armed justice unfolds at three levels: - at the level of a politico-military strategy it involved dividing the forces allied against the public power, of undoing their alliance, of playing them off against each other, of relying on some in order to repress the others, and of paying the price of these alliances …. ‡ Subtitle preceded by the figure: “I” (which has been removed due to the absence of the subdivision mark “II”).

[49/5]

40

 

Penal theories and institutions

–– Séguier leaves December 18, he is at La Barre on the 19th, Pontoise, the 20th, Rosnay, the 21st, Gaillon, the 22nd. He establishes himself there. He does not join Gassion’s army; he lets it return to the countryside, marking time at the town gates; he finally lets it establish itself at Rouen before making his entry there. There are two striking things in this chronology: (1)  that after having occupied Caen and defeated the Nu-pieds, the army took so much time establishing itself at Rouen, where there had been no disturbances for a long time; (2) that justice had joined the army, but very slowly, that is to say: [50/6] –– on the one hand, that the repression was not exclusively military, and that it was thought necessary to double it with a civil or political repression; –– on the other, that for a relatively long period the army was left alone; that the two actions were kept separate until the beginning of 1640. a/ These two facts (intervention by the army; delayed doubling of the military by the civil) express a certain relation of forces at the level of the central power and also at the level of the province. 1 – Province: – In 1635, in Aquitaine, some very serious disturbances had to be suppressed by the governor himself, with his own troops, or those he possessed on the Spanish border.8 The mechanisms and forces of repression brought into play were internal to the province. […]* – [In Normandy],† it is necessary to call upon troops from outside. War had emptied the country. Owing to this, the function exercised by the army, that of police, of keeping order, appears quite clearly; force of dissuasion and political repression. – Now just when there are insufficient troops to ensure order on the [51/7] spot in the province, the members of the Parlement, the nobles, the bourgeois of the towns no longer ensure the flow of taxation. Thus, [it] was quite apparent that centralization of rent through the intermediary of the State and its agents could only be ensured by the

* Illegible † The manuscript has: “Here”.

  15 December 1971 

41

local presence of an instrument of armed constraint. Fiscal pressure could only be maintained by violence. This was no doubt known since the Middle Ages: that this armed force must exercise its pressure. But what is revealed now is that: –– the great feudal aristocracy (linked to the defense of the State which ensures the collection of the centralized rent) no longer has the strength to ensure order locally; –– a specific armed force is therefore needed, which will have to exercise this pressure on two fronts: –– the poor, –– the privileged. The incompatibility of war with feudal taxation is also revealed (centralized taxation enables the State to wage war, but war which drains troops from the province prevents the fiscal levy—[which], as a result, makes war necessary). Hence the need for an apparatus of repression –– distinct from the army, –– armed like the army, –– coming under the State (and not the privileged). 2 – At the level of the central power, if the intervention of an external [52/8] armed force expresses a certain relation of forces in the province, the intervention of a civil power of repression expresses a certain relation of force at the level of the central power. – Actually, in October and again in November, the central power had congratulated the Rouen Parlement for its courage in bringing the riot under control.9 Whether this is sincere or not is not important: these congratulations showed that the central power counted on the Parlement to take part, and possibly take the lead in the repression. It under-estimated the conflict between financiers and members of the Parlement (the latter were then refusing to re-establish the offices).10 – The financiers intervened at this point. Later the members of the Parlement complained of having been denounced by the financiers driven out of Normandy (in particular by Le Tellier).11 One thing is certain, which is that between the members of the Parlement who assured the king of their loyalty and the financiers who attacked the members of the Parlement, it was the financiers who prevailed.

42

 

Penal theories and institutions

And on December 14 the king decided to send Séguier and the representatives of civil power, and to place the army under his command. [53/9] Which has a double significance: –– there must be civil leadership of the armed force whose function is the maintenance of order, –– and this leadership is no longer carried out by the old bodies of power, but by a State apparatus (no longer controlled by the holders of fiefs or offices, but) by the financiers. b/ On the other hand (and at another level), this double intervention, the gap between intervention by the army and intervention by the civil power, the slowness of both, follows the dictates of a politico-military calculation (strategy). 1 – The great danger which appeared in Aquitaine in 1635 was collaboration between peasant and urban movements. This collaboration meant that the urban revolts got fresh supplies from the peasants, and that when they were threatened in open country, the peasants had fortified points of support in the towns.12 2 – The central power wishes to avoid this conjunction [in Normandy], hence the alternation of slowness and speed. –– Gassion immediately throws himself on Caen in order to have a firm point of support; –– then he spreads out in the countryside in order to prevent the mass recruitment of peasants (the Nu-pieds had scarcely 4000 to 6000 [54/10] men under arms, but they could raise many more).13 –– And when they came together at Avranches, he attacks them and defeats them beneath the walls of the town. 3 – As for Rouen, “great town of the kingdom” where there is a center of plebeian revolt and opposition of the bourgeois and “privileged”, it was necessary: –– to isolate it from the other outlying movements (peasants), –– give an example of urban punishment (Caen), and especially, –– keep well-hidden from the bourgeois and members of the Parlement that one was going to punish them. To do everything as if the repression was only going to be military and not fall on the people, so as to allow time for the privileged to rally to the central power and serve as

  15 December 1971 

43

voluntary point of support for a repression which was going to envelop them as well. This is why Gassion alternates occupation of the towns with mopping up in the countryside. It is why, finally and above all, the army is left to exercise violent repression on the popular strata; and the treatment the privileged will be made to suffer is carefully hidden from them; they are left in [55/11] the uncertainty of fear and hope; the interdiction of Parlement, of the Cour des Aides, and of the municipal assembly, as well as the annexation of estate and patrimonial revenues to the royal estate will be hidden from them until January 3 (until the occupation of Rouen).14 In this politico-military tactic we see clearly the emergence of the lines of separation which will be followed by the State repressive apparatus in the future: ( 1) line of separation between town and country; (2) line of separation between the poorest (the humble folk) and the better-off classes (the privileged). With regard to these lines of separation, it should be noted: –– that, in the first place, they are, of course, different from the lines which traditionally separate the instances of the penal system, and which separate penality for the nobles from penality for ecclesiastics and penality for the third [estate]; –– that they retrace the axes of fragility of a feudal society in the process of transformation into a capitalist society and transform them [56/12] into a front of separation. Town–country contacts and the people– bourgeoisie coalition are dangerous for the feudal lords (who wish to keep the taxation on which they live) as well as for the financiers and entrepreneurs (who, on the one hand, are financed on the basis of this same tax levy and, [on the other,] find in it the guarantee of low wages). We see that the system of repression that guarantees the maintenance of feudal rent (over the last one hundred and fifty years of its existence) could, to a large extent (and through many modifications) be taken over by the State apparatus of bourgeois society.

44

 

Penal theories and institutions

In other words: the danger to feudalism represented by plebeian town–country contacts and an urban (people–bourgeois) coalition made a certain system of repression necessary (in the seventeenth–eighteenth century). It was only lifted during the short moment when the bourgeoisie needed this contact and political coalition to liquidate the remains of the feudal regime and its forms of tax levy. But it had to reestablish it immediately (in new, much more coherent and much more manageable forms) for it was under the shelter of this double political separation (town/country, people/bourgeoisie) that capitalism developed in the interstices of feudalism; and it still needed this double separation.15 c/ This double intervention, and the delay of one with respect to the [57/13] other, can be analyzed at a third level (the first: relation of forces,*(i) which determines it; the second: politico-military strategy, which regulates it). The third level comprises the forms, hierarchy, circuits, and relations of power which are manifested in it. [These are, perhaps, the three levels at which a political event can be analyzed: –– production of a relation of force*(ii) –– strategic regularity –– manifestation of power. Let’s say that it can be grasped at the level of its conditions of possibility; of the rationality of the struggle which appears in it; of the stage on which it occurs.]† How does power manifest itself in this episode (the two interventions and their chronological gap)? What power relations are revealed? Power relations which –– transcribe, both emphasize and displace the relations of force which underpin them; –– further and hide the strategy pursued.‡ *(i and ii) Conforming to the manuscript in both cases. † Passage presented in brackets in the manuscript. ‡ A paragraph crossed out follows: As such [the] manifestations of the power relation reduplicate the strategy (they form a further part of it and have their effect on the relation of force, allowing its

  15 December 1971 

45

So let us follow the Normandy events at the level of the manifestations [58/14] of power. And in the forms through which they manifest themselves: –– who represents power (what individuals, what constituted bodies and on what grounds)? –– according to what hierarchy do they represent it (what schema of domination and submission does power give in representation)? –– at what point, place, and circumstance does power manifest itself (on what stage and in order to represent what scene)? –– and in these scenes of manifestation of power, what are the roles, what gestures are made, what discourses are delivered? What is said here, or rather what is it that is manifested here? For these ceremonies, rituals, gestures don’t mean anything. They do not fall under a semiology, but under an analysis of forces (of their interplay, their strategy). The marks that appear here must be analyzed not [through] a semiotics of the elements, but in a dynastic of forces.16 [59/15] What do sending the army and the delay of the civil power demonstrate? 1 – First of all that the rebels have become enemies of the king; that they have excluded themselves from the civil body constituted by subjects; that they therefore cannot benefit from the protection and privileges recognized by this order. They are therefore not delinquents who have committed a crime within the civil order and to whom both the protection and the rigor of the law must be applied. They are enemies to whom one applies the customs of war. This is why the civil order did not appear in this first stage. Throughout the end of the year there will be only the king and his enemies confronting each other, one army against another, victors against the vanquished. The civil order will appear only with the new year.

renewal and acceptance as institution). The signs, ceremonies, rituals, all the visible forms of power are not pure and simple redundant ‘expressions’ and translations: they are paths opened up by the relations of force and the reduplication of the politico-military strategies.

46

 

Penal theories and institutions

Hence the exclusively military character of the manifestations of power in November and December. Gassion enters Caen as a conquered town. “At half a league from Caen, he marched his troops in order, briskly, and on entering the town seized the main entrances and assigned every soldier a house in which he had to billet” (Bigot de Monville).17 The question of billeting was important throughout the repression [60/16] in Normandy. The custom was that within the kingdom the army would respect the civil order, and that it would not install itself in the homes of those who by birth or function were exempt from the army’s taxes (nobles, members of the Parlement, officers, clerics). But this rule was not applied and the army was billeted everywhere, as if its presence was not bound by any of the rules of the civil order.18 Those prisoners whom Gassion considered to be leaders were dealt with as enemies of the king. “Bras-nus (Bare-arms)”, and four others, were subject to the spectacular penalty (supplice) of the wheel (as for crimes of lèse-majesté), but in addition their bodies were quartered and exposed at the town gates:19 this ritual supplice was for those who had betrayed the king, gone over to the enemy, surrendered their town and defended it against the king. So, in the first stage the land was punished by the army without justice, as the king’s enemy. In truth it is not the land, but only a part of it: the countryside and peasants. Rouen, the major urban center, had to be dealt with differently. 2 – Now, while the army is unrestrained by justice, the civil power [61/17] makes a highly theatrical display of its delay, its distance, and its absence. It is in Paris, or, if its representative is on its way, it is taking its time. Séguier stops at Gaillon, at the gates of Normandy, while Gassion is at the gates of Rouen, but not entering.20 The stage is empty, or rather the two forms of power (the army and justice) arrange an empty space and a pause so that the forces of the adversaries they have come to suppress show themselves, divide, break up, forge new alliances, perform the ritual actions of submission, denounce and betray each other.

  15 December 1971 

47

And this is how we see the members of the Parlement, the échevins and their mayor, the archbishop of Rouen come forward on the stage, on the scene of power,21 arrayed in their insignia and delivering their speeches, and who—each for their part—take up the role that the political ritual assigns them but, in this role, defend their interests, offer alli- [62/18] ances, bargain their support and their submission. In a way, this theater is a continuation of the play of forces and strategic calculations. But with this important double modification: –– on the one hand, the game continues in the terminology, the gestures, the formalities of the political institution (that is to say against the background of an essential acceptance of this institution); –– on the other hand, the character who would represent or speak for the essential element in the field of forces and the determinant element in the play of strategies is absent from the stage. The (peasant or urban) popular forces are not present on this stage of political theater. This transcription within an accepted political institution, and this exclusion of the main element of the forces and strategies –– characterize this theater –– and are something quite other than the simple expression of the opposing forces within it. But it is this difference that enables this theater to have, in the hands [63/19] of certain forces, an effect on the overall confrontation of all the opposing forces. What takes place in this theater in which the characters are the First President of the Parlement, the Mayor, the Archbishop, the (absent) King, the (silent) Cardinal, and the slowly advancing Chancellor? Each plays his role (the one that seems most advantageous or appropriate to him); but power, which holds its troops in reserve in the wings, constrains all of them to modify their roles, and gradually to say the things and perform the actions that it demands. a/ The Mayor perpétuel and the Archbishop22 first of all bring the general and collective submission of the town, the undertaking to henceforth be loyal to the king, the promise to follow the will of the king blindly, without claiming any right.

48

 

Penal theories and institutions

Godart du Becquet (at Gaillon December 22): he assures the Chancellor of the loyalty of the Rouen inhabitants “in the service of the King, whose will they will obey, without them having to be forced to do so by troops; that the king could only desire acknowledgement of their fault, that they ask for pardon and that they satisfy those who had suffered injury”.23 Shortly before, Harlay had written to Richelieu: “Whenever it pleases [64/20] your eminence to deign to prescribe a conduct to Rouen, it will keep it inviolably; and the cross will march at the head of the flock.”24 This general and apparently spontaneous submission is wanted by the civil power since, precisely, it is halted at the gates of Rouen. It is certainly the first condition for the requalification of the inhabitants and the King’s subjects. Need for a voluntary submission. Hence Séguier’s irritation when the Archbishop proposes to come before him, wearing his miter, with all the people of the town kneeling before him. His irritation before the Archbishop’s sermons who comments on Haggai “[veniet Desideratus cunctis gentibus]”,*25 and then Jeremiah. For these rituals and texts are addressed in the name of a people to the foreigner to whose power it will fall.† On this stage the Archbishop’s attitude is a misinterpretation, since by offering the submission of the people it qualifies the king as enemy (or savior), whereas for the civil power it is a question of the people being qualified as subject by their submission. [The Archbishop’s calculation]‡ b/ This is why the representative of the State responds to this sub- [65/21] mission that he calls for as if he did not understand. He wants the submission, but he does not want to occupy either the role of the enemy to whom one submits or that of the sovereign who pardons those who submit. Power wants to be recognized in the role of the one who separates and differentiates, who pardons some and not others, who depends on some and attacks others.

* The manuscript has: “veniat cunctis gentibus desideratus”. † The manuscript has in the margin: “and it limits the king to being either the sovereign desired by all peoples, or the enemy who will extinguish the little light that remains in Israel.”26 ‡ In brackets in the manuscript.

  15 December 1971 

49

[66/22] That is why Séguier replies … – To this, power invariably replies: There is no need for fear; but punishment is inevitable for the guilty. It is up to the civil power to distinguish between the good and the wicked, the guilty and the innocent. Séguier replies to Godart du Becquet: “The innocent have nothing to fear; only those who have failed will feel the effects of the King’s just anger and indignation.”27 Séguier replies to the First President: “The good will be rewarded and should fear nothing, and the wicked will be punished.”28 – And the reply of the notables and of the patriciate is not long coming. Who is good, who is wicked? –– Godart du Becquet tells Séguier that the presence of troops will weigh more on the “respectable people who had suppressed the revolt; and will enrich the humble folk who caused the disorder and revolt; the porters will profit from carrying the baggage of those accompanying the Chancellor.”29 –– The vicomte de Coutances to Séguier, at the time of his entrance: “the offense was not committed by the inhabitants of this town, the low populace is only its dregs and excrement, and it would not be the king’s justice to sacrifice, like another Jephte, what is most dear to him in this town.”30 *

50

 



Penal theories and institutions

NOTES

1. It is actually Avranches: see Histoire du Parlement de Normandie, IV, p.  659: “Gassion will enter Avranches as victor and his troops, infuriated by such fierce resistance, will treat it as a conquered town. Some prisoners … were hung at once, on his orders, from the elms of the Promenade … Some gallows, some wheels were hastily erected and justice meted out, at once, to some arrested insurgents”. The gallows with four arms was installed in the Avranches corn market on the orders of Séguier. See Diaire, p. 307. 2. See Diaire, p. 444: “Report concerning the abolition of the Nu-pieds of the diocese of Avranches”. The report is not dated, but it is earlier than May 1641 when the king proclaims the abolition. 3. On the execution of Gorin, see below, lecture of 12 January 1972, pp. 68 [82/2]– 69 [84/4]. 4. A. Tessereau, Histoire chronologique de la Grande Chancellerie de France (Paris: Pierre Le Petit, 1676), p. 387: “The revolt increasing every day instead of dying down, His Majesty resolved to send his armed justice”. 5. Mémoires du président Bigot de Monville, p. 204: “That he was sent to the Province to dispense justice”. This is Charles Faucon de Ris (died 1644), first President in the Parlement. 6. Diaire, p. 66: “they could not, in truth, ignore the king’s just indignation, owing their position to his arms; but that they are employed only to enforce his justice”. This is Arthus Godart, Councilor of State, mayor perpétuel of Rouen, and lieutenant of the town’s bailliage. 7. Jean de Gassion (1609–1647), field marshal, is described by Roland Mousnier, Fureurs paysannes, p. 119; Peasant Uprisings, p. 111, as “an old soldier who had taken part” from 1630 to 1632 “in all the wars of Gustavus-Adolphus, king of Sweden, and in all those of Louis XIII”. On Gassion, see H. Drevillon, “L’héroisme à l’épreuve de l’absolutisme. L’exemple du maréchal de Gassion (1609–1647)”, Politix, vol. 15, no. 58, 2002, pp. 15–38. On the chronology of events see above, lecture of 24 November 1971, p. 14, n. 3. 8. On the Aquitaine revolt in 1635 and its suppression, see B.  Porchnev, Les Soulèvements populaires en France, pp. 160–186. The suppression was secured by the duc d’Épernon, but Porchnev’s reading is more nuanced than Foucault’s: in the first stage the duc d’Épernon would have carried out a very moderate suppression (Porchnev even speaks of “inactivity”) for he lacked sufficient forces, could not call on the troops on the Spanish front, and dreaded the spread of the revolt to the whole of Guyenne (which was in fact what happened). Rather than suppression by arms, according to Porchnev the policy was rather one of withdrawals and concessions which ended up restoring a relative order. 9. See Histoire du Parlement de Normandie, IV, pp. 622–624. Thus, Séguier explains to the councilors Le Noble and Godart de Bracquetiut: “You can testify to MM. of the Rouen Parlement … that I thank them for the care they have taken on this occasion … I pray they continue as they have begun. I know that Parlement was very well employed here” (p. 623) and the King declares himself to be “very satisfied with the good duty that the Parlement has rendered in subduing the sedition” (p. 624).

  15 December 1971  10. See ibid., pp.  625–626. The delay in re-­establishing the offices irritated the King. The Parlement issued a decree simply re-establishing the offices on December 1, and solely for the old rights. It was, moreover, effective only four months later. 11. See ibid., 638–644. On the struggle between the financiers and members of the Parlement, see B. Porchnev, Les Soulèvements populaires en France, pp. 485–488. On the Le Tellier case and the fact that by his complaints “he had given rise to the effects which followed from the King’s anger”, see Mémoires du président Bigot de Monville, p. 108. 12. See B. Porchnev, Les Soulèvements populaires en France, pp. 165–166. 13. See M. Foisil, La Révolte des Nu-Pieds et les révoltes normandes, p. 181. 14. In reality the occupation of Rouen took place in several stages: Gassion entered Rouen with his troops on 31 December 1639; Séguier entered on 2 January 1640 and gave different severe responses to the members of the Parlement, of the Cour des Aides, of the Présidial, and to the officers of the vicomte who came to welcome and harangue him. According to Floquet, Séguier “knew the king’s hitherto secret declarations, which interdicted Parlement and the other bodies of the town” (Histoire du Parlement de Normandie, IV, p. 680). The various interdictions (of the Parlement, the Cour des Aides, of the maire perpétuel, and of Town Hall officers) were actually pronounced on January 3 (see ibid., pp. 683–687; Diaire, pp. 78–87). 15. See above, Lecture of 1 December 1971, pp. 32–33, endnote 13. These assertions echo a whole set of texts of the period in which Foucault stresses the fact that the main function of the penal system is to introduce contradictions or divisions between social elements, to avert the dangers linked to contacts (town–country and people–bourgeoisie in the seventeenth and eighteenth centuries, delinquent common people (plèbe)–proletariat in the nineteenth and twentieth centuries). The town/country split echoes moreover the debates of the time on the role of the peasants in the Chinese Revolution and in a whole set of contemporary struggles in the Third World (Vietnam, Cambodia, Latin America …). We recall that the classic works of Lucien Bianco on the subject, for example, are from this period (Les Origines de la révolution chinoise appeared in 1967), and that in French Maoist circles, alliance between the French peasantry and workers was debated (see, as examples, the appeal of the UJCML, “Comment la bourgeoisie française tente de s’allier le peuple des campagnes”, in 1968, which exhorted combat against the strategy of the bourgeoisie “to divide the people, in particular the workers and peasants”, and the experiment conducted by the UCFML in the French countryside from 1970, and which results in the publication in 1976 of the Livre des paysans pauvres by Maspero). In his discussion with the Maoists “on popular justice” (DÉ, II, no. 108, pp. 340–369/“Quarto”, I, pp, 1208–1237; “On Popular Justice: A Discussion with Maoists” trans. John Mepham, in, Michel Foucault, Power/Knowledge. Selected Interviews and Other Writings 1972–1977, ed., Colin Gordon (Brighton: The Harvester Press, 1980)), while Foucault stresses that the real contradiction is between the delinquent common people (plèbe) and the proletariat, Gilles (André Glucksmann) wonders if “what threatens the bourgeoisie is not rather the coming together of workers and peasants” and hopes for “the fusion of the methods of proletarian struggle and the methods of peasant warfare”. To which Foucault replies: “we can say that relations between workers and peasants were not at all the target of the Western penal system in the nineteenth century; the general impression is that the bourgeoisie … were relatively confident about the peasants” (p. 357/p. 1225; pp. 22–23). 16. This seems to be the first appearance of the concept of the “dynastic”, which will be found again further on in the course (see below, Lectures of 1 March and 8 March

51

52

 

Penal theories and institutions

1972) and which will be taken up again in La Société punitive, p. 86, notes pp. 95–96, p.  212, and “Situation du cours”, p.  305; The Punitive Society, p.  84, pp.  93–94, p.  206, and “Course Context”, p.  292, in the interview with S.  Hasumi, “De l’archéologie à la dynastique”, DÉ, II, no. 119, pp. 405–416;“Quarto”, I, pp. 1273–1287, as well as in “La vérité et les formes juridique”, Lectures at the Pontifical Catholic University of Rio de Janeiro, 21–25 May 1973, DÉ, II, no. 139, pp. 538–646; “Quarto”, I, 1406–1514; English translation by Robert Hurley, “Truth and Juridical Forms”, EW, 3: “I would say that we study dynasties” (p. 17). If Foucault often employs the terms “genealogical” and “dynastic” in equivalent ways at this time, the dynastic nevertheless has certain characteristics that it is worth picking out. 1) It is opposed to a ‘semiotics’ or ‘semiology’ of signs which questions elements (discourse, gestures, images, etcetera) from the point of view of their signification. The reference to Barthes here is quite clear: we know in fact that in his Éléments de sémiologie (Le Degré zéro de l’écriture) (1964); English translation Annette Lavers and Colin Smith, Elements of Semiology (London: Jonathan Cape, 1967), Writing Degree Zero (London: Jonathan Cape, 1967), and his Système de la mode (1967); English translation, Mathew Ward and Richard Howard, The Fashion System (Berkeley and Los Angeles: University of California Press, 1990), Barthes proposed to develop a semiology understood as “the science of all the systems of signs”, borrowing the fundamental concepts of structural l­inguistics (language/ speech, signified/signifier, system/syntagm, etcetera) in order to apply them to elements and games of non-­linguistic signs. The “dynastic” studies them rather as “marks” translating, at the level of representation, the regulated play of relations of force and the underlying power struggles. Here it is the reference to Nietzsche which is quite clear, as well as to Deleuze’s Nietzsche et la philosophie (Paris: PUF, 1962); English translation, Hugh Tomlinson, Nietzsche and Philosophy (London: Athlone, 1983) which appeared in 1962, and which on pp. 59–77 (Eng. pp. 52–68) describes the differential play of forces and the art of genealogy as interpretation of these relations, and the notion of “marks” itself refers to the analysis Foucault puts forward in “Nietzsche, la généalogie, l’histoire”, DÉ, II, no. 84, pp. 143–146/“Quarto”, I, pp. 1011–1014; “Nietzsche, Genealogy, History”, trans. Donald F. Brouchard and Sherry Simon, EW, 2, pp. 376–379, and in his “Lecture on Nietzsche” at McGill in 1971, in Leçons sur la volonté. Cours au Collège de France, 1970–1971, ed., D. Defert (Paris: Gallimard-Seuil, “Hautes Études”, 2011), p. 203; Lectures on the Will to Know. Lectures at the Collège de France 1970–1971 and Oedipal Knowledge, trans. Graham Burchell, English series editor Arnold I.  Davidson (Basingstoke: Palgrave Macmillan, 2013), p. 211. Nietzsche enables Foucault to free himself from both a hermeneutic and phenomenological perspective (signs => interpretation in relation to a meaning or original experience) and a structuralist perspective (signs => systems of signs and discursive rules) while authorizing him “to speak of signs without reference to any ‘structuralism’ [and] to speak of interpretation without reference to an original subject” (p. 205; Eng., p. 213). The “dynastic” is situated on the side of what Foucault characterizes by the concept of emergence (Entstehung) in Nietzsche, that is to say: “the entry of forces … their eruption, the leap from the wings onto the stage”, the scene in which strong and weak “are distributed facing each other or one above the other … emergence designates a place of confrontation”. The dynastic designates therefore the analysis of the play of forces, of their relation (which is always a dominator–dominated relationship), but above all of the regulated space at the heart of which it is played out and the forms of which vary historically: “at each moment in history” domination “is fixed in a ritual; it imposes obligations and rights; it constitutes

  15 December 1971  meticulous procedures. It establishes marks … a universe of rules which is by no means designed to reduce the violence, but rather to satisfy it” (“Nietzsche, généalogie, l’histoire”, pp. 144–145/pp. 1012–1013; “Nietzsche, Genealogy, History”, p. 377, [translation modified; G.B.]). Hence a particular interest, in these lectures, in judicial forms and procedures, rules and rituals. The “dynastic” is that analysis which “brings to light what, in the history of our culture, has remained until now the most hidden, the most occulted, the most deeply invested: relations of power” (“La vérité et les formes juridiques”, p. 554/p.1422; “Truth and Juridical Forms”, p. 17, [translation modified; G.B.]), and it does this by treating the elements of representation, “manifestations” (gestures, terminology, roles, places on the stage, forms, rules, etcetera) as “marks” referring to a distribution of underlying forces. We stress, as Foucault will emphasize later (below, p. 47 [62/18]–[63–19]) that the conditions of representation, “the systems of restriction” and the very rules to which the play of elements are subjected in order to be represented, entail that some forces, among the most important, are absent from the scene, an absence which betrays the underlying relations of force as much as the way in which the represented elements effectively function. 2/ We see therefore that power is still studied here in the form of representation (manifestations, gestures, ceremonies, symbols, etcetera), which will indeed express, moreover, the way in which Foucault will set out his work in a lecture given at the University of Minnesota on April 7, 1972, “Cérémonie, théâtre et politique au XVIIe siècle” (summary in English by Stephen Davidson in Armand Renaud, ed., Proceedings of the Fourth Annual Conference on 17th-­century French Literature, pp. 22–23; see below, pp. 235–239). In this lecture he presents his analysis of the repression of the Nu-­pieds as part of “a larger study of the ceremonial manifestations of political power from the debates in the Greek and Roman agoras to ceremonies at the end of the Eighteenth Century. This will be a study of how political power takes on visible or theatrical forms and imprints itself on the imagination or behavior of a people. It would really be an ethnology of manifestations of political power, a study of the demarcation of power within a society” (p. 235). While it is certain that some of these dimensions are still found in Discipline and Punish (we need only think of the supplice of Damiens; see also in this regard, La Société punitive, pp. 12–13, footnote b; The Punitive Society, p. 11, footnote *), we also know that Foucault will strive to progressively distance himself from an analysis of power founded on representation, to focus his interest on the set of mechanisms of power which run through the body of subjects without being relayed by representation. See in particular the famous interview: “Les rapports de pouvoir passent à travers les corps”, DÉ, III, no. 197, pp. 228–236/“Quarto”, II, pp. 228–236) and his formula: “I think we should be wary of a whole theme of representation which obstructs analyses of power” (p. 232/p. 232). The concept of the “dynastic”, as it functions in these lectures, can be compared with the notes Foucault took in his Notebook no. 11 (BNF) dated 7/12/1971, or shortly before giving this third lecture: “3 levels: [1] strategy: relations of force, battle [2] ritual, manifestations of power, scenes (ceremony) [3] contract, obligation (engagement), arbitration, control. The discourses function at these three levels.” 17. Mémoires du président Bigot de Monville, p. 163: “At half a league from Caen, he marched his troops in order, briskly, and, after entering the town, seized the main squares of the town and assigned every soldier a house in which he had to billet”. 18. The question of the billeting of soldiers is treated at length in, ibid., pp. 222–229. To the members of the parlement who stress that, at the time of his visits to Rouen, the King had always exempted members of the parlement from billeting men of war, Séguier

53

54

 

Penal theories and institutions

replies “that this now was not an example equal to the previous, troops being sent to punish the Parlement” (p. 222). 19. On “Bras-nus” [Branu] who, on 26 August, stirred the crowd at Caen against the Présidial and royal agents, and who is presented as the leader of the revolt, see Mémoires du président Bigot de Monville, pp.  11–12 and pp.  111–112. His execution is described thus (p. 164): “Branuds was condemned to be broken alive as well as another … They were both put to the question and, after their death, their quartered bodies were exposed at the main gates.” 20. Séguier leaves Paris on December 19 and arrives at Gaillon on the 21st, after passing through Pointoise and Mantes. He doesn’t hurry, taking part in a deer hunt in the Gaillon park on December 24. Gassion reaches Gaillon on December 25 and billets there, then goes to Elbeuf. 21. This theatrical analysis of power, in which power manifests itself through signs and regulated discourses, conforming to what Foucault, in L’Ordre du discours (Paris: Gallimard, 1971), p. 40, called “complex systems of restriction” (the “etiquette” of the eighteenth century), which puts relations of force into representation according to a play of determinate rules which are the marks of these relations, was developed at greater length by Foucault in “Cérémonie, théâtre et politique au XVIIe siècle” (see above endnote 16 and below p. 235 sq.). 22. This is d’Arthus Godart du Becquet (see above note 6) and François II de Harlay (1585–1653), archbishop of Rouen between 1615 and 1651. 23. Mémoires du président Bigot de Monville, p. 201: “The inhabitants of Rouen, learning of his entry into Normandy, sent him their homage and assured him of their loyalty to the service of the King, whose will they will obey without need for them to be forced to do so by troops, which would only serve to ruin the town and surrounding villages; that the King could only desire the acknowledgement of their fault, that they ask for pardon, and that they satisfy those who had suffered injury.” 24. Diaire, p. 18, note: “Whenever it pleases Y.E. to deign to prescribe a conduct to Rouen, it will keep to it inviolably; and, when you so order, the cross will march with the flock”. The letter is from December 12, 1639. 25. In his Mémoires, p. 183, Bigot de Monville ironizes about the Archbishop’s pretensions and Latin quotations. The quotation is: “and the desire of all nations shall come” (Haggai, 2,7). On the project of receiving Séguier with great pomp and his refusal, see ibid., p. 197, and Histoire du Parlement de Normandie, IV, pp. 667–673. 26. The reference to Haggai 2,7–8 (“veniat Desideratus cunctis gentibus”) was then generally interpreted as a prediction announcing the coming of the Messiah, that is to say of Christ. See, for example, E. Gaudron, Instructions sur tous les mystères de Notre Seigneur Jesus-Christ (Paris: Florentin, 1719) II, p. 443: “I will shake all nations and the desire of all nations shall come: and I will fill this house with glory.” Everyone agrees that the desire of all nations referred to in this prophecy is Jesus Christ, to whom Haggai gives this name in order to mark the extreme need that “all nations have of him and to make felt that they would share his grace and receive mercy from him”. The reference to Jeremiah is to the Book of Lamentations, which describes Jerusalem in ruins and delivered into the hands of the enemy as a result of its faults. As Foucault notes, consequently, in both cases the King is likened to a stranger, whether as sovereign desired by all nations (the Messiah) or as an enemy sovereign to whom the people are delivered. And the Bishop presents

  15 December 1971  himself as the people’s intercessor, who addresses himself in its name to the foreign sovereign into whose power it will fall. The Chancellor Séguier, rather, expects a voluntary submission which confirms the people as subject of the King of France. 27. Histoire du Parlement de Normandie, IV, p. 676: “Séguier had replied, all in all, "that the innocents had nothing to fear and that only those who had failed would feel the effects of king’s just anger and indignation"” (emphasis in the text). This refers to Séguier’s reply to Godart du Becquet’s harangue on January 2, 1640. 28. Mémoires du président Bigot de Monville, p. 204: “M. the Chancellor replied … that the good would be rewarded and should fear nothing, and the wicked punished”. This is Séguier’s reply to Charles de Faucon, sieur de Frainville, Premier Président of the Rouen Parlement, taking up this office in 1623, replacing his brother Alexandre de Faucon, sieur de Ris. 29. Ibid., p. 202: “the billeting of the troops will be at the cost of only the respectable people, who had repressed the revolt, and will enrich the humble folk who caused the disorder and sedition … the porters will profit from carrying the baggage of those accompanying the Chancellor”. 30. Diaire, p. 74: “the offense was not at all committed by the principal parties, to tell the truth, by the inhabitants of this town … that low populace is only its dregs and excrement, and … it would not be the King’s piety to sacrifice to his justice, like another Jephte, what is most dear to him in this great town.”

55

four

22 DECEMBER 1971 Reminder: Analysis at three levels of the first episode of repression by armed justice (relations of force, strategic calculations, manifestations of power). ~ Development on the basis of the third level: a dramatization in four acts. (1) Royal power designates the population as “social enemy”. (2) The local powers bring their submission but try to limit and moderate royal power: an application of the theory of the three checks. (3) The Chancellor’s refusal and his invocation of the Final Judgment in his support: “the good will be rewarded, the wicked will be punished”. (4) The privileged protect themselves by accusing “the low populace” and dividing it into good and wicked. ~ Dramatization which produces a redistribution of the repressive instruments and powers. Summary

“Armed justice”: a series of operations

Analysis of the first repressive episode: –– arrival of the army and purely military repression; but staggered, with pauses, alternating between blows delivered and suspended threats; then –– arrival of the civil power, but carefully held back in relation to the arrival of the army, itself subject to a series of spectacular delays. We have studied this double delay on three levels: –– at the level of the relations of force that explain it –– it not being possible for feudal rent to be levied by the local forces of the aristocracy, –– [the] taking (or retaking) of control of the State apparatus by the big financiers; –– at the level of strategic calculations: –– cutting town and country off from each other, –– splitting common people and bourgeois in the towns, giving the latter time to join order and force “spontaneously”;

[67/1]

58

 

Penal theories and institutions

–– at a third level of the manifestations of power: [68/2] –– who represents power? –– what form of hierarchy and dependence is inscribed in the rituals? –– which forces are actually represented on this stage of power and which forces are absent? We have begun the analysis of this scene of power, or rather of this series of scenes. A. By sending the army, and only the army, royal power was designating the population as enemy; it was disqualifying it as subject. It really was this relationship of enemy to enemy which was manifested: –– by the punitive practices of the army (immediate executions, supplices); –– by the army’s attitude towards the population (the matter of billeting). It really is this relationship of enemy to enemy that was manifested by the population itself: –– when Gassion enters [Coutances] the population awaits him kneeling on the side of the road, crying out complaints and supplications.1 This first aspect is important, for it corresponds to the attitude [69/3] adopted by the Nu-pieds. –– By taking over the signs of power, by making them work for themselves, by giving themselves a seal, a banner, a device, by issuing commands, orders, passes, by suppressing taxes or taxing some of the rich, the Nu-pieds presented themselves* as another power. –– But as another power operating according to the rules of the civil order and accepting the principles and bases of this order, basically the king. Royal power responds to this by saying: We recognize you neither as a different† (foreign) power, nor as having a place within the civil order. While remaining inside the kingdom, you are there as “enemy”. *  Words crossed out: “as a civil order”. †  Emphasis in the manuscript.

 

22 December 1971 

59

*

We should not say that the notion of “internal enemy”, of “social enemy” is present here and underpins the practices picked out. Well before the notion appears, repressive practices characterized certain forms of struggle for power, or against the exercise of power, as hostile [70/4] acts; and these repressive practices considered those who engaged in these struggles as enemies; these repressive practices put the social classes that engaged in such forms of struggle outside normal legal protection. At the level of the relations of force, the intervention of the army would suggest that the aristocracy could no longer depend either on its own forces or on alliance with the local bourgeoisie to ensure the fiscal constraint, but that it needed a State apparatus and a centralized military apparatus. At the level of strategies, the intervention of the army, and the way in which it intervened, effectuated a division between town/country, common people/bourgeois. At the level of the manifestations of the central and local powers, this intervention revealed, facing them, completely against them, and they, the central and local powers, completely against it, a social class regarded as an enemy—or rather, immediately regarded as an enemy as soon as it entered into the struggle for power. And this is how a repressive practice like that of 1639 sets out or reorganizes the place of all those special instruments or institutions of repression with regard to the poor classes, the unemployed, beggars, vagabonds, rebels, those who join together. They will all fall under a paramilitary justice, “la maréchaussée” or [71/5] “prévôts des maréchaux”, who were originally charged with acting as the police of the army, around the army (punishing precisely those who conducted themselves [as if] in enemy country, or who deserted or betrayed).2 This is the justice that will be used against the poor and institutionalized against them in the 1670 Ordinance. *  Beginning of sentence crossed out: “This notion of non-foreign enemy, of enemy …”

60

 

Penal theories and institutions

B. THE FINAL JUDGMENT

[72/6]

While the army holds sway in the countryside and threatens Caen, while the civil power advances in easy stages, while the rebels are characterized as enemies—what is taking place on the side of the notables, of the local powers? Each makes a certain number of moves (in the name of the town or of the population and on their own behalf): –– the members of the Parlement send delegations either to Paris or to the approaching Séguier; –– the Archbishop writes to Richelieu, and then to Séguier; –– finally, the mayor asks Séguier for permission for the échevins to go to Paris to plead with the King.3 What do they say in these moves? a/ They bring the town’s general submission. –– The members of the Parlement give assurance that everything is in order. –– Godart du Becquet, 22 December to Gaillon, gives assurance of the loyalty of the Rouen inhabitants “in the service of the King, whose will they will obey, without them having to be forced to do so by troops; that the king could only desire acknowledgement of their fault, that they ask for pardon, and that they satisfy those who had suffered injury”.4 –– Harlay to Richelieu: “Whenever it pleases your eminence to deign [73/7] to prescribe a conduct to Rouen, it will keep it inviolably; and the cross will march at the head of the flock”.* b/ But at the same time as they bring the submission of everyone, and put themselves forward as their representatives, they also put themselves forward as sources of the limitation of royal power. –– The members of the Parlement continue not to register edicts and not reconstitute the offices6; –– the mayor of Rouen asks to go to the King to obtain his mercy directly; –– and above all the Archbishop: Wanting to punish, he says, a revolt which displeased God, one is in danger of employing means which will displease him even more. “Can one not appease God’s anger at *  In the margin of the manuscript: “Listen to a mother whose Child one wishes to punish”.5

 

22 December 1971 

61

their sins other than by even greater sins and offences to God which pass for punishment?”7 They clearly perform here the role of checks, of moderators of royal power.* Now, from the sixteenth to the seventeenth century, a political theory was handed down which was first formulated in Seyssel. This was the theory of the three checks8: –– the first check is religion: if the king turns away from his religious [74/8] duty, “a simple preacher may reprimand him in public and to his face”9; –– the second is justice, which is “more authorized in France because of the parlements instituted primarily for this reason”.10 –– the third is police, and thereby the privileges granted to and maintained for different social groups, as well as the “opinion and counsel of officers and bodies”.11 It is easy to see that the bishop, Parlement, and mayor brought these three checks into play in turn. So we can read these moves: –– as a play of forces (support, but conditional, of royal power); –– as a tactic (getting oneself recognized as intercessor); –– as a kind of putting to work, a staging of theoretical elements. c/ And this is how, moreover, the king, or rather the representatives of royal power, respond. 1 – They first of all refuse the game of intercession, of mediation, of representation of the people to the king by a notable. –– Séguier strictly prohibits Godart going to Paris as intercessor. All the decisions have already been taken.12 –– The Archbishop thought of coming before the Chancellor with all [75/9] the people on their knees; he quoted Saint Augustine on the bishops’ power of intercession; he preached on Haggai (“[veniet Desideratus cunctis gentibus]”†) and on Jeremiah.13

*  Some words crossed out: “Parlement, the archbishop, the notable. Justice, religion, the hierarchical order of subjects”. †  See above, lecture of 15 December 1971, p. 48 [64/20], footnote †

62

 

Penal theories and institutions

–– Séguier is very angry about all this; in particular he refuses the Archbishop’s welcome: “Not sent to Rouen to deliberate, but to pronounce and execute the things that he himself had supported in the King’s Council, he could not defer to the Archbishop’s prayers nor change irrevocable resolutions. The splendor and pomp of religion could not be considered effective on this occasion.” And he stressed that this ceremony of intercession might “more unsettle the mind of the people” which may well “withhold the obedience due to His Majesty”.14 2 – But above all Séguier rejects application of the theory of three checks. This appears quite clearly in an apparently rather banal phrase which recurs in all the ceremonial harangues. For example: To Godart: “The innocent have nothing to fear; only those who have failed will feel the effects of the King’s just anger and indignation.” To the First President: “The good will be rewarded and should fear nothing, and the wicked will be punished.”15 Behind its apparent banality, intended to be both reassuring and [76/10] worrying, the Rouen patricians hear a terrible sentence. One of the most fearful and fantastic manifestations of power to be heard. It is the sentence of the Last Judgment.16 And this phrase also referred to a very precise political theory. This is the theory according to which the king is not subject to the laws of his kingdom; and the reason he is not subject to them is not that: –– like the Roman emperor, his will is the law; –– but because he is directly inspired by God: “the king’s heart is moved instinctively and impelled by God, who turns it away and attracts it according to his pleasure” (Budé).17 God turns the King’s heart towards evil? It is for the punishment of his subjects. He turns it towards good, then, as Grassaille says (Regalium Franciae), the King decides according to equity and not justice: for his role is the fruitio bonorum and the punitio malorum.18

 

22 December 1971 

63

This function of royal absolutism is asserted by the absolutists of the sixteenth [century]. We still find it in the first volume of Rebuffi’s Commentarii (1613).19 There can be no check to that equity that places the King nearest to God and in God’s hands. It is indeed to this, turning away the head of his interlocutors, that Séguier was referring. Royal power does not have to fix its eyes on privileges (which exist only by his grace), or on religion (which for the king is only pomp and splendor), or on the justice of parlements (which is less just than equity), it has to divide the good and the wicked. d/ So, to this phrase, which brushes aside all the checks and all the [77/11] (institutional, religious, or traditional) limitations to royal power, and which leaves the subjects in the sole presence of royal equity, of the sole division, the privileged can give only one reply: We are the good, and they are the wicked. We have done nothing, we are innocent; there are your enemies. –– The members of the Parlement stress that they did everything to quell a revolt which they condemned; –– Godart, emphasizes that the costs of the occupation will weigh more on “the respectable people who had suppressed the sedition; the porters will profit from carrying the baggage of those accompanying M. the Chancellor”. –– The vicomte de Coutances: “The offense was not committed by the inhabitants of this town; the low populace is only its dregs and excrement; it would not be the king’s justice to sacrifice, like another Jephte, what is most dear to him in this town.”20 We can summarize the process of this theater in this way: –– The revolt had to have taken place outside the civil order; and it is [78/12] not the constitution of another power. The rebels are disqualified as subjects and are wholly enemies of the king, without being in any way foreign to his power. –– The notables respond to this by saying: But the civil or religious order that qualifies us remains, we continue to represent justice,

 

64

Penal theories and institutions

religion or police. We represent the people before royal power; and within power we represent the limits to the king’s power. –– Royal power objects that the sole law of its decision is equity. And that this equity does not take privileges, dignities, or offices into consideration at all, but knows only the division good/wicked, those one punishes and those one does not. The power to divide the good and the evil is more fundamental than the game of engagements,* fealties, promises, and recognized privileges. The king, even before being the lord of lords, is the instance of the division of good and evil. Power is repression before it is guarantee. –– But this repression which is exercised, without intermediary, intercession, or checks, on enemies (who are also the guilty), matches in fact a line of division traced by the privileged themselves. It is they who designate those who are “bad”, and while on the one hand the repressive State overturns their privileges, ignores their traditional [79/13] political or judicial functions, tears apart the feudal system of guarantees, on the other hand, behind the scenes, it authorizes these same privileged classes to trace the division of punishments, to carry out the social and political delimitation which royal power will retranscribe in terms of good and wicked, innocent and guilty. We can see a whole redistribution of repressive instruments and powers is in the process of being carried out.† * *  See “Translator’s note”. †  At the end of this lecture the manuscript contains an unnumbered sheet on which can be read: Summary:

Characteristics: Mechanisms:

The revolt of 1639 – reaction to taxation – town-dwellers and peasants – unitary (despite differences) – against the State fiscal apparatus – evasion of the three bodies – this is not the first time there has been this evasion – But restoration of the State by H[enri] IV, – the follow-up of this triple alliance – now recession provokes evasion, – except for the army – under the cover of the Cardinal a new repressive – system will be established.

[80/-]

 



22 December 1971 

NOTES

1. See Histoire du Parlement de Normandie, IV, p. 660: “As he entered the suburbs of Coutances, all the inhabitants, men, women, and children, prostrated themselves before him, crying out, weeping, asking for mercy”. 2. Regarding the prévôts des maréchaux, Foucault relies upon G. Zeller, Les Institutions de la France au XVIe siècle, pp. 196–201. The prévôts de maréchaux (in the Île-de-France, the Prévôt de l’Île) judge in the last instance, without possibility of appeal, crimes committed by men of war and vagabonds (often deserters), as well as crimes committed on the major roads. For this they had battalions of armed men at their disposition. They appear at the end of the fifteenth century and their tasks are extended under François I; despite an attempted restriction under Henri II, they subsequently multiply continually. For a recent history of this function, see J.  Lorgnier, Maréchaussée. Histoire d’une révolution judiciaire, I: Les Juges bottés (Paris: L’Harmattan, 1994). On the institutionalization of this repressive function directed at the poor classes, unemployed, and vagrants, see M. Foucault, Folie et Déraison. Histoire de la folie à l’âge classique (Paris: Plon, 1961); English translation by Jonathan Murphy and Jean Khalfa, A History of Madness (London: Routledge, 2009). 3. Which Séguier denies. See Diaire, p. 23. 4. See above, previous lecture, p. 47 [63/19] 5. The reference to mother and child is taken from Harlay’s letter to Richelieu: “Listen to a mother whose child one wants to punish to avenge the loss of the other” (Diaire, p. 18; emphasis in the text). 6. In fact, the Rouen Parlement had refused to register numerous edicts from the reign of Henri IV to that of Louis XIII. On the slowness of the Parlement in re-establishing the offices, see Histoire du Parlement de Normandie, IV, pp. 624–626; above, previous lecture, p. 41 [52/8] and p. 51 endnote 10. 7. Diaire, p. 18: “Is it not possible to appease God’s anger other than by greater sins and offences to God which pass for punishment?” 8. See C. Seyssel, La Grand’ Monarchie de France (Paris: Galiot du Pré, 1558), p. 10 sq. The theory of the three checks was especially analyzed in W. F. Church, Constitutional Thought in Sixteenth-­century France: A Study in the Evolution of Ideas (New York: Octagon Books, 47, 1969; first edition, Cambridge, Mass.: Harvard University Press, “Harvard Historical Studies” XLVII, 1941). 9. C.  Seyssel, La Grand’ Monarchie de France, p.  11. If the king does something tyrannical or against Christian law, a “simple preacher is free to reprimand him in public and to his face”. 10. Ibid. p. 12: “The second check is justice, which is authorized without any difficulty more in France than in any other known country in the world, equally because of the parlements instituted primarily for this reason.” 11. Foucault seems to follow the summary of W. C. Church in Constitutional Thought in Sixteenth-century France, p. 30 sq. Police refers both to the basic laws of the Kingdom and to a set of “liberties, privileges, and worthy customs of each social division”. Above all it is made very clear in this work that Seysell’s definition also includes “the counsel tendered by the many officers and organized bodies having a part in the administration” (p. 37 sq.).

65

66

 

Penal theories and institutions

12. See Diaire, pp. 23–24, n. 1: “Godart du Becquet … says that they were going to Paris, to intercede with the king for the town and begged the Chancellor to be their mediator with the monarch. But the Chancellor’s reply showed them that there was no longer any remedy: ‘I forbid you … to go to the king. His Majesty has resolved to re-establish his violated authority by arms and to make an exemplary punishment of the rebellion committed at Rouen’” (emphasis in the text). 13. See above, previous lecture, p. 48 [64/20] and p. 54, endnote 26. 14. Diaire, pp. 19–21: “he, my lord the chancellor not coming at all in order to deliberate but to pronounce and execute things which he himself had supported in the king’s Council and in the presence of his Majesty, he could not accede to the lord Archbishop’s request nor to any part of it, nor change in any way things resolved and jointly decided … that splendor and pomp of religion could not be considered effective in this event, the mind of the people could be more unsettled by it and withhold the obedience due to His Majesty”. 15. See above, previous lecture p. 48 [64/20] and p. 54, endnote 28. 16. See, for example, Mathew, 25: 31–33: “When the Son of man comes in his glory, escorted by all the angels, then he will take his seat on his throne of glory. All nations will be assembled before him and he will separate people from one another as the shepherd separates sheep from goats. He will place the sheep on his right and the goats on his left.” 17. G. Budé, Le Livre de l’institution du Prince (Paris: Foucher, 1547) ch. XXI, p. 60. Just as, according to Solomon, the straight or oblique course of rivers depends upon the divine dispensation, “equally, the King’s heart is moved instinctively and impelled by God, who, in accordance with his pleasure and absolute providence, drives and directs him to undertake praiseworthy, honest enterprises which are useful and convenient for his people and salutary for him; or else, according to the merit of him or his subjects, he inclines to the left and obliquely”. 18. Grassaille’s text says something a little different. First of all it is a matter of ordinances (ordinationes) and it is noted: “Ideo ad tuitionem bonorum & punitionem malorum, factes sunt leges regiae quas ordinationes Galli vocant”; C. de Grassaille, Regalium Franciae (Lyon: Simon Vincent, 1538), p. 60. The quotations and, more generally, the references on the absolutists which follow are undoubtedly taken from W. F. Church, Constitutional Thought in Sixteenth-Century France, pp. 58–59. For a recent history of these theories and of the context of their development, see A.  Jouanna, Le Pouvoir absolu. Naissance de l’imaginaire politique de la royauté (Paris: Gallimard, 2013); A. Jouanna, Le Prince absolu. Apogée et declin de l’imaginaire monarchique (Paris: Gallimard, 2014). 19. P. Rebuffi, Commentaria in Constitutiones, I (Lyon: G. Rouilly, 1613). 20. See above, previous lecture, p. 49 [66/22]

five

12 JANUARY 1972 I. Entry of the civil power into Rouen and formation of the visible body of the State. ~ The Chancellor goes beyond the traditional judicial rules and unites the orders of justice and military force: the State takes on a repressive power. ~ Appearance of that third purely repressive function of the State assured, independently of the King, by the Chancellor (member of the King’s Council). Replacement of royal power and the absent king by a visible body of the State. The fiscal apparatus is doubled by a repressive apparatus. II. New forms of control without new institutions. ~ Questioning of local authorities: provisional suspensions. Provisional replacement of local institutions by commissioners. ~ Military measures and system of tax penalties in order to bind the privileged to their engagement. All in all, an unstable system of control which still depends upon feudal structures, anticipating the creation of a specialized repressive State apparatus.

C. The Body Of The State* The civil power makes its entry into Rouen on 2 January [1640]. The civil power, that is to say Séguier, La Vrillière, members of the Council of State, [the] maîtres des requêtes. We will have to come back to the significance of these men, or rather of the bodies to which they belong or the social groups they represent. Until then the civil power had remained in the wings, leaving the army to execute its justice, promising only that the King’s justice, like God’s, was going to intervene to effect the division between the guilty and the innocent. Circumstances permitted a play on the dates. The King’s justice was awaited throughout the whole of Advent (“veniat cunctis gentibus desideratus”, preached the Archbishop)1: and the civil power made its entry as the year began. What are the main features of this entry of the civil power? * The subdivision marks ‘A’ and ‘B’ appear in the previous lecture.

[81/1]

68

 

Penal theories and institutions

1 – The army is now under the control of the Chancellor, or rather, the two major functions of power—the functions of war and justice—are [82/2] united in the person of the Chancellor. This union is marked by a whole series of measures, gestures, “formalities”. –– After Séguier’s arrival at Gaillon, colonel Gassion had to follow orders. Military decisions were taken by the Chancellor.2 –– [Moreover,] Séguier had a large number of soldiers, who had begun acts of violence and crimes, brought before civil justice. According to Bigot de Monville, there were more soldiers than rebels among those condemned to death. Séguier thus suspended one of the old privileges of the army.3 –– But at the same time, on at least one occasion Séguier himself exercised civil justice militarily. This was the case of Gorin and four other rebels. He sentenced them to the wheel. Now carrying out this sentence went against three fundamental rules [83/3] of justice:4 –– Séguier alone, without anyone’s assistance, brought it about; –– he relied upon information and testimonies, but he did not hear the accused; –– he formulates the sentence orally, as an order, and not in writing.5 In the eyes of contemporaries this was a very serious violation of these three rules (plurality of judges, written sentence, and above all hearing the accused). In the sixteenth [century], Ayrault said: “Sentencing someone without hearing him violates the universe and overturns heaven and earth.”6 A century later, Jousse will stress the illegality of such a measure. It was as if Séguier wanted to blur the lines of division between the orders of justice and military force; as if he wanted to demonstrate a more radical power which transcended both and was subject to neither the privileges of one nor the rules of the other. The Chancellor thus gave himself the right to ignore* the specific modalities of the different types of judicial action. He borrowed the forms of procedure or punishment he needed without respecting the normal conditions of their exercise or * Words crossed out: “the privileges of justice”.

 

12 January 1972 

69

application. This is what is expressed in this odd phrase of Verthamont [84/4] regarding the execution of Gorin: “The condemned having been caught in flagranti,* in a revolt, it was thought in such matters the trial should be held after death.”7 –– But Gorin was not caught in flagranti –– and there were no grounds for “the trial after death” when an initial investigation had been started while he was being held. So, over and above the army and justice, we see the appearance of a function of repression assumed by the State and not bound by traditional rules. Something like repressive power, over and above the power of justice and the force of combat. It will be said that this is not the first time that the State has disrupted the borders between justice and the army and practiced a sort of wild, unrestrained repression when suppressing a riot. In Normandy itself, in the period of Charles VI. And quite recently in Quercy.8 But, precisely, Séguier’s repression was not unrestrained; it was not exercised in the violence of the struggle. It was deployed when everything had already returned to order, when the rioters had been defeated and the privileged themselves had offered their submission. The apparently unregulated nature of Séguier’s actions is calculated. [85/5] It is carried out coolly. It is intended to demonstrate: –– on the one hand, that the State has a certain power of repression which overrides, or at least is not necessarily bound by juridical rules or military custom; –– and, on the other hand, that this power of repression, normally invested in justice or the army, may assert itself and be brought to bear according to its own modalities in at least one case: popular sedition. To the two traditional aspects of monarchical sovereignty (justice and army), a third is added: repression. The king can and must dispense justice between the individuals subject to him; he can and must assure the defense of his subjects against their enemies; he can and must repress the sedition of his subjects.

* Emphasis in the manuscript.

70

 

Penal theories and institutions

That the Chancellor is given responsibility for this task of repression proves that it is no longer marginal and accidental, that it is no longer left for the feudal governors (both representatives of the State and of themselves) to take on, as had been the case in Guyenne;9 it really is the sign that henceforth it is included as one of the constant tasks of the State. The Chancellor’s juridical-military reign brings to light a central, purely repressive function of the State. But this function is assured without the King. [86/6] 2 – The King’s absence The Chancellor is thus found in command of the army and taking in hand the rules of justice. But who, hitherto, could both accumulate judicial and military functions and escape their rules? Who could hold them in his hand, and in the same hand, if not the king?10 a/ And the Chancellor finds himself in precisely this royal position. He goes beyond that division between chief of war and chief of justice that came into effect immediately below the king (a division manifested by the two functions of constable and chancellor). In occupying this position, the Chancellor takes part in an almost sacrilegious substitution. At any rate, that is how contemporaries saw it. Here again, etiquette should be regarded as a manifestation of power. –– According to Verthamont, Séguier accepted military honors only after having “refused for a long time”; –– [furthermore,] in his letter to the Archbishop he emphasizes that he has not come to deliberate, but “to execute orders that he himself had supported in the King’s Council”.11 So, he does not have the royal power of deliberation; he is not free to [87/7] change his decision; and yet this decision is his own, since he had taken it as a member of the King’s Council. Thus the King’s place is occupied by someone –– who is not the king himself, since he applies decisions; –– but who is more than the representative of the king, since the decisions he applies are his own.

 

12 January 1972 

71

We see from this a region, a set of individuals, a body, which is like the visible body of the State, detaching itself from the person of the King. A man like Séguier and those around him are not simply the King’s agents (those who execute his will, and execute it directly): they represent, or rather together they themselves constitute State power. If it is true that the political theory and theology of the Middle Ages allowed that two bodies were joined in the King’s person (the physical body and the political body),12 maybe we should allow that these people who came to Normandy with quasi-royal prerogatives constituted together the visible body of the State. The visible body of the State advances in the place of the absent king. Furthermore, (here again, manifestation of power at the level of etiquette), the Chancellor had [taken] the seals of the State and everything took place as if the King had been there.13 b/ Who are Séguier and the people like him who, as visible body of [88/8] the State, are charged with exercising these, not exactly judicial, not exactly military functions of repression? –– La Vrillière, twenty-two or twenty-three coaches of State councilors, maîtres des requêtes; d’Ormesson, Laubardemont, Marescot, Verthamont, Talon, Le Tellier, etcetera.14 –– All these people belong to the same social group as members of the Parlement. But whereas the latter, becoming landowners, were inserted in the local feudalism, this small group around the king served to arbitrate between the financiers who obtained tax levies through tax farming, and who loaned to the king, and the great lords who benefited from centralized and redistributed rent.* These people had a decisive role:15 [89/9] –– in the establishment of taxation, the determination of taxes. They were urging the replacement of the États regime by the Élections regime16; * Paragraph crossed out: It was these people who arbitrated all the regulation of taxation: they played a decisive role in the allocation of tax farms, and a not insignificant role in the granting of pensions; it was they who had an important role in the allocation of tax and who were pushing for the replacement of the État regime by that of the Élections.

72

 

Penal theories and institutions

–– in the allocation of tax farms and the conditions of debt granted to the king; –– finally in the distribution of rents, pensions, and offices. They therefore occupied a strategic position in relation to the circulation of the whole fiscal mass: (a) the great feudal seigneurs had to rely on them to benefit from the feudal rent worked out in this way; (b) they were themselves its great beneficiaries since their position as intermediaries enabled them to take a not inconsiderable share in the process; and consequently, (c) they were the best placed to ensure repression. They had the power to carry it out and an interest in doing so. In this respect their position was different from that of the members of the Parlement, and in general from royal officers: –– socially the latter were indeed intermediaries between a bourgeoisie, from which they came and in which they had become rich, and the aristocracy into which they had become integrated through land ownership. But as holders of offices, which royal taxation devalued by the simple ploy of their multiplication, and as landowners, they suf[90/10] fered from increased taxation. –– Whereas the “governors”, the “men of power” had every interest in this increased taxation: their share and power increased in direct proportion. So in exercising repression it was entirely natural for them to replace the members of the Parlement, the men of traditional justice. They were to become the natural agents of an entirely new control, and of an entirely new State repression.*

* Paragraph crossed out: “c/ How do they exercise it at Rouen in 1640? (1) A whole series of measures which enable them to clear a space in front of them, by removing all the local authorities in one go “removing”: not definitively suppressing, but making them disappear, in their form, in their functioning, in their present political status, in order to make them reappear afterwards—we will see on what conditions. – All these political and military points of support of the local bourgeoisie are withdrawn the bourgeois are disarmed the échevins and mayors are suspended the estate and patrimonial revenues of the town are taken over by the Crown.”

 

12 January 1972 

Repression and taxation*

73

[91/102]

Roughly, we can say that there was a State apparatus which was the fiscal apparatus. It depended upon a certain number of local apparatuses of constraint and repression. What appears in the course of the major revolts of the [century] is that this fiscal State apparatus can no longer function without protection, without being doubled by a repressive apparatus. In moving into Normandy, the visible body of the State indicates this function and its point of intervention. But it has not yet created the institution and organs. It has only put in place a game of engagements and gages.

D. ORDER AND THE GAGES† How will these new forms of control be set up? Here again, as yet there are no new institutions. These, and the reorganization of the old institutions, come later. ‡Royal power did not set up any institution to respond to the revolt of the Nu-pieds (or to other revolts of the same period). But it modified, distorted, diverted, and shifted how the existing institutions functioned; it sketched out the broad outline of a general repressive function, which will gradually be articulated in specific institutions and will perform diverse political roles in the course of future centuries. 1 – Calling into question all the local authorities. This challenge took place in a traditional mode: general suspension for a period, then restoration as it was, with almost no modification, even of persons. –– The municipality is suspended, and its domanial and patrimonial revenues are taken over by the Crown.17 –– The same for members of the Parlement; they are suspended and lose their gage; they are ordered to leave the town and go to Paris to

* Sheet inserted in the manuscript. † See Translator’s note. ‡ Start of crossed out sentence: “But some functions appear”.

[92/11]

74

 

Penal theories and institutions

await orders; they are threatened with having to bear the major part of the fine.18 Now, the declarations of interdiction are interesting for the power relations manifested in them and the theoretical elements they include. 1/ To the Parlement (Declaration of 17 December 1639): “Kings, in [93/12] order to oblige the people to a greater reverence towards the parlements, have honored these with the most majestic marks of their grandeur and with the very ornaments of the monarchy.19 [Reference to the principle that the Parlement is the King himself in his court; and the decrees of Parlement are the King’s decrees: the court is sovereign.]*

“But as representatives of the monarch, they must not only dispense justice to the people, but keep his subjects in the duties of a perfect and rightful obedience.”20 [Here the King gives a completely different interpretation of the preceding principle from that of the members of the Parlement: –– the members of the Parlement drew from the principle the conclusion that without their registration, expressions of the king’s will remained incomplete; –– the king draws the conclusion that members of the Parlement must enforce obedience to expressions of his will which are perfect in themselves, i.e., sufficient to be laws.]† The members of the Parlement are still working with a feudal definition of the political body as the sovereign’s “court”; the king is [94/13] already referring [to] a definition of the political body as State apparatus. 2/ The king suspended the town’s mayor by a declaration of the same type. He reproached him for having “by his weakness and connivance” allowed the uprisings against royal authority; while his responsibility and that of mayor “gave [him] full authority over the inhabitants”.21 Here again, the mayor’s function is not defined by the town’s privileges, but in terms of an authority to be exercised without limitation in the King’s name.

* Sentence in brackets in the manuscript. † Passage in brackets in the manuscript.

 

12 January 1972 

75

Certainly, these suspensions could only be provisional. But the way in which they were carried out indicated with great clarity how the authorities had to function henceforth. One thing is to be noted however: this is that the cohesion of the body of the State is still formulated in terms of feudal engagement. –– The king said to the members of the Parlement and the échevins that they had to risk their lives for him22; –– but in the declaration of suspension of the members of the Parlement he noted that the revolt took place at a time when the king “exposed his person to the inconveniences and dangers of a long journey”.23 Engagement on life. 2 – The second aspect of this restoration of order is the provisional [95/14] replacement of the suspended institutions by commissioners. Here again there is no institutional change, since everything had to remain provisional; and yet a certain type of functioning is put forward. –– First, the members of the Parlement are replaced by commissioners, maîtres des requêtes, who belong to the class of men who exercise power. They are responsible for dispensing justice in an exceptional form.24 –– Then, in a second stage, they are replaced by other members of the Parlement, sent from Paris.25 –– This was a clever tactic: the Paris members of the Parlement were closest of all to power. It was from them, or at least from their families, that State councilors were recruited. Witness Séguier, son of a First President, and whose cousin was precisely sent to preside over the pseudo-Parlement.26 –– It was also an assertion of principle: the members of the Parlement maintained that they were all the “classes” of a single body; that they were interdependent therefore, that there was no hierarchy between them; that therefore the king could not play some off against others, replace some by others. –– With this measure the king wanted to show that he considered [96/15] the members of the Parlement to be only his agents, responding locally and individually to his orders. It is not Parlement as a body

76

 

Penal theories and institutions

that finishes and completes the King’s will; it is the King’s will that is transmitted through his parlementary agents. –– The same kind of demonstration is made regarding the mayor of Rouen. He replaces him as it were with himself. Godart du Becquet was replaced by an alter ego: he was lieutenant général of the présidial; he is replaced by Boulays, lieutenant of the bailliage.27 The same men in the same function, but having to operate differently. *

3 – But how was it possible to get institutions which remained the same to function differently with men who also remained the same? No doubt we can say that the intervention and presence of men from the central power modified the balance or at least the forms of control. But the problem was that there were few of them, and their function meant that they could reside only at Paris. With them gone, how were the new forms of control going to be exercised? Bourgeois and nobles are asked for an undertaking (engagement), for [97/16] which they must answer personally. –– To the nobles (Declaration of 8 January [1640]): “Henceforth, the noblemen of Normandy will have to prevent any assembly being held anywhere on their lands, on pain of answering for it, in their own and private names, as accomplices.”28 –– The same vow for “magistrates, officers, and others”. –– [To the] bourgeois: on 19 January, the commissioners who replace the échevins at Rouen summon the principal bourgeois and offer to withdraw the troops in return for their declaration “that they will take the town of Rouen into their care, under the good pleasure of His Majesty, that they will undertake, at the risk of their lives, to preserve it in the obedience and loyalty due to the king …; and that they promise to fall upon those who would disturb the peace.”29 An ordinance of 7 February clarifies what the bourgeois will have to do in the event of a riot. Failing which, “they will be proceeded against” as “responsible for the disorders.”30 * A first version of the beginning of paragraph 3 is crossed out: 3. But above all the third aspect, and the most important, is the whole system of gages and guarantees that is imposed.

 

12 January 1972 

77

How can this undertaking (engagement) have any solidity? Essentially [98/17] through military and financial measures. 1. Military measures –– General disarmament. At Rouen 1000 guns, 15,000 halberds, 3000 swords are collected.31 The cannons are removed from the town hall. –– But disarmament is selective. Diary: 5 January, “We began to disarm the whole populace, which was done very gently; … persons of quality and the good merchants and bourgeois will remain armed for the public defense.”32 Diary: regarding Caen: M. Moran “proposes for the town of Caen that 500 of the leading figures will undertake to the king to guarantee the town from sedition and to keep it in obedience provided they are given their arms. I believe that if they present the properly signed request, 500 of the leading figures could be armed, obtaining from them the assurance that they offer.”33 What is involved is actually a selective redistribution of arms. And when the bourgeois were asked to answer for the town’s order, this moral undertaking (engagement) actually rested [on], or at least had as its correlative, the concentration of armed control in a few, but reliable hands. (Insufficient concentration, too much autonomy, uncertain engagement, as will be shown by the Fronde. Hence later a new […].*) [99/18] 2. The system of fines – At Rouen, fine of 1,100,000 livres Of which: 150,000 represented arrears 150,000 represented subsistence for the army 400,000 represented D.I. [damages and interest] 400,000 “to be taken as remainder and distributed to the well-off”.34 How was this fine financed? A fine on the members of the Parlement, a tax on the well-off was considered. But in fact, [it was by] an indirect tax (the same thing at Caen as at Rouen).

* Illegible word.

78

 

Penal theories and institutions

1/ The lease on it was given to a Rouen inhabitant. After many prevarications and threats, Séguier agrees to it being given to a certain J[acques] Marie. The town was therefore in debt to him. But he was himself guaranteed by the wealthiest bourgeois of the town.35 So that the town finds that it is not in debt to the King, but to its wealthiest inhabitants. Which would not have resulted if an external traitant had got the deal. 2/ How will the town get the money back? The king agrees to the possibility of raising new taxes, octrois on goods and foodstuffs.36 But it is specified that this tax falls only on goods that must remain in the town, not on those that leave or pass through.37 That is to say: –– products for consumption;38 –– or raw materials […]* purchased by artisans.39 The schema of fiscal division reproduces exactly, or rather is framed exactly in the schema of the distribution of arms.40 So we have a system of four levels: [100/19] –– a collective indebtedness of the poorest to the richest; –– [collective indebtedness which]† no doubt intensifies private indebtedness; –– a system of fiscal contributions and exemptions; –– a system of the distribution of arms (to the exempt and to the creditors). A logically coherent system. –– In the countryside, direct fines which, here again, weigh above all on the poorest (a tax of 10 livres per 100 feet). 25 livres for those who have no buildings. The property of those who are unable to pay can be sold (and without mortgage costs).41

* Illegible word. † The manuscript has: “it”.

 

12 January 1972 

79

3/ On the basis of this double, military and financial guarantee, the populace could be pardoned. If one wanted the taxes to come in, goods had to leave, and the bourgeois had to be reimbursed. All insurgents had to come out of hiding, –– Relative leniency of the courts. –– Abolition is granted.42 Thus, the wealthiest are “pardoned” because they are the financial [101/20] and military guarantors of order; the poor are pardoned as tax payers and producers of the fiscal levy. Despite its logic, it was an unstable system which still depended too much on feudal structures. The evolution needed to be pushed much further. For feudal rent to be maintained in the centralized form, a much more sophisticated repressive State apparatus was needed. –– All the functions which appeared in the course of the events, and which were exercised from time to time, in temporary measures, actions, ceremonies, etcetera—all these functions were still confided by the State to the bourgeoisie, the local nobility, and the parlements, and in the feudal form of engagement. –– The Fronde will show that they need to be confided to a specialized State apparatus; that control of the popular masses is no longer assured by uncertain allies, but by an instrument firmly in the hands of the State. *



NOTES

1. See above, lecture of 15 December 1971, p. 48 [64/20] and p. 54, endnote 26. 2. See Diaire, p. 2, n. 1: “Colonel Gassion, head of the troops sent to Rouen, had to defer to him, as to his superior, in everything, even in matters regarding arms.” Floquet gives great emphasis to Séguier’s “exorbitant powers”. 3. See Mémoires du président Bigot de Monville, p. 241: “During his stay at Rouen” [But Bigot is speaking about Gassion] “more soldiers were put to death than townsfolk”. See also A. Floquet, Histoire du Parlement de Normandie, V, (Rouen: Édouard Frère, 1842), p. 39 sq.

80

 

Penal theories and institutions

4. On this condemnation and the supplice inflicted on Gorin and his accomplices, see Diaire, pp. 112–116. All the references cited after by Foucault are there. 5. See the commentaries on the execution of Gorin by Daniel Jousse in his Traité de la justice criminelle de France, vol. I (Paris: Debure, 1771), Preface, note on p. xxiv: “There were three extraordinary things in the condemnation and execution. The first is that the Chancellor sentenced all five to death, alone and without the assistance of the Maîtres des Requêtes or others; the second is that he sentenced them without seeing them; the third is that he made the Decree without having it pronounced in writing. The Prévôt de l’Isle pronounced it to them verbally … this practice of sentencing the accused without hearing them no longer takes place today and this change is based upon the soundest reasons” (BNF). 6. P. Ayrault, L’Ordre. Formalité et instruction judiciaire (Paris: Sonnius, 1588), p. 6. Ayrault is speaking of the maxim: “No judgment without confrontation or hearing” and notes “it is so natural, so reasonable, so in conformity with every right that to make use of and practice judgment differently would violate the whole universe and overturn heaven and earth” (BNF). 7. See Diaire, p. 115: “This order of war was considered to fall under the authority of the king; and moreover, the condemned having been surprised in flagranti, in a revolt, it was thought that in such affairs the trial should be held after death.” 8. The reference is to the riots of 1382 in Rouen, called “the Harelle”, which began on February 24, ended in March–April, and then resumed in August. For these revolts Foucault consulted L. Mirot, Les Insurrections urbaines au début du règne de Charles VI (Paris: Fontemoing, 1905, BNF); on their suppression, see pp. 104–108 and pp. 202–209. The suppression of the first revolt was secured directly by the King, with several summary executions. The second was secured by the King’s officers, general reforming commissioners, who arrest 300 persons and condemn to death those who were opposed to the tax levy. The Quercy revolt is the revolt of the Croquants in 1624, who were massacred by a troop of local nobles directed by the maréchal de Thémines. See B.  Porchnev, Les Soulèvements populaires en France, pp. 49–52. 9. With the duc d’Épernon. 10. The best example of this is precisely provided by the repression of the first Harelle (see above note 8). See also the interdiction of the Normandy Parlement on September 17, 1540 by François I: the King then moved to Normandy; Histoire du Parlement de Normandie, II (Rouen: Édouard Frère, 1840), pp. 1–15. 11. Diaire, p. 20: “to … execute things that he himself had supported in the king’s Council” but he adds “and in the presence of his Majesty”. 12. See E. H. Kantorowicz, The King’s Two Bodies. 13. See Diaire, p. ix, 4 and 42. 14. See Histoire du Parlement de Normandie, IV, p. 676, regarding the coaches, and Diaire, pp. 3–5 for the description of persons. La Vrillière is secrétaire des commandements; d’Ormesson, Laubardemont, Marescot, Verthamont, and Talon are State councilors; Le Tellier is maître de requêtes.

 

12 January 1972 

15. On these personages and their role, see B. Porchnev, Les Soulèvements populaires en France, p.  444 sq. And, since, the works of D.  Dessert, especially Argent, Pouvoir et Société au Grand Siècle (Paris: Fayard, 1984). 16. The Ancien Régime distinguished between pays d’États (Burgundy, Brittany, etc.), in which the monarchy’s tax demands were the object of examination and vote in assemblies bringing together the three orders, the “provincial Estates”, which were charged with dividing and collecting the taxes, and the pays d’Élection, where the tax administration was the responsibility of the intendant and collection was delegated to royal agents, the “elected (élus)”. In a context of increased taxation and the strengthening of monarchical power, the years 1628–1630 were marked by a lively attack on the system of Estates and an attempt to introduce “élections” in various provinces. See, for example, A. Jouanna, Le Prince absolu, pp. 131–135. 17. See Diaire, pp. 138–140. 18. See Histoire du Parlement de Normandie, IV, p. 683 sq., and V, p. 1 sq. 19. Foucault uses the text provided by Floquet, ibid., IV, p. 682. The original text is different: “When the Kings, our predecessors, in instituting the Parlements, committed to them such a large part of their power and authority … they were not content to place distributive justice in their hands; but, in order to oblige the people to a greater reverence towards them, they honored them with the most majestic marks of their grandeur and of the very ornaments of the monarchy”; Declaration of 17 December 1639, in A. Héron, ed., Documents concernant la Normandie, extraits du “Mercure françois” (Rouen: Métérie/Société de l’histoire de Normandie, 1883), pp. 324–325. 20. Ibid. This is the part cut in the preceding sentence: “[their power and authority], this was not only to dispense justice to their subjects but also to keep them in the duties of a perfect and rightful obedience”. 21. Diaire, pp. 139–140, n. 1: the king accused the mayor “of having, by his weakness and connivance, allowed all the uprisings and disorders … without opposing them through the duty of his responsibility and that of the mayor perpétuel of the town, which gave him full authority over the inhabitants”. 22. See Histoire du Parlement de Normandie, IV, p. 681: the échevins are presented here as “obliged, in such encounters, to expose their lives for the defense of royal authority”. 23. Declaration of September 17, 1639, p. 325: “While we are on the frontiers of our kingdom, exposing our person to the inconveniences and dangers of a long voyage for the good of our subjects”. 24. See Histoire du Parlement de Normandie, V, pp. 7–10. 25. Ibid., p. 75 sq. 26. This is Tannegui Séguier. See ibid. 27. See Diaire, p. 140, n. 1. Godart du Becquet was both mayor perpétuel and lieutenant général of the bailliage. Boulays was lieutenant particulier in the Rouen bailliage and Présidial. He provisionally exercises the office of lieutenant général from 9 January 1640. 28. Ibid., p. 145, n. 1. The exact declaration is as follows: “we say and declare, wish and it pleases us, that hereafter the gentlemen of our province of Normandy prevent any assembly being held over the extent of their lands, on pain, in the event of some uprising against our service in the extent of the said lands, of answering for it in their own and private names, as accomplices”; Documents concernant la Normandie, pp. 343–344.

81

82

 

Penal theories and institutions

29. Diaire, p. 191, n. 1: “… that they will take the town of Rouen into their care under the good pleasure of his Majesty; that they will undertake, at the risk of their lives, to keep it in the obedience and loyalty due to the king their sovereign lord … and that they promise to fall on all those who would seek to disturb the peace”. 30. Ibid., p. 245, n. 1: “At the sound of the drum, the bourgeois will promptly take up their arms, and will go to the captain’s house to receive their orders; or else they will be proceeded against, as disobedient and rebels to the command of H.M., and accomplice of the disturbance or sedition, and they will be responsible for the disorders which occur.” 31. See ibid., pp. 154–155, n. 1. The exact figures are: 1598 muskets and harquebus, 3490 swords, and 1037 halberds. Madeleine Foisil, La Révolte des Nu-Pieds, p. 314, indicates 1598 muskets, 3490 swords, and 977 halberds. 32. Diaire, p. 92: “[One] began to disarm all the populace; which was done very gently in order to continue the following days; the persons of quality and the good merchants and bourgeois will remain armed for the public defense.” 33. Ibid., p. 390: “Monsieur Moran proposes, for the town of Caen, that 500 of the leading figures will undertake to the king to guarantee the town from sedition, and to keep it in obedience, provided that they are given their arms. I believe that if they present the properly signed request in the way I have said, then 500 of the leading figures could be armed, obtaining the assurance from them that they offer.” It is Séguier who makes this proposal. 34. For the detail of the fines, see M. Foisil, La Révolte des Nu-Pieds, pp. 314–315, which Foucault follows here, rounding off the figures. 150,000 for the men at arms for the winter quarter of 1640; 420,000 “to be taken as remainder and distributed to the well-off”; 400,000 for damages and interest. The 150,000 for arrears are less evident, all the sources, including Foisil, indicate 85,000. 35. See Mémoires du président Bigot de Monville, pp. 272–273. Bigot presents this as positive measures for the town of Rouen. See also, M. Foisil, La Revolte des Nu-pieds …, p. 315. 36. See Diaire, p.  243. This is a tariff decreed by the Council of State at Rouen, February 16, 1640, the details of which are found in Documents concernant la Normandie, pp. 353–357. 37. See Documents concernant la Normandie, p. 356: “All these dues will be taken and levied on all the goods and foodstuffs declared above, which will be consumed in the said town, suburbs, and outskirts of Rouen, without being levied … on goods … which enter, pass through or remain in the town … in order to be transported from it.” 38. Beef, pork, wine, etcetera. 39. Coal, woollen cloth, ratine, silk for manufacture of any kind, etcetera. 40. This is doubtful: it is clearly specified that these measures apply to “all persons of whatever quality and condition they may be, exempt and not exempt, privileged and not privileged”; Documents concernant la Normandie, p. 354. 41. See Diaire: “There will be a tax … of ten livres per hundred feet … servants, poor farmers, and laborers having no property will pay twenty five livres or serve the king in

 

12 January 1972 

a campaign” (p. 445) and “the property of the guilty will be able to be sold to pay the tax imposed, without the deduction of any outstanding mortgage” (p. 446). These are taxes to compensate interested parties in the commune of Avranches. 42. This refers to the “Mémoire touchant l’abolition des Nuds-pieds du diocèse d’Avranches”, in Diaire, pp. 444–446 (cited above, lecture of 15 December 1971, p. 50, endnote 2) from which the previous quotations are taken.

83

six

19 JANUARY 1972 A remarkable system of repression for several reasons. I. Internal coherence: interplay of differentiated sanctions aiming to break the previous alliances of social groups; financial profit given to the privileged in return for maintenance of order; formation of a third (neither military nor juridical) instance as (juridicomilitary) administrative instrument of the State, but basic lack of a specific apparatus of repression. II. Visible precariousness: differentiated arming (problems of bourgeois militias and popular arming), ruinous intervention by the army; drop in income from property as from tax levies; rent/taxes antinomy; bringing two contradictions into play. III. Resolution of the rent/taxes antinomy and stabilization of the army. From 1640, setting up of a new institution and distinct repressive apparatus within the State apparatus (intendants of justice, police and finance), acting as administrative tribunal and exceptional jurisdiction; establishment of a centralized and local police; a levy on the “dangerous population”, confinement and deportation. ~ Birth of the prison conjointly with birth of capitalism. Why this analysis of the revolt of the Nu-pieds? Because we see a system of repression being put to work here which is [102/1] remarkable for several reasons.1

I. INTERNAL COHERENCE* a/ The coherence of the tactic: It had to deal with an alliance between opposed social groups (peasants and artisans on the one hand; small feudal lords and members of the Parlement on the other). But faced with the demands of a tax system which weighed on both, albeit unequally, this alliance was solid; at any rate it was easily renewed. * Foucault had written: “a. Its internal coherence”, and then crossed out “a. Its”.

86

 

Penal theories and institutions

The course of the repression aimed throughout at breaking this alliance (by a whole play of differentiations, threats, blackmail, temporary sanctions) so that the privileged end up on the side of the repression being implemented. Behind the appearance of a “mass” repression was a play of differentiated sanctions. b/ The type of solution:* The break between the privileged and the poor [103/2] is assured in the long term by a system of double guarantee: –– The privileged undertake vis-à-vis the State to assure the maintenance of order even by force. And to do this they are conceded the re-appropriation of their arms. –– But at the same time, to ensure that they have an interest in guaranteeing order, the State assures the privileged a profit on the taxes, fines and the town’s debt with regard to the tax authority. So the privileged are granted a financial reward for keeping order; at the same time, the order they keep is a way for them to benefit from the financial advantages they are given. They become the policemen of their debtors. The workers of repression. Nothing is changed in the tax system: no relief, quite the reverse; but the privileged are promised a supplementary benefit on the extra tax burden imposed on the population. Usury and engagement (feudal system).2 c/ The body that organizes the repression (which is no longer [104/3] feudal).† A third body, neither military (although it takes in the army’s high command) nor judicial (since it accords itself the right to overturn the basic juridical rules). This is the administrative body of the State, that is to say: –– no longer the king himself, [nor his]‡ agents –– but personages, like Séguier, who both obey decisions and take part in making them.3

* The manuscript has a beginning of a paragraph partially crossed out: “Coherence of these results and of the apparent stability achieved by the repression”. The words “coherence of these results and of” and “stability” are crossed out. † Sentence crossed out: “The repression is no longer assured by the king, as war chief, or king as head of justice” And the beginning of the following sentence is crossed out: “But by [a …]”. ‡ Also crossed out.

 

19 January 1972 

87

–– So: the State apparatus as site of the formation of decisions and of the instrument for implementing them. This is the period in which the juridico-military form of state power is taken over by an administrative form. – Juridico-military form of the State: to be subject meant being subject to justice, that is to say able to demand justice and obliged to accept it; it meant being able to be protected by the armed force, and having in certain cases to take part in it; finally it meant being exposed to the risk of becoming an enemy and being repressed militarily if one refused the power of justice and the duty of the army. – Administrative form: to be subject means coming under (financial, [105/4] economic, judicial also and military) decisions taken in the name of all and applicable, by right and save exception, to all. So: – In its juridico-military form, the State manifests itself through a series of arbitrations and interventions which always correspond to particular situations, and to which custom gives a general and canonical form.* We can see that the major theoretical problem around which all the ideological representations of power are ordered is this: is power just? Where must the prince look in order to be just (to divine law or natural law, to reason or custom, etcetera)? We can see finally that, in its juridico-military form, †a both specific and general repressive body may not be necessary. The decision of justice has in itself a function‡ of management and a function of repression; military intervention is both political (in favor of a particular group, to ruin or advantage particular individuals) and repressive. Repression is exercised in multiple circumstances of power, that is to say of arbitration and struggle.4 – On the other hand, in its administrative form the State manifests itself through a series of laws which bind all private individuals and by [106/5] which it is itself bound (excepting raison d’État). These are no longer

* Then, interlinear addition, crossed out: “Dispersion of centers of power. Struggle [illegible]”. † Words crossed out: “the State”. ‡ Word crossed out: “administrative”.

88

 

Penal theories and institutions

arbitrations bound by custom, but general decisions possibly suspended by raison d’État. We can see that the major theoretical problem for all the ideological representations of the State is no longer that of the just, but that of the will. Whose will does the State’s decision represent? What will is expressed and asserted in a law or a regulation? To what extent does the will of the State suspend or alienate individual wills? Finally, it is clear that this administrative form of the State requires a general form of repression, a single body and a universal instrument which frames decisions of justice and military interventions. This manifestation of power which we have seen in detail –– responded, at a first level, to the strategic necessity of breaking an alliance of classes; –– but it was also the appearance of the modes of functioning of an administrative power in the forms of a juridico-military power. [The whole play of signs, which I have stressed, should be interpreted in [107/6] this way: –– to the Nu-pieds, who had confiscated the signs of a juridical and military power of decision, to the members of the Parlement or the bishop, who emphasized the signs of their power of arbitration, –– power responded with a set of manifestations, discourses, ceremonies, formalities which subordinated these scattered and various signs of juridico-military powers to the exercise of a State power. No longer the King as head of justice and the army; but a visible body of the State as decision and execution.]* Certainly, this is not to say that the first forms of the administrative State apparatus appeared in 1639. They had been in place for a long time. –– But in this period (which is the eve of its victory), this State apparatus (and the class to whose advantage it functions) comes up against a certain limit: it enters into violent conflict with the common people (peasants and artisans); also with the bourgeoisie and local aristocracies.

* Passage in brackets in the manuscript.

 

19 January 1972 

89

–– Now it does not have any specific instrument of repression with which to defeat this resistance. It manifests itself as being its own repressive force; it moves around, surrounded by armed force, led by the head of justice; it shows itself, asserts itself, deploys itself ceremo- [108/7] niously as independent of any justice and superior to any army. It makes itself visible as a universal and specific body. And yet it lacks an instrument: it is still obliged to depend upon justice and the army; it is constrained to a system of balance, engagement, promises. It still has to demand a feudal loyalty. What marks the privileged character of the events of 1639 is not at all the appearance of the apparatus of the administrative State; it is that in the opposition it encounters and in its self-assertion a certain lack is exposed: that of a repressive apparatus. Hence its visible precariousness.

II. THE MANIFEST PRECARIOUSNESS OF SÉGUIER’S REPRESSION It appears in the system of guarantee which should permanently secure and maintain the repression put in place by Séguier. This system of guarantee immediately comes up against two internal contradictions. a/ The problem of armed force – On the one hand the privileged are asked to keep order. A difficult task: for through the system of fines, the financial costs have increased considerably. (The non- property owners in the Avranches region were taxed at 25 livres)5; and if it is true that the people have been disarmed, one knows that artisans and peasants have no difficulty in making bladed weapons for themselves. – Now while they are asked to undertake to maintain order, their weapons are taken from them, because it is known that their rallying to royal power is too precarious for it to be safe to leave them armed.

[109/8]

90

 

Penal theories and institutions

All the more so since, loyal or not, if the people seize their weapons there will be civil war again. The whole problem of arming the people arises: –– Problem of differentiated arming for repressive ends. Who should be armed? Where should one stop in this arming? (Problem of bourgeois militias). –– Problem of the circulation of arms from the army (deserters, discharged soldiers). Problem of the disbanding of regular troops and of [110/9] armed vagabondage.* Half-measures are taken: –– The wealthiest bourgeois are rearmed; –– At Caen, the wealthiest five hundred are left armed6; –– At Rouen, 7 February [1640], it is decided that the bourgeois will have to take up arms in the event of popular disturbance (this is part of the pact).7 –– It is decided to remove the cannons from the town hall and have them taken to the Vieux Palais.8 Half of them will be returned later. (The history of the letter A on the list of the bourgeois of Avranches or Caen).9 –– But it is necessary to leave the army, at least in part, be it only for the campaign. In 1643, in the Cahier of the Normandy States, we find complaints about the army’s presence. There are one hundred soldiers in the généralité of Alençon to col- [111/10] lect the taille; fifty in the vicomté of Orbec. Every soldier is fed but demands 10 sols a day in addition. “They break down and burn the doors of houses, they demolish barns, thresh the wheat and sell

* Passage crossed out: “These two points will only be resolved, or at least tackled on a large scale, by a whole series of measures which can be characterized in this way:

–– replacement of bourgeois militias by a police in order to ensure the tasks of armed repression; –– setting up of a permanent army and struggle [illegible] against vagabondage. In any case, we are far from having reached this point in 1639.”

 

19 January 1972 

91

it publicly at a low price; … they also burn carts and plows, and other than massacres, the enemy could do no worse.”10 Now this ruinous presence of the army lowers the income from the land, the solvency of the peasants prevents them from being good taxpayers and creditors (which was the wager promised by the pact). The contradiction is therefore the following: –– Taxation is too heavy on the privileged for one to take the risk of fully rearming them. –– Disarming them entails the intervention of another armed force. But this checks the tax levied by the State, reduces the rents of the bourgeois, and increases their discontent so that it becomes increasingly dangerous to arm them. b/ The second contradiction emerges from this. The pact intended that the privileged become the guarantors of the tax levy, in return for which they would become the creditors of the poorest. Immediately after the revolt, the poorest, for having refused to be taxpayers, find themselves taxpayers again (vis-à-vis the State, and to the advantage of the [112/11] big aristocracy) and debtors (vis-à-vis the bourgeois who had advanced the money of the fines). But the incompatibility explodes. The well-off and the State immediately enter into competition: –– The cahier of the Estates just quoted is a sign of this: the army carries out a direct levy for itself; and it returns to the traitants the sums due as taxes. The landowner or the creditor only comes after. –– But conversely if the latter come first, nothing remains for the State; the Cour des Aides will then have to seize the property and pass sentence, but the future rents of the landowner will be affected by this. And we see emerging here the great opposition between tax and rent.11 An opposition which will underpin a good part of the political struggles of the seventeenth and eighteenth centuries, which will also drive the theoretical discussions between the économistes (partisans of rent, who uphold the productive character of the land and only the land, and who preach the as it were natural irrigation of the whole social body by ground rent, without direct pumping by taxes: [the] Physiocrats)

92

 

Penal theories and institutions

[and,] on the other hand, partisans of State intervention in the form of taxes* on the least production, the least circulation of wealth.12 But anyway, the practical postulate of both is that rent and tax should not be in direct competition and block each other to the point of cancel- [113/12] ling each other out. What do we observe if we now bring together these two contradictions, which were immanent to Séguier’s repressive system? – Séguier’s repression brings into play two contradictions: 1/ The contradiction between (warlike) arming of the people and selective (repressive) arming. This was no doubt the main contradiction at the end of the Middle Ages at the level of the exercise of power. It is this contradiction that in part brought about the organization of a central power in France. 2/ It brings into play another contradiction: between rent and tax. On the one hand, this contradiction is brought to its most intense point by the existence of the State (which is justified however by the centralization of rent).13 But, on the other hand, it quickly becomes “under-determined” (i.e., taken up in a more fundamental determination which makes it function according to its own rules). This more fundamental determination is capitalist production which to start with depended upon tax and strengthened the absolute monar[114/13] chy, and then depended on rent. In any case, Séguier’s repression stitches together a contradiction specific to the exercise of power at the end of feudalism and a contradiction characteristic of the State in the early development of capitalism. –– But if Séguier’s repression brings these contradictions into play, it in no way resolves them. In truth, on the contrary it exasperates and increasingly sharpens them. In the generalized struggle against the State’s power, the Fronde manifests a sort of insurrection against all forms of tax levy; and it reveals that the peasants and artisans can easily arm themselves, that the arms of the bourgeois are easily turned against the State, that armies * Part of the sentence crossed out: “directly favoring certain other activities benefitting the totality of the social body”.

 

19 January 1972 

93

are themselves still caught up in the interplay of feudal independences and loyalties.14 All the Séguier-type repressions which took place at the beginning of the seventeenth century hastened the Fronde. –– These contradictions will be overcome –– on the one hand, when the rent/tax antinomy is unlocked, which mercantilist policy tried to achieve throughout the century, [115/14] often with modest effects; –– on the other hand, when armies are stabilized as professional armies and are sufficiently cut off from the population not to blend into it. The growth of the administrative State is both the result and a factor of this unlocking of the rent/tax antinomy, and of this redistribution of armed force.

III.

[116/15]

In what way will the setting up of a repressive apparatus be realized? 1 – Séguier sought to have control of the potentially seditious masses assured by the privileged themselves. And this according to two very typical forms of feudal society: the economic form of usury, and the juridical form of engagement. What will be put in place bit by bit from 1640 is a distinct repressive apparatus which will have to exercise two as it were orthogonal functions: –– On the one hand, to assure directly (and from above) the control and repression of any movement or sedition. This in two ways: –– by the direct intervention of an armed force; –– by the elimination of those people (the unemployed, vagabond, disreputable, banished, brigands) who served as the officers, spearhead, and agents of communication of the revolts. They will be eliminated by: –– enlistment –– confinement15 –– public works. –– But the other function of this repressive body will be to monitor how the privileged exercise their control, how they exercise the police [117/16]

94

 

Penal theories and institutions

for which they have been given responsibility, how they dispense justice, and how the division is made between tax levy and rent. This double function of repression is assured by a new institution in the State apparatus: “intendants of justice, police and finance, and commissioners sent to the généralités of the kingdom to execute the King’s orders.”16 These intendants have a fourfold repressive function: –– “to prevent any mob, oppressions and disorders” (they are given a task of armed intervention, which makes bourgeois militias, the nobility and their enfeoffed troops pointless)*; –– to control finance: “to enter and preside in the town assemblies, in our finance offices, to have the state of income and expenditure represented”; –– to serve as administrative tribunal: “to obtain information on exactions, violence, concessions and misappropriations, to proceed by sovereign judgment and without appeal against those found guilty”.17 [Colbert said: “to obtain information about all the injustices that our subjects may suffer at the hands of officers and other ministers of [118/17] justice through corruption, ignorance, negligence or otherwise”.18]† –– Finally, to serve as exceptional jurisdiction: they are decreed competent to judge cases where there is legitimate suspicion against the judges. We can see that the intendants clashed with the traditional patriciate of the provinces, whom they divested of many of their powers and some of their benefits (in particular members of the parlements and men of justice, whose cases decrease accordingly). We can also understand the positive self-image they left in bourgeois historiography, since they existed: –– on the one hand, to guard against sedition; and –– on the other, as arbitrators between rent and tax, they sought to bring their competition to an end by the creation of new resources.

* The manuscript has in the margin: “commission given to De Blair in 1754”. † Passage in brackets in the manuscript.

 

19 January 1972 

95

The major public works, the struggle against unemployment, the development of factories, the aid given to nascent capitalism answered to these two requirements. 2 – The other characteristic of the repressive apparatus put in place [119/18] in the seventeenth century is that it escapes the alternative of either directly arming the privileged classes or a military presence. To escape this antinomy, in which Séguier’s repression was still caught, the State put in place two institutions: – A police: centralized (the lieutenant general of police in Paris had powers of intervention throughout the kingdom), and local (lieutenants of police in all towns from 1699).19 Police, that is to say: –– an armed force, but one which does not have military tasks; –– an armed force which, blended into the population, has capabilities of immediate intervention and especially of prevention that the army does not have. –– an armed force whose presence does not have the disastrous economic consequences of an army in the field. – The other, even newer institution is confinement or deportation, that is to say the removal * of a fringe of population.20 –– Hitherto punishment, the threat against sedition, was the army’s presence, it was invasion. –– Now it is removal of the dangerous population. [120/19] To remove or threaten to remove a part of the population does not have the economic drawbacks of invasions. –– It keeps wages low: people prefer low wages to being confined. –– Stimulation of production at low cost (for export); stimulation of colonial trade. Police and confinement are two correlative phenomena. Both permit avoidance of the alternative between presence of the army or arming the population; both permit avoidance of the additional cost incurred by

* Emphasis in the manuscript.

96

 

Penal theories and institutions

o­ ccasional repression by the army; finally, both come to play a certain role in the development of an economy which is cutting a path between rent and tax. N.B. Prison was not part of the penal system.21 It appears here, on the fringes of the ordinary penal system, as a sort of parallel circuit. It is linked to the development of capitalist production. But not directly. Imprisonment does not intervene; its economic role is marginal. But it is linked to the putting in place of a repressive State apparatus [121/20] that is at once centralized, intended essentially for the prevention of the type of revolts which took place in the sixteenth–seventeenth century, endowed with minimal economic cost, and finally constitutes to some extent a reserve of wage and price regulation (at least at the local level). So we see a repressive State apparatus taking shape which is characterized: –– by a justice placed in the hands of representatives of the State. Hence a great upheaval in relation to a justice which, through the system of the sale of offices, straddled a feudal system and a market system.22 –– by a police instrument which operates in the name of the State. Hence a great upheaval in relation to a justice which in its feudal form was linked to struggle and arbitration. *

 



19 January 1972 

NOTES

1. Foucault appears to have reorganized this lecture devoted to picking out the major characteristics of the system of repression, ultimately dividing them into three parts numbered “I”, “II” and “III”. The first part analyzes its “internal coherence”, the second its “manifest precariousness”, and the third, its future development. This reading leads us to link the “I” with the subtitle “Internal coherence”. 2. See above, previous lecture, p. 73 [92/11] sq. [And see, “Translator’s note”; G.B.] 3. See ibid. 4. See below, lecture of 2 February 1972 and following lectures. 5. See above, previous lecture, pp. 77–78 [99/18–100/19] and p. 82, endnote 41. 6. See Diaire, p. 200 and p. 390; above, previous lecture, p. 77 [98/17]. 7. See Diaire, p. 245. 8. See the details, ibid., pp. 187–189, n. 1, and in M. Foisil, La Révolte des Nu-Pieds et les révoltes normandes, p. 314. It will not be until 1650 that some of the cannons are returned. 9. Mémoires du président Bigot de Monville, p. 224. Before entering Rouen, the captains of the bourgeois of the town will give him “a list of all the inhabitants; he puts an A alongside the most solvent, who are left their weapons for use when commanded. The others are disarmed.” 10. C. de Robillard de Beaurepaire, Cahiers des États de Normandie sous les règnes de Louis XIII et de Louis XIV: documents relatifs à ces assemblées, III (Rouen: Métérie, 1876–1878), pp. 110–111: “There are one hundred soldiers who roam the Généralité of Alençon to levy the taille, and still present, in the vicomté of Orbec, a company of fifty men at arms … cause such devastation that each soldier, beyond his food, which he takes at will from his host, requires 10 sols a day from him; they break down and burn the doors of houses, demolish barns, thresh the wheat which they sell publicly at a low price, they also burn the handcarts and plows, and, other than massacres, nothing worse could be done by the enemy.” 11. Important comment: for Porchnev, Les Soulèvements populaires en France, p. 395, “in the Middle Ages … rent and tax are inseparable in the feudal system”. To pick out the contradiction between them is to leave the feudal system. In his Notebook no. 11, under the date 28/10/1971 (BNF), Foucault shows his close attention to this distinction between feudal ground rent and State taxation (leased, notably, by the bourgeois through the system of the sale of offices), thus marking a significantly different reading from Porchnev. As he notes: “Accumulation did not take place on the basis of ground and feudal rent” but through a levy “which was leased to the bourgeoisie: so that the latter received significant amounts of money (which it did not re-invest in the land). But which made it a money power. The tax levy entered into competition with ground rent (conflict with the feudal lords, with the members of the parlements). Pb.: offices ≠ tax farms. Linked to the birth of the State apparatus.” We can see that this analysis enables Foucault to link, as he does in the rest of the course, the mechanism of the accumulation of capital (and so the material, infrastructural conditions of transformation of modes of production) and the evolution of power relations (here, the formation of the State apparatus) and, more specifically, to emphasize the role of justice in the appropriation and accumulation of wealth.

97

98

 

Penal theories and institutions

12. See M. Foucault, Les Mots et les Choses. Une archéologie des sciences humaines (Paris: Gallimard/nrf, 1966), pp. 207–209; English translation A. Sheridan, The Order of Things. An Archeology of the Human Sciences (London: Tavistock; New York: Pantheon, 1970). The objective of the physiocrats (or “économistes”) was actually to abolish the set of direct taxes (especially the royal taille) and indirect taxes on the production, consumption, or circulation of wealth (customs duties, for example) and to replace them with a direct, single and proportional tax on the net product of agriculture, that is to say the revenue of lands less the costs linked their exploitation. See V. Riqueti de Mirabeau and F. Quesnay, Théorie de l’impôt (Amsterdam: Arkstée et Merkus, 1761) or Quesnay, “Impôts” (1757), Œuvres économiques, I, (Paris: INED, 2005), pp. 213–256. This proposition is inserted both within the framework of the economic doctrine of the physiocrats, according to which only the land is really productive, and in a political context well described in A. Skornicki, L’Économiste, la Cour et la Patrie (Paris: CNRS Editions, 2011), pp.  347–353: it was a matter of putting in place a tax system that escapes the contradiction of the previous system, founded on the sale of offices and delegation to private actors, which in the short term assured income for the Crown but in doing so multiplied privileges and tax exemptions. 13. Here we find again in part Porchnev’s analysis: the centralized State is, to start with “a special organization for repression” permitting the “levy of feudal rent”. But we see that a contradiction is clearly expressed between “the part of feudal rent” which comes back to it “in the form of taxes” and seigneurial feudal rent. See, Les Soulèvements populaire en France, pp. 395–396. 14. On “the problem of the Fronde”, see ibid, 3rd part; R. Mousnier, La Plume, la Faucille et le Marteau, pp. 265–333. 15. On confinement, see M.  Foucault, Histoire de la folie à l’âge classique (Paris: Gallimard, 1972), chapters II and III; English translation by Jonathan Murphy and Jean Khalfa, History of Madness (London and New York: Routledge, 2006); La Société punitive, p. 126 sq; The Punitive Society, p. 123 sq. 16. See for example E.-V.-C. de Boyer de Sainte-Suzanne, L’Administration sous l’Ancien Régime. Les intendants de la généralité d’Amiens (Picardie et Artois), (Paris: Dupont, 1865): “Intendants of justice, police and finance and commissioners assigned in the généralités of the kingdom to execute the king’s orders” (p. 14). On these intendants and their creation, see R.  Mousnier, La Plume, la Faucille et le Marteau, pp.  179–213; M. Antoine, “Genèse de l’institution des intendants”, Journal des savants, 1982, vol. 3, pp. 283–317; for an overall view and bibliographical orientation on the intendants, see M.  Bordes, L’Administration provinciale et municipale en France au XVIIIe siècle (Paris: SEDES, 1972). 17. This list of functions is drawn, with modification, from the copy of the commission of De Blair to the intendancy of Hainaut in 1754, reproduced in G.-A.  Guyot, Traité des droits, fonctions, franchises, exemptions, prérogatives et privilèges, III (Paris: Visse, 1787), pp. 437–440, in which the different functions of the “provincial intendants” are specified: “to prevent all mobs, oppressions and disorders” (p.  439); “To enter and preside in the town assemblies” (p.  438); “To enter, sit and preside in our finance offices … to have represented to you the state of the income and expenditure of our money” (p. 439); “to carefully obtain information about exactions, embezzlement, violence and misappropriations which could be committed by our finances; to proceed by sovereign judgment and without appeal … against those found guilty” (p. 439). For a

 

19 January 1972 

99

list of functions very close to this but much older, see the commission of Laffemas in Picardie in 1635, in E.-V.-C. de Boyer de Sainte-Suzanne, L’Administration sous l’Ancien Régime, p. 568. These formulae recur endlessly. 18. C. Godard, Le Pouvoir des intendants sous Louis XIV, particulièrement dans les pays d’élections de 1661 à 1715 (Paris: L. Larose, 1901), which presents this text as coming from Colbert: “To obtain information about all the abuses … and generally knowledge of all the injustices, wrongs and oppressions that our subjects may suffer at the hands of officers and ministers of justice through corruption, negligence, ignorance or otherwise” (pp. 41–42). 19. This is the edict creating lieutenant generals of police in October 1699. See N. Delamare, Traité de la police, I (Paris: Brunet, 2nd edition, 1722), pp. 51–52. On the history of police under the Ancien Régime, see also P. Napoli, Naissance de la police moderne (Paris: La Découverte, 2003). On the lieutenant general of police in Paris, see above, lecture of 1 December 1971, p. 34, note 11. 20. See Histoire de la folie; History of Madness, chapters II and III, and La Société punitive, pp.  125–144; The Punitive Society, pp.  122–141, which explicitly situates itself as extending Penal Theories and Institutions on these subjects. In fact, Foucault here takes up one by one the elements referred to in the lecture: “feudalization and private appropriation of justice through the purchase of offices”, “alliance … against State taxation”, “popular movements, in the face of which this justice is powerless if not semi-complicit”, “armed intervention; repeated consequence of this ‘armed justice’”, which Foucault presents as a “heavy and costly instrument”. “Hence the need to call upon a different apparatus: this was the invention that consisted in replacing repression with a technique of removal from the population” (Fr., p. 126; Eng., p. 124). There follow a series of pages on the para-judicial apparatus of the “intendants of justice” and police, and on the apparatus of confinement (in particular, the lettres de cachet). 21. See, for example, F. Serpillon, Code criminel, ou Commentaire sur l’ordonnance de 1670, III (Lyon: Périsse, 1767), p. 1095: “Prison is not regarded as a penalty according to our civil law” (BNF). In an interview with N. Meienberg in March 1972, “Le grand enfermement”, trans., J.  Chavy, Tages Anzeiger Magazin, 12; DÉ, II, no. 105, pp. 296–306/“Quarto”, I, pp. 1164–1174, Foucault takes up the idea that confinement was “a brilliant invention of the classical age”, “when capitalism, in its early stages, faced new problems … and when the societies of the seventeenth century experienced major popular insurrections”. Confinement is a means to resolve the antinomy posed by the old repression (armed justice) which has become economically and politically inappropriate: “The prison then was invented in order to obtain a differentiated result … to eliminate a certain part of the population as dangerous without this having catastrophic economic consequences” (p. 297/p. 1165). Moreover, “To avoid confinement, one had to … accept wage labor, however badly paid. Consequently, the lowest wages were stabilized by the threat of incarceration” (p. 298/p. 1166). Foucault will later somewhat modify his point of view on the conditions of integration of the prison into the penal apparatus (see La société punitive; The Punitive Society and Surveiller et Punir; Discipline and Punish). 22. On purchase and sale of offices, see the classic work by R. Mousnier, La Vénalité des offices sous Henri IV et Louis XIII (Paris: Maugard, 1946) (BNF); more recently, for the seventeenth century: W. Doyle, Venality: the Sale of Offices in Eighteenth Century France (Oxford: Clarendon Press, 1996).

seven

26 JANUARY 1972 The failure of the repression carried out by the Chancellor Séguier and then the Fronde gave rise to the setting up of three new institutions: a centralized justice (intendants of justice); the police; a punitive system by removal from the population, confinement, deportation. In response to popular struggles, the repressive penal system produces the notion of delinquency: the penal system— delinquency couple as effect of the repressive system—sedition couple. ~ The new institutions do not replace the feudal institutions, they are juxtaposed to them. ~ The exercise of political power is linked to nascent capitalism. The new repressive system, conceived of as an element of protection of the feudal economy, is linked functionally to the development of the capitalist economy. It takes shape in the penal code and will be ratified at the end of the eighteenth century: production of the penality/delinquency coding.

Characteristics of the new repressive system* Séguier’s repression,† or rather its failure, was linked to the fact: (a) that this repression had to be carried out by the State apparatus itself without being able to rely on the local powers; (b) but this State apparatus lacked a specific instrument of repression. The State apparatus appeared in its repressive function, but lacking adequate repressive institutions. (c) It therefore had to resort to old forms or at any rate forms unsuited to repression. * Subtitle preceded by a subdivision mark “A” (deleted in the absence of “B”). † Foucault indicates here the three characteristics of Séguier’s repression, the displacement of which he indicates after the subdivision mark “(c)”. –– “the game of guarantees and engagements –– the fine and indebtedness –– the presence of the army”.

[122/1]

102

 

Penal theories and institutions

And it is in this lack, thus demonstrated by Séguier’s failure (and by the Fronde) that three new institutions were installed: –– intendants of justice, that is to say a centralized justice, directly in [123/2] the king’s hands and responsible for –– on the one hand, repression of sedition –– on the other hand, controlling those with responsibility for control; –– police, that is to say a force of repression which, unlike the army, is both not expensive and preventative; –– confinement, or deportation, that is to say a form of punishment which is not destruction of wealth but removal of population –– removal that does have economic effects –– but whose meaning is above all repressive, anti-sedition.1 With regard to these new institutions we should note: a/ that they are all called for by the needs of an anti-seditious repression. They were determined by popular struggles. Or rather, it is a new form of popular struggle, a new threat that provoked this reaction. For, we shall see, all the major phases of evolution of the penal system, of the repressive system, are ways of responding to forms of popular struggles.* The other side of the repressive system is not delinquency, it is popu- [124/3] lar struggle, the struggle of the people against power. It is to this that a repressive system responds. Delinquency itself is an effect of this repressive system. I mean that a repressive system organizes a certain number of modalities of prevention, precaution, preliminary interventions, and constant surveillance.† –– which are formulated in prohibitions and threats in the form of laws or customs; –– which thus define delinquent conducts, behavior, –– and which permit what is basically the prevention of popular sedition to be promoted as the sanction for delinquency. –– The penal system–delinquency couple is an effect of the repressive system–sedition couple. An effect in the sense that it is a product of

* The manuscript has in the margin: “revolts which will lead to the Revolution”. † Text crossed out: “which, through the intermediary of penal laws or customs, define a set of delinquent conducts and which […]”

 

26 January 1972 

103

it, a condition of its maintenance, a displacement of it, and an occultation of it.2 b/ These new institutions correspond to new forms of popular strug- [125/4] gles. But they are juxtaposed with all the old set of judicial institutions –– seigneurial justices –– royal justice = prévôts résidiaux parlements.3 They limit them, certainly, they put pressure on them. But they do not suppress them. All the more so as the Ordinance of 1670 strives to make the formal junction. Which will leave intact all the real conflicts.4 In fact, the reason there was juxtaposition and not replacement is no doubt this: –– the new institutions of State-controlled repression certainly manifested the existence and development of a State apparatus completely foreign to the feudal system*; –– but it was above all intended to protect feudal rent and the feudal system in its entirety. Now judicial institutions which had been appropriated (either directly by way of enfeoffment, or indirectly through offices which could be bought and sold) were integrated into this feudal [126/5] system. So that the new repressive system (non-feudal in its form and functioning) had the function of protecting the remains of a regime of feudal rent into which the old repressive system was integrated by way of the profits of justice. The profits of justice produced by the old system became a part of those feudal rents that the new system had to protect. So it is quite natural [that the two systems]† are juxtaposed, but not on the same level: in a situation of subordination

* Sentence crossed out: “On the one hand, it was made possible moreover by the development of capitalist production; on the other, it promoted it.” † The manuscript has: “that they”.

104

 

Penal theories and institutions

–– the old system becoming increasingly a pure and simple source of profits (alongside landed or commercial property), –– and the new system exerting a power which encroaches upon, and gradually reduces to nothing what it is responsible for protecting. [c/] The third comment is that this juxtaposition does not prevent a [127/6] radical novelty.* (a) If it is intended to control and to permit fiscal revenues, it does not take part itself in the tax levy. It is not a form of taxation –– unlike seigneurial justice5 –– unlike offices.6 A justice that does not serve a tax system. Hitherto, being subject to law was a way of being taxable. (b) If it is intended to protect private property, it is not itself a private property –– unlike enfeoffed justice –– unlike offices of judicature.7 (c) If it is linked to the exercise of political power, it is in a new way –– Hitherto the act of passing sentence meant having a political power. Since the exercise of power was passing sentences, royal decisions were themselves sentences. Politics was quite naturally entailed by the judicial. –– Here, on the contrary, it is politics that a fortiori gives the right to judge. The intendant [of justice] can judge because he administers. [d/] Fourth comment: this system is linked to nascent capitalism.† [128/7] –– The old system was doubly linked to the feudal economy: –– it protected it (through its operation); –– it reinforced it by its conditions of exercise (since the property of justice remained of a feudal type, and it drew the available money of the bourgeoisie to this type of property).8

* Beginning of the paragraph crossed out: “A. What are the points of absolute novelty in this new system of repression [?]” † Sentence crossed out: “(d) The exercise of this new justice is indeed linked to the development of the economy, but here again in an entirely different way.”

 

26 January 1972 

105

–– In its structure, the new system is indeed an element of protection of the feudal economy. But actually [it] facilitates the development of the capitalist economy. How so? – by its decisions? Up to a point. Who dispensed justice? As a function of what interests? – but above all by its conditions of functioning: (a) It reduces the importance of fiscalized justices and their resources. (b)  It also reduces [their] political importance. (c)  It therefore permits bourgeois wealth to be directed towards new forms of investment. So that, we see, this new repressive system is linked to the development of capitalist production in more than one way: –– If it was not the basic cause, it was at least directly involved in put- [129/8] ting an end to the popular revolts, which permitted the development of capitalist production. Strategic effect* –– Through its decisions (and on account of those who took them), all in all it was favorable to nascent capitalism. Jurisdictional effect of its decisions –– By its mode of functioning it oriented the mobilizable capital of the bourgeois patrimony in a productive direction. Economic effect of its functioning –– It could be taken over in its essentials within the political system of the bourgeois and capitalist State of the nineteenth [century]. Institutional effect Because of all this we can understand why the new repressive system won out. However structurally linked to feudalism (and to its centralized form), it was functionally linked to the development of capitalism:

* It seems Foucault writes first of all: “Repressive effect”, then crosses out “Repressive”, writes above “Political” [or maybe: “Practical”], then crosses out “Political” and writes above: “Strategic”.

106

 

Penal theories and institutions

–– the needs of the formation of capital, –– the expropriation of the powers of justice. –– the separation between exercise of justice and tax levy, –– the transfer of the exercise of justice to the administrative power of the State. These four processes hold together. * We see therefore why it is this new system that will finally be taken [130/9] over and validated at the end of the eighteenth century.† –– It is this system (functionalized justice, police, confinement) that will definitively replace the system of enfeoffed justice, guarantee and engagement of privileged groups, and banishment–military invasion. –– It is this anti-seditious system that will take shape in the penal code, the justice apparatus, the police apparatus, and the new close control of delinquency. –– It is this system that, at the cost, obviously, of some important modifications, will have to assure anti-seditious protection in capitalist society.9 It is not capitalism that produces criminality. Superficial character of the analysis: capitalism produces thieves and murderers; without capitalism no more murderers.10 We should say that capitalism cannot subsist without an apparatus of repression whose main function is anti-seditious. This apparatus produces a certain penality–delinquency coding. What has to be studied now is the installation of this new repressive [131/10] system –– the way in which it finally prevailed as the political system of capitalist production developed and was completed; –– through what episodes it was finally institutionalized in the nineteenth century in the forms of the courts, the police, prisons, and the penal code. And this through three episodes: 1/  the Maupeou conciliation.11 2/ a whole new system of judicial control, or rather the confrontation of several systems of judicial practices under the Revolution

* Beginning of sentence crossed out: “The fifth comment to be made is that …” † Continuation crossed out: “producing a new penal formulation and a new close control, a new coding of delinquency”.

 

26 January 1972 

107

3/  finally its triumph at the time of imperial reaction.12 But let’s step back to get the measure of the novelty of these three institutions: intendants of justice, police, confinement. How a whole new judicial practice was arising on the basis of this new repressive system which was slipping into the interstices of the old one.* *

* An unnumbered sheet follows which contains: Apparently: Penal System – Delinquency A particular case Sedition Historical accident → repressive apparatus Actually: Repressive system – Sedition Historical condition Penal system – delinquency as effect ideologically displaced towards the universal and the permanent as instrument of renewal (permanent, broadened)

[132/-]

108



 

Penal theories and institutions

NOTES

1. See above, previous lecture. 2. On this subject see La Société punitive, “Situation du cours”, pp. 290–291; The Punitive Society, “Course context”, pp.  279–280. It is necessary therefore to distinguish between “repressive systems”, which have, according to Foucault, a political function aiming to repress and block popular struggles for power (anti-seditious function). If this function appears (we will see this from the lecture of 9 February 1972) from the revolts of the end of the thirteenth century and from the fourteenth century, with the appearance of the Parlement and of the King’s Procurator and the formation of centralized armies, it is from the seventeenth century that “the penal system, which basically had a fiscal function in the Middle Ages, became organized around the struggle to stamp out rebellion” (“Sur la justice populaire. Débat avec les maos”, DÉ, II, no. 108, p.  351/“Quarto”, I, p.  1219; “On Popular Justice: A Discussion with Maoists”, Power/Knowledge, p.  14 [see above p.  51, note 15]). This fundamentally political dimension of repressive systems explains that what “underlies the people’s hatred of the judicial system, of judges, courts, and prisons” is “the singular perception that power is always exercised at the expense of the people. The anti-judicial struggle is a struggle against power” (“Les intellectuels et le pouvoir”, conversation with Gilles Deleuze, 4 March 1972; L’Arc, no. 49: Gilles Deleuze, Spring term 1972, pp. 3–10; DÉ, II, no. 106, p. 311/“Quarto”, I, p. 1179; English translation Donald F.  Bouchard and Sherry Simon, “Intellectuals and Power”, in Language, CounterMemory, Practice, p. 211. As for the penal system—delinquency couple, its effect is to cover up this political dimension (by transforming it into “laws” valid for the social order as a whole, etc.) and, through the opposition between “delinquent plèbe” and “proletariat”, by contrasting “marginals” with the “honest” proletariat, to maintain domination over the people even more by dividing it. “It should not be said: there is the proletariat and then the marginals. One should say: in the general mass of the common people (plèbe) there is a division between the proletariat and the non-proletarianized plèbe … Institutions like the police, justice, the penal system are one of the means … employed to constantly deepen this division needed by capitalism” (“Table ronde” in Esprit, 413: Normalisation et contrôle social (Pourquoi le travail social?) April–May, 1972, pp. 678–703), DÉ, II, no. 107, “Classes laborieuses et classes dangereuses”, p. 334/“Quarto”, I, p. 1202. Moreover, according to Foucault, one of the effects of the delinquency—penal system c­ ouple is the proletariat’s internalization of “a part of bourgeois ideology … concerning the use of violence, insurrection, delinquency, the sub-proletariat, the marginals of society” (“Le grand enfermement”, DÉ, II, no. 105, p. 303/“Quarto”, I, p. 1171). Hence the point of showing the fact that all “delinquency” is in fact political and of removing the “division” between common law delinquency and political struggle. See below, lecture of 9 February, pp. 130–131 [155/6]–[156/7], and of 1 March 1972, p. 190 [225/14]–191 [227/16]; “Course context”, p. 266 et passim. 3. See above, lecture of 1 December 1971. 4. On the Ordinance of 1670, see below, lecture of 2 February 1972, p. 275, note 8. 5. The seigneury is first of all a mode of land ownership which normally contains three components: a domain, one or several fiefs, and a seigneurial justice. The first two

 

26 January 1972 

109

elements entail the payment of taxes (quitrent, various rents …) and are inserted in a complex fiscal system (for example, usually, in order to exercise his rights the seigneur must pay the king a tax of franc-fief, or one year’s revenue out of twenty). Inasmuch as it is attached to the seigneury, seigneurial justice (carried out by seigneurial judges and agents, answerable to the seigneur) is integrated in this tax system, in this system of dues and taxes. 6. The system of “offices” consists in selling State responsibilities (administration, justice, finance, etc.) to wealthy families of the Kingdom who then kept them against an annual tax and could pass them on to their heirs. Here again, it is clearly a matter of integrating justice in a system of deductions and taxes. See Mousnier, La Vénalité des offices sous Hennri IV et Louis XIII [above p. 99, note 22], and B. Guenée, Tribunaux et Gens de justice dans le bailliage de Senlis à la fin du Moyen Âge (vers 1380–1550) [above, p. 30, note 4] pp. 154–184. 7. Seigneurial justice and offices constitute an exchangeable and inheritable patrimony. 8. On this point, see the analyses of B. Porchnev, Les Soulèvements populaires en France, pp. 419–421 and especially pp. 557–561. When, despite fiscal pressure, the bourgeoisie managed to accumulate capital, it preferred to put it, as usurious capital, in credits to the privileged or the purchase of offices and rents, rather than in industry and commerce as productive capital. This was a way for it to avoid tax burdens and to acquire a privileged status in a still broadly feudal system. This thesis is challenged by Mousnier, notably for the seventeenth century, who accords much greater importance than Porchnev to commercial and industrial capital and qualifies the idea that monopolies and privileges were obstacles to the development of capitalism. See R. Mousnier, La Plume, la Faucille et le Marteau, pp. 362–363. For more details on these debates, see below the Appendix, C.-O.  Doron, “Foucault and the historians”, pp. 285–301. 9. See above, previous lecture, p. 99, notes 20, 21. 10. The idea that “capitalism … produces criminality” was regularly used at the time to characterize “Marxist theory” in criminology. See, for example, D. Szabo, Criminologie (Montréal: Presses universitaires de Montréal, 1965) p. 197: “Marxist theory tended to portray criminality as a product of the capitalist system”; or R. Merle and A. Vitu, Traité de droit criminel (Paris: Cujas, 1967) pp. 52–53: “In the eyes of jurists in the socialist countries, criminality is essentially a product of the capitalist system”, it “should normally cease, or diminish considerably, after the definitive building of communism”. It refers back in particular to the classic work of Dutch Marxist criminology, W. A. Bonger, Criminality and Economic Conditions, trans., Henry P.  Horton (Boston: Little, Brown and Co., “Modern Criminal Science Series” 8, 1916), in which the author expounds his theory that the capitalist mode of production ruins social feeling and encourages egoism, the will to dominate, immorality …, producing criminality. On the other hand, in a society characterized by common ownership of the means of production, criminality should tend to disappear (see, for example, pp. 667–672). 11. In 1768, René Nicolas Augustin de Maupeou (1714–1792), old First President of the Paris Parlement, became Chancellor of the Kingdom and Keeper of the Seals. In 1771, in a context of struggles between the monarch and the parlements (with the Paris Parlement at the head), he began a thoroughgoing reform of justice, aiming to reduce the

110

 

Penal theories and institutions

power of the parlements. He had members of the parlements judged guilty of venality, arrested, and exiled, abolished the purchase and sale of offices, instituted free justice, and, in the territory under the jurisdiction of the Paris Parlement, created High Councils whose members were designated by the King, irremovable, and paid by the State. Arousing considerable protest, his reform was abandoned in 1774, with the advent of Louis XVI. Maupeou then lost the office of Keeper of the Seals but remained Chancellor until 1790. On the Maupeou reform, see J.-L.  Chartier, Justice: une réforme manquée. 1771–1774. Le Chancelier de Maupeou (Paris: Fayard, 2009). 12. Foucault does not deal with these different episodes in the lectures. He restricts himself to a part of the program (study of the confrontation of different penal systems at the end of the eighteenth century and at the beginning of the nineteenth century; introduction of the prison as privileged penal form …) in the next course of lectures, The Punitive Society, and in Discipline and Punish.

eight

2 FEBRUARY 1972 Opposition of the new repressive system to the old one: antagonism between processes which gives rise to the birth of justice as both a specific and a state controlled apparatus. I. History of the judicial apparatus in the eighteenth century: political struggles, operational conflicts, and determinant contradictions forged the different discourses of penality, crime, and penal justice. ~ Need to return to feudal justice and Germanic law. II. History of Germanic penal law. The juridical order defined by the rules of the dispute; the act of justice is not organized by reference to the truth, nor by the judicial instance, but through a regulated struggle. ~ Closure of war by payment of an indemnity (rachat*), and not sanction for the offense. ~ The activity of judging as risk-taking, the danger of private war producing a system of assurances (oaths, compensations, pledges (gages)). Introduction We have seen the emergence of a new repressive system. It contrasts with the old system in a number of fundamental features: –– its position with regard to private property: it protects it, but it is not the object of an appropriation; –– its position in relation to taxation: it must guarantee it, but it does not itself operate as a levy; –– its position in relation to political power: it is an element of political power; it derives from political power; it does not constitute an instance of political power; * [The French rachat can mean payment as compensation or indemnity to free oneself from a liability or obligation, payment to liquidate a debt, a ransom to free a prisoner or hostage, or redemption in the Christian sense (see below p. 136), but also in the sense of a payment to recover something given as surety or pledge. Here, the rachat is a payment which buys off or liquidates the “debt”, as it were, of another’s future act of war or retaliation G.B.]

[133/1]

112

 

Penal theories and institutions

–– its position with regard to capitalist production: whereas the old system was a brake on it, the new system furthers it, even though it is intended to protect feudal rent.1 For the set of functions of repression we thus have two* quite distinct [134/2] systems; two systems which clearly are brought together: –– at the level of their practices –– at the level of the men who control them –– at the level of the political objectives imposed on them. So that a single State apparatus emerges on the basis of these two systems. The history of the judicial apparatus in the eighteenth century is no doubt [135/3] a good example for studying the “contradictions” of a State apparatus A privileged example for several reasons: a/ The birth of justice as both a specific and a State controlled †apparatus is due to‡ antagonistic processes. Roughly, up to the sixteenth century (and from the Carolingian Empire) there were a series of attempts at giving justice, judicial practice and those who assured it, the status and function of a State apparatus –– the comtales courts with the Carolingians2 –– the baillis and sénéchaux at the end of the twelfth century3 –– the parlements at the end of the thirteenth century4 –– the présidiaux in the middle of the fifteenth century.5 But whenever this judicial apparatus emanating directly from royal power (and from developing State bodies) was specified, whenever it abandoned or was stripped of its political and administrative functions so as to retain only judicial functions, it fell under a feudal or quasi- [136/4] feudal appropriation.6 The judicial apparatus remained State-controlled only if it was not specified. As soon as it was specified, it ceased to be State-controlled. For a State judicial apparatus to be formed –– the preservation of feudal relations (at least in the form of rent) had to need the development of a strongly centralized political power;7 –– a political power whose form was incompatible with the maintenance of feudal structures: even better, this political power could lean on (and promote) capitalist production. * Word crossed out: “apparatuses”. † Word crossed out:… “State”. ‡ Words crossed out: “a series of contradictions”.

 

2 February 1972 

113

It is* this antagonism between processes that gave rise to the birth of a specified judicial apparatus. Determinant contradiction. b/ In the classical period, the operation of the repressive apparatus was the site of a considerable number of† conflicts on account of its fragility. [137/4] It remained in effect the juxtaposition between:‡ –– an increasingly specified judicial apparatus (increasingly stripped of any political, administrative, financial power) but caught up in the forms of private property; –– a state apparatus, but barely specified in its judicial functions (judicial functions were of secondary importance for the intendants). Hence a whole series of oppositions which resulted (a)  in penal legislation: for example, preparation of the 1670 Ordinance8 (b) in judicial practice: conflicts of attribution9 (c) in financial interests: the Law affair10 (d) in religious ideology: the Jansenist tradition of the parlements.11 c/ Finally the repressive apparatus was the stake of a political struggle, of a struggle for power and against power –– attempts to regain control by royal power (the Maupeou Parlement)12 –– struggle of the bourgeoisie to control it or to take it over [138/5] –– popular struggles against the law (which took fiscal forms: the stamp revolt in Brittany13 or religious forms: Camisards14 or political forms: before the Revolution or social forms: banditry).15 Now, it is through these struggles (of power), these (operational) conflicts, and this determinant contradiction that the diverse discursive threads are formed: –– theories of penality, –– criticism of judicial practice (great polemics around a number of affairs), * Words crossed out: “this contradiction”. † Word crossed out: “contradictions”. ‡ Second sheet numbered “4”.

114

 

Penal theories and institutions

–– literary figuration of relationships of justice, –– popular literature on crimes, criminals, brigands. It is necessary to get the measure of the transformation carried out at [139/6] this time through struggles, conflicts, and contradictions. To do this it is necessary to describe what feudal justice had been. Or rather, since Germanic law, what processes had worked on this enfeoffed justice that the State being formed was forced to double with a new repressive apparatus.* †

germanic law

[140/7]

It is not a matter of reconstructing the old Germanic law, but of indicating some of the features of this law which are found in criminal law throughout the Middle Ages and up to the sixteenth century.16 –– Private law was Romanized fairly early on with the development of the merchant economy, banking practices, and of the contractual guarantees that were necessary for it. –– Public law and the theory of princely power were also Romanized in step with the development of the State.17 –– Criminal law, on the other hand, was Romanized very late and superficially. Certainly it did not remain Germanic. But it followed a specific process of evolution. No doubt these reasons are to be found in what determines the evolution and operation of all penal law. [141/8] Namely: –– How does wealth circulate?18 –– the circuit of goods

* On the verso of this sheet [139/6], a page crossed out has: “All these conflicts are the effects, in determinate isotopies, of the irruption and development of the new repressive apparatus. But before studying some at least of these conflicts, getting the measure of the difference of the determ[ination]. Going back in time. And seeking to see how –– from the Middle Ages to the beginning of the eighteenth century –– the judicial institution was enfeoffed or appropriated –– how it was fiscalized;

–– what form of links it built up with political power.” † Subtitle preceded in  the  manuscript by the  subdivision mark “A” (deleted in the absence of “B”).

 

2 February 1972 

115

–– the movement of debt and usury –– the imposition of rent and taxation. What route does money follow, through whose hands does it pass? Who remains outside the circuit? –– Who holds the arms? Who is armed and who is disarmed? What form does the appropriation of arms take? The organization of an armed force. –– Where are the points of possible revolt to be found in a society? What social forces are liable to revolt? With what supports and alliances, what forms can they give to their revolts (sporadic, permanent, individual, collective)? –– On what social forces and on what State-controlled structures can the repression of these revolts rely? Who can block them? These are the elements that, in the first and final instance, determined [142/9] the transformations of penal law during the Middle Ages, explain its weak Romanization, and account for its general appearance at the beginning of the seventeenth century. What were the characteristics of German law which were developed during the Middle Ages? The fundamental principle (for the description of the system, not for its explanation) is this: What characterizes the act of justice is not resort to a court and to judges; it is not the intervention of magistrates (even if they had to be simple mediators or arbitrators). What characterizes the juridical act, the process or the procedure in the broad sense, is the regulated development of a dispute. And the intervention of judges, their opinion or decision, is only ever an episode in this development. What defines the juridical order is the way in which one confronts one another, the way in which one struggles.19 The rule and the struggle, the rule in the struggle, this is the [143/10] juridical. We can draw two consequences from this: –– The order* of justice is not determined by or subject to the judicial instance. Justice is not necessarily obtained, is not necessarily dispensed by the courts; the act of justice does not need to be authenticated by a specific instance in order to exist and be validated as such. * Word crossed out: “juridical”.

116

 

Penal theories and institutions

The confiscation of acts and operations of justice by a judicial instance is a late transformation and one of the characteristic features of the medieval evolution.* –– The act of justice is not organized by reference to peace and truth. To effectuate an act of justice is rather to pursue a war according to the rules –– the pax et justitia† couple, which will be so frequent in the Middle Ages, is the result of an evolution in which the confiscation of the right of some to arms was decisive;‡ –– the idea that the act of justice passes through or rests on the statement of the truth is also a late phenomenon (and is linked to the judicial instance coming under a certain State control; at any [144/11] rate, justice functioning as public power).§ Starting from this general principle (act of justice = regulated struggle), what general characteristics derive from it? 1 – To any injury suffered by himself or his family, the individual must retaliate, bringing into play a certain number of rules: (a) the first being that he must do so according to well-defined schemas of communication (b) the second being that a certain type of retaliation corresponds to each category of injury: –– scaffold –– crossroads (hands and feet cut off).22 (c) the third being the publicity of the action –– publicity of the act (the victim’s head is put in front of one’s door)

* In the margin of the manuscript there is: “appropriation/profitability”. † Emphasis in the manuscript. ‡ In the margin of the manuscript there is: “concentration of arms/state control of war (“state of peace”20)”. § In the margin of the manuscript there is: “public power of inquiry/inquisition 21 confession (aveu) torture truth”.

 

2 February 1972 

117

–– publicity: one informs the assembly of what one has done and why.23 2 – Among these rules, there is one that permits the two parties, pro- [145/12] vided they are in agreement, to substitute a composition. This composition does not have the function of a fine owed by the criminal due to the injury he has caused. It is essentially compensation (rachat) buying off the future war. The adversary who deems war to be least advantageous for himself proposes the composition.24 (In the most archaic forms of Germanic law, the two adversaries may propose it. Later, only the injured party.) The composition is –– on the one hand, a substitution: replacement of future episodes by a single gesture; –– and on the other, closure. It is closure of the war, not sanction for the offence. [146/13] Hence a certain number of consequences: a/ The judicial instance (of judges, the court, and the sentence or decision) is added optionally to the regulated procedure of the struggle (of its unfolding and completion). It is superimposed on it as a factor which permits, facilitates, validates, and guarantees the substitution of the closing compensation for ritual and indefinite vengeance. If necessary, the judges help in fixing the compensation if the amount is disputed; they act as guarantors to authenticate that things have really taken place within the rules; they remain witnesses that peace has been restored.* But this function is neither permanent nor linked to a specific power: –– it is not permanent: it is exercised only if the adversaries ask for it and in response to their appeal; –– it is not linked to a specific power: they are free men and full members of the hundred who make up the court.25 But always against the background and on the basis of the consent of [147/14] the parties.

* In the margin of the manuscript there is: “two roles: to assist the composition/to control the juridical character”.

118

 

Penal theories and institutions

Justice is not imposed. It is constituted by the will of the individuals in dispute.26 b/ Hence this other important characteristic: there is nothing that may call to mind a public action. Consequently nothing that may call to mind a distinction between: –– private disputes brought by individuals before a court to be settled according to the law, –– and affairs in which society is interested in the punishment of individuals. The legal conflict between private individuals and the criminal action of an individual are not distinguished. To claim one’s right regarding someone, to advance it against him, is an offense. Conversely, there is action involving retaliation* only insofar as someone suffers an injury and sets about responding to it. Public punishment is found only in cases of –– treason, desertion, military cowardice –– sexual transgression.27 There is a problem regarding this link between sexual transgression [148/15] and State crime: it remained constant, at any rate durable; and we have many testimonies of it: –– in the High Middle Ages, identity between punishment of traitors and punishment of those who raped a virgin: eyes plucked out and castration;28 –– in the thirteenth century, annexation of the crime of sodomy to crimes of lèse-majesté.29 Apart from (political) treason and (sexual) transgression, there are only disputes. c/ Hence the fifth feature of this justice, [namely] that to judge is not so much to exercise a constituted power as to take a risk. To an extent it is to become involved in the dispute.30 In fact: the parties take a risk by exposing themselves to the court’s judgment. Risk of losing. Risk of not winning as much as one hoped for.† * The manuscript has: “a retaliation”. † On the verso of this sheet [148/15], on a crossed out page, numbered “13” there is: “and if the designated judges are usually those who have a power, this is for two reasons:

 

2 February 1972 

119

But those who judge also take a risk: –– of being in turn involved in a private war if one of the adversaries deems the judgment to be unjust; –– of not being obeyed; of seeing their (political and religious) power [149/16] weakened and compromised. The activity of judgment takes place with the risk of private war. It entails risks. It has to take place in a system of assurance: –– oath of obedience (pronounced by the adversaries)31 –– compensation of judgment (the fredum beside wergeld), which is not a fine32 –– sometimes, or later anyway, pledges (gages).33* * –– because they are strong enough to make the losing party accept the decision, and also –– because to have power is to have the magical power of binding and releasing –– political chief: Indo-European –– religi[ous] chief: Christianity. We can say that: –– power is not all on the side of the administrator of justice –– and duty on the side of the person subject to justice. But that: –– the person subject to justice has the power to constitute him as judge inasmuch as he does not have the power (or inasmuch as he relinquishes the power) to prevail over the opposing party; –– the administrator of justice has the duty therefore to dispense justice; this duty being the consequence of his (both military and religious) political power. 3/ Third thing to note: judging is a dangerous thing –– certainly, the two parties take a risk in getting a third instance to settle their dispute; [they] may lose, while [they] could have won ([they] transform one risk into another).” * The manuscript has the following crossed out passage: “All these features enable us to take the measure of the transformations carried out in the Middle Ages: 1/ constitution of a permanent and gradually specified judicial apparatus; 2/ power given to this apparatus not only to impose its decisions but to intervene. –– Therefore: public action –– and power of execution; 3/ separation between private disputes and the offenses and crimes regarding which public action intervenes 4/ authoritarian financial imposition exerted by justice on those subject to it. Justice ceases being dangerous, it becomes profitable.”

120



 

Penal theories and institutions

Notes

1. See above, previous lecture. 2. Following in the wake of the works of notably Ganshof or Duby, it would be deemed that the comtales courts were the direct result of a form of appropriation, by the Counts, of the Carolingian mallus publicus which the Count presided over as representative of the sovereign and of public authority. From the end of the tenth century, the comtale court loses much of its authority and tends to be restricted to a group of the Count’s regular entourage and close relations. It becomes above all, to take up Duby’s expression, “a court of arbitration which litigants choose to settle their differences.” On this evolution, as seen by Foucault through his sources, see: G. Fourquin, Seigneurie et Féodalité au Moyen Âge (Paris: PUF, 1970), pp.  30–32; F.  L. Ganshof, “Étude sur l’administration de la justice dans la région bourgiugnonne de la fin du Xe au début du XIIIe siècle”, Revue historique, 135 (2), 1920, pp.  193–218; and especially G.  Duby, “Recherches sur l’évolution des institutions judiciaires pendant le Xe and le XIe siècle dans le sud de la Bourgogne”, Le Moyen Âge, vol. 52, 1946, pp. 151–163 (BNF). For a more recent approach, see B.  Lemesle, Conflits et Justice au Moyen Âge (Paris: PUF, 2008). For a more general study on the Carolingians, see E. Perroy, Le Monde carolingien (Paris: CEDES, 1974), pp. 221–230; P. Riché, Les Carolingiens. Une famille qui fit l’Europe (Paris: Hachette, 1988). 3. Regarding the baillis and the sénéchaux in the twelfth–thirteenth century, Foucault relies upon Y. Bongert, Recherches sur les cours laïques du Xe au XIIIe siècle, pp. 153–158; F. Lot and R. Fawtier, Histoire des institutions françaises au Moyen Âge, II: Institutions royales, pp. 144–157. The term “bailli” has no specific reference to start with and refers to a whole set of officers; from the second half of the twelfth century the bailli designates a judge delegated by the King and by the Curia Regis in a particular district. A representative of the King, he has the functions of administrator, judge, and officer. The “sénéchaux” have the same remit as the baillis, but their institution is older: in some cases they are maintained, in others they give way to the baillis. Regarding the evolution of the functions of the baillis and sénéchaux, Foucault relies upon G. Zeller, Les Institutions de la France au XVIe siècle, pp. 167–175. During the fifteenth century the baillis gave up their powers of justice to their lieutenants: they gradually become sort of governors of the Province and, from 1561, their office is reserved for gentlemen, officers “of the short robe” (men of the sword), while their lieutenants are officers “of the long robe”. See O. Tixier, Essai du les baillis et sénéchaux royaux (Paris: Morand, 1898). For a more recent history, see A. Rigaudière, Pouvoirs et Institutions dans la France médiévale, II: Des temps féodaux au temps de l’État (Paris: A. Colin, “Collection U”, 3rd ed., 1998), pp. 267–282. 4. On the parlements, see above, lecture of 1 December 1971, p. 31, note 6. 5. On the présidiaux, see above, ibid., p. 32, note 10. 6. For orientation on this vast question, see: R. Fossier, Enfance de l’Europe. Aspects économiques et sociaux, t. I: l’Homme en son espace; t. II: Structures et problèmes (Paris: PUF, 1982); J.-P.  Poly and E.  Bournazel, La Mutation féodale, Xe-XIIe siècle (Paris: PUF, 1991); D. Barthélemy, La Mutation de l’an Mil a-t-elle eu lieu? Servage et chevalerie dans la France des Xe et XIe siècles (Paris: Fayard, 1994).

 

2 February 1972 

121

7. See above, lecture of 19 January 1972, p. 92 [113/12]–[114/13] sq.; B. Porchnev, Les Soulèvements populaires en France. 8. On the criminal ordinance of 1670 and the debates to which it gave rise, Foucault relies in particular on A. Esmein, A History of Continental Criminal Procedure, with Special Reference to France (Foucault uses the American version), pp.  183–251. The written report of the discussions around the Ordinance is found in H. Pussort, Procez verbal des conférences tenues par ordre du Roy pour l’examen des articles de l’ordonnance civile du mois d’avril 1667 et de l’ordonnance criminelle du mois d’août 1670, 2nd ed., Paris, 1709. For a more recent analysis of the discussions, see M. Boulanger, “Justice et absolutisme: la Grande Ordonnance criminelle de 1670”, Revue d’histoire moderne et contemporaine, no. 47/1, January–March 2000, pp. 9–36. 9. Examples of conflicts of attribution are very numerous throughout the history of the medieval repressive system and in the modern period. See for example, F. OlivierMartin, L’Assemblée de Vincennes de 1329 et ses conséquences. Étude sur les conflits entre la juridiction laïque et la juridiction ecclésiastique au XIVe siècle (Paris: Picard, 1909). 10. On the Law affair, see E. Faure, La Banqueroute de Law: 17 juillet 1720 (Paris: Gallimard, 1977). More recently see A.  E. Murphy, John Law: Economic Theorist and Policy-maker (Brussels: Peter Lang, 2007). The context of the Law affair is the extremely heavy indebtedness of the French Crown and its increased dependence vis-à-vis two groups in charge of the French tax system (general collectors and general farmers), that is to say of the “finance people”. Among other things, the Law system aimed “to suppress the system of long-term financing the debt by rents … while simultaneously abolishing the old system of offices and taking control of the general Farms. He wanted to free France from the financiers whom he accused of having stripped the State of the majority of its tax revenues … and from the rentiers” (ibid., p. 347). In doing this he attracted the opposition of all those who benefited from the system of offices and of the financing of the debt by distribution of rents. 11. The close relationships between Jansenist milieus and the resistance of the parlements to the absolute monarchy in the eighteenth century have been studied by Lucien Goldmann in Le Dieu caché (Paris: Gallimard, 1955); English translation Philip Thody, The Hidden God: A Study of Tragic Vision in the Pensées of Pascal and the Tragedies of Racine (London: Verso Books, 2016); see also: E.  Préclin, Les Jansénistes au XVIIIe siècle et la Constitution civile du clergé. Le développement du richérisme, sa propagation dans le bas clergé (1713–1791), (Paris: Gambert, 1929); J. Parquez, La Bulle Unigenitus et le jansénisme politique (Paris: Les Presses modernes, 1936); H. Légier-Desgranges, Du jansénisme à la Révolution (Paris: Hatchette, 1954); R.  Taveneaux, Jansénisme & Politique. Textes (Paris: Armand Colin, 1965). More recently, see P. Campbell, “Aux origines d’une forme de lutte politique: avocats, magistrats et évèques. Les crises parlementaires et les jansénistes (1727–1740)”, in Jansénisme et Révolution. Actes du colloque de Versailles, 1989, collected by Catherine Maire, “Chroniques de Port-Royal”, 39 (Paris: Bibliothèque Mazarine, 1990), pp. 153–155. 12. See above, previous lecture, p. 109, note 11. 13. The stamped-paper revolt, of the torrébens or the bonnets-rouges (red caps), took place in Brittany in 1675. Although its causes are much wider and deeper (hostility towards the feudal seigneurs, general aggravation of royal taxation with, in particular, an edict of 1672 on the justice of the seigneurs, the suppression of which was obtained by the Brittany Estates against the payment of 2.6 million livres, two thirds of which was

122

 

Penal theories and institutions

to be paid by the lower classes), its name comes from the 1674 edict making stamped paper obligatory for all judicial and notarized acts. The revolt will in fact be directed at, among others, the offices of the stamped paper. See R.  Mousnier, Fureurs paysannes, pp.  123–156; Peasant Uprisings, pp.  114–149; Y.  Garlan and C.  Nières, Les Révoltes bretonnes de 1675: papier timbré et bonnets rouges (Paris: Éditions sociales, 1975). The best reference remains nevertheless J. Lemoine, La Révolte dite du papier timbré ou des bonnets rouges en Bretagne en 1675 (Paris: Champion, 1898). 14. The revolt of the Camisards affects the Cévennes region from 1702. It is made up of artisans, peasants, and shepherds, led by preachers, struggling against repression directed against Protestants. The revolt has a markedly religious tone. See P. Joutard, La Légende des Camisards (Paris: Gallimard, “Bibliothèque des Histoires”, 1977). 15. Foucault compiled an important dossier on banditry between the eighteenth century, the Revolution and Empire. He relied in particular on: M. Agulhon, La Vie sociale en Provence intérieure au lendemain de la Révolution (Paris: Société des études robespierristes, “Bibliothèque d’histoire révolutionnaire”, 1970); M.-H.  Bourquin and E. Hepp, Aspects de la contrebande au XVIIIe siècle (Paris: PUF, “Travaux et recherches de la Faculté de droit et des sciences économiques de Paris. Série Sciences historiques”, 14, 1969); M. Juillard, Le Brigandage et la Contrebande en Haute-Auvergne au XVIIIe siècle (Aurillac: Imprimerie moderne, 1937); M. Marion, Le Brigandage pendant la Révolution (Paris: Plon, 1934); J. M. Maurel, Le Brigandage dans les Basses-Alpes (Paris: Hachette, 1899, BNF). This theme will be taken up in The Punitive Society. 16. For his analysis of Germanic law, Foucault basically relies upon: H. Brunner, “La parole et la forme dans l’ancienne procédure française” (Vienna Academy of Science, vol. 57), trans. in Revue critique de législation et de jurisprudence, 2nd series, I, 1871; J.-J. Thonissen, L’Organisation judiciaire, le droit pénal et la procédure pénale de la loi salique, 2nd ed., (Paris: Maresq, 1882 [1881]); R. Monier, Les Institutions judiciaires des villes de Flandre, des origines à la rédaction des Coutumes (Lille: Bresle, 1924, Fonds BnF): as well as, no doubt, R. Sohm, Études sur les institutions germaniques. La procédure de la Lex Salica (Paris: Librairie A.  Franck, “Bibliothèque de l’École des Hautes Études. Sciences philologiques et historiques”, 13, 1873). For more recent references on the subject, see, for example: P. D. King, Law and Society in the Visigothic Kingdom (Cambridge: Cambridge University Press, 1972); W. Bergmann, “Untersuchungen zu den Gerichtsurkunden der Merowingerzeit”, Archiv für Diplomatik, 1981, pp. 1–186; O. Guillot, “La justice dans le royaume franc à l’époque carolingienne”, in La Giustizia nell’Alto Medioevo (Settimane di Studio del CISAM, 42), 1995, pp. 653–756, and for a recent comparative study of the different laws of German and Slav peoples, K. Modzelewski, L’Europe des barbares. Germains et Slaves face aux héritiers de Rome, translated from Polish by Agata Kozak and Isabelle Macor-Filarska (Paris: Aubier, 2006). 17. On the Romanization of private and public law, see, for example: A. Gouron, La Science juridique française aux XIe et XIIe siècles. Diffusion du droit de Justinien et influences canoniques jusqu’à Gratien (Mediolani: Giuffrè, “Jus Romanum Medii Aevi”, I, 4, 1978); P. Ourliac, Études d’histoire du droit médiéval (Paris: Picard, 1979); E. Cortese, Il Diritto nella storia medievale (Rome: Il Cigno, t. I and II, 1995–1996. On the role of Roman law in the theory of princely power, see J.  Krynen, L’Empire du roi (Paris: Gallimard, Bibliothèque des Histoires, 1993; A. Rigaudière, Penser et construire l’État au Moyen Âge (XIIIe–XVe siècle), (Paris: Comité pour l’histoire économique et financière, 2003).

 

2 February 1972 

123

18. This formula echoes Foucault’s comments in La Société Punitive, p. 112; The Punitive Society, p. 108: “to understand a society’s system of morality we have to ask the question: Where is the wealth? The history of morality should be organized entirely by this question of the location and movement of wealth”. 19. See J.-B. Brissaud, Cours d’histoire générale du droit français, t. I (Paris: Fontemoing, 1904), p. 567: “The point of departure of the original procedure was private vengeance; it consisted in dispensing justice oneself in forms consecrated by use … the procedure here is more the work of the parties than of the public authority; the plaintiff must act according to the forms.” 20. See below, lecture of 16 February 1972, on the institutions of peace. 21. See below, lecture of 8 March 1972. 22. R.  Sohm, Études sur les institutions germaniques. La procédure de la Lex Salica, p. 115: “The form in which this execution by the interested party must be carried out is legal homicide, governed by common law; publicity must give this act its juridical character … Among the Franks, the body was exposed on the bargus, the clida, that is to say a sort of scaffold, so that everyone may come and see it. The quadrivium, the crossroads is … the place where the person who has been killed legally is exposed, the place where the inimici … leave the body sine manus et sine pedes. The performance of the latter formality also indicates that a homicide has been committed by right of vengeance and is justified …” 23. See J.-J. Thonissen, L’Organisation judiciaire, le droit pénal et la procédure pénale de la loi salique pp. 163–167, which lays great stress on publicity: “Everything took place in the full light of day and the judges were placed in a position to be able to pronounce on the legal character of the murder. The author of a legitimate homicide made the motive and consequences of his vengeance known … he cut off the head and exposed it to passers-­by on a stake at the side of the road … he called on witnesses, recounted the deed … announced the murder to his neighbors according to a formula defined by custom. Among the Germans from the North, he had to go to the judicial assembly (thing), declare the murder and provide proof of the existence of a justifying cause” (pp. 165–166). 24. See ibid., pp. 199–202: “This composition is not the modern fine … any more than it is reparation for the material or moral injury resulting from the infraction … considered in its origin, it buys off the right of vengeance”. On the composition more generally, see pages 198–237. For a more recent analysis of the composition, see J. Balon, “Componere”, Reveue historique de droit français et étranger, 1964, pp. 413–447; J.-P. Poly, “Le grain de Welches: pouvoir et monaie dans les royaumes mérovingiens”, Droit et Cultures, XII, 1986, pp. 19–42. 25. See J.-J.  Thonissen, L’Organisation judiciaire, p.  77: “The “rachimbourgs” were neither a body of permanent judges, nor a college of delegates of the hundred responsible for the administration of justice. They did not form in any respect a separate class among the artless Franks. The court of the one hundred was made up of all the active citizens of that territorial subdivision, brought together under the presidency of their chief, the thunginus … all had the right to sit on the Mâl.” In the Franks, the hundred designate a demographic unit, grouping one hundred family heads who, in wartime, form a company directed by a chief and, in peacetime, live close to each other in the same territory.

124

 

Penal theories and institutions

26. See H. Brunner, “La parole et la forme dans l’ancienne procédure française”, p. 28: “In the old French procedure, the parties did not have to be subject to any oversight on the part of the judge. The dispute was solely their affair. The court took measures or decisions only insofar as they were asked to”. 27. See J.-J. Thonissen, L’Organisation judiciaire, pp. 244–245: “Among the Franks, as among the old Germans, there were a series of crimes of exceptional gravity, marked with a particular infamy, which did not allow any settlement … they were the crimes … punished by the final supplice by virtue of a national custom, such as treason, desertion, cowardice, regicide, shameful morals”. 28. See A. Du Boys, Histoire du droit criminel des peuples modernes, t. III (Paris: Durand, 1860), p. 228 (BNF). 29. See E. Perrot, Les Cas royaux: origine & développement de la théorie aux XIIIe et XIVe siècles (Paris: A. Rousseau, 1910), p. 35 (BNF). But according to Perrot, this annexation dates from the fourteenth century. On the problem of sodomy in the Middle Ages, see, for example: G.  W. Olsen, Of Sodomites, Effeminates, Hermaphrodites, and Androgynes: Sodomy in the Age of Peter Damian (Toronto: Pontifical Institute of Mediaeval Studies, 2001); J.  Cadden, Nothing Natural is Shameful: Sodomy and Science in Late Medieval Europe (Philadelphia: University of Pennsylvania Press, 2013). 30. See Y. Bongert, Recherches sur les cours laïques, p. 38: “It was not so easy to find a judge, for judging is to take part in the quarrel, it is therefore to run risks”. In his notebook no. 11, on November 8, 1971, Foucault devotes a long section to this question of the risk of judging which we re-transcribe here: “to take part in the judicial assemblies was, in the Carolingian period, an obligation (like military service). Why obligation: (1) the role of the judicial assembly was to keep or restore peace between the Franks. (2) [T]hose who judged took risks (later vengeance, rekindled war in which they are implicated with those whose side they took). To dispense justice is not a right: it is an obligation, a risk. Dispensing justice one exposes oneself, just as the plaintiffs expose themselves to a decision. Some expose themselves to a decision, others expose themselves by a decision. The two duties of ost [military service] and plaid [judicial assembly] are not so different, even though their functions may be opposite. Now this is a duty that one agrees to fulfil only on condition that the sovereign who imposes it on us is, in turn, strong enough to impose our decision; it is not a right one imposes on the sovereign, thus limiting his sovereignty; it is a risk one takes, jointly with the sovereign and under his guarantee. The weaker the sovereign, the less one agrees to judge. The risk is too great [illegible]. The obligation to judge is acceptable only close to a strong power” (emphasis in manuscript). 31. On this oath of undertaking to carry out the judgment or fidem facere, see J.-J. Thonissen, L’Organisation judiciaire, p. 465: “Holding in his left hand the festuca as material symbol of a solemn affirmation and raising his right hand to heaven, the sentenced man declared, either in person or through a fidejussor, that he will abide by the court’s prescriptions.” 32. The fredus or fredum is the part of the composition claimed by the judicial authority. It is the price of peace (friede) paid in compensation for the breach of the public peace of which the King was the guardian; see J.-J. Thonissen, p. 205. It is distinct from the share of the settlement which goes to the injured party, as compensation for

 

2 February 1972 

125

(rachat) private vengeance (faida). The wergeld (man price) is the monetary sum fixed for reparation and breaking off vengeance after a murder or serious crime. It varies according the person’s social status. For a recent analysis of wergeld, see C.  Camby, Wergeld ou uuregildus. Le rachat pécuniaire de l’offense entre continuités romaines et innovation germanique (Geneva: Droz, 2013). 33. On these pledges for the respect of judgments (guarantors, acts of settlement, etcetera), see, for example, G. Duby, “Recherches sur l’évolution des institutions” (1946), pp. 156–1576; (1947), pp. 30–33, or Y. Bongert, Recherches sur les cours laïques, pp. 75–76.

nine

9 FEBRUARY 1972 I. History of Germanic penal law (continued): its residues in penal law of the Middle Ages. (A) The accusatory procedure, the diffamatio. (B) The system of proof: a test which determines the winner. The truth is not at stake in the oaths, ordeals, and judicial duel. (C) Private war as modality of law in the Middle Ages. The dispute outside the judicial. II. History of the transformation into judicial penal system with public action and establishment of a truth of the crime. (A) Not simply due to the influence of Roman law or Christianity, it is inscribed rather in the interplay of relations of appropriation and relations of force. (B) Criminal justice carries out a significant economic levy and contributes to the circulation of wealth. ~ Elements of this circulation: pledges (gages), dues, fines, confiscation, compensation. ~ Consequences: circulation of wealth and concentration of political power. ~ General remarks: The penal system of the Middle Ages produces its major effects at the level of the levy of goods; the contemporary penal system, at the level of the removal of individuals; comparison: fiscal/carceral, exchange/exclusion, compensation/prisons.

Introduction Against the background of Germanic law and in contrast with it, the Middle Ages –– established a judicial apparatus which aims (but without fully succeeding) to be permanent and specific.* Emergence of a judicial apparatus. –– this judicial apparatus did not just get a strengthened power to impose its decisions, it got the right to intervene† itself, to initiate acts of justice. Appearance of public intervention. –– private disputes (with or without injury) settled between individuals before justice, are thereby distinguished from offenses or * Words in italics underlined in the manuscript. † Underlined in the manuscript.

[150/1]

128

 

Penal theories and institutions

crimes with regard to which the public power itself (even without a plaintiff or in correlation with one) launches a judicial intervention. Appearance of a specific penal law. Of course, for a long time many elements of Germanic law remain in place and mark the penal law of the Middle Ages. [151/2] As examples: 1. The accusatory procedure1 In Germanic law this has two aspects: –– It is the defendant who has to dismiss the accusation made against him. The plaintiff does not have to prove (at least he does not constantly have to prove) what he alleges.2 –– The attack in justice is and remains an attack. It is up to the one who is attacked to find a parry and ward off what threatens him. It is therefore always the form of battle that takes place before the courts. –– There has to be an accuser. For a long time, even when the public power intervenes, when it is interested in the act of justice in which it is the plaintiff, it will continue to be based on the precondition of an accuser: –– individual or collective (in the case of capture in the act and haro3). –– secret (informer), or anonymous (diffamatio).4 This form of the dispute between two individuals will be retained [152/3] for a long time even in penal law. Intervention of the public power takes on the appearance of support for one of the parties, of an aggravation of the penalty [for] the one who is convicted of having caused an injury. It takes the side of one combatant and amplifies the defeat of the other; above all it prevents any composition. But it is still a matter of a battle. 2. The system of proof The act of justice is a way of bringing the dispute to a definite conclusion. Of bringing it to its completion. Of replacing the struggle and all its future developments with a decisive test.

 

9 February 1972 

129

It is therefore less a matter of knowing who is right, [than] of confronting the adversaries at every moment with the alternative: –– either you come to terms, agree and make peace, –– or you submit to a test which will determine who is the winner. It is a question of peace or victory: not of demonstration and truth. Hence the famous medieval proofs: a. Oaths Employed in Germanic law, [they] were generalized in the Carolingian period, and will hardly disappear (→ twelfth century). [153/4] In Germanic law, the defendant who is unable to provide witnesses would resort to the purgatory oath with some (12 to 15) co-swearers.5 Later it is generalized. In Romania (according to a decretal of Honorius III) any proceeding could be avoided by the oath, even if the plaintiff had witnesses. In the time of Charlemagne, it seems that everyone swore: the accused (to free himself), the accuser (to assert the truth of what he said), the guarantors.6 b. Ordeals –– Salic law mentions only the test of boiling water. –– In Carolingian formulae we find hot water, cold water, the cauldron, the branding iron, and the cross.7 c. The judicial duel –– was employed by some Germans (Bavarians, Lombards, Alemanni),8 but not by the Salians. Maybe for crimes of lèse-majesté.9 –– In any case, its generalization dates from the Gombette law. To put an end to the abusive extension of oaths.10 From the tenth to the thirteenth century, the duel covered all judicial [154/5] matters (civil or criminal). It could be invoked: –– against the adversary’s oath –– against the oaths of witnesses –– and even against the judges (when the condemned party thought that the judgment was bad, he could appeal to his judges for a counter-judgment and the judicial

130

 

Penal theories and institutions

duel. Villeins, however, had no right to this if they had been judged by their seigneur).11 All this clearly shows that the course of the judicial act continues to preserve a warlike character. The problem was who would win (in the challenge of oaths, in the game of the test, or in the duel) in front of a judge who above all had to authenticate the course of the “combat”. It did not involve the judge establishing by himself, and by his own means, where the truth lay. In its dramatic staging, the judgment is still a struggle, an episode of the war, a rivalry. At a time when its ideological and religious justifications are taking it elsewhere (towards the truth) and it functions in a completely different way. [155/6] 3. [Private wars] But the most important of these residues of Germanic law are clearly private wars, which continue throughout the Middle Ages. –– some, the most important, those which set the major feudatories against their sovereigns, or each other, increasingly tend to become public wars (with professional army, organized army, political alliances). And it is through these that unitary and “national” States begin to be organized; –– others, less important, which set villeins or bourgeois against each other, increasingly tend to become individual, hereditary rivalries, at first irreducible to law and then quickly contrary to order. There will be a strong tendency for these wars either to be given the status of political conflicts or to be reduced to individual delinquency. And for a division to be established which for us is perfectly “clear”. (Actually, it is not at all clear: the individual crime/political crime division is an effect of the State takeover of penality; and it is in the hands of [156/7] those who are in control of the State apparatus. To say: this is “common law” and that is “political” involves adopting the point of view of the State apparatus that implements penality).12

 

9 February 1972 

131

In any case, this durability of private war is an important phenomenon of the penal system of the Middle Ages. Private war does not fall outside the law; it is a “marginalized” or “enclosed” form of law, but it is a form of law. It was more resistant, more difficult to subdue, the weaker the State organization was. Example in Flanders: –– the law of private war is not explicitly recognized –– but de facto it is, to the extent –– that some crimes (even murder) seem to have been tolerated if they were linked to a private war,13 –– that the municipalities allowed those who were in a state of private war to carry arms,14 –– that there were institutions, rituals of pacification, and solemn [157/8] contracts of pacification:15 –– the “paiseurs” alongside the échevins16 –– numerous contracts of “concordia”17 –– setting the price of peace.18 So, within* the judicial sphere (i.e., in the practice of the courts, in the form they followed, and the basis of their decisions), the dispute (injury– retaliation–war system) remains visible over centuries. But outside† of this sphere, in what surrounds, escapes, and resists it, dispute and war continue to define a certain domain of “justice”, recognized as such; going through the judicial is only one possibility in relation to this sphere of justice. The transformation will consist: –– in an absorption of all “justices” in the judicial; –– correlatively to an authoritarian intervention of the judiciary, which gives itself the power to impose itself as public action; –– correlatively also to a distinction between common law and “political” law (private wars, which are only individual crimes, and public [158/9] wars, the former internal and the latter external); –– finally, and as a consequence, the setting up of a penal procedure organized entirely in terms of

* Underlined in the manuscript. † Underlined in the manuscript.

132

 

Penal theories and institutions

–– public action –– its power of intervention and decision –– establishing a truth about the crime (and no longer peace between those in dispute).19 How was this transformation made possible? [*] To what are these transformations due?

[159/10]

1/ The influence of Roman law linked to the growth of royal power. Roman law is supposed to have given monarchs a technical instrument, an institutional tool, as well as a theoretical justification for setting up a public authority intervening in judicial matters and prosecuting breaches of the law in its own name. It is particularly late Roman law (of the Justinian Code) that is thought to have provided the theoretical model of the crimes of lèse-majesté. 2/ The influence of Christianity. The growth of the Church is thought to have allowed the absorption of the old Germanic practices. It is thought to have drawn the old conception, dispute–injury–retaliation, both private and collective, towards the conception of sin, individual wrongdoing, and punishment. We would have passed from compensation to sanction.20 These explanations are both too general and too specific. –– too specific, because the growth of royal power or the penetration of Christian ideas into penal practice are in fact only effects of other processes situated at another level; –– and too general, because they do not take into account the way in which penal practice is inserted in the interplay of other institutions, social relations, economic benefits. * Penal practice is not simply the result of a juridical conception of the State or of a religious conception of wrongdoing. It is not (or at any rate,

* Word crossed out: “In short”.

[160/11]

 

9 February 1972 

133

not only*) part of the superstructures. It is quite directly inserted in the interplay of relations of appropriation and relations of force.†

In relations of appropriation

[161/12]

Germanic law –– regularized private war, on the one hand, and –– on the other, provided the possibility of a compensation (rachat). This had two parts: –– the wergeld: compensation –– the fredum: fine21 the weakest part became the main part in the period of the first state endeavors: Merovingian kingdom Carolingian empire.22 Hence, the appropriation of justice at the time of the dislocation of the Carolingian State, of the elimination of the Comté and royal agents, and of the establishment of the castle as a new center of political, military, and economic power.23 Justice is an essential element of power –– because its judgments determine rights, properties, dues, inheritances, and subordinations; –– but also because it carries out‡ in itself an important economic levy. The distribution of justice forms part of the circulation of goods. And [162/13] it does so in two ways: –– by controlling it (in the civil domain) at the level of contracts, marriages, inheritances, obligations, and taxes; and (in the criminal domain) at the level of infractions, thefts, illicit commerce or appropriations; –– and by contributing to it by the fact that it is profitable, that the act of justice pays, that pledges (gages) are placed in the hands of the

* Underlined in the manuscript. † Foucault announces a section in two major parts – relations of appropriation and relations of force. Thus the following sheet is entitled: “A. In relations of appropriation”. The end of the lecture being devoted to the relations of appropriation, we have deleted the indication of subdivision “A”. Foucault deals with the relations of force in the following lecture. ‡ Words crossed out: “through the intermediary of the fine”.

134

 

Penal theories and institutions

judges, that their goodwill is purchased also; but above all by the fact that they impose forfeits, fines, and compositions. (It is above all as civil justice that justice controls the circulation of wealth. It is above all as criminal justice that it contributes to the circulation of wealth).24 1. What are the elements of this contribution? a/ Being a judge is* a burden: it weighs heavily on the peasant when he has to go to court three times a year.25 Thus the “general court (plaid)”, which was a right, becomes a fee (which is paid to a seigneur).26 One pays not to be a judge, and one pays to be judged. Two sides of the same phenomenon: the judicial is not the only means of obtaining justice. b/ Judging is easy when it is a matter of judging a villein. It is difficult when it involves someone wealthy or a noble. Judging is a risk:27 –– because one may not be obeyed –– because one may be caught up in a private war –– because the condemned may appeal to another court and challenge his first judges to a judicial duel.28 Hence, when one wants to interest a judge, one starts by giving him [163/14] some money.29 c/ Throughout the procedure one pays out gages and fees. And one pays compensation to the judge when one breaks it off. Cf. the judicial duel. When it is over the loser is dispossessed to the advantage of the seigneur. But if one halts it (and there is the possibility of pacification at every moment) one pays the seigneur.30 d/ But it is above all in the aftermath of a criminal case that the big- [164/15] gest deduction is made. And it is made in two forms: –– fine (the importance of which has constantly increased in comparison with damages)31 –– confiscation.32 This is found:

* Words crossed out: “dangerous; it also has some drawbacks”.

 

9 February 1972 

135

1/ as the main penalty in certain cases or areas (the goods of suicides in Poitou, Brittany, Normandy, Paris; for any evasion of the rights of the seigneur in Normandy; specific punishment of nobles in Touraine and Anjou); 2/ as accessory penalty in cases of blasphemy, heresy, lèse-majesté, desertion, abuse of authority, brigandage, private war, homicide, encis,* voluntary arson, adultery, rape, abduction, sodomy, incest, theft, forgery, false evidence. Furthermore, if the defendant wins in a judicial duel, it is the loser who incurs confiscation (in cases where the plaintiff struck the accused). Generally speaking it regularly accompanies the death penalty, mutilation, and banishment, it is applied if the guilty person has fled or broken out of his prison. Confiscation and fine (so the deduction of wealth) are the common denominator of all penalties. e/ Now to this must be added another form of penal law (on the [165/16] border of the civil and the penal). In feudal law this is the penalty of “commise”: if there is a breach of the obligations of vassalage, the suzerain is given and takes back free disposal of the fief.33 f/ Finally, it should be noted that these fines, and even more so confiscations, were often theoretical. They were not carried out: either because they were materially impossible, or because they were too dangerous for the judge if he wished to have them carried out, or because they gave rise to inextricable political and juridical difficulties. The lineage based structure of society was too great an obstacle. But they gave rise to a whole series of conflicts, threats, compromises, and settlements. Compensation was bought off by the payment of sums, by rents [for example], or by the transfer of rights, or by temporary, but often definitive fees.

* [Striking a pregnant woman and causing the death of the child and/or the mother; G.B.]

136

 

Penal theories and institutions

So: there is a large circulation of wealth and goods; a series of transac- [166/17] tions, expenditures, profits, and benefits before, during, and after the act of justice. 2. Consequences of this state of affairs a/ Justices become politically and economically coveted. The act of justice not only brings about an economic circulation, but the right to dispense justice is also part of the circulation. It is the object of transfer, transmission, and sale. One may keep it when one gives up a fief, or, on the contrary, sell it to someone. Hence there is a very complex tangle of the possession of fiefs and the possession of justices.34 b/ Dispensing justice is no longer dangerous; on the contrary, it is profitable and desirable. Justiciars tend therefore to impose their intervention, rather than wait for the two adversaries to solicit their arbitration. Justice tends to become compulsory. But, by the same token (and again because it is costly), there is a tendency to avoid it. The justiciable went in search of the court; the court now goes in search of the justiciable. And the judicial instance tends to confiscate the whole domain of spontaneous justices. But a force is needed to impose justice. Increasingly, the need for a political and military support is felt. And the only strong justices will [167/18] be those that will benefit from this support.35 c/ Hence a double movement: –– parceling out of justices through the effect of sales, transfers, –– but a movement of concentration. –– In fact, the justiciar with right of confiscation may constantly appropriate new fiefs and justices. –– Furthermore, in becoming compulsory, justice will be that much better exercised if it is in the hands of whoever possesses a political and military coercive force. This explains the extreme spreading out of justices: –– the smallest (those easiest to enforce and which make small profits) are spread out in an increasing number of hands;

 

9 February 1972 

137

–– on the other hand, the big justices (those which give big profits but are difficult to enforce) go to those who concentrate political and military power. And above all the king.36 This explains a whole series of struggles between the different privileged groups for the acquisition or preservation of their justices: Church immunities, urban jurisdictions; and the necessity for arbitration [168/19] between jurisdictions, which, here again, strengthens the central power. High, middle, and low justices, ecclesiastical, urban, seigneurial, and royal justices somehow systematized this ensemble and the constant movement driving it.37 But these divisions, this hierarchy, this distribution only overlay a process that activates the feudal levy, the movement of properties, the circulation of wealth, the concentration of political power. d/ Finally, it should not be forgotten that the penal system – linked in this way to the movement of the appropriation of lands and rents – is inevitably linked also to the movement of the population (its growth and movement). –– From the tenth to the thirteenth century, growth of population; movement of colonization, with forest clearing; formation of new agricultural spaces and new urban communities. –– Which meant that confiscation and banishment were compensated for by the possibility of moving away. The severity of the [169/20] penalty was correspondingly lessened. –– But conversely confiscation was correspondingly more frequent as people were able to leave. The feudal lords were ready to welcome new settlers. Hence the fact that confiscations and heavy fines were not enforced.38 –– But there is the endpoint of the thirteenth century: land becomes scarce; tension increases39 –– start of the great revolts, which gives rise to the need for a centralized army, –– and start of professional armies which soak up the seditious elements of the population. Hence local justices increasingly seek support from a centralized justice and force of repression. Parlement and the centralized army are born together.40

138

 

Penal theories and institutions

–– The Great Plague. The hunger for land slackens. But there is no return to the previous situation. The penal system is not broken up anew. The effects of the Great Plague affect the seigneurial economy especially: many lands no longer produce rent; the scarcity of manpower raises wages and prices: therefore relative fall of rents. –– Hence, among feudal lords, a tendency to correct this fall in feudal rent. (Readjustment or increase of justice).41 –– But a greater force of resistance among the peasants. Hence the [170/21] revolts at the close of fourteenth century. Revolts which can only be brought under control by a significant army and require an intervention by the royal power (in the case of the [Jacques], the king of Navarre).42 From this we can see how the penal system was inscribed: 1/ in these intermediate movements of appropriation against plunder and purchasing. At a time of a non-monetary economy in which wealth was above all land ownership or a levy on its products; 2/ in a movement of the centralization of political power: to the extent that it was made profitable, increasing fiscal or para-fiscal pressure, justice had all the more need of a central power to arbitrate conflicts between justiciars and to support its power of execution. Between warlike plunder and commerce, in a non-monetary economy. Between individual appropriation and State takeover in a non-State-­ controlled society.

General remarks The penal system of the Middle Ages has its greatest effect at the level of the levy on goods. Our society has its greatest effect at the level of the exclusion of individuals.43 We can see how the medieval system could be connected with a morality and theology of fault, penitence and redemption (rachat). A crime had to be paid for (racheté) by punishment; punishment could be

[171/22]

 

9 February 1972 

139

redeemed (rachetée), the redemption (rachat) itself had to be redeemed (racheté). We can understand how our system is almost necessarily connected, or at any rate gives rise to a problematic of the individual: Who are the individuals who need to be excluded? Who are they in nature, in reality, in secret? The medieval system of penality is fiscal: let’s say that it is because it has an economic function of appropriation that its major form is fiscal, and ideologically linked to Christianity. The modern system of penality is carceral: it is because it has an “anti-­ seditious” social function that it is carceral in its major form and ideologically linked to all the ψ [psychologisms]. A description of penal practices in the Middle Ages should no doubt [172/23] be organized by reference to the question: Who redeems (rachète) what; for what does one indemnify (rachète) this or that action; how does one compensate for it? In short, exchange.* A description of modern penal practices should be organized by reference to the question: Who excludes whom and what; who confines whom; what is taken out of circulation? In short, exlusion.† We would see then that the same practices function entirely differently in either case: death (redemption, salvation; or definitive exclusion); mutilation, corporal mark (purificatory compensation; social mark); avowal (confession, acknowledgement); imprisonment (surety [gage], removal from circulation).44,‡ *

* Underlined in the manuscript. † Underlined in the manuscript. ‡ The manuscript of this lecture ends on a numbered sheet [173/24] which does not seem to continue the previous exposition so much as offer a different version of it. We reproduce it here: “In fact, the seigneurial economy is shaken (rents fall, wages rise). Hence the increasingly demanding and repressive attitude of the seigneurs. Hence the great revolts at the end of the fourteenth century which required intervention by the royal power. [In the margin] And blocking confiscation at the same time. The penal system therefore played a non-negligible role in the circulation of wealth and the concentration of political power. We see that its functioning constantly intertwines with the problem of armed forces and their concentration.

140



 

Penal theories and institutions

NOTES

1. For his reading of the accusatory procedure, in contrast with the inquisitorial form, Foucault relies upon C.J.A.  Mittermaier, Traité de la preuve en matière criminelle, ou Exposition comparée des principes de la preuve en matière criminelle, trans., C.A. Alexandre (Paris: De Cosse and N. Delamotte, 1848), which makes a radical distinction between these two “forms” and characterizes the accusatory procedure as “a real combat between two adversaries” (p. 35) (BNF), and especially on A. Esmein, A History of Continental Criminal Procedure, with Special Reference to France, which is his main source. 2. For the German accusatory procedure, see J.-J. Thonissen, L’Organisation judiciaire, le droit pénal et la procédure pénale de la loi salique, p. 419 sq. The plaintiff orders his adversary to reply through a solemn formula, the tangano. The defendant tanganized is bound to reply, on pain of a fine: “It is not the judges but the plaintiff himself who, through the tangano, summons his adversary to reply to the accusation” (p.  427). Positions are mixed regarding the onus of proof. Some authors (Rogge, Sohm, etcetera) maintain that the burden of proof is solely on the defendant: either he came to terms or he had to prove the accusation false. A. Tardif, Histoire des sources du droit français: origines

General Remarks If we compare the system of the Middle Ages with our own: –– the levy of goods (compensation [rachat]) –– our removal of individuals (prisons) Compensation (Le rachat) is the denominator, the secret of medieval penality. Imprisonment, [as] rendering harmless is the secret of ours. The first [system] is all the same linked to Christianity, ours to social protection, psychology, psychiatry. The medieval is fiscal, and ours is carceral (death–redemption series – prison–hospital series [illegible]. The prison is not in the same position.” On the verso “ – Exiling inst[itutions]. Confiscating. Imprisoning (purification–departure; purification–redemption; purification–penance). The position of the body is no longer the same: the grief of exile; the mark of the confiscated; the beating. –– Confiscating [institutions] and prohibition. The prohibition (of incest) and the circulation of goods.45 Punishment and the circulation of goods. Production and penality. –– A “state apparatus” its raison d’être its real functioning.”

 

9 February 1972 

141

romaines (Paris: Picard, 1890), summarizes this position in this way: “the defendant or accused is obliged to prove his innocence or his rights. He is injured and offended by the simple fact of the complaint … he hastens to take the offensive” (p. 161 [passage noted by Foucault who refers to Thonissen (BNF)]). This thesis is discussed by Thonissen (pp. 438–455 of L’Organisation judiciaire) who arrives at a more nuanced position: the plaintiff does not necessarily have to prove his accusation, he makes an assertion; the defendant makes another and, according to the degree of plausibility of each, the onus of proof is allocated to one or the other. 3. See A. Esmein, A History of Continental Criminal Procedure, pp. 61–62. In Norman custom, the clamor of “haro” designates the appeal to every member of the community to seize hold of the wrongdoer in cases of flagrante delicto. See E.D. Glasson, Étude historique sur la clameur de haro (Paris: Larose et Forcel, 1882). The same procedure is found in England under the name of “hue and cry”. According to Esmein, it is “a formal and ingenious way of preserving to the affair the character of a capture in the act for a certain time after its accomplishment” (p. 61). 4. On the “denunciato” and “diffamatio”, see P. Fournier, Les Officialtés au Moyen Âge. Étude sur l’organisation, la compétence et la procédure des tribunaux ecclésiastiques ordinaires en France de 1180 à 1328 (Paris: E. Plon, 1880), pp. 254–262, which describes the procedures of denunciation in the ecclesiastic framework, and especially A. Esmein, pp. 78–87 and pp. 99–104. The notions of denunciatio and diffamatio come from ecclesiastical procedure. According to Esmein, the inquisitorial procedure derives to a large extent from canon law, which envisaged the possibility, when a crime was committed, when public opinion accused someone and the judge established that “infamia” or “mala fama”, of taking action against the infamatus. This is the meaning of diffamatio. For a recent history of these questions, see F. Migliorino, Fama e Infamia. Problemi della società medievale nel pensiero giuridico nei secoli XII e XIII (Catania: Giannotta, 1985); J. Théry, “Fama. L’opinion publique comme preuve judiciaire”, in B. Lemesle, ed., La Preuve en justice de l’Antiquité à nos jours (Rennes: PUR, 2003), pp. 119–147. As for the denunciato, it initially came from a procedure of obligatory “denunciation” which took place during the bishop’s monastery visits or diocesan synods; this procedure will undergo transformations which lead to the principle according to which a “denunciator” could address himself to a judge so that he initiated an inquiry against an individual, without this being a formal accusation. As we shall see (lecture of 1 March 1972), generally, the public prosecutor will first of all intervene as “denunciator”. 5. On oaths in Germanic law, see, for example, J.-J. Thonissen, L’Organisation judiciaire, pp. 516–524. The number of co-swearers varies considerably, the number 12 recurring most regularly, but it can rise to 72. On oaths in general, see R. Verdier, ed., Le Serment. Actes du colloque de Paris X Nanterre (1989), (Paris: CNRS, 1991), 2 volumes. 6. See J.-P. Lévy, La Hiérarchie des preuves dans le droit savant du Moyen Âge, depuis la Renaissance du droit romain jusqu’à la fin du XIVe siècle (Paris: Recueil Sirey, 1932), p. 132: “a famous decretal of Honorious III records that in Romania … one could avoid any proceedings by one’s oath, even when the plaintiff cited witnesses ready to testify in his

142

 

Penal theories and institutions

favor” (this is the Decretal X.2.19.12 of 1218). On the omnipresence of the oath under Charlemagne, see ibid., p. 134. Foucault will return at greater length to the subject of oaths and ordeals, seen as so many proofs (proofs of an individual’s social importance, verbal and corporal proofs) in “La vérité et les formes juridiques”, DÉ, II, pp. 574–575/“Quarto”, I, pp. 1442–1443; “Truth and Juridical Forms”, pp. 37–38. 7. R. Monier, Les Institutions judiciaires des villes de Flandre, des origines à la rédaction des Coutumes, [see above, p. 122, note 16], pp. 49–50. For more recent works on the subject, see R.  Bartlett, Trial by Fire and Water. The Medieval Judicial Ordeal (Oxford: The Clarendon Press, 1986), and especially, R. Jacob, La Grâce des juges. L’institution judiciaire et le sacré en Occident (Paris: PUF, 2014). 8. C. De Smedt, Les Origines du duel judiciaire (Paris: Victor Retaux et fils, 1894), p. 7 (for the absence of the duel in the lex salica) and pp. 9–13 (for its presence in the Bavarians, Lombards, and Alemanni). See also, J. Declareuil, “À propos de quelques travaux récents sur le duel judiciaire”, Nouvelle Revue historique de droit français et étranger, 33rd year, 1909, p. 78 (BNF). For a more recent history of the judicial duel one can consult M.  Chabas, Le Duel judiciaire en France XIIIe–XVIe siècles (Saint-Sulpice-deFavières: Éd. Jean-Favard, 1978); O. Guillot, “Le duel judiciaire: du champ légal (sous Louis le Pieux) au champ de la pratique en France (XIe s.)”, in La Giustizia nell’Alto Medioevo (secoli IX–XI), 2 (Settimane di Studio del CISAM, 44) Spoleto, 1997, pp. 715–795, and various texts collected in, La Règlement des conflits au Moyen Âge, Actes de la SHMESP, 31e Congrès (Angers, 2000) (Paris: Publications de la Sorbonne, 2001). 9. This is an allusion to the thesis developed by Alexander Gál in Der Zweikampf im fränkischen Prozess (1907) and discussed by Declareuil, “À propos de quelques travaux récents sur le duel judiciaire”, p. 76 sq., according to which the judicial duel was initially reserved to the royal jurisdiction and concerned breaches of the duty of loyalty to the king by a member of the truste [group of men bound by oath to the king; G.B.]. 10. The Gombette law (lex Gundobada) designates the collection of laws decreed by the Burgundian King, Gundobad (died 516). Foucault is referring to an ordinance of 502 which forms heading XLV of the Gombette law and which, in order to struggle against the abuse of oaths and false oaths, encourages the use of the judicial duel if the opposing party refuses the test by oath. See C. De Smedt, Les Origines du duel judiciaire, pp. 7–8; J. Declareuil, “À propos de quelques travaux récents …”, p. 81. 11. This argument relies on J. Declareuil, ibid., p. 84. 12. We find here a theme evoked above, lecture of 24 November 1971, p. 14, note 16, and below, lecture of 1 March 1972, p. 191 [226/15] concerning the genealogy of the division between political crime and common law crime. This problem particularly interests Foucault at the time, in connection with his involvement within the GIP and in the context of the “political” repression after 1968 (see below, “Course context”, p. 245, p. 246 and p. 270, note 17). The debate concerning the division between political and common law crime is played out at two levels. On the one hand, with the prohibition of the Gauche prolétarienne and other organizations of the extreme left in the name of the “Marcellin laws” 27 May 1970, the press, the government, and some thinkers of the extreme left (like the Trotskyist Daniel Bensaïd in number 66 of Rouge, which appeared in June 1970) strived to portray the Maoists as “asocial” or “nihilists” and to

 

9 February 1972 

143

lump them together with common law delinquents. Moreover, from March 1970, we find the concern not to be treated as “marginals” or “asocial” and not to be confused with common law delinquents in the texts of the Gauche prolétarienne itself (“De la lutte violente des partisans”, March 1970, a text which raises a number of themes broached in Foucault’s lectures). This will be confirmed by the first hunger strikes of the imprisoned militants, who seek the status of “political prisoners”, or rather the “special” regime previously obtained by imprisoned members of the FLN and the OAS.  In a sense, it was a matter of getting the division to work for oneself, as a protection, a division which Foucault stresses here in fact adopts the point of view of the State apparatus. In Foucault’s eyes, on the contrary, as one notes in various texts of the period, what is at stake is rather the removal of this “division” between common law delinquency and political delinquency, restoring a political character to all delinquency. On this point, see above all, “La grand enfermement”, DÉ, II, no. 105, pp.  302–303/“Quarto”, I, pp. 1170–1171; “Table ronde”, DÉ, II, no. 107, pp. 334–336/“Quarto”, I, pp. 1202–1204; “Sur la justice populaire. Débat avec les maos”, DÉ, II, no. 108/“Quarto”, I; English translation “On Popular Justice: A Discussion with Maoists” in Power/Knowledge; “Prisons et révoltes dans les prisons” (interview with B.  Morawe, trans. J.  Chavy, Dokumente …, June 1973) DÉ, II, no. 125, pp. 426–427/“Quarto”, I, pp. 1294–1295; and “À propos de l’enfermement pénitentiaire”, DÉ, II, no. 127, pp.  441–443;“Quarto”, I, pp. 1309–1311. According to Foucault, the years from 1960 to the beginning of 1970, with the entry of Maoists into prison and the presence of Algerian political prisoners, and then the foundation of the GIP, brought about a double movement of a politicization of struggles inside the prisons and a politicization of the problem of the prison outside, leading to a relative erasure of the division of which the prison and the penal apparatus were the agents. Moreover, in April 1972, Foucault will describe as a “political mistake” this first reaction of the Maoist militants striving to distinguish themselves from common law delinquents and will be pleased by the fact that “the Maoists quickly understood that ultimately the prison’s elimination of common-law prisoners was part of the system of political elimination of which they were themselves the victims. If one makes the distinction … between political law and common law, that means that fundamentally one recognizes bourgeois morality and law … Common law is politics, it is, after all, the bourgeois class that, for political reasons and on a basis of its political power, defined what is called common law” (“Michel Foucault on Attica”, and interview with John K. Simon, Telos, 19, Spring 1974, pp. 154–161; DÉ, II, no. 137, p. 533/“Quarto”, I, p. 1401). For an analysis of these debates, see G. Salle, La Part d’ombre de l’État de droit. La question carcérale en France et en République fédérale allemande depuis 1968 (Paris: Éd. de l’EHESS, coll. “En temps & lieux”, 2009), pp. 42–47. For a genealogy of political crime somewhat different from that sketched by Foucault, see S. Dreyfus, Généalogie du délit politique (Paris: LGDJ, 2010). 13. See G. Espinas, Les Guerres familiales dans la commune de Douai aux XIIIe et XIVe siècles: les trêves et les paix (Librairie de la Société du recueil général des lois et des arrêts, 1899), pp. 16–17; C. Petit-Dutaillis, ed., Documents nouveaux sur les mœurs populaires et le droit de vengeance dans les Pays-Bas au XVe siècle. Lettres de rémission de Philippe le bon, vol. 9 (H. Champion, 1908, republished Slaktine, 1975), p. 45 sq. (Fonds BnF).

144

 

Penal theories and institutions

14. See G. Espinas, Les Guerres familiales, p. 15, which cites several authorizations of this kind by the échevinage of the Douai commune; C. Petit-Dutaillis, ed., Documents nouveaux sur les mœures populaires, p. 47. 15. These “peace institutions” are the main object of the works by Espinas and PetitDutaillis cited. Foucault returns to this in greater detail in the next lecture (below pp. 154 [184/11]–160 [195]). 16. See Espinas, Les Guerres familiales, p.  8. In the communes of Flanders and Brabant, from the beginning of the thirteenth century, the échevins, concerned with “trêves (truces)” (temporary interruptions of private wars), were distinguished from the “paiseurs”, responsible for concluding “peace” (settlement of the conflict). For more details, see below, the next lecture, p. 163, note 11. 17. See Y. Bongert, Recherches sur les cours laïques du Xe au XIIIe siècle, pp. 52–53: the “cartularies … abound with concordiae putting an end to collective acts of violence”. 18. See G. Espinas, Les Guerres familiales dans la commuune de Douai, pp. 26–27. These pricings may be pecuniary: this is the Sühngeld, expiation money, equivalent of the Germanic Wehrgeld. But they may also be moral: “penance, kerke”, pilgrimage of expiation. See also C. Petit-Dutaillis, ed., Documents nouveaux sur les mœurs populaires et le droit de vengeance, p. 77 sq. 19. See below the lecture of 1 March 1972 concerning public action, and the lecture of 8 March on the question of truth. 20. These two arguments are found, for example, in M. Bloch, La Société féodale, vol. I (Paris: Albin Michel, 1939), pp. 187–188. 21. See above, the previous lecture, p. 119 [149/16] and pp. 124–125 note 32. As we have seen, the wergeld is more precisely the “blood price”, that is to say, the compensation which buys off (rachète) the right of private vengeance; the fredus or fredum is the share that goes to the public authorities. 22. See J.-J. Clamageran, Histoire de l’impôt en France, vol. I (Paris: Guillaumin, 1867) Book II, chapter III, p. 171: “The freda were a very important revenue for the Crown. The capitulars frequently recommended them to the king’s officers and charged the missi dominici with a special supervision in this regard. After concessions of benefits and immunities, they will gradually fall … into the private domain of the bishops and lords, or rather they will form part of the local rights of sovereignty devoted to their profit”. On the way in which these “freda” become rights of justice in the High Middle Ages, see ibid., pp. 214–215 (BNF). 23. On this process of appropriation Foucault bases himself notably on G. Fourquin, Seigneuurie et Féodalité au Moyen Âge, pp. 23–31; G. Duby, “Recherches sur l’évolution des institutions judiciaires”; and F.  L. Ganshof, “Étude sur l’administration de la justice”. 24. On the place of justice in the circulation of wealth, in a context marked by a weak circulation of goods and money, see Y. Bongert, Recherches sur les cours laïques, pp. 101–103 and p. 114. Foucault regularly refers to it in the same period in various interviews. See, for example, “Le grand enfermement”, pp. 300–301/pp. 1168–1169, in which he notes that “The penal system in the Middle Ages contributed almost more than the bank to the circulation of goods” and stresses the role played by confiscation in the establishment of the absolute monarchy; “Sur la justice populaire. Débat avec les maos”, pp.  342–343/pp.  1210–1211; “On Popular Justice: A Discussion with Maoists”,

 

9 February 1972 

145

pp. 4–5 in which he stresses that justice was neither simply an instrument of appropriation nor a means of coercion, but “a direct source of revenue; it produced an income over and above feudal rent … To be a judge was to have a source of income, it was property … a form of wealth which could be exchanged, circulated, which were sold or inherited …” (p. 4). 25. See Y. Bongert, Recherches sur les cours laïques, p. 86; H. Dubled, “La justice au sein de la seigneurie foncière en Alsace du XIe au XIIIe siècle”, Le Moyen Âge, 3, 1960, pp. 239–240 (BNF). The “general court (plaid)” is, originally, the assembly to which the Carolingian Emperor summoned his vassals, counts, and major bishops to discuss the affairs of the Realm; then coming to designate the local courts of justice which generally met, on the order of the count or feudal lord, three times a year. Participation was obligatory, on pain of a fine. 26. Particularly in Burgundy, in Brie, and in the diocese of Amiens. See Y. Bongert, Recherches sur les cours laïques, pp. 88–90: the general court (plaid) loses the physiognomy of a judicial assembly to become “a simple fiscal charge in recognition of justice, in the same way that quitrent was in recognition of feudal lordship … presence at the general court was very onerous for those who were subject to it … we also see them … trying to avoid this obligation”. Gradually, “the rate of the fine” becomes “uniform for everyone and has all the features of a tax”. 27. See below and Y. Bongert, Recherches sur les cours laïques, p. 38. 28. This is the procedure of appeal from false sentence; see M. Fournier, Essai sur l’histoire du droit d’appel, suivi d’une étude sur la réforme de l’appel (Paris: A. Durand et Pedone-Lauriel, 1881), p. 143 sq. (BNF), and below, next lecture, p. 156 [187/14] and p. 164 note 34. 29. See Y. Bongert, Recherches sur les cours laïques, pp. 56–61; L. Halphen, “Les institutions judiciaires en France au XIe siècle. Région angevine”, Revue historique, 77(2), 1901, pp. 279–307 (Fonds BnF). 30. L. Halphen, “Les institutions judiciaires en France au XIe siècle”, pp. 304–305. 31. Ibid., pp. 305–306. 32. On confiscation Foucault relies entirely on P. Timbal, “La confiscation dans le droit français des XIIIe et XIVe siècles”, Revue d’histoire du droit français et étranger, 4th series, XXII, 1943, in particular pp. 50–54 on confiscation as main penalty (Timbal adds the case of usurers to those referred to by Foucault), and pp. 54–59 as accessory penalty (BNF). Foucault stresses the role of “confiscation” as key to reading the medieval penal system in “Le grand enfermement”, p. 300/p. 1168: “At the moment … I am dealing with the penal system of the Middle Ages. And nowadays—maybe I am a bit naive not seeing it sooner—I have found the core: it is a matter of the confiscation of goods”. 33. On the commise, see P. Timbal, “La confiscation dans le droit francais des XIIIe et XIVe siècles”, pp. 67–73; G. Fourquin, Seigneurie et Féodalité au Moyen Âge, p. 125. The most famous commise is that pronounced by Philippe Auguste in 1202 against his vassal (and King of England) John Lackland following a conflict between the latter and the Lusignan. All the fiefs of the King of France that he held (like Normandy and Guyenne) were seized and in this way Philippe Auguste took over Normandy. See F.  Lot and R. Fawtier, Histoire des institutions françaises au Moyen Âge, II, pp. 38–39.

146

 

Penal theories and institutions

34. See Y. Bongert, Recherches sur les cours laïques …, pp. 123–124; see also G. Duby, “Recherches sur l’évolution des institutions judiciaires …”, (for the tenth to thirteenth century), and B. Guenée, Tribunaux et Gens de justice dans le bailliage de Senlis à la fin du Moyen Âge, pp. 135–184 (for the fourteenth to sixteenth century). 35. The same theme in “Sur la justice populaire …”, pp. 342–343/pp. 1210–1211; “On Popular Justice …”, pp.  4–5. Foucault re-situates it within a genealogy of the “court” form in order to show that this form inherits a whole history of appropriation and concentration of arms and wealth, leading to the formation of a stable judicial apparatus, presented as playing the role of a neutral third party in conflicts, and connected up with armed force. He is thus opposed to those among the Maoists of the time who defended the idea of a “court” as form of popular justice and concludes his genealogy in this way: “We can understand, then, why it is that in France and … in Western Europe, the act of popular justice is profoundly anti-judicial, and is contrary to the very form of the court” (p. 6). (For further clarification, see below, “Course context”, pp. 241–245, p. 261 and p. 266). 36. See “Le grand enfermement”, pp. 300–301/pp. 1168–1169. 37. See G.  Duby, “Recherches sur l’évolution des institutions judiciaires …”; B. Guenée, Tribunaux et gens de justice …, pp. 77–99. 38. See G.  Duby, L’Économie rurale et la vie des campagnes dans l’Occident médiéval (Paris: Champs Flammarion, 1977) vol. 1, pp. 144–175 and pp. 209–222. On the role of clearings and colonization movements as means of struggle against seigneurial exactions, see G. Fourquin, Seigneurie et Féodalité au Moyen Âge, pp. 181–184 (Fonds BnF). 39. G. Duby, L’Économie rurale …, vol. 2, pp. 95–168. 40. On the great revolts of the fourteenth century, see below. Regarding the formation of professional armies, Foucault relies upon F.  Lot and R.  Fawtier, Histoire des institutions françaises au Moyen Âge, II, pp. 509–536; E. Boutaric, Institutions militaires de la France avant les armées permanentes (Paris: Plon, 1863 [Fonds BnF]). For a more recent history, see P. Contamine, Guerre, État et société à la fin du Moyen Âge. Étude sur les armées des rois de France (1337–1494), (Paris/Le Hague: Mouton, 1972); R. W. Kaeuper, War, Justice and Public Order: England and France in the Later Middle Ages (Oxford: The Clarendon Press, 1988). It is under the reign of Charles V, through the ordinances of December 16, 1373 and January 13, 1374, that the first attempt is made to organize “companies” made up of soldiers under the command of captains who offer their services to princes for a price and a set time. The ordinances attempt to integrate them in a hierarchy defined by the sovereign and to impose a certain discipline. But one has to wait until 1445 for a really effective reform. For its part, Parlement takes on its definitive form (at least in its major lines) through the ordinances of 1345 and 1360. 41. See G. Duby, L’Économie rurale …, vol. 2, pp. 171–231; M. Mollat and P. Wolff, Ongles bleus, Jacques et Ciompi. Les révolutions populaires en Europe aux XIVe et XVe siècles (Paris: Calmann-­Lévy, 1970), p. 108 sq. (BNF). This is clearly the Black Death, the first effects of which are felt in Europe at the end of 1347. 42. On the revolt of the Jacques, or “jacquerie” of 1358, which affected the countryside of the Île-de-France, Beauvaisis, then Normandy, Champagne, Auxois, etcetera, and was repressed by Charles le Mauvais, King of Navarre, June 10, 1358, see M. Mollat and P. Wolff, Ongles bleus, Jacques et Ciompi …, pp. 123–131.

 

9 February 1972 

147

43. See “Le grand enfermement”, p.  301/p.  1169. We recall that at this time Foucault was reflecting on the fact that capitalist societies are “confining societies”; they are not “ritual murder societies”, nor “exile societies”, nor “compensation societies”, but “confinement societies” (“Table ronde”, p. 319/p. 1187). Their system no longer has the characteristic of ensuring the appropriation, concentration, or circulation of goods, but the levy and removal of individuals. On the other hand, in the following year he will distance himself from the notion of “exclusion” as equivalent to “confinement” (see The Punitive Society, lecture of 3 January 1973, and in particular pp. 16–17, note 6). The idea that the apparatuses (dispositifs) of confinement (which Foucault will latter re-describe as “coercive” and then “disciplinary”) constitute a technology of power whose correlate and target is the individual will be taken up in another form in Le Pouvoir psychiatrique. Cours au Collège de France, 1973–1974, ed., J.  Lagrange (Paris: Gallimard-Seuil, “Hautes Études”, 2003), pp. 41–60; English translation by Graham Burchell, Psychiatric Power. Lectures at the Collège de France, 1973–1974, English series editor Arnold I. Davidson (Basingstoke: Palgrave Macmillan, 2006), pp. 39–58. 44. The omnipresent reference in this passage is Claude Lévi-Strauss, the penal system playing in the Middle Ages, according to Foucault, a role analogous to that of the prohibition of incest in primitive societies, according to Lévi-Strauss: ensuring circulation and exchange. This point is developed at greater length in “Le grand enfermement” where Foucault notes: “The role of the medieval penal system was almost as important as the prohibition of incest in primitive societies”. The latter “also had the end of making goods circulate” (p. 301/p. 1169). In making use of the exchange–exclusion couple, Foucault rigidifies an opposition he will criticize the following year in The Punitive Society (see above note 43). On the other hand, we find in the same course, now inserted in an analysis of what Foucault will call “the subtle tactics of the sanction”, the various practices (death, marking, confession, imprisonment) referred to here. Foucault distinguishes between “four major forms of punitive tactics”: excluding (exile, banishment), organizing a redemption or imposing a compensation (game of debt/wrongdoing and of compensation/obligation), marking, and confining (pp. 6–7), and will make the meaning of the penal practices (putting to death in particular) vary as a function of these tactics. The connection between the medieval system founded on compensation and “a theology of fault, penitence, and redemption”, will be re-elaborated in particular in the genesis of tariffed penance based on the mode “of Germanic penality”, in Les Anormaux. Cours au Collège de France, 1974–1975, ed., V.  Marchetti and A.  Salomoni (Paris: Gallimard-Seuil, “Hautes Études”, 1999), pp. 159–160; English translation by Graham Burchell, Abnormal. Lectures at the Collège de France, 1974–1975, English series editor, Arnold I. Davidson (New York: Picador, 1999), pp. 172–173, as well as in Foucault’s lectures on sexuality and confession at São Paulo in October–November 1975 (IMEC archives, C.1421(1–5)). 45. See “Le grand enfermement”, p. 301/p. 1169; see previous note.

ten

16 FEBRUARY 1972 Distinction between medieval pre-State structures and the State apparatuses which replace them. Penal practice in the Middle Ages, which is inserted between civil dispute and violent despoilment, consists in a political-­economic correlation; it redistributes property, wealth, and goods: it is the “joust of fortunes”. ~ Fiscalization of justice. Importance of peace institutions and peace pacts (suspension of acts of private war, pacts, contracts; ritualized development). Pax et justitia, principle of peace councils. Social war falls under penality. ~ System of penality linked to the problem of the possession, concentration, and distribution of arms. ~ Crisis of the thirteenth to fourteenth century: toppling of feudalism; call for foreign mercenaries; seigneurs rely on royal justice. Application of a system with an anti-seditious function to the parlementary apparatus and fiscal apparatus. Development of royal justice, as first form of an institutionalized power, into judicial State apparatus.

Introduction Penal practice is at the heart of a whole transfer of wealth, circulation of goods, and movement of property. Penality mobilizes and moves wealth. a. It obtains this result –– through the nature of the penalties it imposes: –– fines –– confiscation –– by the system of compensations (rachats) it offers: –– compensation, composition (for fines which are too heavy, for confiscations to which the lineal structure of society is opposed) –– remissions which can be purchased from the suzerain and especially the king1 –– by the system of the costs of justice:

[174/1]

150

 

Penal theories and institutions

–– pledges (gages) left in the hands of the justiciar [175/2] –– purchase of his indulgence –– and soon (when written procedure prevails) costs of justice strictly speaking.2 A whole whirlpool of money, or rather of (movable and immovable) goods takes place around penal affairs. Example: (Tanon. Criminal affairs at Saint-Martin-des-Champs at the beginning of the fourteenth century)3 Cost of a trial. It is as if at a time of monetary scarcity, the flow of wealth and its movement passed through the judicial dispute. The dispute performs one of the functions of exchange (alongside marriage, in competition with marriage, as a consequence of marriage).4 b. We can see from this that penality is inserted between civil dispute, usually resolved according to custom or the written law, and violent despoilment. 1/ It is close to the civil dispute which is also mainly concerned with the problem of the transfer of property –– the civil dispute controls, prevents, or approves property movements; [176/3] –– the penal trial prohibits and annuls some (by condemning violent despoilments) but it imposes others through constraint.* Hence the intertwining, or rather absence of differentiation between civil and criminal in many cases. A whole series: dispute, injury, compositions, contracts, fines. A whole set constituting the “joust of fortunes”. 2/ But penal action is also close to violent and irregular despoilments. It forms part of wars of appropriation; –– either because it at least partially sanctions a violent appropriation, a pure and simple despoilment. This was often the case in the high Middle Ages: one seizes hold of a good and then pays a fine or a composition, which still leaves a profit. –– or because it is the pretext for a pure and simple despoilment. This took place regularly at the end of the thirteenth and beginning of the fourteenth century with the Jews and Lombards. * The manuscript has in the margin: “until the end of the eighteenth century, speculation”.

 

16 February 1972 

151

Example: Louis IX banished the Jews. Recalled in 1288, banished in 1306; recalled and then banished again in 1311–1312. [177/4] The Lombards are banished in 1291, recalled in 1295; driven out in 1311–1312. The Templars.5 It is often said: The Middle Ages practiced usury and yet condemned it. It is not enough to correct this by saying that it was because it practiced it that it condemned it. We should say: Condemnation formed part of the economic–political practice of usury. Penal confiscation and banishment of the usurer, like the seizure of the debtor or his enslavement, were inscribed in the series of risks and constraints established by the loan, debt, and usury. To tell the truth, not “like”,* but in a different mode: the intervention of political power. After all, debts to Jews in the French Midi represented a major part of peasant debt. And the king and the privileged profited from the confiscation of their goods. By confiscation of the creditor, debt is made part of the tax levy.6 [Rather than speak in terms of ethics, it would be better to speak primarily in terms of penal practice.]† One could also cite the political–penal despoilment of the Midi provinces in the thirteenth century, under cover of a religious pretext. Here it is a political despoilment within which the penal confiscation affect- [178/5] ing landowners plays a quasi-“colonizing” role.7 Generally speaking, we can say a/ Under the interplay of prohibitions, infractions, and penalties: –– a whole game of the transfer of properties, wealth, and goods takes place which is inserted and functions between: (a) the (peaceful) game of conventions, alliances, and contracts (b) and the game of violence, appropriations, and despoilments. In an economy so little monetized, [this game]‡ makes up for exchanges; or at least, it occupies such an important place only inasmuch as monetized exchanges are still relatively quite weak. * Underlined in the manuscript. † Sentence in square brackets in the manuscript. ‡ The manuscript has “it”.

152

 

Penal theories and institutions

b/ But it would be wholly insufficient to say that it is a “substitute for exchanges”. In fact, it is a circulation of goods which necessarily follows the tendency of the concentration of power (since it takes place through constraint, and by way of authority, to the advantage of those [179/6] who hold it). (This game)* is one of the connecting points of the displacement of wealth and the displacement of power. It makes it possible for each to mesh with the other. It functions in such a way that: –– every increase in landed wealth results in real, immediate power over people (the right to judge them), and –– in the system of goods, every increase in power results in an increase in wealth (power of confiscation and levy). The penal system is not yet a State apparatus; but it exercises a function of a State apparatus: to mesh the exercise of a power of class domination with the system of accumulation of wealth defined by the relations of production.

Methodological conclusions –– Even before State apparatuses, there are “pre-State” functions; that is to say, functions of political-economic correlation: –– which have not yet taken shape in State apparatuses, –– but which are ensured by regular and institutionalized forms of power. –– But when the State apparatus for securing these functions is formed there may be some displacements. This is how: a/ The regular and institutionalized power to punish will subsequently take shape in a judicial, police, and penitentiary State apparatus. But the function of this State apparatus will not be to link political power and accumulation of wealth; it will have a different function: an anti-seditious function.8

* The manuscript has “it”.

[180/7]

 

16 February 1972 

153

b/ The function of meshing the accumulation of wealth and the concentration of power will be secured quite differently: –– by the fiscal apparatus (the financiers of the seventeenth century); –– then, thanks to a new split, by the fiscal and parlementary [181/8] apparatuses. (So in this distribution of State apparatuses and their functions, the scandal is really the application of a penal system with an anti-­ seditious function to the parlementary and fiscal apparatuses whose function is economic-political meshing).9 In any case, from a methodological point of view we should no doubt distinguish: –– the institutional and regular forms of the exercise of power, –– the State apparatuses, –– the State or pre-State functions they perform. The penal system in the Middle Ages –– does not have an apparatus –– it is nevertheless a codified way of exercising power –– and it has a pre-State function (wealth/concentration/power) which does not immediately appear in the institutional regularity of the practice.

PENALITY AND THE DISTRIBUTION OF ARMS This system of penality (with its institutional regularity and pre-State function) is linked to the system of the possession of arms, of their distribution and concentration. – It is linked to it like any repressive system, like any system of constraint. The seizure of guilty persons, the execution of the sentence, the protection of the court and its members, all obviously call for armed force. Especially when sentences, to a large extent, are the seizure of goods. –– But there is another, much more important link. –– We have seen that the effect of penality was an appropriation of goods to the advantage of, or at any rate by the action of the judges. –– Someone’s crime or offense is an opportunity to move part, when not the totality of goods, in a certain political direction.

[182/9]

154

 

Penal theories and institutions

–– Thus, as a first approximation, [penality]* has the same effect as [183/10] despoilment or warlike plunder. –– But precisely, it is opposed to these violent despoilments. Among the most frequently repressed crimes in the Middle Ages, apart from thefts, are violent occupations, abductions (ransoms), bearing arms, counterfeiting, forged currency. It is as if the function of the penal system was to replace one form of violent and anarchic despoilment with another form of appropriation, developing steadily in a certain sense and in a certain direction. Up to now, we have explained how penal justice took effect in a game of appropriations, and how these appropriations strengthened the power that brought them about. But we have not explained how and why medieval society was able to carry out these indirect and regulated appropriations (instead of those direct appropriations produced by the use of military force).† The operation takes place through the institutions of peace. Peace institutions are, with transfers of wealth, the most important aspect of feudal penality. 1. In what do the peace institutions consist10 They are very diverse and conform to very different types. a/ At a first level, the peace pacts, contracts, which are made between individuals or families. These put an end to pre-existing private war. They are ritualized, and all the more so as recourse to an arbitrator, an authority, a court of “paiseurs” becomes more usual and necessary. Thus in Flanders: –– the truce,11 often renewable in forty days, was a simple act, an oath, often registered before an authority.12 Example: “One named Jean Martin, living at Orchies, asked for the truces of our aforesaid town, to be assured of Jean Madoul the elder; the said Jean the elder, who had no intention of harming him, swore

* The manuscript has “It (Elle)”. † The manuscript has in the margin: “The condition of possibility”.

[184/11]

 

16 February 1972 

155

and promised before the law of the said place, to maintain the said truces, which were then recorded in the town’s registers.”13 –– peace, which comprises three elements:14 –– a homage on the part of the attacker, with promise of a: –– material –– moral expiation15 –– a kiss of peace which restores equality16 –– a mutual oath to resume relations “to speak, drink, eat, and trade with each other”.17 b/ At a second level, strongly linked and still very close to the first, is [185/12] the intervention of an authority which encourages, which puts pressure on the parties to come to a peace or truce; which guarantees them, and punishes those who break it. –– in 1296, at Lille, it is established that peace can only be made before the échevins.18 In the Pays-Bas, alongside the échevins there is a special court, the pai[seurs].19 –– This intervention may take an individual turn or be a general measure. At Ghent, the Great Charter of 1297 imposes a truce of fourteen days on the two lineages when there is a brawl.20 At Lille, renewal of truces takes place automatically at Christmas and Midsummer’s day: two échevins and a clerk pass through the town with letters of truce.21 –– Constraint is often implemented by the system of hostages.22 At Merville, the custom of 1451 says that those who do not want to drink together are put in prison and leave only after having made peace and by paying a surety.23 Sometimes the arbitrators are put in prison (at their cost, or at the cost of the party preventing compromise).24 But this system of peace is no doubt opposed to (or at any rate is intended to resist) another, older system, which is more authoritarian and less linked to urban civilization. c/ These are pacts of peace for which we have evidence from the beginning of the eleventh century, and by which the seigneurs, on the [186/13] invitation either of the Church or of their suzerain, undertake to partially suspend acts of private war.25

156

 

Penal theories and institutions

–– These are selective peaces: For example: taking livestock (Charroux) or: [attacking] clerics26 or: for a fixed period of time. The truce of God at Liège prohibits bearing arms during Advent and Lent.27 –– These are peaces that mainly take the juridical form of the pact, the foedus, but which operate in an authoritarian way. The guarantor of the foedus imposes it and imposes the sanctions.28 –– It seems that at the Council of Poitiers (1011–1014) all the princes who took the oath left hostages. –– Those who break the pact must be “destroyed” by the others (Poitiers).29 –– When the Church originates the pact, excommunication is fulminated against those who do not observe it. –– These are undertakings (engagements) prior to any private war and entail the dispute being taken before the courts. At the Council of Poitiers it was decided that any “altercatio” in the lands of the princes present and all disputes concerning the res [187/14] invasae* must be subject to the jurisdiction of the prince or of his judges.30 d/ Finally, at a fourth level, there is the peace assured and guaranteed by the king (or a great feudal lord like the Count of Flanders, the Duke of Burgundy or of Normandy): –– personal asseurement: a given individual is protected by a peace which concerns him personally31; –– peace of the market, fairs, roads32; –– peace decreed by ordinance: Philip the Fair prohibiting any private war while the King was waging war33; –– finally, maybe we should put in this series recourse to the King in cases of the “denial of justice” or of false sentence. The king as supreme arbitrator, blocking all private wars.34

* Underlined in the manuscript.

 

16 February 1972 

157

Now what all these institutions have in common is the aim –– of expelling everything concerning “private war” from the sphere of justice. Certainly they recognize [private wars]* since they limit them, but in virtue of this they control them; they restrict their extent: they prescribe rules for them, and impose stops on them. –– They tend therefore to substitute the judicial for the unfolding of private acts of justice. The judicial is not the instance that controls [188/15] private war and brings it to an end, but the instance that must replace it. –– They tend to separate a domain of war, of the non-judicial, of the banned and the non-just, from a domain of peace, the judicial, the legitimate, and the just. The institutions of peace do not belong to the judicial order. They are institutions by which, under the guarantee of a political authority, certain regions, moments, and circumstances are demarcated in which, in the suspension of war, justice between individuals, reparation of damage, the compensation owed by the author of the crime, will be fully, exhaustively assured in the peace of the court. Henceforth there will be: –– on one side bellum et injuria –– on the other pax et justitia. This formula—which intervenes regularly in all the peace councils (after that of Charroux)35—is no doubt very old, but: –– in the Latin texts pax et justitia referred to the implementation of Roman law where there was pax romana;36 –– in the medieval texts pax et justitia refers to the practice of these peace institutions: it is only in the pax thus established that there can [189/16] be justitia. We can gauge the shift in relation to Germanic law: justitia was the war that follows the injuria. – injuria – (bellum = justitia) – pax – injuria – bellum ──── pax – justitia.

* The manuscript has: “they recognize them”.

158

 

Penal theories and institutions

At the level of the bar: political authority. It is the political authority that prohibits the killing of one’s enemies. It is the political authority that joins together pax and justitia. It is the political authority that places the whole order of acts of justice under the control of the judicial instance. It is the political authority that imposes the form (the “peaceful” form) of the court on the course of the dispute. We can see that this principle pax et justitia* is constitutive of penal law. In actual fact there is penal law, in the modern sense of the word when retaliation for the injury is assured by a public authority and │ in accordance with ways other than those of private war. We can also see that this principle† was a crucial political instrument in the hands of those who wielded public authority. In actual fact, someone who treats someone else as an enemy while in the sphere of influence [190/17] of a public authority falls into unjust war, bellum et injuria. Every war against the injustice of justice will be unjust by definition. Social war falls under penality. The history of political penality in relation to common penality develops against this background. 2. The operation of peace institutions. –– The first role of peace institutions is the authoritarian constitution of a space of play for the judicial instances (courts, judges, sentences, ­enforcement); that is to say, of a space in which the judicial instances will be able to perform their role of tax levy. –– By turning an act of private war into crime, the seigneur or the suzerain makes it liable to a sentence. It creates a source of profit for him where those who are now subject to trial had previously settled their disputes themselves. –– He enters as third party also suffering injury by the fact that there has been an attack or by the fact that there has been a counter-attack. At any moment of the game of counter-attacks he may arise as an [191/18] injured third party and demand his share.37 –– But on the other hand, as the “peace” has a protective function for those who might be attacked and would be disadvantaged in a private

* Underlined in the manuscript. † Words crossed out: “is constitutive”.

 

16 February 1972 

159

war (the Church, merchants), the suzerain who establishes the peace quickly came to sell it. So that the creation (through peace) of a field of lucrative penality is itself the object of profit. In the Middle Ages there was a “demand” for the establishment of penalities. And to this demand corresponded an offer converted into cash. We can see how peace also played a role in the fiscalization of justice. –– But “peaces” represent much more still. This is the question of the control of arms, of their concentration, and of the limitation of military operations. a/ It is understandable that there was a whole political struggle around these peace institutions: who will establish them, who will profit from them, who will have the right to prohibit certain arms, or a particular form of attack, at different moments. From the start, conflict between the Church and the big feudal lords. [192/19] The lower classes are sometimes called to the rescue.38 And these struggles between the strongest “peaces” will be inserted very exactly into the structures of feudalism. b/ But with a tendency however which will gradually overturn feudalism. –– Actually, to be sure that his peace reigns, the seigneur must have vassals in arms who ensure punishment of the guilty. –– But the more the population is armed, the less chance of peace reigning. –– Hence the tendency to call on foreign mercenaries to maintain these zones of peaceful penality; –– mercenaries, moreover, who rekindle private wars, self-defense, since they are conducted in conquered lands. –– Until the suzerain, by a new injection of mercenaries, or a new armed force, drives them towards delinquency, declares them criminals, places them outside the law, etcetera. This was the history of the Routiers in the twelfth century, the Great Companies in the fourteenth century, the Écorcheurs and Tard-Venus of the end of the fourteenth and beginning of the fifteenth century.39 And we can see that a concentration of arms is an inevitable result of this process. Only the wealthy can indulge in mercenaries, and only the [193/20] wealthiest can employ mercenaries to drive the others out.

160

 

Penal theories and institutions

c/ And it is necessary to add to this two other processes which played a determining role: –– the economic blockage of the thirteenth century and the collapse of the fourteenth century (plague, abandonment of crops, higher wages, low land rents, fiscal exactions, popular exasperation and revolt)40; –– the importance of foot soldiers in the army, which makes the people more formidable militarily.41 Hence the seigneurs’ reliance on royal justice. They are the ones to call upon royal justice, because private wars are too costly, because they cannot pay the mercenaries or arm the people. Thus a series of divisions of attribution, responsibility, and profits between seigneurial justices and royal justice is carried out. And it is here, sheltered by an army which, in the face of popular revolts, is tending to become a State instrument in aid of an already pow- [194/21] erless feudalism, that royal justice will develop as the first form of a judicial State apparatus. Justice as State apparatus developed in the shadow of the army. To protect its privileges against popular riots, feudalism had to call upon a ­centralized army and justice (an army of mercenaries and a justice of functionaries) which are the two [major agents] of royal power. They can still be seen at work in the seventeenth century.

Summary –– Justice, progressively fiscalized in the Middle Ages, exercises a preState function (of economic-political correlation). –– justice as correlative of the institutions of peace appears as the verso of an apparatus whose other side is the army, and –– the concentration of both taxation and the army gives rise to a State apparatus which breaks down into two series of institutions –– juridical–fiscal institutions –– military institutions.* * * An additional unnumbered sheet [195/-] contains the following notes, the beginning of which resembles the text of sheet 6 of the next lecture: “[ … ] – or finally by relying on royal power (of Louis VI and Louis IX).

 



16 February 1972 

161

NOTES

1. Foucault is referring here to letters of remission to obtain the sovereign’s pardon against a sum of money, which developed from the fourteenth century. See B. Guenée, Tribunaux et Gens de justice dans le bailliage de Senlis à la fin du Moyen Âge, pp. 301–302; F. Lot and R. Fawtier, Histoire des institutions françaises au Moyen Âge, II, pp. 83–84. For useful expositions on this practice, see C. Gauvard, “De Grace especial”. Crime, État et Société en France à la fin du Moyen Âge (Paris: Publications de la Sorbonne, 1991). 2. See B. Guenée, Tribunaux et Gens de justice …, pp. 251–276. 3. Basically, in L. Tanon, Registre criminel de la justice de St Martin des Champs à Paris au XIVe siècle (Paris: Willem, 1877) there is mention of sums of money paid for release and restoration of freedom after an imprisonment: for example, in 1332, a certain Gillet and his son Jehannin were imprisoned because they were suspected of having beaten a certain Marie de Bournville. They obtained their release against the surrender of two anvils costing 60 Paris-minted sols (p. 34); similarly, in 1339, Simmonet le Normand was imprisoned for having said, before witnesses, “vile words about our Lord Jesus Christ” and was freed after paying 60 Tours-minted sols to the Saint-Julien hospital (pp. 153–154). 4. See above, previous lecture p. 133 [161/12]–[162/13] and pp. 144–145, note 24, pp. 138–139 [170/21]–[171/22] and p. 147, note 44. 5. See J.-J. Clamageran, Histoire de l’impôt en France, I, pp. 298–300. The confiscation of the Templars’ goods is pronounced after their trial in 1310: the King keeps the money and all the movable goods and deducts a large part of the immovable goods before handing them over to the Hospitallers. Clamageran similarly details the way in which Philip the Fair oscillates between privileges and despoilment vis-à-­vis the Jews and

b/ Likewise the towns need peace: hence their attempt to arm themselves. The struggles with the seigneurs and the support sought from the central royal power – on the part of the towns as well as of the ecclesiastical or lay seigneurs.42 And the big feudatories (or the king) sometimes support the local forces, sometimes the feudal forces, but always in a way such that it is their own peace, that is to say their own feudalism which profits from it. To disarm this or that stratum of the population or some other social group and to establish a justice therefore go together. We have seen: the link of justice with taxation leads to a modification of the judicial system: (1) increasingly compulsory character (2) increasingly concentrated form. In the same way, the connection between justice and the possession and exercise of arms goes in exactly the same direction: (1) compulsory character of justice since it is often the result of a war, at any rate of rivalry (2) increasingly concentrated form, since it strengthens the strongest.”

162

 

Penal theories and institutions

Lombards the better to dispossess them each time. According to him, in the sénéchaussée of Toulouse alone, the confiscation of the goods of the Jews brought in 75,264 livres. See also: F. Lot and R. Fawtier, Histoire des institutions françaises au Moyen Âge, II, p. 203; P. Timbal, “La confiscation en droit français des XIIIe and XIVe siècles”, p. 57 sq. 6. See M. Mollat and P. Wolff, Ongles bleus, Jacques et Ciompi, pp. 32–33, which summarizes the works of Richard W. Emery on the subject. On the Jewish debts of the notarial registers of Perpignan between 1261 and 1286, two-thirds concern peasants who are indebted in order to improve their equipment. As Timbal recalls, “La confiscation en droit français …”, confiscation is the main penalty applied in a great number of cases of usury, in particular on the death of the usurer and to the King’s advantage or, in Normandy, the Duke’s. 7. Foucault is referring here, in particular, to the Albigensian Crusade which was accompanied by a vast movement of confiscation of the goods of the heretics, following the prescriptions of the Papacy. See P. Timbal, “La confiscation en droit français …”. 8. See above. This is what the lectures on the Nu-pieds are all about. See also, “Sur la justice populaire …”, pp. 350–352/pp. 1218–1220; “On Popular Justice …”, pp. 14–16: “There was a particular period when the penal system, of which the function in the Middle Ages had been essentially a fiscal one, became organized around the struggle to stamp out rebellion” (p. 14). And this through a “triple role”: (1) as “factor in ‘proletarianization’”, forcing “the people to accept their status as proletarians” (confinement of the idle, forced labor …); (2) focus on the “most mobile”, “dangerous” elements, prepared to use violence, to be separated out and isolated; (3) establishing a division between “the non-proletarianized people (plèbe)” and the “proletariat”, through legislation, prison, and various moral and ideological categories (p. 15). 9. Foucault is no doubt referring here to the fact that, in the suppression of the Nu-pieds, the anti-seditious apparatus was turned round against the members of the Normandy Parlement and the agents responsible for the tax system at a local level, like the Cour des Aides. See above, lecture of 15 December 1971. 10. Foucault’s main references on these institutions of peace are the following; for Flanders and the North of France: G. Espinas, Les Guerres familiales dans la commune de Douai aux XIIIe et XIVe siècles …; C. Petit-Dutaillis, ed., Documents nouveaux sur les mœurs populaires et le droit de vengeance dans les Pays-Bas au CVe siècle … For the peace movements, which extend from the Council of Charroux to the end of the tenth and in the eleventh century, Foucault relies mainly on the three contributions in Recueils de la Société Jean Bodin pour l’histoire comparative des institutions, vol. XIV: La Paix, I (Brussels: Librairie encycolopédique, 1961), pp.  415–545: R.  Bonnaud-Delamare, “Les institutions de paix en Aquitaine au XIe siècle”; E. Strubbe, “La paix de Dieu dans le nord de la France”; A. Joris, “Observations sur la proclamation de la trêve de Dieu à Liège à la fin du XIe siècle”, as well as G. Duby, “Recherches sur l’évolution des institutions judiciaires …”. For more recent works on the subject, see: T. Gergen, Pratique juridique de la paix et trêve de Dieu à partir du concile de Charroux (989–1250), (Berlin, Brussels, New York: Peter Lang, 2003); N.  Offenstadt, Faire la paix au Moyen Âge (Paris: Odile Jacob, 2007); K. Petkov, The Kiss of Peace: Ritual, Self, and Society in the High and Late Medieval West (Leiden: Brill, 2003).

 

16 February 1972 

163

11. On the distinction between “truce” and “peace”, see G.  Espinas, Les Guerres familiales …, pp. 4–6: the truce is a temporary separation of adversaries, an “abstention from war” which does not remove the cause of the conflict; “peace” aims for the removal of the offense, for the replacement of discord with “harmony”. 12. See C. Petit-Dutaillis, ed., Documents nouveaux sur les mœurs populaires …, p. 60; G. Espinas, Les Guerres familiales…, p. 25. At Douai this oath is called “fiance”. 13. Cited in Petit-Dutaillis, Documents nouveaux …, p. 58: “One named Jean Martin, living in Orchies, asked to have the truces of our aforesaid town, in order to be assured of Jean Madoul the elder, whom he mistrusted, as he said; this Jean the elder, who had no intention of harming him, swore and promised before the Law of the said place to maintain the said truces, which were then entered in the registers of that town.” 14. Here Foucault follows G. Espinas, Les Guerres familiales …, p. 26 sq. 15. See ibid., pp. 26–28: “a real homage of the living party to the killed party, it affirms under oath his repentance”, to which is added expiations in pecuniary (Sühngeld) and moral (penence, kerke) form, for example, an expiatory pilgrimage. See above, previous lecture, p. 144, note 18. 16. See G. Espinas, Les Guerres familiales …, p. 28. See also C. Petit-Dutaillis, ed., Documents nouveaux sur les mœurs populaires …, p. 82 sq. 17. G. Espinas, ibid. This is a mutual oath of pardon and peace, with the promise to “speak, drink, eat and trade with each other”. 18. See the “new ordinance on peace” of 1296, in J.  Roisin, Franchises, Lois et Coutumes de la ville de Lille (Vanackere, 1842), p. 123: “It is established by échevins, by the council, and by a large number of the town’s inhabitants, to hold perpetually that if such act occurred … as to beat, insult, wound or kill, neither those who would have committed the misdeed, nor those who would have suffered it, could make any peace agreement except in the legal form before échevins, and not before the seigneur or anyone else.” 19. See C. Petit-Dutaillis, Documents nouveaux sur les mœurs populaires…, p. 57 sq.; G. Espinas, Les Guerres familiales … 20. See C. Petit-Dutaillis, ed., Documents nouveaux …, p. 59. The Great Charter of the Gantois in 1297 provided that, in the event of a brawl, the “innocents” of the two lineages involved are immediately in legal truce for fourteen days, while the authors of the brawl do not have truce as long as the law has not intervened to give them one. 21. See ibid.,, p. 60. 22. See ibid., pp. 63–64. This is the procedure called “otagement” or “ghiselscepe”. 23. See ibid., p. 70. 24. See ibid. (at Bruges). 25. In a context of tensions and struggles for influence in the Comté de La Marche, between the Dukes of Aquitaine and the Dukes of Gascony, the Archbishop Duke of Bordeaux Gombaud, brother of the Duke of Gascony, brought together at Charroux (in La Marche) on June 1, 990 an assembly of bishops, members of religious orders, and clerics, who initiate the movement of the “Peace of God” and of various peace pacts, which extend throughout the eleventh century.

164

 

Penal theories and institutions

26. The Council of Charroux, meeting in the name of God, formulates three prohibitions striking with anathema those who contravened them: (1) prohibition of any violation of a church or the taking of its goods; (2) prohibition of taking oxen as security or taking animals (sheep, oxen, pigs, etcetera) as booty from farmers or the poor; (3) finally, against all those who would attack clerics, who must not be attacked, taken, or struck. See R. Bonnaud-Delamare, “Les institutions de paix en Aquitaine …”, in La Paix, I, pp. 422–423. 27. The “truce of God” was proclaimed in Liège in 1082 on the instigation of the town’s bishop, Henri de Verdun, in order to struggle against private wars. It prohibited carrying arms from Advent to Epiphany and from the third Sunday before Lent (Septuagesima) to the eighth day after Pentecost. It likewise prohibited aggression, brigandage, and arson. See A. Joris, “Observations sur la proclamation de la trêve de Dieu à Liège”, in La Paix, I, pp. 508–509. 28. See R.  Bonnaud-Delamare, “Les institutions de paix en Aquitaine …”, pp. 432–433. 29. The Council of Poitiers was held on January 13 of a year situated between 1011 and 1014, under the aegis of the Duke of Poitiers (and of Aquitaine) William the Great. It is marked for the first time by the preeminence of a lay authority (the Duke) and the presence of a large number of lay “princeps” (no doubt the counts of the dioceses). On this occasion it is a matter of establishing a peace of lay society, guaranteed by religious sanctions but in order to introduce rules of civil procedure. Each of the princes present at Poitiers actually gave hostages who would be punished if they did not respect the prescriptions. It was further stipulated that in the event of non-respect, the princes would unanimously have to destroy the guilty party. See R. Bonnaud-Delamare, “Les institutions de paix en Aquitaine …”, p. 443 30. See ibid., pp. 440–441: “any altercatio in the pagi of the princes present at the assembly, as well as disputes concerning the res invasae … will henceforth have to be subject to the jurisdiction of the princeps of the regio or before some judex of the pagus”. 31. On asseurements, see F. Lot and R. Fawtier, Histoire des institutions françaises au Moyen Âge, II, pp. 426–427, and, recently, B. Lamiges, “L’ ‘“Asseurement’” du contrôle de la violence au maintien de la paix publique dans le royaume de France (fin XIIe siècle– fin XVe siècle)”, doctoral thesis, University of Limoges, 2013. 32. See E. Perrot, Les Cas royaux, p. 114 sq. There exists also, from the Frankish period, a “local peace” concerning markets, fairs, and the people who frequent them, generally assured by the feudal lords; from the thirteenth century they are placed under the safeguard of the King. 33. See F. Lot and R. Fawtier, Histoire des institutions françaises au Moyen Âge, II, p. 429: on January 9, 1304, Philip the Fair prohibited all private wars and violence “durantis guerris nostris” in the sénéchaussée of Toulouse; he takes up the same principle again in 1314 during the Flanders war. 34. On the appeal for false sentence and the appeal for error in law, see M. Fournier, Essai sur l’histoire du droit d’appel, pp. 143–168. The appeal for false sentence pertains to the right of the condemned party to attack the sentence by declaring it wrong and engaging his judges in a judicial duel (or other test) before a higher court or the suzerain. The appeal for error in law corresponds in reality to the denial of justice: when a

 

16 February 1972 

165

feudal lord refuses to dispense justice, refuses or mistreats his vassal, the latter may summons his lord by demanding that he dispense justice and, finally, bring an action before the suzerain. 35. R. Bonnaud-Delamare, “Les institutions de paix en Aquitaine …”, p. 467. 36. On pax romana and justitia, see La Paix, I, pp. 303–395. 37. See below. 38. These conflicts between bishops and lay princes or dukes are traced in R. Bonnaud-Delamare, “Les institutions de paix en Aquitaine …”. The recourse to the lower classes in these conflicts refers to the appeal of the archbishop of Bourges, Aimon de Bourbon, in 1038, to all the faithful (older than fifteen) to enter into war against seigneurs who violate the peace. See below, the following lecture, p. 177, note 5. 39. Foucault’s main reference for all these mercenary groups is E. Boutaric, Institutions militaires de la France avant les armées permanentes, which describes precisely this process of the forcing back towards delinquency at the end of every war (pp. 162–174 and especially pp.  240–245 on the Routiers; pp.  256–263 on the Great Companies, and pp. 263–265 on the Écorcheurs); see also F. Lot and R. Fawtier, Histoire des institutions françaises au Moyen Âge, II, pp. 522–525. The Routiers were mercenaries, often from Brabant or Flemish, employed permanently in English and French royal armies in the second half of the twelfth century as well as by different seigneurs. The “Great Companies” were mercenary bands, formed first of all in Brittany and then spreading in France, who were enrolled by various seigneurs including the king of Navarre, Charles the Bad, and who were then dismissed and roamed the countryside, carrying off important victories over the feudal armies (like the Tard-­Venus at Brignais in 1362). As we have seen, Charles V and then Charles VI will strive, through ordinances, to organize them into regular armies (see above, previous lecture, note 40). The Écorcheurs were a whole set of companies dismissed under Charles VII which will ravage the Duchy of Burgundy in the 1430s. 40. See M. Mollat and P. Wolff, Ongles bleus, Jacques et Ciompi … 41. On the development of the place of foot soldiers in the army, see F.  Lot and R. Fawtier, Histoire des institutions françaises …, II. Until the fourteenth century, the place of foot soldiers, particularly in France, is extremely reduced in comparison with the cavalry and mounted infantry, basically made up of nobles. The victories won by the Flemish people in arms against the French cavalry at Courtrai in 1302, but especially those of the English armies, made up of few cavalrymen and an infantry of many archers, at Crecy in 1347 and Agincourt in 1415, show the limits of this knightly army. 42. Thus royal ordinances in March 1356 and May 1358 proclaim the right, and even the duty, of towns to resist and assist each other in cases of aggression by dismissed soldiers. See S. Luce, Histoire de la Jacquerie d’après des documents inédits (Paris: Champion, 1895) pp. 161–163 (BNF).

eleven

23 FEBRUARY 1972 I. Endogenous process. The function of peace institutions in the Middle Ages: 1/ constitution of a space of justitia guaranteed by the judiciary as public authority; 2/ constitution of better assured zones of taxation which double the procedure; 3/ distribution of arms, intervention of force, and formation and development of the professional army. Concentration, centralization, and virtual State takeover of justice. II. Exogenous processes. The fourteenth and fifteenth century crises and major social struggles transform justice. Important phenomena: 1/ the functioning of Parlement as center of every practice of justice; 2/ the king is justiciar as sovereign; 3/ Parlement becomes a component of a State apparatus.

A. Continuation of peace institutions *

[1.] First function. The function of the institutions is to constitute –– a space, a time, a place, a moment where private wars are banned, –– where they are banned by a single or collective authority; –– this authority requires that: –– disputes that cause or may cause private wars, –– but also private wars themselves when they take place in a place or period of peace be brought before a judicial body. Henceforth –– justitia is no longer the set of regulated retaliations which respond to an injuria, retaliations which may be war, then arbitration, then sentence, then peace;

* Foucault here replaces the word “effect”, crossed out, with the word “function”.

[196/1]

168

 

Penal theories and institutions

–– but justitia is the set of procedures that take place before a court [197/2] controlled by an authority that, beforehand, had made peace reign. Revenge, vengeance, retaliation come under injuria when there is a separation between injuria and justitia,* that is, peace established, maintained, and guaranteed by a public authority. Justice is confiscated by the judiciary, and by a judiciary imposed by the public authority. Such is the effect of the peace institutions. But what is its function? 2. Second function. To create better-organized, better-run, and more lucrative zones of taxation. Regions where the judicial tax levy will be better and constantly assured. How is this done by the peace institutions? a/ Certainly, private wars always left a certain share of benefits to those with authority. Settlements included a “fredum” alongside the wergeld.1 But it is clear that if all the stages, all the episodes of redress pass through judicial instances, then there are more points at which the levy [198/3] can take place. A sort of permanent taxation comes to double the procedure. b/ The peace institutions create infractions. Henceforth, it is not only injuria that is an infraction punishable with a fine; but the non-judicial response (private war) is also an infraction sanctioned [by a] fine, confiscations, etcetera. c/ Finally, a function of the peace institutions is to protect certain individuals, to assure them against armed attack in certain circumstances or places. For example, merchants, people going to the fair, whole towns.2 d/ They offer advantages therefore which the interested can purchase. They will be sold. Someone with a power of dissuasion or coercion will assure his peace for a fee. Hence, veritable overbidding regarding peace: they tend to be requested from the more powerful. And the more powerful tend to sell * The two words underlined in the manuscript.

  23 February 1972 

169

them at a higher price than others. As a result conflicts, rivalries [are [199/4] introduced] between the different, more or less powerful sellers of peace. Example: conflicts between the monarchy (and the great feudatories) or the smaller seigneurs. Protecting towns and merchants was very profitable (due to the development of commerce, due to the communities they formed, and on condition that they were not armed). In the thirteenth century the number of the king’s bourgeois was so great that the nobility protested. In 1272, Philip the Bold revoked all the “avoueries” received by the royal baillis in the previous ten years and undertook not to take any of them.3 We can see in any case how the process of establishing these peace institutions strengthens the fiscalization of justice. One has to pay for justice not only in its procedures but in its institution itself. One pays –– when one has received justice (fine) –– to receive justice (price of the procedure) –– to become justiciable (in order to be protected by it).* [200/5] 3. Third function: the distribution of arms. The peace institutions therefore transform armed interventions into judicial and lucrative procedures (for those who hold power and have jurisdiction).† This transformation can itself take place only through the intervention of force. For a power to transform an armed struggle into lucrative justice, those who struggle (or are prepared to struggle) must be deprived

* In the manuscript a passage crossed out follows: “Hence a whole economic struggle around these sources of profit (the king and big aristocracy, the lesser nobility, the Church, urban communities).” In the margin there is this comment (not crossed out): “Justice, opening the way to taxation”. † The manuscript has in the margin: “Justice is linked to arms:

–– because it is lucrative –– because it has to protect some and attack others”

170

 

Penal theories and institutions

of their arms, or must renounce their use under one pressure or another.* It is through war that the peace institutions can be established. One battles in order to have one’s own reign of “pax et justitia”. In the high Middle Ages, the Church as landowner needs peace (in order to protect its sources of revenue). But it also has an interest in peace as suzerain, as immunist, as being able to execute justice itself. Finally, it has an interest in peace since it does not directly have the armed force for pursuing vengeance.† Hence, immediately after the collapse of the Carolingian State, its search for peace: –– either by relying on one seigneur against another (at the time of the Councils of Charroux, Limoges, Poitiers),4 –– or by relying on the people (the episode of Aimon de Bourges),5 –– or, finally, by relying on royal power (from Louis VI and Suger → [201/6] Louis IX).6 b/ Urban communities likewise need peace. But despite a certain military inferiority, they have the ability to defend themselves and to fight. –– Which they do against their (ecclesiastical or lay) seigneur with, as an important demand, the independence of their justices.7 –– And in these battles, the superior power (the great feudatories, the king) takes part according to its own interest: i.e., in such a way as to establish its own peace, in other words: –– its taxation –– its army. c/ Through this we see the initiation of a process which will be crucial in the establishment of justice. This is the appearance of an army of mercenaries.8 In fact: –– the archaic feudal army called on vassals, rear vassals and even some free peasants to fight, implying that, on the one hand, everyone is * The manuscript has in the margin: “Justitia: continuation of war. Founded on a relationship of force”. † The manuscript has in the margin: “The three instances which contributed to peace:

–– The Church –– the towns –– the major feudal power”.

  23 February 1972 

171

armed and, on the other, that the suzerain depends on the vassal’s good will. How can one establish the reign of peace, how, through war, can one impose the prohibition of war, and do this amongst one’s own vassals, if one depends on them and if they have armed force? [202/7] The great feudatories recognized the drawbacks of this when they wanted to depend on the towns against their vassals, or conversely. Recourse to the army of mercenaries made it possible to establish peace through war, but without arming those on whom one wished to impose one’s peace, that is to say those whom one wished to subject to taxation. The institution of an authoritarian and strongly taxed justice is therefore linked, on the one hand, to the establishment of peace and, on the other, correlatively, to the appearance and development of the professional army. We can see that all these elements tend to a concentration and centralization and (ultimately) a State takeover and control of justice. –– The link of justice to taxation makes it a source of revenue which the wealthiest tend to accumulate in their hands. –– The link of justice to peace institutions (and to the decline of private wars) makes it the result of a relationship of force, necessarily favorable to the strongest. –– Finally, the dependence of justice on the professional army concen- [203/8] trates it in the hands of the wealthiest and strongest. A methodological parenthesis. – It may be true that juridical forms (both the principles of law and the procedural rules) reflect, express economic relations; – It may be true that the basic role of decisions of justice is to reproduce relations of production; – There is however another level where the functioning of the judicial apparatus comes to light. At this level, it is neither expression nor reproduction of economic relations. As power relation it operates within

172

 

Penal theories and institutions

economic relations, and thereby modifies them: it transcribes economic relations within power relations and thereby modifies them. An apparatus like the judicial apparatus is not solely an expression or instrument of reproduction.9 It is one of the systems by which: –– the investment of the political by the economic takes place, –– the insertion of the political in the economic takes place. It assures at once –– the omnipresence of the political to the economic –– and the gap from one to the other. If we stick to the example of feudalism, we can see how, through the [204/9] judicial apparatus (but we could also take the military or religious apparatus), from the surplus-product which permits feudal rent, a surpluspower, an extra power is extracted –– on the basis of which certainly this rent itself is demanded, –– but on the basis of which the forms and relations of production are displaced. In studying a State apparatus, we should no doubt distinguish: –– its structure: which does indeed have a repressive nature; –– its strategy (the strategy of its decisions) which is indeed orientated towards reproduction, –– and its functioning as an apparatus which manifests the interplay of relations of power and relations of production with regard to each other.* B. But until now we have studied only a set of endogenous processes: [205/10] –– the interplay between feudal rent, armed struggle, and the exercise of an authoritarian justice

* The following crossed out: “and that the power relations are not superimposed on economic relations. They form a single framework with them. Relations of power are as deep as the relations of production. The former are not deduced from the latter. They accompany and relay each other.”10

  23 February 1972 

173

–– and the processes that, in this same interplay, brought about the concentration of justice and the strengthening of an armed power. What has been described here is an underlying process, developing on the basis of itself. Now, it was traversed by a movement which quickened it and permitted the formation of the State or at least of some of its rudimentary forms. This is the great crisis of the fourteenth century.11 – This crisis began in the course of the thirteenth century when the [206/11] movement of internal colonization came up against its limit and demographic expansion (continuous in the course of the previous centuries) was blocked: –– relative overpopulation brought about popular movements (perceptible especially in the towns where craftsmen challenge the power of patricians),12 –– but it allowed the development of professional armies, mercenaries, hence possibilities of repression. But the crisis is triggered paradoxically when the Black Death of the fourteenth century causes an enormous demographic drain and as a result a scarcity of labor.13 This results in: –– abandonment of the land most difficult to cultivate, –– an increase in wages and prices, –– a fall in the value of feudal rent (relative value in relation to price; absolute value in relation to wages), –– a reduction of the seigneurs’ coercive power. An attempted feudal restoration among the seigneurs ensues, and [207/12] above all a reactivation of the wars which make pillage, plunder, and ransom possible: the “benefits of war” are charged with taking over from regular feudal levies. But at the same time the possibilities of popular struggle are strengthened: –– Labor is scarce. Workers can demand wage rises. The tenant harried by seigneurial agents leaves his land and goes looking elsewhere. –– The lower strata become a force militarily; they are needed in the wars, they are called upon or recruited as mercenaries; they learn to fight; they possess arms.14

174

 

Penal theories and institutions

The great social struggles of the fourteenth-fifteenth centuries find their place in the midst of these processes: –– some, mainly urban struggles, are conducted with or against the bourgeois of the towns: –– the Maillotins –– the Cabochiens15 –– other, peasant struggles, quite often involve the populations of the towns ([1381] England; [1363] France)16 –– finally, others involve mercenary troops, dismissed or having [208/13] become unemployed, who continue the war for themselves (the Tard-Venus, the Écorcheurs).17 These wars are new both in their extent and in the importance of the popular forces which they bring into play. Above all they are new because the exhausted seigneurs cannot respond. They cannot respond without a centralization of their forces and resources. Royal power comes out stronger from each of these revolts. A centralized army, and so centralized finances, become necessities for the seigneurs. We should be under no illusion: the rivalries between the major feudatories, or the great princely families (Orléans and Burgundy, Lancaster and Tudor) may temporarily obscure the personage of the king; they clearly express the fact that the monarchy is in the process of becoming the strategic point of feudal power, its keystone. The mad king defined absolutism.18 Now this period of great social struggles, mercenary armies, and *cen- [209/13*] tralized finances is decisive for the transformation of justice. The slow processes of concentration quicken.† Four important phenomena: 1.‡ Parlement19 a/ Originally it was no different from a seigneurial court. –– It was the whole of the king’s entourage and his councilors; –– it met irregularly, at the king’s request and according to matters arising, * Second sheet numbered “13” † On the verso of the sheet, crossed out, there is the following phrase: “Not forgetting that it was Charles VI who defined absolutism”.20 ‡ In this lecture Foucault only starts on and deals with the Parlement (numbered “1”).

  23 February 1972 

175

–– it had no judicial specificity,21 –– and when it functioned as a jurisdiction, it was regarding the royal domain, and consequently the king’s seigneurial rights, or regarding feudal questions (the king as suzerain had to resolve problems of vassalage).22 b/ Now starting from the end of the thirteenth century and throughout the fourteenth its competence is extended and organized according to a number of ordinances.23 –– its competence24 expands with the domain, it deals with the [210/14] affairs of the king as seigneur; and it asserts the fiscal rights of the king-suzerain; –– it becomes the natural jurisdiction of the great vassals who, as peers of the king demand to be judged directly by him; –– it becomes the direct court of certain persons who have received the privilege by letters of committimus25; –– it functions as court of conflicts when there is a dispute over the competence of different courts; –– it is a court of appeal. The Parlement functions as justice of all justices. Coming under the jurisdiction of the Parlement (and of the king, whose Council it is) are: –– all those who do not fall under any other justice, –– all conflicts between justices, –– all those who appeal a justice already delivered. It covers every judicial activity and practice. In the final instance, everything leads to it. It is the general judicial control of every practice of justice. It is on the basis of this that the theory, characteristic fourteenth century, is formed according to which26: (α) justice emanates entirely from the king: who is “fons justitae”. [211/15] He holds justice only from God; (β) the barons are justiciars only insofar as the king granted them the exercise of justice. Beaumanoir asserts that all secular jurisdictions are held from the king in fief and arrière-fief27; (γ) when the king takes up a case, or when it is submitted to him (by way of appeal or failure of law), he only takes back his attributions that he temporarily granted to others.

176

 

Penal theories and institutions

So the king does not exercise justice insofar as he is suzerain, he is not justiciar insofar as he is a seigneur and in the same sense as a seigneur. –– The king is justiciar as sovereign, that is to say, by right, –– the seigneur is justiciar by transfer of right, as suzerain of a fief which has been granted to him by the king. Parlement, originally a feudal court, becomes an organ of sovereignty, a component of a State apparatus. *

  23 February 1972 



Notes

1. See above, lecture of 2 February 1972, p. 119 [149/16] and p. 122–123, note 32; lecture of 9 February, p. 133 [161/12] and p. 144, note 21. 2. See E. Perrot, Les Cas royaux, p. 114 sq. From the thirteenth century, royal power reserved the monopoly on the creation of new markets and multiplied the causes of disuse of the old seigneurial fairs; in the fourteenth century only the king had custody of fairs and markets, and he alone assured the safe conduct of merchants going to the fairs. 3. The “king’s bourgeois” are free men who, despite their residence in a seigneury, are removed from the jurisdiction of the seigneur and come under only the king, to whom they pay a fee in kind or in money. One speaks of avouerie in the sense that this practice rests on feudal law which allowed a man to avow himself, under certain conditions, the man of another seigneur. In doing this the king’s bourgeois benefited from the king’s protection. The king’s bourgeois multiply in the thirteenth century, leading to complaints from the seigneurs and in 1272 to Philip the Bold annulling by ordinance the avoueries received by the royal agents in the previous ten to twelve years. See A.  Luchaire, Manuel des institutions françaises: périod des Capétains directs (Geneva: Megariotis Reprints, 1979 [1st ed., Paris: Hachette, 1892]), p. 392; E. Perrot, Les Cas royaux, pp. 118–120. 4. See R. Bonnaud-Delamare, “Les institutions de paix en Aquitaine au XIe siècle, in La Paix, I, pp.  417–472. At the Council of Charroux, Gombaud [archbishop of Bordeaux] relied on the Duke of Gascony and the Counts of Marche against the authority of the Duke of Aquitaine; at that of Poitiers, on the other hand, the Duke of Aquitaine plays a significant role. With regard to the Council of Limoges, it is difficult to know whether Foucault is referring to the one that took place between 991 and 998 (the authenticity of which is challenged by Bonnaud-Delamare), or, more probably, to the one convened in 1031 by the archbishop Jordan of Limoges, who orders peace under the authority of the bishops and in which the Count of Aquitaine, Guillaume le Gros plays a largely subordinate role. 5. See R. Bonnaud-Delamare, “Les institutions de paix en Aquitaine”, pp. 474–487; above, previous lecture, p. 165, note 38. The Archbishop of Bourges, Aimon de Bourbon, made all the faithful of his diocese aged over fifteen swear an oath that they would resist enemies of the peace. This oath was essentially directed against the seigneurs. 6. Suger (c. 1080–1151), Abbot of Saint-Denis and councilor of Louis VI and Louis VII played a fundamental role in the formation of royal ideology. In his Vie de Louis VI le Gros (1040) he especially stresses the role of royalty as essential support in the establishment of peace, alongside the Church. See J. Krynen, L’Empire du roi, pp. 36–42. In Foucault’s time, one of the most important references for Suger was Erwin Panofsky’s work Architecture gothique et Pensée scolastique, preceded by L’Abbé Suger de Saint Denis, translation and postface by Pierre Bourdieu (Paris: Minuit, “Le sens commun”, 1967); English, Gothic Architecture and Scholasticism (Labtrobe, Penn.: The Archabbey Press, 1951)) and Erwin Panofsky, Abbot Suger on the Abbey Church of St.-Denis and its Art Treasures (Princeton: Princeton University Press, 1979). 7. On the establishment of “urban peaces” and the revolts they could entail against the lay or ecclesiastical seigneurs who refuse to recognize them, Foucault refers in par-

177

178

 

Penal theories and institutions

ticular to R. Monier, Les Institutions judiciaires des villes flamandes, pp. 68–76. Monier refers for example to the revolt of the inhabitants of Cambrai against their seigneur-­ bishop to establish the common “quam pacem nominant”. See also H. Pirenne, Les Villes et les Institutions urbaines, I (Paris: Alcan, 1939). 8. With regard to this development Foucault consulted E. Boutaric, Institutions militaires de la France avant les armées permanentes: F. Lot and R. Fawtier, Histoire des institutions françaises au Moyen Âge, II: Institutions royales, p. 511 sq. For more recent readings, see P. Contamine, Guerre, Étate et société à la fin du Moyen Âge; R. W. Kaeuper, Guerre, Justice et Ordre public. 9. There is a double critique here of a Marxist historical materialism that would reduce (1) the juridical apparatus and its forms to a superstructure expressing the economic relations that determine them in the last instance. The promulgation of a new law (for example, merchant law in the Middle Ages) would be only the expression and late sanction of a transformation of relations of production, which takes place progressively, without being recognized at first by the law. We note nonetheless, as Althusser notes, that the place of law was the object of important debates in Marxist reflection on the question of whether “law belongs to the superstructure or should, rather, ‘be ranged alongside of relations of production’” inasmuch as it permits the relations of ­production to function (L. Althusser, Sur la reproduction [unpublished manuscript of 1969–1970], introduction by Jacques Bidet (Paris: PUF, 1995), p. 197); English translation G. M. Goshgarian as On the Reproduction of Capitalism. Ideology and Ideological State Apparatuses (London: Verso, 2014), p. 164). In Poulantzas (notably N. Poulantzas, “À propos de la théorie marxiste du droit”, Archives de philosophie du droit, 1967, pp.  145–147, and Pouvoir politique et Classe sociale (Paris: Maspero, 1968); English translation Timothy O’Hagen, Political Power and Social Classes (London: Verso, 1978) we find a much more complex vision of the relations between juridico-political structures and economic structures in which the relatively autonomous juridico-political level intervenes profoundly in economic relations, even if the latter remain determinant in the last instance. Here, Foucault’s thesis aims to be more radical: the judicial apparatus, in the Middle Ages in particular, is at once integrated both as object in the circuits of exchange and the accumulation of wealth, and as essential instrument of its circulation, confiscation, and concentration: it is therefore constitutive of relations of production. As he notes at the same time in “Sur la justice populaire. Débat avec les maos”, p. 354/p. 1224; “On Popular Justice: A Discussion with Maoists”, p. 21: “I am rejecting the idea that the penal system is a nebulous superstructure. It has played a determining role in the divisions of present-day society”. And this apparatus is fundamentally linked to relations of force. This position led him to oppose: (2) the reduction of mechanisms of power to instruments of reproduction of the relations of production, an essential thesis in the Althusserian analysis of State apparatuses (see the following note). For Foucault, power relations are just as profoundly anchored as relations of production and interact with them: as he will show in The Punitive Society and in “Truth and Juridical Forms”, with regard to coercive-punitive institutions, it is not for him a question of accepting, like the young Marx, that “labor” is “the concrete essence of man” and that there is an analytic link between man and work. As he recalls in La Société punitive (p. 236 and p. 245, note 8); The Punitive Society (p. 232 and p.243, note 8), the “concrete essence” of man, or “man’s existence in its concrete form” is just as much festivity, sexuality, pleasure. “Labor-power” itself is not given analytically: “In order for men to be … tied to labor, an operation is necessary, or a complex series of operations, by which men are effectively—

  23 February 1972 

179

not analytically but synthetically—bound to the production apparatus … It takes this operation, or this synthesis effected by a political power, for man’s essence to appear as being labor” (“La vérité et les formes juridiques”, pp. 621–622/pp. 1489–1490; “Truth and Juridical Forms”, p. 86). In other words, relations of power are constitutive and profoundly rooted in the relations of production: their role is more than the reproduction of these relations. 10. The theme of “reproduction” assured by the State apparatus and, in particular, the ideological State apparatuses, was then of great actuality. In La Pensée (no. 51, pp. 3–38) in June 1970 Althusser’s famous article, “Idéologie et appareils idéologiques d’État”; “Ideology and Ideological State Apparatuses” appeared (the article being drawn from a larger manuscript entitled “Sur la reproduction des appareils de production”, later published under the title Sur la reproduction; On the Reproduction of Capitalism). Althusser’s central thesis was that it is “only from the point of view of reproduction” of the conditions of production and, in particular, of the reproduction of the relations of production, that one can analyze the role of the State, Law, and ideology (see Sur la reproduction pp. 83–84 and pp. 275–276; On the Reproduction of Capitalism, pp. 53–54 and p. 238), or the three objects studied in Penal Theories and Institutions (we will see in the lectures of 1 and 8 March that Foucault will replace ideology with the question of knowledge (savoir)) It was also in 1970 that Bourdieu and Passeron published La Reproduction. Éléments pour une théorie du système d’enseignement (Paris: Minuit); English translation Richard Nice, Reproduction in Education, Society and Culture (London: Sage, 1990) which sought “to analyze the specifically pedagogical mechanisms by which the school contributes to reproducing the structure of class relations by reproducing the unequal distribution of cultural capital between classes” and introduces in particular the notion of “symbolic violence” where Althusser liked to distinguish repressive apparatuses, functioning prevalently by violence, from the ideological apparatuses, functioning prevalently by ideology (a distinction that Foucault rejects). Foucault’s objective, which we find in subsequent courses, notably The Punitive Society, is to stress rather the constituting role of power relations at the very heart of relations of production: the former acting as veritable conditions of the formation and transformation of modes of production, be this in the constitution of man as “labor-power” or the process of accumulation and circulation of wealth (see the previous note and the extract from the Notebook no. 11, at the date 28/10/1971, quoted in note 11 of the lecture of 19 January 1972). 11. On this great crisis and its social consequences, see M.  Mollat and P.  Wolff, Ongles bleus, Jacques et Ciompi. 12. These movements setting “magnati” against “popolani”, “popolani grassi” against “minuti”, “blue nails” against “white hands”, etcetera, are analyzed in detail in M. Mollat and P. Wolff, ibid., pp. 13–90. They affect in particular Flanders, Northern Italy, and the imperial towns in the second half of the thirteenth and the first half of the fourteenth century. 13. See ibid., pp.  91–270; C.  Petit-Dutailly, “Introduction historique” to André Réville, Le Soulèvement des travailleurs d’Angleterre en 1381 (Paris: Picard, 1898), pp. xxix–liii; G. Duby, L’Économie rurale et la vie des campagnes dans l’Occident médiéval, vol. 2, pp. 171–265 (Fonds BnF). 14. See the previous lecture, pp. 159–160 [192/19]–[194/21]

180

 

Penal theories and institutions

15. The revolt of the Maillotins broke out in Paris in March 1382, after a fruit and vegetable seller, whose goods a tax collector wanted to seize, cried out “down with taxes!” sparking off a wave of violence against the tax collectors. The insurgents seized hold of leaden mallets kept at the Châtelet and rally a part of the Parisian “peuple gras”, while the King and seigneurs prevaricated at Vincennes. The revolt ended quickly and was followed by harsh repression. See M. Mollat and P. Wolff, Ongles bleus, Jacques et Ciompi, pp. 172–173; L. Mirot, Les Insurrections urbaines au début du règne de Charles VI, pp. 109–143. The Cabochien revolt, from the name of one its leaders, the skinner Simon Le Coutelier, called Caboche, broke out in Paris in 1413  in the murky context of the Armagnac–Burgundian civil war. It combines a popular movement, led by the Parisian butchers, an enriched social group but lacking the social prestige of other bourgeois groups; reformist aspirations which will be manifested in the Estates General of Langue D’oïl convened by Jean Sans Peur (John the Fearless) in January 1413 and then in the writing of the so-­called “Cabochien” ordinance, which sought to struggle against abuses by the royal agents and to reform the administration; and the political intrigues of the Burgundians, Jean Sans Peur relying on the butchers and reformers against his political enemies, Armagnacs and Dauphin. The revolt consists in a series of demonstrations, invasions of the home of the Dauphin, then of the King, the execution of various enemies of the Burgundians, etcetera, between April and August 1413. See M. Mollat and P. Wolff, Ongles bleus, Jacques et Ciompi, pp. 229–240. 16. Foucault amassed a detailed documentation on the 1381 uprising in England, called The Peasants’ Revolt, in which he seemed to see echoes of the future suppression of the Nu-pieds. He notes that if the “repression was mainly military”, it is along with “action of the courts parallel to the army’s action” (notes taken on A.  Réville, Le Soulèvement des travailleurs d’Angleterre (BNF). The 1381 uprising begins in the Essex and Kent countryside, its immediate cause being a struggle against new fiscal measures (poll tax) intended to finance the war against France. Led by Wat Tyler and the preacher John Ball, author of sermons denouncing the nobility and the wealthy (“When Adam delved and Eve span, Who was then the gentleman?”), the movement becomes very widespread, seizing several towns including Canterbury and marching on London. It benefits from a part of the people of London, enters the town and obtains from Richard II, his acceptance of various demands (abolition of serfdom, abolition of the Statute of Labourers, etcetera). Other movements break out in Surrey and Norfolk. After the death of Tyler, the London movement is finally suppressed and the acceptance of its demands is revoked, while the outlying movements are also crushed. See A. Réville, Le Soulèvement des travailleurs d’Angleterre, and M.  Mollat and P.  Wolff, Ongles bleus, Jacques et Ciompio, pp. 186–210. For the 1363 uprising in France, Foucault is referring to the Tuchins, bands of peasants and uprooted craftsmen who held sway from 1363 (at Saint-Four) to 1384, firstly in Haut-Auvergne and in the countryside of Languedoc, before reaching various towns such as Nimes, Montpellier, Béziers, and Carcassonne. See M. Mollat and P. Wolff, Ongles bleus, Jacques et Ciompi, pp. 180–185. 17. See the previous lecture, p. 165, note 39.

  23 February 1972 

181

18. The houses of Burgundy and Orléans confront each other in the framework of a struggle for influence in the Council of Charles VI, who will suffer from attacks of madness from 1392. The opposition of Philip the Bold, Duke of Burgundy, the king’s uncle, and Louis d’Orléans, the king’s brother, exists within the framework of the development of an increasingly powerful Duchy of Burgundy, of the strengthening of royal power, which makes the king’s Council a decisive site for appropriating resources, powers, and placing his clientele, and in a period of constant war against the English. This rivalry breaks out in 1407, after John the Fearless succeeded Philip the Bold, with the assassination of Louis d’Orléans, and then the onset of a civil war between Burgundians and Orléans (then Armagnacs) in which the alliance with the English and appropriation of the French King’s person are the major stakes. It officially ends only in 1435 with the signing of the Treaty of Arras, after John the Fearless was himself assassinated in 1419 and the new king, Charles VII, had carried off a series of important successes against the English. The allusion to Lancaster and the Tudors no doubt refers to the considerable influence exerted by the House of Lancaster on the destiny of English royalty at the end of the fourteenth and in the fifteenth century, from John of Gaunt (accused of wanting to take power on the death of Edward III) then the deposition of Richard II by Henry IV (a Lancastrian, son of John of Gaunt), up to the War of The Roses (1455–1485), which will see the confrontation between the houses of York and Lancaster ended by the victory of the latter in the person of Henry Tudor (Henry VII). 19. On Parlement, Foucault relies mainly on G. Ducoudray, Les Origines du Parlement de Paris et la justice aux XIIIe et XIVe siècles (Paris: Hachette, 1902) (BNF); F. Lot and R. Fawtier, Histoire des institutions françaises au Moyen Âge, II, pp. 332–511. There is a considerable bibliography on the parlements. As starting point on the Paris Parlement, see also: F. Aubert, Histoire du Parlement de Paris des origines à François 1er (1250–1515), I: Son organisation; II: Ses compétences, ses attributions (Paris: 1894); F. Autrand, Naissance d’un grand corps de l’État: les gens du Parlement de Paris (1345–1454), (Paris: 1981). 20. It seems that Foucault is referring to the fact that, despite the king’s madness, the State continued to function. 21. See G. Ducoudray, Les Origines du Parlement de Paris et la justice …, p. 26. 22. See ibid., p. 25. 23. These ordinances are described by G.  Ducoudray, ibid., pp.  57–72 and end under Charles VI in 1417. They gradually delineate the structure of Parlement, with its different organs (Chambre des Enquêtes, Chambre des Requêtes, Grande Chambre, etcetera), its composition, its procedures, and so on. See also F. Lot and R. Fawtier, Histoire des institutions françaises au Moyen Âge, II, pp. 332–354. 24. For the description of the different competences of Parlement, Foucault closely follows G.  Ducoudray, Les Origines du Parlement du Paris …, pp.  304–315, where Parlement is presented successively as defender of the “king seigneur” and the “king suzerain”; as “court of peers”; “court of the privileged”; “arbitrator of all justices” and “court of conflicts”; “court of appeal”, and so on. 25. Letters of committimus permitted a certain number of persons in the king’s favor or his entourage to enjoy the privilege, normally reserved for the king’s companions and

182

 

Penal theories and institutions

officers, to have their affairs dealt with by the Chambre des Requêtes and not the Grande Chambre, thus extending the privilege enjoyed by the Peers of France to be judged directly by the king’s Court in both the first and last instance. See G. Ducoudray, ibid., p.  313, and especially F.  Lot and R.  Fawtier, Histoire des institutions françaises, II, pp. 420–421. 26. For this section Foucault relies on A. Tardif, La Procédure civile et criminelle aux XIIIe et XIVe siècles, ou Procédure de transition (Paris: Adolphe Picard/L. Larose & Forcel, 1885), pp. 9–12. 27. See A. Tardif, ibid., p. 10: “one thus comes very quickly to posit as a principle of public law that all justice emanates from the king. From the end of the thirteenth century, Beaumanoir and the anonymous author of the Coutumier d’Artois asserts that all secular jurisdictions are held from the king in fief or arrière-fief. His barons receive the seisin or legal possession of the rights of justice from him, but he does not hold it personally”.

twelve

1 MARCH 1972 Summary: crises and social struggles of the thirteenth and fourteenth centuries lead to the centralization of royal power and the setting up of a royal justice which appears in the institution of a Parlement. Three characteristics of State justice: universal, compulsory, delegated. ~ Two other measures: 1/ The development of cases coming under the king: extension of his jurisdiction with, as effects, a new definition of the kingdom-State and a new dimension of penality for breaches of public order. New domain of penality which sanctions breaking a rule stated by the public power. 2/ Establishment of royal procurators: extension of their role to indictment, with the consequences that every crime is an offense against the public power, and the king becomes both judge and interested party. ~ Double effect on the functioning of the penal system: (1) Separation of the penal and the civil; (2) replacement of war and redress by obedience and punishment. Penality is organized by reference to a political structure. Crime becomes an attack on the public power. Opposition between political crime and common law crime as central component of the penality of the nineteenth century, concealing the political function of the penal system.

Introduction The crisis of feudalism led to the organization of a centralized royal power, the only means of coping with the great popular movements of the thirteenth and fourteenth centuries. This centralization comprised: –– the formation of a professional army; –– the organization of a State tax system1; –– finally, the setting up of a royal justice as both: –– control of this tax system –– and component of this tax system. This centralized justice appears first of all in the institution of a Parlement. –– which is nothing other than the king’s council, or rather the King in his council.

[212/1]

184

 

Penal theories and institutions

–– which reveals that the king is not simply justiciar as suzerain, but as sovereign. –– which reveals that the king’s justice is not simply higher than every other justice, but that it is the principle and source of every other justice. The king is justiciar as rex (and no longer simply as dominus); it is no longer the oath of vassalage or of feudalism that founds the justiciar/ [213/2] justiciable relationship; it is royal consecration that makes a man the absolute justiciar, and permits him: –– to dispense justice to those who request it, –– to impose his justice even on those who do not want it, –– finally, to grant the exercise of justice to those who want it.2 Universal, compulsory, and provisionally granted justice.* Three major characteristics of a State justice. [*] We should add two other measures, or rather two other modifications which gave rise to a whole set of measures distributed over more than a century. 1. The specification of royal cases3 (up to the sixteenth-seventeenth century they were called rather “privileged cases”, “cases belonging to the king”). – Originally these cases concerned the royal domain: all matters of property, inheritance, taxation, theft, and damage affecting the lands of which the king was the seigneur; – “reserved cases” also included everything that constituted crimes [214/3] against his person, his officers, those to whom he had granted his protection, his asseurements. These were still feudal cases, although the particular severity with which they were punished because it concerned the king already indicated their sovereign character. – then crimes against his currency, his seal, and his signs were considered as “royal cases”. Offenses against his royal privileges.4 – But it is in the fourteenth century that we see new offenses appear as royal cases: –– the portatio armorum: bearing arms when in a group (at least ten people) except obviously [in] war, unless one is a soldier5; –– attacks on merchants, convoys, on the highways6; * In the manuscript, the word “delegated” is superimposed on the word “granted”.

 

1 March 1972 

185

–– breaches of royal ordinances promulgated throughout the kingdom. Who goes against a royal order goes against the king’s justice. The power to order and the power to judge are [co]extensive.7 What appears through the specification of these royal cases is: a/ a certain new definition of the kingdom-State. [215/4] The kingdom is no longer just the domain plus lands attached by a bond of vassalage; [it is]* –– a place of controlled circulation of the armed forces, –– a network of communications for merchandise and wealth, –– a space of validity for orders, interdictions, decisions. The kingdom is a place of regulated circulation of goods, arms, and prescriptions. So it is not only: –– the gathering together of everything that falls under one and the same suzerainty, –– the set of sites where royal peace, protection, and asseurement are exercised in an authoritarian manner. It is the site of an economic, military, and legislative order, –– and as a result a whole new personage of the king emerges: –– he is no longer only the suzerain or sovereign, –– he is the guardian of order, of a public order characterized by the centralized control of arms, the security of merchant exchange, and obedience to the sovereign’s prescriptions. b/ Now, correlatively to this sovereign-guardian of order, a new domain [216/5] of penality appears which is defined –– no longer as injury to a private individual –– nor as violation of the sovereign’s feudal rights, –– but as breach of public order. To clarify: –– It is a matter of crimes which already existed as crimes. With the royal cases there is not really any creation of new crimes, –– but creation of a new dimension of penality. (α) Hitherto, for there to be offense (and for justice to be triggered) there had to be an injured party, an injury and a victim. * It seems necessary to re-establish “it is”, although it is crossed out in the manuscript, Foucault having wanted to change the order of presentation of the transformations of the royal domain.

186

 

Penal theories and institutions

(β) It could be that the person who is the victim’s suzerain, and who provided him with his peace or asseurement, is standing behind him in order to protect him. (γ) But neither victim nor even injury is necessary in the “royal case”. The “portatio armorum” injures no-one; and the breach of an ordinance might not cause any injury. For there to be a crime, in the royal case, a general order of the king has to have been infringed; regular order has to have been disturbed.8 A crucial event in the history of penality. [217/6] –– It is no longer injury which will, by itself, bring about the judicial riposte. –– It is also, at the same time, and sometimes exclusively (quite apart from any injury) the breach of order. –– To attack someone on a highway does not only cause harm to someone; it is also breaches order and consequently attacks the authority of the one who guarantees it. –– To bear arms is not to injure anyone, but it is to threaten order and undermine the one who guarantees it. –– To contravene an ordinance is not only to damage the king’s domanial or seigneurial interests. It is to attack the authority that exercises the ordinance, his right to give orders. Behind the penality that sanctions the injury and alongside this penality, sometimes independently of it, emerges a penality that sanctions a disorder, the pure and simple breach of a rule stated by the public power.

Comments 1/ The history of these “royal cases” extends over a long time: At the time of the Ordinance of 1670, the king’s people (Pussort) refuse to specify them.9 –– In the eighteenth century, theorists will still define the crime as injury –– either to a private interest –– or to a public interest (Muyart de Vouglans).10

[218/7]

 

1 March 1972 

187

–– But we can say that the 1810 Penal Code completely generalized the theory of royal cases. Since what motivates penal action is not the harm done to the other person, it is the breach of the law; and what characterizes the breach is that it may be punished by the law. “The infraction that the laws punish with a penalty … is a contravention”, an “offense”, a “crime”. 11 At this point,* the punishable act is defined by its relation to power, as refusal of the orders it gives and of the order it establishes. The punishable act is no longer fundamentally injury but infraction: it is an offense against the public power, even when it harms no-one. The first, the most general, most constant victim of the crime will no longer be the other person’s body, goods, honor, or rights, it will be order. 2/ We are still a long way from this at the time of “royal cases”. In the [219/8] fourteenth century this is still only a special domain of penality, but it is a completely new domain and is already no longer reducible to feudal law. –– In the thirteenth century, when the king transferred to a higher court a crime committed against someone to whom he had given his asseurement, it was the injury inflicted on this protected person that brought about the king’s intervention, in a penal action which would have taken place anyway.12 –– In the “royal case”, on the contrary, and a fortiori in infractions of the Penal Code, it is to the extent that the injury done to the other person is a disorder, an offense against the public power, that penal action may be initiated. Up to that point, everything that we have called penal law was the ritualization of a dispute and a struggle between two individuals. Starting from this still isolated kernel of the “royal case”, penal law will basically be the definition of the relations between the individual and the public power. Certainly, the public power was not absent from the old penal law. It intervened as arbitrator, as tax system, as army. But it was inserted in the struggle between two individuals; it was plugged into it, in order to control it and profit from it. Henceforth, it will gradually become the major partner of [220/9] the criminal. The public power will be the first to be affected by * Word crossed out: “penality”.

188

 

Penal theories and institutions

the crime; the main accuser of the criminal and, of course, his only judge. Here we intersect another institution which was not conditioned either by the existence of the Parlement or by the appearance of royal cases, but which was connected to them.

2. Establishment of royal procurators.13 They are called for by the functioning of Parlement and the existence of royal cases. But generally, by the fact that the king, both as beneficiary of the tax levy and as guardian of order, is “interested” in the punishment of crimes over the whole surface of the kingdom. a/ There were already royal procurators who represented him in justice: –– to defend his patrimonial and domanial interests –– for the levying of fines.14 b/ But gradually in the course of the thirteenth and fourteenth [221/10] centuries they will play the role of accuser (absolutely counter to the whole old penal system). –– In the old system there was penal action only if there was an accuser; and that this accuser was an interested party.15 Everything took place in that form of the struggle of a couple: –– the accusation was an attack –– to which it was necessary to respond by “proofs”, –– and the accusation (or at least the penalty) could fall back on the accuser. –– The procurator began to play the role of accuser –– when the victims were orphans, or people without a family, –– or when there was public knowledge (this was the aprise16). –– Then we see him play the role of co-accuser when there is a private accuser.17 c/ Now this entails two theoretical–practical consequences: (a) The king is injured by every crime; and he occupies the position of the injured individual.

 

1 March 1972 

189

He is co-victim even when it is not his power that is violated (as [222/11] in royal cases), but there has been only a private harm; he can therefore be co-accuser. Conversely, every victim is a victim twice: –– as private individual –– and as the king’s subject. Every crime is an offense against the public power. (The slow logic of the system means that one had to wait until the Penal Code for: –– royal cases to be dissolved into breach of the law in general, –– and for every punishable case to become a breach of the law). (b) The king is represented twice in his justice: –– by his judges –– by his procurator, by that accuser who co-accuses in every trial. Contemporaries were greatly struck by this paradox. There were many who were astonished that the king was judge and interested party. Now this is paradoxical, since in feudal law, the seigneur could perfectly well plead before his own court. But what is new here is that he sets his justice in motion –– outside of the feudal forms of suzerainty, –– and for cases in which he is “victim” only insofar as he is sovereign. [223/12] He judges as sovereign and he accuses as sovereign. So he is “fons justitiae” in two ways: –– as universal justiciar –– as general accuser. All in all, the appearance of royal cases and the new functions of the procurator had a double effect which is fundamental for understanding how the penal system functions. a/ Separation of the penal and the civil – So long as breach of the law was defined by the harm, the injury done to private interest, it is clear that there could be no break between civil and penal18: fighting over a property

wrongfully occupying it taking it back with arms carrying out private vengeance later submitting the question to a court settling the question by a judicial duel.

190

 

Penal theories and institutions

All this formed a non-discontinuous series: it was always a matter of private interests, of their being attacked and of their protection, of the harm one could do to them, of the more or less regulated struggle which ensued. – But when the public power intervenes, when, to characterize certain [224/13] matters the public authority wants to double the injury to private interests, when there are cases in which the public power is deemed to be injured, then the domain of infractions is detached from the sphere of harms: –– the crime is no longer a more serious, atrocious, or costly harm than others, –– it is a harm subject to State control at the level of the action that responds to it, it is subject to the State even at the level of its definition. b/ The other particular effect of this transformation is that what is found at the heart of penal law is no longer vengeance, the counterattack, war and redress. It is power, obedience, and punishment. Penality is political from top to bottom. (a) If it is similar to morality (assimilating crime to sin and replacing vengeance with punishment, and redress with correction) it is insofar as the penal system is organized by reference to a political structure. [225/14] Christian morality enters the system by this route. (b) What the history of penal law reveals should be taken seriously, namely that the public power is deemed and deems itself to be injured by the crime. It defines the crime only as that which suspends its laws. We should therefore draw this entirely logical conclusion: if the public power suffers injury through the crime, then crime is always, in at least one of its dimensions, an attack on the public power, a struggle against it, the temporary suspension of its laws.19 And basically this is what was meant by the Roman crimen majestatis, or the generalization of royal cases. A caesura and a displacement take place in nineteenth century penality:

 



1 March 1972 

191

(1) the public power really presents itself as power in the repression of crime (and in the form of the procurator-prosecutor); (2) but what crime is taken to be attacking is not power, but nature, morality, the natural law, it attacks the general interest.20

The discourse of the penal system from the beginning of the nineteenth century, the “prosecutor’s discourse” will be: “I, as the State, prosecute those who have attacked that part of me I call morality, or nature, or the general interest”. The public power does not present itself as being, at the same time, the [226/15] attacked and the plaintiff. As what is attacked, it is the universal of nature and the law, and as plaintiff it is the generality of will. We can see why it insists on the distinction between political and common law. The existence of the political crime, in which it presents itself as attacked as power, permits it to reveal by contrast the common law crime, where it would defend what has been attacked as being nature, or the general interest, or morality. The politics/common law opposition is an essential political component in nineteenth century penality. It enables penality to conceal that for five centuries: –– crime is defined vis-à-vis power, –– the field of penality has been cut out and specified by this opposition, –– this opposition became the determinant element of the entire functioning of this penal system.21 [227/16] Finally we can see how: –– the fiscalization of justice, –– the interplay of peace institutions and the distribution of arms, –– the social crisis of the fourteenth century led to the centralization of justice, but above all to a complete redistribution of the system of penality around the exercise of political power.* *

* On the verso of this sheet [227/16], a crossed out passage has: “b/ Power and penality

192



 

Penal theories and institutions

NOTES

1. On the development of a State tax system, elements will be found in F. Lot and R. Fawtier, Histoire des institutions françaises au Moyen Âge, II, pp. 183–285. We recall that in the period 1355–1370 a whole series of fiscal measures were established (fouage, various aides including the gabelle) which were described as “extraordinary” and provisional but which ended up being permanent. See also J.-J. Clamageran, Histoire de l’impôt en France. For a more recent history, see P. Contamine, J. Kerhervé and A. Rigaudière, eds., L’impôt au Moyen Âge. L’impôt public et le prélèvement seigneurial (fin XIIe–fin XVe siècle), I: Le Droit d’imposer, II: Les Espaces fiscaux, III: Les Techniques (Paris: CHEFF, 2002). 2. See A. Tardif, La Procédure civile et criminelle aux XIIIe et XIVe siècles, pp. 9–12. 3. E. Perrot, Les Cas royaux, pp. 22–23. More generally, the whole of the exposition on “royal cases” refers to this source. 4. See ibid., pp. 37–46 for patrimonial cases; pp. 27–36 and pp. 76–113 for the royal person, royal officers, and asseurements; pp. 47–62, for counterfeit money; pp. 63–75 for seals and other privileges. 5. See ibid., pp. 149–170. The crime of “bearing arms” does not become a royal case until 1270 in the Midi and at the end of Philip the Fair’s reign in Northern France. 6. See ibid., pp.114–118 on merchants; pp. 204–217 concerning highways. 7 . See ibid., pp. 171–187. 8. On these royal cases “of public interest” which, in fact, do not explicitly involve the king’s person, domain, or safety, E. Perrot (ibid., pp. 262–264) dwells on “bearing arms” in particular. 9. See H. Pussort, Procez verbal des conférences tenues par ordre du Roy entre M. Les Commissaires du Conseil et M. Les députés du Parlement de Paris pour l’examen des articles de l’ordonnance criminelle duu mois d’Aoust 1670, pp. 20–26. This is the discussion of article XI: “Cas royaux et quels juges en peuvent connoître”. Foucault is referring here to the

What then will characterize the penal domain is a certain relationship of the infraction to the law which, with or without injury to a private individual, strikes a blow at authority. –– it is a definition found for a long time in the different penal codes and theories. It is the one that still currently applies. –– “act forbidden by the law that causes harm to a private individual or to the public” (Muyart de Vouglans) –– article 1 of the Penal Code. –– But what is at the heart of this specificity is not vengeance, but power. The penal was organized as such on the basis of a certain distribution of political power. It is political power presenting itself as distribution of political power. It is political power presenting itself as sovereignty above feudal suzerainty, and manifesting its sovereignty in the guarantee of order. It is this political power that defined the penal. Historically the penal is politics, it is in any case what politics takes back control of in order to impose on it a punishment which is something other and more than redress for an injury, or its compensation, or its consequence”.

 

1 March 1972 

193

President’s position: “it is never expedient to determine what all the royal cases are” (p. 23). Pussort’s own position is different: “there is no danger at all in specifying them: listing them is in no way detrimental to royal authority” (p. 25). It is the latter position that prevails. 10. See P.-F. Muyart de Vouglans, Institutes au droit criminel. Crime is an “act prohibited by the law, by which one causes a harm to a third party by fraud or by one’s wrongdoing” (p. 2); “this third party is either the Public or the Private Individual, or both at the same time” (p. 5). Foucault compiled a considerable dossier on the definition of “crime” and on the theories of penality in the eighteenth and beginning of the nineteenth century, which he used later for Discipline and Punish (BNF). 11. These are the “preliminary measures” of the first article of the Code pénal of 1810 (Paris: Imprimerie Impériale, 1810), p. 1: “The infraction that the laws punish with police penalties is a contravention. The infraction that the laws punish with correctional penalties is an offense (délit). The infraction that the laws punish with a corporal penalty or loss of civil rights (peine infamante) is a crime”. This “legalist” definition of crime has itself a long history. For example, it is clearly expressed at the same time in S. Bexon, Développement de la théorie des lois criminelles, pare la comparaison de plusieurs législations anciennes et modernes, I (Paris: Garnery, 1802), p. 33: “To do what is forbidden, to not do what is ordered by the laws whose object is the preservation of social order, public peace, and the respect of persons and property, is a crime, an offense or a contravention” (emphasis in the text) (BNF). 12. See E. Perrot, Les Cas royaux, p. 76 sq., on the breach of royal asseurements. 13. On the establishment of royal procurators, Foucault’s main references are: F. Lot and R.  Fawtier, Histoire des institutions françaises au Moyen Âge, II, pp.  364–371; A Esmein, A History of Continental Procedure, pp. 114–121; G. Ducoudray, Les Origines du Parlement de Paris et la justice aux XIIIe et XIVe siècles, pp. 189–196 and pp. 676–682. 14. See A. Esmein, A History of Continental Criminal Procedure, p. 115; G. Ducoudray, Les Origines du Parlement de Paris …, p. 677. 15. See below and A. Esmein, A History of Continental Criminal Procedure, pp. 116–117. 16. The aprise is a procedure which appeared in the twelfth century. When a grave deed is denounced by common knowledge, it authorizes the judge to arrest the suspect, incarcerate him and try to find some accusers against him. The judge can therefore, in this case, intervene without any accusation having yet been made. But he cannot bring the proceedings to an end and sentence the suspect without an accuser. He can, on the other hand, propose to the suspect that he submit “voluntarily” to an inquest (even if this means exerting pressure), which would allow him to bring the proceedings to their end. According to A. Esmein, ibid., pp. 94–100, the official inquest and the opening of public prosecutions follow from the aprise. 17. See A. Esmein, ibid., p. 117. The procurator intervenes as “denunciator” and supports the prosecution started by private individuals. Esmein cites several cases described by L. Tanon, Registre criminel de la justice de St Martin des Champs à Paris au XIVe siècle, where the procurator intervenes together with another person.

194

 

Penal theories and institutions

18. See above, for example, lecture of 2 February 1972, pp. 117–118 [147/14]–[148/15]. 19. See above, lecture of 26 January 1972, p. 102 [123/2] sq., and p. 108, note 2, and lecture of 9 February, pp. 142–143, note 12. Stressing the political dimension at stake in every form of common law delinquency and in the struggles of prisoners is a regular concern for Foucault in the years 1971–1973. See again Dits et Écrits, nos. 105, 106, 107, 108, and 125 (referred to above; “La grand enfermement”, “Intellectuals and Power”, “Table ronde”, “On Popular Justice”, and “Prisons et révoltes dans les prisons”); the interviews conducted by Sylvie Marion: “Les vols dans les grands magasins”, in which he declares that the people “who come to steal in the big stores … strike a quite conscious and, consequently, already very political blow, I believe, against the capitalist system. They are perfectly aware that it is the result of their work that they are taking back …”, and, “L’Affaire de Bruay-en-­Artois”, in which “a matter of common law which apparently had no political aspect” is presented rather as eminently political becauuse it marks the “appropriation and reversal of the punitive system” which normally “frames the so-called ‘lower’ classes”. “It politicizes for the first time what had been for a long time in France a pure and simple common law affair … the penal system, the punitive system generally is now in the process of becoming for the people an object of struggles … the political struggle now concerns the entire penal system”. 20. The different categories mentioned refer to the alternatives described by A. Chaveau and F. Hélie, Théorie du code pénal, I (Paris: Gobelet, 1836), pp. 4–16. The general interest refers to Beccaria and Bentham, morality and natural law to Pellegrino Rossi, Traité de droit pénal (Paris: Sautelet, 1829) (BNF) in particular. 21. We can bring this exposition together with the following analyses, proposed by Foucault in his Cahier no. 11 on 13/11/1971: “Three functions of justice: [1] function of arbitration within a class // corresponding to private war; [2] function of economic levy // corresponding to taxation; [3] function of repression // corresponding to movements of revolt. We can see that, in this triple function, justice covers the main part of the functions of the State. The State is the system of authority that prevents private war; the system that levies a certain portion of wealth on the economic circuits, which it accumulates and redistributes; it is the system, finally, that preserves the power of a certain social [class]. The history of justice is linked to the history of the State, that is to say to the history of who exercises power and how (in what form and with what instruments). Now the ideology of justice has always consisted in having it thought: 1) that it pre-existed the State and power; that there were powers which were just and others which were not; 2) that the apparatus of justice was or should be independent of the State. In short: that there is a sphere of the just above power; and within the State, the apparatus of justice independent of the State apparatus. This decoupling was carried out when, on the one hand, the tax levy was assured by the central power; and the main part of the levy on the product of labor is carried out in the capitalist form of wages[; and,] on the other hand, repression was carried out by a police apparatus created ad hoc. As a result justice was presented as being a power of arbitration between individuals, or between individuals and the State, or between individuals and

 

1 March 1972 

195

society; a power of arbitration having only … received from State power the ability to have its decisions executed. // Autonomization of the power of justice. The struggle for, regarding justice. In reality this is the struggle [1] against the tax levy; [2] against class oppression; [3] against the confiscation of State power by a class”.

thirteen

8 MARCH 1972 I. After analysis of the function and power relations of penal justice in the Middle Ages, studying its knowledge effects: not in the sense of ideological operations, but of production of truth. ~ In Germanic law, the test establishes the superiority of one over the other. ~ In the new penal regime with royal procurators, the inquiry establishes the truth that makes it possible to pass from accusation to sentence. The inquiry as restoration of order. ~ The test is replaced by the truth established by witnesses and writing which records. II. Complementary comments. Inquiry and confession (aveu) as privileged sources of the discovery of truth in the new penal regime. ~ Torture’s point of insertion. ~ The system of legal proofs. Contrast between inquiry and measure. Measure as the instrument and form of a power of distribution; inquiry as instrument and form of a power of information. Inquiry—bureaucratic system in the Middle Ages. ~ Analysis of the types of extraction of surplus-­power. Relation to the 1970–1971 lectures on “the will to know”. Final comment on the appearance of the examination form in the eighteenth–nineteenth century. The birth of the human sciences. Three levels in the analysis of penal justice in the Middle Ages, in the study of its prehistory as State apparatus: [228/1] 1. The level of its conditions of exercise: the position and function of the penal apparatus –– in relation to the circulation of wealth, more precisely: to the authoritarian levy on wealth by those holding power. Penality and taxation; –– its relationship with the distribution of arms (which is itself linked to the tax function). 2. The level of the power relations which pass through and are institutionalized in this penal justice.

198

 

Penal theories and institutions

–– The appearance of Parlement, of the procurator, and of the right [229/2] of prosecution characterize these relations of power, –– or rather they show how the exercise of justice, which is a power relation, very quickly relies on the (no doubt rudimentary) forms of a State apparatus. 3. We now need to study the level of the knowledge effects to which this penal justice give rise. Knowledge effects [which are distinct from]* ideological operations.1 –– By ideological† operations, [we understand] the set of processes‡ by which penal practices and institutions are justified, explained, reworked, inserted within systems of rationalization: –– the theory of the king as guardian of order and fons justitiae, –– the conception of pax et justitia We find such ideological transcriptions at whatever level we analyze the penal institution. –– By knowledge effects we should understand something else: the carving-­out, distribution, and organization of what is given to be known in penal practice; the position and function of the subjects authorized to know, the form of knowledge, information, revelation, manifestation that is at stake here. Analyzing the knowledge effects of penal practice means study[230/3] ing this practice as the stage on which a truth is introduced. A. What does this stage consist of in the old system of the juridical liquidation (or redress) of the crime? What were the forms that had to be observed, what words had to be spoken, what gestures made, what were the periods and sequences, the opposing characters and their roles?§ The form to be observed was not a way of guaranteeing the rights of adversaries, the impartiality of the judges, or respect for the truth. Complex forms were imposed on the litigants as a way of subjecting them to the test, of seeing if they were going to fail or if they could succeed.2 So: a series of tests […]¶ * Word crossed out: “internal”. Then the manuscript has “≠”. The following word, “effects”, is crossed out and replaced with “operations”. † Word crossed out: “effects”. ‡ Words crossed out: “of rationalization”. § A crossed out line follows: “It was basically a series of tests”. ¶ There are several gaps in the manuscript of this thirteenth lecture (two sheets, fol. 4–5, are missing). They can no doubt be filled in by referring to the lectures Foucault

 

8 March 1972 

199

[*] […] or defeat. The outcome is favorable or unfavorable. And the outcome of the test entails the outcome of the trial. It contains it. Therefore: [231/6] a/ Spectator judge. The test is not an element subject to the judge’s sovereign assessment. It is a mechanism which, provided the form is respected, automatically entails the outcome of the case. b/ This outcome of the test: –– is an operator of right; that which assures the definitive victory of right (over and above the dispute, the harm invoked, private war and vengeance); –– is secondarily an indicator of truth. If his right prevailed, then he spoke the truth. But this is only secondary. And above all it is not because he spoke the truth, and insofar as he spoke it, that his right prevails. The test is “mark” (and not simply sign); it does not fall under a semiology, but a dynastics –– it is the foundation, the establishment of a relationship of superiority of one over the other; –– it is the ritual institutionalization of this relationship of force; –– it is the index of the side, of the* region in which the good right and the greatest force are jointly lodged.3 And if we can finally speak of truth, it is not because the test indicates [232/7] where truth lies and thus enables one to deduce where right is and on what side force justly inclines. It is, in the judicial procedure, because the relationship of force really is congruent with the superiority of right.† The judicial stage is the stage on which inequality of force and superiority of right match up. Everything is arranged so that they manifest themselves simultaneously and in truth. The judge is there as witness, guarantor that they really are manifested, that they are manifested in truth.‡

delivered on the same theme in Rio in 1973: “La vérité et les formes juridiques”, “Truth and Juridical Forms”. See here in particular the third lecture DÉ, II, pp. 574–576/“Quarto”, pp. 1442–1444, and EW, 3, pp. 37–39. * Word crossed out: “truth”. † In the margin of the manuscript is written: “The reason of the form”. ‡ The following text corresponds to a crossed out passage [fol. 7–8]:

200

 

Penal theories and institutions

Whereas proof establishes “facts” by reference to which the law is ordered, to which in turn all the forces must yield, the test sets up [233/8] “events” which manifest inequality (that, jointly, of rights and forces). Ritualization of a series of events in the form of the test,* of the struggle, of success and failure. B. The intervention of the King’s procurator, of the official prosecution, upsets the system. The accusatory procedure, in which two adversaries [234/9] are face to face and in which the judicial procedure sets up a test of strength between them which is not a foregone conclusion, is no longer possible. The “extra power” is fixed definitively, once and for all, on one and only one side: that of the accusation.4 –– If there is a private accuser, behind him there is that supplement of power that is the† prosecutor. –– If there is only the prosecutor, his situation is not that of a duel with the accused, since he is the representative of power itself, of the one who is the sovereign-‡guardian of order. The consequences of this are that: 1/ the accusation as ritualization of events-tests in the form of the struggle (with both sides having the chance of winning or losing, reversibility of the penalty) is no longer possible. The king cannot be punished if his champion is defeated.5 The king is guardian of order.

“(We are the furthest away from what constitutes the later distribution a judge who in the suspension of the forces sees the truth and decides where right lies.) In the space of a medieval court, in this ‘closed field’ of the judicial duel which is the most visible, the most symbolic form (although it is not unique), the distribution of the judge, litigants, truth, force, right, equality and inequality, the decision, in short the whole game of the allocation of the penalty conforms to strict laws. –– They are very different from those that preside over the organization of the modern judicial space. –– We are accustomed to speak of the ‘barbarian’ system of proof. In actual fact it not a matter of proof at all. But of test in which what stands out is the reciprocal belonging to each other of superior right and greatest force”.6 * These two words are underlined in the manuscript. † Words crossed out: “power itself”. ‡ Word crossed out: “justiciar”.

 

8 March 1972 

201

2/ The court can no longer be the instance that certifies the outcome of a game in which each right is in itself its own force; it is the instance that represents the other face of power. Power-­justiciar. [235/10] The power to decide* who is right and who is wrong, who must pay and how much; 3/ and the accused finds himself finally caught between two powers: one which denounces the disorder and one which assures its redress through the sentence. We can therefore sketch out two series: [1] injury − plaintiff/defendant − event/test − outcome guaranteed by the public power [2] disorder  −  the public power/accused  −  x/y  −  sentence imposed by the public power† What makes it possible to go from the public power/accused confrontation to the sentence imposed? Obviously this cannot be an event/ test (with all its uncertainties). The component that makes it possible to get from a guardian of order power to a sentence-wielding power is the inquiry-truth.‡ How does it fit in?7 […]§ [*] […] – questioning: he had the right to address someone and demand [236/16] an answer; the latter were obliged to respond. Public power establishes common knowledge (notoire) through the notable8: it has the right to extract knowledge from those who know.9 The extra power (which the procurator manifests in the penal system) is expressed through an extraction of knowledge. He extracts knowledge.

* Words crossed out: “on the penalty”. † A line crossed out follows: “This place of the event-test will be occupied by the inquiry/truth”. ‡ Underlined in the manuscript. § Here, five sheets are missing (fol. 11–15) which it seems to us can be situated by reference to the passage of “La vérité et les formes juridiques”, corresponding to pp. 581–584/pp. 1449–1452; “Truth and Juridical Forms”, pp. 44–47.10

202

 

Penal theories and institutions

(Note the difference between this “knowledge (savoir)”, to which power has a right, and the “prudence”, “wisdom” or gift of “sight” attributed to the chief, the king as fons justitiae, the king is prudens, himself as guardian of order, he has the right to know, through the intermediary of his procurator.) – By providing the means for reaching a justified truth, these two practices* offer a sort of substitute for capture in the act. If something is well-established by inquiry, if the notables (or those who should know) have established its notoriety, the thing may be considered true, unmistakable, quasi-actual. The inquiry assures a sort of delayed flagrance. We can recover the procedure of capture in the act.11 – These two practices allow the entry of certain kinds of behavior into the field of penality which are not injuries to individuals, but disorders. [237/17] The aim of the Carolingian inquiry is to determine: –– what is the order that must be followed, –– and if things are in conformity with this order. The aim of the ecclesiastical inquiry is: –– to determine if there has been disorder (with reference to the monastic rule, with reference to the law of the Church) –– and to bring about redress. The inquiry is an operator of the restoration of order, on the basis of something which may be an injury, but may be something else: an irregularity. – They both put the accused, the defendant in a completely singular position: –– Whereas in the old Germanic law the defendant struggles with his accuser, in these procedures of inquiry he is an object of knowledge. He is no longer someone who must struggle; he is someone about whom one must know. [238/18] He was in a field of force; he is now in a domain of knowledge. –– In the Germanic type of law, the accused won or lost: now, “one knows” or “does not know”† about him. He is seen through or remains hidden.

* Word crossed out: “models”. † The manuscript does not have quotation marks.

 

8 March 1972 

203

–– He is caught in the opposition light/darkness and no longer winning or losing. –– Lastly, in Germanic law, he could always signal his own loss; he could give up at any moment. He can now become the enunciator of his truth, by becoming an informer on himself through confession.12 With the moral ambiguity that this involves. – Finally, the inquiry introduces two elements into the penal system which will become fundamental: –– the truth, as established by witnesses, by those who have seen13; –– writing, which transcribes what has been said; and conveys actuality.14 Two transfers of actuality: –– testimony which transfers capture in the act → investigator –– writing which transfers the testimony → judge The event-test is replaced by truth seen and faithful writing. *

204

 

Penal theories and institutions

COMPLEMENTARY REMARKS REGARDING THE PENAL SYSTEM AND KNOWLEDGE EFFECTS* [239/1]

1. Confession and test – We have given a rough overall description of the two systems: – injury

defendant ───── plaintiff

test ─── event

→

outcome

– disorder

prosecutor ───── accused

inquiry ──── truth

→

judgment

The knowledge effect was not absent from the first system: it was even precisely located in the test/event; it consisted in the triumph of the greater force manifesting the validity of the superior right. In the second system the knowledge effect is entirely different: the public power taking (full or partial, exclusive or parallel) responsibility for the accusation –– excluded the model of the struggle –– and called for capture in the act, i.e., the† offense visible [to] all, duly recorded, and entailing the sentence by its evidence.15 Hence some techniques of actualization or re-actualization of the [240/2] offense: –– inquiry –– testimonies –– writing –– confession producing an entirely different knowledge effect.16

* Foucault begins here a new section with this title preceded by “Lecture no. 13”. † Word crossed out: “crime”

 

8 March 1972 

205

– Now it should be noted that inquiry and confession, in their relation to each other, have a privileged position in this set. a. They are complementary If necessary, confession takes the place of the inquiry. It is the perfect actualization. The person who confesses is considered to have declined the test of the inquiry.17 The well-conducted, exhaustive inquiry is ultimately the equivalent of a capture in the act or a confession.18 This is much less the case for England: the inquiry is an old administrative inquiry, its re-actualization in penality takes place more directly, without passing by way of the Church. English empiricism: does it come from this?19 On the other hand, the much greater importance of confession in France. The subject speaking in the first person, mark of the truth. Connection of the first person and self-evidence.20,* b.† The aim of the procedure is: –– to get what is known to be said –– to fit together what different people say –– to enable the judge to decide who is telling the truth. The new procedure entirely displaces the functions of discourse:

* Paragraph moved by Foucault in the manuscript. † The manuscript has a passage crossed out: “Whereas the accused is object in the inquiry, in confession he is subject. So that in the new penal procedure he is no longer someone who loses or wins; but someone who knows and about whom one knows”. On the verso of the same sheet of the manuscript [241/3] there is the following passage crossed out: “Which assumed techniques of actualization or re-actualization of the offense –– inquiry –– testimonies –– writing –– confession. The inquiry and confession are facing each other in a complementary position in this set –– confession takes the place of the inquiry –– the well-conducted inquiry is equivalent to a confession. The accused is object of the inquiry.”

[241/3]

206

 

Penal theories and institutions

–– no longer game, joust, test –– but discovery of a truth. The discourse is no longer the site of ruses, traps, errors, and gaps; it is the site where, voluntarily or involuntarily, the truth is told. And where it is told about the accused; or where it is told by the accused. The accused is the person in penal discourse who, without moving, sometimes occupies the position of object and sometimes the position of subject.* Hence techniques like: –– confrontation –– questioning “This has been said about you, what do you say to it?” To do a history of questioning. We have not [given] enough attention to the fact that power assumes the right to put questions: the public power not only raises taxes, forces one to work, recruits soldiers, and consigns to death, but it puts questions, to which one must reply. It levies knowledge, and knowledge regarding the very person to whom [242/4] it puts a question. You must tell me what you know about yourself.21 Questioning, as a form of the exercise of power, plays a major role in the constitution of the conscious, knowing, etcetera “subject”. Maybe more so than theology.22 c. Finally, it should be pointed out that, while replacing the event/ test, for a long time the inquiry/confession remained linked to its form. –– For a long time the inquiry remained a test: –– the nobles held (and obtained) that submission to inquiry was voluntary, at least for them23; –– there is evidence of intermediate forms. Two men are accused of a murder. The judge seeks accusers. He employs every means to produce them. At the same time he keeps the suspects in prison to force them to confess. This is mid-way between the inquiry and the test.24 –– But it is above all confession that for a long time retained the [243/5] appearance of the test.

* In the margin of the manuscript is written: “Inquiry confession”.

 

8 March 1972 

207

Employing a certain number of means liable to procure confession, and if these means fail, then the accused will have won the test, as he would have won the test of the ordeal. This is the point of insertion of torture: (a) which re-appears at this point, (b) and should be understood as ordeal of the truth (as opposed to the ordeal of the superior right).

This characteristic of the test appears in the fact that torture –– comes in late, at the last moment, every other means having been employed. –– It is a sort of duel with the representative of power. If the accused has withstood torture, the other cannot apply the full penalty—in a sense, the judge has lost. [There are many complications and subtleties on this point: does not withstanding torture mean being hardened? While confession acknowledges but purifies. In religious terms: is it not the devil who gives someone the strength to withstand torture? And does not forcing someone to confess help them to earn their salvation?25 A whole ethics and theology of the confession of truth. Ethical and religious bond of the subject to the truth.]* – The residue of the test in the penal system of the inquiry also stands [244/6] out in another procedural feature: the system of legal proofs.26 On the penal stage the truth is sought in accordance with the canonical forms and criteria. The judge is not left free to find what seem to him to be the most persuasive means of truth. The truth is not so much a matter of conviction as of a test overcome or failed. –– Thus, one fixes the number and nature of proofs for assassination; a different number […]† for murder; another for theft. The more important the crime, the more the number and difficulty of proofs are increased.27 –– At the end of the investigation, a certain number of proofs may have been fulfilled, “successful”, others failed. Then sentencing will take into account the number of proofs combined. A strange system which clearly shows that it is not a matter of a truth-­conviction but of a truth-test. The judge does not have the decisive role he will acquire later, judging “in his soul and conscience”.

* Paragraph between square brackets in the manuscript. † Illegible word.

208

 

Penal theories and institutions

He records the proofs, just as he used to guarantee the regularity of the tests.28 This system of legal proofs persists until the end of the eighteenth [245/7] century. Strengthened: –– by the importance given to opinion, to fama. Someone who has many witnesses or proofs against him cannot have a good reputation; one cannot deal with him as if there was nothing; –– by the still very rudimentary outlines of probabilistic thought. A certain number of signs of a thing give a corresponding degree of certainty (cf. medical thought). So that this archaism (of truth-test) came to be reactivated: it encountered a theoretical horizon which had as it were naturalized it in the eighteenth century. In any case, in the system of juridical demonstration a relationship is formed between proof, probability, and certainty, the epistemological ­fortune (and avatars) of which is far from exhausted by the procedural singularities we have been able to observe.29 2. Inquiry and measure

[246/8]

Do not think that these knowledge effects linked to the inquiry are wholly determined by a modification in penal procedure. In fact, from the thirteenth–fourteenth century, and in collaboration with a first State takeover of justice, penal procedure put to work an older, broader form which was strongly reactivated at more or less the same time.30 In particular it is used: –– in civil law for all disputes over property, dues, and debts. Linked to the development of commerce and of the new juridical status of property; –– in legislation: the reform and drafting of customs will take place at the end of the same type of inquiries; –– in social struggles which set bourgeoisie against feudalism or the clergy, landowners against their tenants. –– When feudal property is affected by rising prices and a drain on the population, there is an attempt to assert old rights: –– in the administrative process of centralization. Royal power is [247/9] established by inquiry;

 

8 March 1972 

209

–– in the new forms of control that the Church exerts over the population (inquisitio).31 [There are] great centuries of the inquisition, as there have been great centuries of the measure.32 a. Like measure, the inquiry is a form of power-knowledge: that is to say that power is established through the acquisition and exercise of this knowledge. Among the Greeks, there had to be a power in order to establish the measure of lands, properties, debts, and goods. Those who could measure, those to whom this task was entrusted had power. But their power was established by those who imposed measure. Measure produced power, and power produced measure. Displacement of power, displacement of knowledge; more knowledge, more power; more power-knowledge imposing itself as law.33,* Likewise, although in different struggles and processes, †power is retained, shifts, is centralized, sinks deep into daily practices, and spreads out on the scale of a kingdom with, amongst other instruments (taxes and army), the inquiry. And conversely the inquiry, which puts questions, extracts knowledge, centralizes it, turns it into [248/10] decision, is an exercise of power. Through the inquiry knowledge produces power which produces knowledge. b. However, there is a quite notable imbalance in comparison with measure. –– Measure depended, for sure, on prior knowledge, and in a very rudimentary way it no doubt depended on a certain form of inquiry.34 –– The inquiry, on the other hand, is a form of taking knowledge. It is a way of extracting knowledge, moving it to another place, collecting it, giving it another form, and turning it into decision. – Measure and inquiry are not counterposed; they are not on the same plane. The inquiry may be a certain way of arriving at the measure. They may be articulated with each other. * The words “inquisition” and “measure” underlined in the manuscript. † Word crossed out: “centralized”.

210

 

Penal theories and institutions

Measure is a type of power-knowledge which has the form of delimitation, composition, rebalancing, distribution; it permits the preservation or movement of wealth and power. The inquiry is a type of power-knowledge which has the form of the extraction of knowledge itself and its redistribution. It is a form of ­power-­knowledge which is no longer concerned with things (properties, goods, wealth, harvests, seasons), but with knowledge. And whereas Greek measure allowed the levy of wealth to be maintained, the inquiry constitutes in itself a levy of knowledge, which sec- [249/11] ondarily, through the political reinforcements it makes possible, allows a levy of wealth. Measure: instrument and form of a power of distribution. Inquiry: instrument and technical form of a power of information. – Under these conditions we see that the insertion of knowledge in power, the reciprocal coordination of power and knowledge, does not take place in the same institutional mode in Greek society and medieval society. –– Power in Greece, whoever governs, must know the measure. He must both know and be just; geometer and sage; knowing the principle of the proportion of things and the principle of the balance of cities. The collaboration of power and knowledge takes place in the form of pedagogy (of the governor and the citizen): the one who has the most knowledge must have the most power; and the one who has the most power should be the most advanced [250/12] in knowledge. The theme of the philosopher leader; the problem of the education of the citizen; how to become the best, wisest, and strongest.35 –– Things are entirely different in the system of power-knowledge organized in the Middle Ages: the knowledge power needs, the knowledge it calls for and to which it gives rise, is knowledge taken, channeled, accumulated, and converted into decision; the governor being the one who calls for this knowledge, goes through it, and judges accordingly what decision has to be taken. The governor must judge and judge well; but the knowledge exists in front of him, around him, [it is] constantly taken, recorded, accumulated. In short, knowledge and power are

 

8 March 1972 

211

not linked in the form of a pedagogy, but in the form of a bureaucracy. Power-knowledge in the Greeks is governed by the measure-pedagogy system. In the Middle Ages a form of power-knowledge begins to emerge which is governed by the inquiry-bureaucracy system. And the primary aim of western pedagogy (as it appears in the medieval universities) is not to form […]* “governors”, but bureaucrats, administrators, elements for the process of accumulation, circulation, and recording of knowledge.† […]‡ [*] […] – analyzing types of this extraction of surplus-knowledge: the [251/19] administrative type, the economic type, the scientific type, the technocratic type36; –– analyzing the social distribution to which it gave rise. Essentially, the appearance of the twin personages of the investigator and the notable: –– the investigator, instrument of extraction, indeed of concentration, direct or indirect instrument of the State apparatus or of power; –– the notable, the one who knows and who accepts his knowledge being taken, who has already taken it; who is witness and guarantor; but who may reject the truth. Very close to, complementary to the State apparatus.37 This bifrons§ character (from whom one extracts and who extracts) is that character so important in capitalist society: the intellectual. The intellectual is the extractor of surplus-knowledge, indispensable to power, but in a position to blackmail and of refusal. Very close to State apparatuses, always [ready to] become a functionary; and always ready to be the “protesting” intellectual who is out of play, who refuses to extract knowledge (poet, writer), or who claims to put his knowledge at the service of the dominated.38

* Two illegible words. † The manuscript has in the margin: “the expert and the administrator”. ‡ Sheets 13 to 18 are missing. § Latin: two-faced, Janus-faced; G.B.

212

 

Penal theories and institutions

Finally, we need to analyze the struggles regarding inquiries, for or [252/20] against the constitution of surplus-knowledge: –– struggles, for example, between artisans and manufacturers (secrecy)* –– workers’ struggles to assure their own inquiries, in order to speak in their own name, against administrative inquiries.39 Struggle in the nineteenth century for a “popular knowledge” opposed to the “inquisitorial” knowledge linked to the extra power of the bourgeoisie. The public elementary school was perhaps the solution: –– constraining the working class to receive a canonically established form of education –– no doubt school teachers are […]† but the knowledge they themselves receive and are responsible for transmitting was formed on the basis of regularly extracted surplus-knowledge. The university–high school–elementary school hierarchy, the descending, but not ascending continuity of these three levels, fastens the system; prevents the formation of a popular knowledge. Meanwhile the independence of the university, its “autonomy”, its disinterestedness are intended to hide the extraction of surplus-knowledge at the root of the knowledge it distributes.40 N.B. It is necessary to stress the care with which this formation of surplus-knowledge has been masked, to the point that all the analyses [253/21] have been inverted. Among these precautions, one of the most constant has been the insistence on the separation between technique and sc[ience], between empirical knowledge (savoir) and scientific knowledge (connaissance). The insistence on emphasizing the unevenness of rationality, the threshold of scientificity. –– It is not at all a matter of saying that these knowledges (savoirs) are in continuity. –– But the problem is what takes place “between”, in what is presented as empty, interval, caesura: how this surplus-knowledge has been produced, the effect of which is science, or what presents itself as science. The notion of epistemological break as threshold of scientificity is perhaps the transposition of this masking.41 * The manuscript has in the margin: “we can speak of a veritable plunder of knowledge”. † Illegible.

 

213

8 March 1972 

4.*

[254/22] 42

The problem raised last year was that of the “will to know”. – Traditional philosophical analysis placed knowledge (connaissance) (the knowing subject) at the origin, the root of knowledge (connaissance): the subject already there knowledge already at work the known already given Psychology of curiosity, metaphysics of memory and forgetting (which may well be transposed into trace/repression). – The Nietzschean analysis which looks behind knowledge for something altogether different from knowledge. Something altogether different in relation to which the knowing subject and knowledge itself are effects. It was a matter of making an inventory of this something altogether different. What is behind the “form” of knowledge (connaissance), the subject of knowledge, the open field of what is to be known, the corpus of acquired knowledge, what is behind all of this are power relations: it is the activation of forms of power that creates knowledge (savoir), which in turn [255/23] increases power: indefinite play of formation, displacement, circulation, and concentration which endlessly produces the supplements, excess, and reinforcements of power and the increase of knowledge, the extra knowledge, surplus-knowledge. This is the level of “power-knowledge”. This is the level at which the real, deep, and decisive connection to the economic is formed. –– The problem of whether science is profitable is important (today). But on a historical scale, the question maybe has no more meaning than wondering whether being learned gives power. Governors are stupid and science is costly. –– The connections appear, not at the level of science, but at the level of extra knowledge, not at the level of government, but at the level of extra power, not at the level of profitability, but at the level of the accumulation of profit.

* The following crossed out passage is on the verso of the same sheet [254/22]: “4. Knowledge-power and discursive formations The level of knowledge-power, with its forms, is entirely distinct from the “epistemological” level at which sciences are analyzed. It is also distinct from the “archaeological” level of discursive practices.” We can assume that a subtitle “3” would have been part of the missing sheets.

214

 

Penal theories and institutions

At this level: more knowledge → more power and more profit more profit → more power and more knowledge more power → more knowledge and more profit43 [256/24] In any case: –– this level is fundamental with regard to knowledge (connaissance). The constitution of a “subject of knowledge”, the carving out of an “object to be known”, and what is called the act of knowledge are historical effects of these processes of power-knowledge located in our type of civilization. –– These processes are not read directly as traces or structures within science. It is through a series of fractures and shifts that one can pass from the level of science to that of power-knowledge. The two main disconnections are: – The one that allows us to pass from the sciences, or so-called sciences, to major types of discursive practices and through the intermediary of “epistemological matrices”. The analysis of these epistemological matrices enables one to dis[257/25] cover ways of carving out, dividing up, constituting object fields, of defining subject positions, of regulating the formation of concepts and theories. Through the intermediary of these epistemological matrices we thus pass from the historical description of the sciences to their “archaeology”44 – The second disconnection permits one to pass from discursive practices to the level of power-knowledge through the intermediary of those “juridico-political” matrices of measure, test, and inquiry. Thus in the major empirical sciences of the West like biology or grammar, we do not find the administrative inquiry itself; but the inquiry as form of the exercise of power and of constitution of a surplus-knowledge gave rise to discursive practices (to types of description, analysis, carving-­out of the object, subject position) which stabilized, corrected, and reinforced each other at their own level. At this level also they were corrected, rectified by other discursive formations. New type of formation of an extra knowledge. And it was these discursive formations that gave rise to sc[iences], which at their own level produce extra knowledge.45

 

8 March 1972 

215

But to look for the principle of this “extra knowledge” typical of the [258/26] scientific level in the “progress” of rationality is to explain the effects of opium by its dormitive virtue.46 So we have three levels: –– the history of the sc[iences] on the basis of which reduction to epistemological matrices enables us to pass –– to the archaeology of knowledge: on the basis of which the excavation of the juridico-political matrices of knowledge –– enables us to pass to the level of knowledge-power. The level where extra profit, extra power and extra knowledge are linked together. Study of the dynastic of knowledge.

A final remark.

[259/27]

The analysis of other juridico-political matrices will bring to light another schema of power-knowledge alongside those of the inquiry and measure. The new types of penality, control, and repression in the eighteenth-­ nineteenth century reveal the form of the examination: examination of normality examination of level examination of morality examination of health (mental or other) of individuals or groups. A surplus-knowledge will be extracted from this whose effect will be the appearance of the human sciences. On the basis of the three juridico-political matrices arise the: –– measuring sciences of the* kosmos –– the descriptive natural sciences, –– the normative human sciences.47 *

* Crossed out term: “measure”

216



 

Penal theories and institutions

Notes

1. On these “ideological operations”, see above, especially the lectures of 23 February and 1 March 1972. Foucault always distrusted the notion of ideology employed by Althusserians, and which, in the same period, entered Canguilhem’s vocabulary (“Qu’est ce qu’une idéologie scientifique?”; “What is a Scientific Ideology?” was published in 1969. Ironically, Canguilhem asserts that he introduced the notion into his own work “under the influence of Michel Foucault and Louis Althusser”). In particular, Foucault criticizes ideology with resting on a simplistic opposition between science and non-science (see L’Archéologie du savoir (Paris: Gallimard/nrf, 1969), pp.  240–243; English translation A.  M. Sheridan Smith, The Archaeology of Knowledge (London: Tavistock Publications, 1972), pp. 184–186) and above all as presupposing the knowledge (connaissance) relationship as given, understood as a relationship of subject and object which could only be “disturbed, obscured” by economic, social, and political relations (see, for example, “La vérité et les formes juridiques”; “Truth and Juridical Forms”). Foucault’s whole project since Lectures on the Will to Know consisting in showing how power relations (here, penal practices), linked to determinate political and economic conditions, are on the contrary, “that by which subjects of knowledge and therefore relations of truth are formed”, he will systematically strive to distance himself from that approach. This is the case in the “Course summary” (“power and knowledge are not linked to each other solely through the interplay of interests and ideologies”, below, p.  229), in “La vérité and les formes juridiques”; “Truth and Juridical Forms”, (see especially the first lecture, and Foucault’s response to a question from M.J. Pinto, DÉ, II, p. 630/“Quarto” I, pp. 1498–1499: the subject is “absolutely not [formed] by ideology. I have made it very clear that what I presented was not an ideological type of analysis”), and in La Société punitive; The Punitive Society (especially Fr., pp. 236–237; Eng., p. 233) where Foucault contrasts his approach with the “schema of ideology”; see ibid., “Situation du cours”, 296–298; “Course Context”, pp. 284–286). The two criticisms directed at Marxism, regarding both power and ideology, are thus ultimately the following: (1) it postulates an analytical link between “the concrete essence of man and labor”, whereas “man is linked to labor, at the level of his life and body, only through a power relationship” (La Société punitive, p. 224; The Punitive Society, p. 219); (2) it postulates an analytical link between the subject and forms of knowledge (connaissance), considered as givens, whereas it is relations of power that “give rise to totally new forms of subjects, of subjects of knowledge” and link these subjects to particular historical forms of veridiction (“La vérité et les formes juridiques”, p. 539/p. 1407; “Truth and Juridical Forms”, p. 2). 2. See H.  Brunner, “La parole et la forme dans l’ancienne procédure française”, p. 30. The two missing sheets for this lecture, 4–5, may be usefully completed by referring to extracts from “La vérité et les formes juridiques”, 3rd lecture, pp. 574–576/ pp. 1442–1444; “Truth and Juridical Forms”, pp. 37–39 (and more precisely, from: “In feudal law, disputes between two individuals were settled by the system of the test …” to “ … the separation of truth and untruth between individuals played no role in it—there existed only victory or defeat”). It is quite likely, in fact, that the passage to which we are referring takes up, at least in its general structure, the missing section of the argument advanced by Foucault in this lecture. We recall here its main points. Feudal law is presented as organized around “the

 

8 March 1972 

217

system of the test”, that is to say as a series of tests which may be: (1) social tests (the number of witness one can assemble to show one’s social importance); (2) tests of a verbal type (the importance of the ritual formulae and forms to be respected); (3) magico-­religious tests (like the oath); (4) corporal tests (like the ordeals). This series of tests has two characteristics: (1) it is a binary system: one either accepts or declines the test. If one declines it, one has lost the case. (2) It ends in victory or defeat: there is no sentence given by a third party according to the truth of the facts, but either victory or defeat of one of the parties certified by the third. 3. We find again here the notion of the “dynastic” contrasted with “semiology” referred to in the lecture of 15 December 1971 (see above p. 45 [58/14] and p. 51, note 16). It may be useful to compare this analysis of the relations between test and truth with the analyses that Foucault offered of the agō n of archaic Greece (Leçons sur la volonté de savoir, pp. 69–84; Lectures on the Will to Know, pp. 71–86). If the test refers to the dynastic, it is because it involves, first, a certain differential relationship of forces; then, the giving form to this relationship in rules and rituals; finally, the idea that these rules and rituals adequately express this relationship. The notion of test plays an essential role in the interpretation of the Germanic and medieval judicial system in Foucault, in order to differentiate it from the apparatus (dispositif) set up through the inquiry, system of proofs, prosecutor, and witnesses. On this point see “La vérité et les formes juridiques”, pp. 574–577/pp. 1442–1445; “Truth and Juridical Forms”, 37–40. Foucault will contrast the test with the inquiry and the examination as instances of judgment in La Société punitive, pp. 200–201; The Punitive Society, pp. 195–196, and, in Le Pouvoir psychiatrique, pp. 235–247; Psychiatric Power, pp. 235–247, he will re-situate it in a history of truth contrasting the series “truth-test-­event” (in which he places the medical notion of “crisis”) with “truth-­knowledge (connaissance)”, “truth-demonstration”. 4. This notion of “extra power (plus de pouvoir)”, as well as those of “extra knowledge (plus de savoir)” and “extra profit (plus de profit)” later in this lecture (see below, p. 213 [255/23]), seems to be forged as an echo of the “surplus-enjoying (plus-de-jouir)” theorized by Lacan in his lecture of 13 November 1968. In this lecture we find a set of problems analogous to those dealt with by Foucault through the concept of the “dynastic”: the problem of the “beyond sense (hors-sens)” and of the “not-thought (non-pensée)” which constitute the discursive order and the play of signifiers (“and not of meaning … as all phenomenology assumes”, Lacan makes clear); the “surplus-enjoying (plus-dejouir)” as function, which permits a certain compensation for the “renunciation of pleasure” necessary to the functioning of the signifying apparatus, and is, at the same time, condition of formation of the subject of discourse (It is around the “plus-de-jouir that the relationship is constituted that … allows us to see that suture, that precipitation accomplished … which means that we can unify a subject as subject of a whole discourse”). In a sense, just as the “dynastic” allows Foucault to extricate himself from the “semiotic” or from the regulated systems of signs so as to account for the conditions of their formation through mechanisms of power (see lecture of 15 December 1971, above note 3), the “plusde-jouir” allows Lacan to get out of the regulated and repetitive play of signifiers so as to account for the conditions of its formation and reproduction through the double mechanism of renunciation of jouissance and of a plus-de-jouir which at a certain level compensates for this renunciation through discourse. See J.  Lacan, “De la plus-value au plus-de-jouir”, first unpublished lecture of the seminar “D’un Autre à l’autre” of 13 November 1968; text established by J.-A. Miller, Cités, 2003/4, no. 16, pp. 129–142.

218

 

Penal theories and institutions

5. “La vérité et les formes juridiques”, pp. 580–581/pp. 1448–1449; “Truth and Juridical Forms” pp. 43–44, explains this point and goes further: “… it is understandable that the judicial settlement (liquidation) could no longer be obtained through the mechanisms of the test. The king or his representative, the prosecutor, could not risk their own lives or their possessions every time a crime was committed … it was necessary to find a new mechanism that was no longer that of the test, of the struggle between two adversaries, to determine whether someone was guilty or not”. 6. On the question of the barbarian system of “proofs”, see J.  Declareuil, “Les preuves judiciaires dans le droit franc du Ve au VIIIe siècle”, Nouvelle Revue historique de droit français et étranger 1898, 22nd year, pp. 220–268, pp. 457–488, pp. 747–762, and 1899, 23rd year, pp. 79–109 and pp. 188–212 (BNF); see again J.-P. Lévy, La Hiérarchie des preuves dans le droit savant du Moyen Âge. This system is presented as “irrational” in comparison with the system founded on testimony, inquiry, and confession. For a criticism of this reading in terms of rational/irrational, see “La vérité et les formes juridiques”, pp. 584–585/pp. 1452–1453; “Truth and Juridical Forms”, pp. 47–48. 7. In the “Course summary” Foucault makes the appearance of the “inquiry” as a specific form of power-knowledge linked to the formation of the medieval State the main object of the course (below, pp. 229–231). This study of the inquiry as matrix of knowledge distinct from both measure (which was the object of the 1970–1971 lectures) and examination (which should have been the object of the 1973–1974 lectures) is sketched out, for the Greek period of the sixth and fifth centuries, in the lecture delivered in March 1972 at Buffalo, and then in October 1972 at Cornell University, “Oedipal Knowledge” (in Leçons sur la volonté de savoir, pp. 225–251; Lectures on the Will to Know, pp. 229–257), and will be taken up again in “La vérité et les formes juridiques”; “Truth and Juridical Forms”. For the medieval period Foucault relies on the works of: A. Esmein, A History of Continental Criminal Procedure; Y. Bongert, Recherches sur les cours laïques du Xe au XIIIe siècle; J.-P. Lévy, La Hiérarchie des preuves dans le droit savant; M. Guillemard, L’Enquête civile en Bourgogne (Dijon: Nourry, 1906); P. Guilhiermoz, Enquête et Procès. Étude sur procédure et le fonctionnement du Parlement au XIVe siècle (Paris: A. Picard, 1892 [BNF]). For more recent works on the question see, for example, C.  Gauvard, ed., L’Enquête au Moyen Âge (Rome: École française de Rome, 2008); M.  Dejoux, Les Enquêtes de saint Louis (Paris: PUF, 2014); R. Jacob, La Grâce des juges, pp. 249–307. 8. The notion of “notoriety” or of “notorious fact” is a fundamental element of medieval scholarly law. The “notorious (notoire)” designates what is manifest, seen and known by all, and which consequently dispenses with any proof; with the notorious one arrives at immediate and full certainty, whereas proof brings only conviction which, at best, may arrive at “probabilis certitudo”. The notorious refers in particular to the evidence (evidentia rei) of what takes place publicly, in front of everyone, like “capture in the act”; but in the theory of medieval notoriety, confession in court also makes the thing notorious. On these questions see J.-P. Lévy, La Hiérarchie des preuves dans le droit savantI …, pp. 32–66. 9. This play of notable and notorious no doubt refers to two things: on the side of the Carolingian inquiry, “[w]hen the representatives of the sovereign had to resolve a problem of law, of power, or a question of taxes, morals, ground rent, or ownership … [t]he representative of power would summon the persons regarded as being knowledgeable about morals, law, or property titles. He would assemble these persons, making them swear to tell the truth, to tell what they knew, what they had seen … In order to deter-

 

8 March 1972 

219

mine the truth, power appealed to the notables, to the persons fit to know” (“La vérité et les formes juridiques” pp. 581–582/pp. 1449–1450; “Truth and Juridical Forms”, pp. 44–45). This idea is found in most of Foucault’s sources for this subject: see, for example, Y. Bongert, Recherches sur les cours laïques …, p. 270 sq. Similarly, in the bishop’s visitatio, the inquisitio generalis involves questioning “all those who should know—the notables, the elders, the most learned, the most virtuous—about what had happened in his [the bishop’s] absence, especially if there had been transgressions, crimes, and so on” (“La vérité et les formes juridiques”, p.  583/p.  1451. Here Foucault relies on A. Esmein, A History of Continental Criminal Procedure, pp. 84–85. Later in this lecture (“Complementary remarks”) he returns to the p ­ roblem of the extraction of knowledge, made possible by an “extra power (plus de pouvoir)” characteristic of the inquiry. 10. These missing sheets probably detail the two models of inquiry which precede the definitive establishment of the inquisitorial procedure: the administrative type of “Carolingian” inquiry, from which has been derived (no doubt wrongly) the sworn inquiry or “inquisitio per patriam” which will be imposed in Norman England (on this point Foucault bases himself on F. Joüon des Longrais, “Le droit criminel anglais au Moyen Âge (1066–1485)”, Revue historique de droit français et étranger, 34, no. 3, 1956, pp.  391–435 (BNF); see also by the same author, “La preuve en Angleterre depuis 1066”, in Recueil de la Société Jean Bodin, XVII: La Preuve. Deuxième partie (Brussels: Librairie Encyclopédique, 1965), pp. 193–274; and the ecclesiastical inquiry, ­outcome of the bishop’s visitatio in his diocese, and which proceeded through an inquisitio generalis, in the course of which the bishop questioned the notables to find out whether something had happened in his absence, and then through an inquisito specialis, in order to identify the precise author of the offense and its nature. See “La vérité et les formes juridiques”, pp. 581–584/pp. 1449–1452; “Truth and Juridical Forms”, pp. 44–47, which enables one to get an idea of the way in which Foucault might have developed this passage. 11. This idea appears regularly in Esmein, with regard to the aprise in particular: “It was thought that a fact which would be sworn to by many witnesses and which would, therefore, be a matter of public notoriety could be held to be a capture in the act” (A History of Continental Criminal Procedure, p. 94). 12. In this lecture Foucault returns to the confession (aveu), putting it in parallel with the inquiry (“Complementary remarks”, p. 204 [240/2] sq.). In the following years, reflection on confession, in which the subject binds himself to the truth about himself, will be one of Foucault’s constant concerns. If there are a few reflections on the subject outlined in the Leçons sur la volonté de savoir (pp. 83–84); Lectures on the Will to Know (pp. 85–86), subsequently the subject is found in many of the Collège de France courses: Le Pouvoir psychiatrique, pp.  12–13, pp.  158–160, and especially pp.  238–241; Psychiatric Power, pp. 11–12, pp. 158–161, pp. 238–241, where certain elements of Penal Theories and Institutions are taken up in connection with a history of the truth-test-event series; Les Anormaux, pp. 155–180; Abnormal, pp. 167–194; Du gouvernement des vivants. Cours au Collège de France 1979–1980, ed., M.  Senellart (Paris: Gallimard-Seuil, “Hautes Études”, 2012), pp. 71–106; English translation Graham Burchell, On the Government of the Living. Lectures at the Collège de France 1979–1980, English series editor Arnold I. Davidson (Basingstoke: Palgrave Macmillan, 2014), pp.  72–108; et passim. Foucault will devote his lectures at Louvain in 1981 to a history of practices of confession/avowal. See Mal faire, dire vrai. Fonction de l’aveu en justice, ed., F. Brion and B. E. Harcourt (Chicago/Louvain: University

220

 

Penal theories and institutions

of Chicago Press/Presses universitaires de Louvain, 2012; English translation Stephen W. Sawyer, Wrong-Doing, Truth-Telling. The Function of Avowal in Justice, ed., Fabienne Brion and Bernard E. Harcourt (Chicago/Louvain: University of Chicago Press/Presses universitaires de Louvain, 2014). On the place of confession in medieval procedure, see for example J.-P. Lévy, La Hiérarchie des preuves dans le droit savant … Foucault returns to it in more detail in Mal-faire, dire-vrai, pp. 199–206; Wrong-Doing, Truth-­Telling, pp. 199–206. 13. J.-P. Lévy, Hiérarchie des preuves dans le droit savant …, p. 71: “the witness must report what he knows … he must have acquired this knowledge personally and through a bodily sense, “de visu” … he will be forced to explain to the judge the source of his information … the witness is therefore not a partisan. He has to say only “totam et meram veritatem””. See also Y. Bongert, Recherches sur les cours laïques … p. 262 and p. 267. 14. The question of writing is considered in A. Esmein, A History of Continental Criminal Procedure, pp. 106–107, and pp. 149–156; J.-P. Lévy, La Hiérarchie des preuves … pp. 29–45. 15. See above. On the evident character (evidentia facti) of capture in the act which transforms it into accepted fact (fait notoire), see J.-P. Lévy, La Hiérarchie des preuves dans le droit savant …, pp. 29–45. 16. These techniques are analyzed by J.-P.  Lévy, La Hiérarchie des preuves … who shows that they are organized in a hierarchy (gradus probationis) which goes from public knowledge (notoire) to semi-full proofs and suspicions. See the whole of the work and for the different degrees of knowledge, pages 26–31. 17. See above, pp. 201–202 [236/16]–[238/18], and J.-P. Lévy, La Hiérarchie des preuves …; confession in court makes the fact public knowledge (notoire) and is therefore the equivalent of an actualization. 18. See above pp. 201–202 [236/16]–[237/17], and pp. 218–219, notes 9 and 10; it rests on the passage from notable to notorious (notoire). 19. On this point see, for example, F. Joüon des Longrais, “La preuve en Angleterre”, pp. 196–198: this is the “sworn inquiry” and the inquisitio per patriam, administrative or fiscal inquiry for the first (which is found again in the Domesday Book in 1086, establishing the census of the population, livestock, and plowing instruments after the Norman invasion); specifically judicial inquiry for the second. The latter is the origin of the English jury. The idea that empiricism flows from these forms of inquiry is clarified in the “Course summary”, below, p. 231. 20. This is obviously a reference to Descartes, who we know connected experience of self and self-evidence. The reading of pages 29–31 of Jean-Pierre Lévy’s work suggests such a parallel, inasmuch as public knowledge (notoriété), presented as “certitudo demonstrativa” or “infallibilis”, in contrast with the proof, is described as immediate, “intuitive” and direct, on the one hand; and by the fact, on the other, that confession is “assimilated to self-evidence”, making the fact public knowledge, indeed founding public knowledge (according to the position of Hugh of Pisa summarized in La Hiérarchie des preuves dans le droit savant …, pp. 40–41). Critical reference to the Cartesian cogito recurs in Foucault’s thought, from the Histoire de la folie; History of Madness, the polemic with Derrida on this theme (“Mon corps, ce papier, ce feu”, DÉ, II/ “Quarto”, I, no. 102; “My body, this paper, this fire”, in History of Madness) up to his last course at the Collège de France (see, for example, Du gouvernement des vivants, pp. 94–99; On the Government of the Living, pp. 96–101) and Mal faire, dire vrai, pp. 167–169; Wrong-doing, Truth-telling, pp. 169–171. In the present case we are at the heart of the project referred to in the lecture on Nietzsche (in Leçons sur la volonté de savoir, pp. 202–205; Lectures on the Will to Know, pp. 210–214): a history of knowledge (connaissance) without reference to

 

8 March 1972 

221

an original subject and showing that the subject/object relationship is itself the effect of a whole play of relations of force, “the play of the mark and of willing”, 21. This problem of the way in which power extracts knowledge from the subject and puts questions that involve the subject producing, according to certain forms, true statements about him/herself and binding him/herself to them, will guide Foucault in Psychiatric Power; Abnormal; “L’évolution de la notion d’”individu dangereux””, DÉ, III/“Quarto”, II, no. 220; English translation “About the concept of the “dangerous individual” in nineteenth-century legal psychiatry” in EW, 3; and Wrong-doing, Truth-telling. 22. It is difficult not to see here an echo of Althusser’s famous thesis that ideology “interpellates” individuals as subjects, in the sense that “all ideology has the function … of ‘constituting’ concrete individuals as subjects” (“Idéologie et appareils idéologiques d’État”, pp.  302–307; “Ideology and Ideological State Apparatuses”, pp.  262–266). For Althusser, the transformation of the concrete individual into subject, carried out by all ideology, takes the form of interpellation (where Foucault prefers to foreground questioning) and, in fact, after having taken the example of “police” hailing to illustrate his point, Althusser develops at greater length interpellation as it is exercised in Christian religious ideology, on the basis of, in particular, its dogmas and theological reflections (see ibid., pp. 307–312; pp. 266–270). 23. See A. Esmein, L’Acceptation de l’enquête dans la procédure criminelle au Moyen Âge (Paris: Thorin, 1888), pp. 9–10 (BNF). After the death of Philip the Fair, the nobles and lords of various regions (Burgundy, Champagne, etcetera) will demand re-­ establishment of the right not to be subject to the inquiry without their consent, which they will obtain in 1315 through a series of ordinances of Louis X. 24. See ibid., p. 14 sq., or A. Esmein, A History of Continental Criminal Procedure, pp.  64–65, or F.  Joüon des Longrais, “Le droit criminel anglais au Moyen Âge”, pp. 207–208. In fact, when someone was arrested on suspicion of a serious crime, in order to get their consent to an inquiry, it was usual to put them in prison, with very little food and drink (indeed, as was the case in England, lying naked on the ground with enormous iron weights attached to the body, fed stale bread one day and stagnant water another). During this time every effort was made to produce an accuser. 25. Foucault had compiled an important dossier, marked “T”, on the question of torture (BNF), some material from which he will use in Surveiller et Punir; Discipline and Punish. The link between torture and ordeal extends moreover the reflection Foucault puts forward in the Leçons sur la volonté de savoir, pp. 83–84; Lectures on the Will to Know, pp. 85–86, where he stresses that a “whole history could be written of the relationship between truth and torture” and outlines some reflections identical to those presented here on “the test of truth” and confession in the inquisitorial test in the Middle Ages. Some passages which give an idea of how Foucault presented the question of torture in the Middle Ages are found in Mal faire, dire vrai, p.  204; Wrong-doing, Truth-telling, pp. 204–205. On the reappearance of torture in the low Middle Ages (thirteenth to fourteenth century), Foucault relies on A.  Esmein, A History of Continental Criminal Procedure, pp. 107–114. See also R. Van Caenegem, “La preuve dans l’ancien droit belge des origines à la fin du XVIIIe siècle”, in La Preuve, Deuxiëme partie, pp. 399–403, and especially the charts in the appendix to the article which places in parallel the disappearance of ordeals, the spread of inquiries through witnesses, and the reappearance of torture in Europe from the thirteenth century.

222

 

Penal theories and institutions

26. On the system of legal proofs and their appearance, see A. Esmein, A History of Continental Criminal Procedure, pp.  251–271 and pp.  620–626. On its prehistory, see J.-P. Lévy, La Hiérarchie des preuves dans le droit savant … Foucault provides a comparable analysis in Mal faire, dire vrai, pp. 205–206; Wrong-doing, Truth-­telling, pp. 205–206. 27. Thus, to punish a capital crime one needs a complete proof, and not close or distant indications; whereas the requirements are less for a crime punished by a simple fine. 28. A. Esmein, A History of Continental Criminal Procedure, p. 251: “in the system … of legal proofs … before the judge can condemn, he must bring together certain predetermined proofs … The judge may be likened to a harpsichord, responsive according to the particular keys which are struck”. 29. This relationship between the system of legal proofs and the genesis of probabilistic thought is extremely visible in J.-P. Lévy’s work, La Hiérarchie des preuves dans le droit savant … Foucault relies in particular on C.J.A. Mittermaier, Traité de la preuve en matière criminelle, p. 20, which provides several sources on the application of the calculus of probabilities to criminal judgments in the eighteenth century. The notion of “probable” comes from “provable”. See Ian Hacking, The Emergence of Probability (Cambridge: Cambridge University Press, 1975) and, more recently, L. Daston, Classical Probability and the Enlightenmennt (Princeton: Princeton University Press, 1988), pp. 3–49. 30. In “La vérité et les formes juridiques”; “Truth and Juridical Forms” and in Leçons sur la volonté de savoir; Lectures on the Will to Know, Foucault situates the genesis of the inquiry as form of knowledge in Greece, in “the process through which the people took possession of the right to judge, of the right to tell the truth, to set the truth against their own masters, to judge those who governed them”. But, he adds, “[q]uite curiously, the history of the birth of the inquiry remained forgotten and lost, having been taken up again, in other forms, several centuries later, in the Middle Ages” (“La vérité et les formes juridiques”, p.  571/p.  1439; “Truth and Juridical Forms” pp.  33–34). The “older” forms Foucault has in mind refer to the Carolingian, Anglo-Norman, and Capetian inquiries. 31. For details of these usages, see, for example, Y. Bongert, Recherches sur les cours laïques …, pp. 261–276. 32. “Measure” is one of the main themes of Leçons sur la volonté de savoir; Lectures on the Will to Know (see in particular pp. 97–160; pp. 101–166), in the forms of “dikaion”, money, and “nomos”. In the “Course Summary”, Foucault presents the 1970–1971 lectures as analyzing “measure … as form of “power-knowledge” linked to the formation of the Greek city-state”, and those of 1971–1972 as devoted to “the inquiry … in its relationship to the formation of the medieval State”. He further announces that the next lectures will be devoted to the “examination”. See below p. 231. 33. Leçons sur la volonté de savoir, pp. 111–139; Lectures on the Will to Know, pp. 116–146. Different types of “measure” are imposed in Greece in a context marked by peasant debt, military transformations (“hoplite revolution”), and the development of craft industry and exchanges, requiring a way establishing equivalence and a measure of lands, products exchanged, etcetera. And this is in a political context in which tyrants and legislators will, within a certain limit, satisfy the demands of equity and regulation of indebted peasants, without however affecting the effective distribution of wealth. Now, Foucault notes, “Tyrant or legislator, the person holding power is the city quantity surveyor: the measurer of lands, things, wealth, rights, powers, and men” (Fr., p. 127; Eng., p. 134). Conversely, the measure of properties, of goods, of the revenues of each, the establish-

 

8 March 1972 

223

ment of money and of the system of measures, gives considerable power. It makes it possible to levy taxes, to classify citizens according to their goods, and to allocate them political rights as a consequence, to institute in fine a social order which will take on the appearance of the nomos and the just measure. 34. See above, note 30: Foucault refers to this form of inquiry in La Savoir d’Œdipe, pp. 239–251; Oedipal Knowledge, pp. 244–257, and in “La vérité et les formes juridiques”, pp. 570–571/pp. 1438–1439; “Truth and Juridical Forms” p. 33. 35. See Leçons sur la volonté de savoir, pp. 146–149 and pp. 156–157; Lectures on the Will to Know, pp. 152–155 and pp. 161–163, where the conditions of the establishment of this configuration between pedagogy, knowledge, and power are described for the fifth century B.C.E.: “philosophy, science, the discourse of truth” are: “independent of power,/founders of power/critics of power” (Fr., p. 149; Eng., p. 155) but, in reality, according to Foucault, it is rather a matter of a masking and misunderstanding which “hides the dependence of the political in relation to the economic” (Fr., p. 155; Eng.,p. 161) through the fiction of the nomos. Note that in this lecture Foucault will describe a comparable phenomenon regarding the “sciences”: just as philosophy and the Greek discourses of truth “must speak from that blank zone, that caesura” (Fr., p. 157; Eng., p. 163), which Foucault describes as “fiction of a real break” (Fr., p. 155; Eng.,p. 161), “where the relations of the political and the economic go unrecognized” (Fr., p.  157; Eng., p.  163), so epistemology and Althusserian partisans of the “epistemological break” speak of the caesura between science and ideology, science and common sense, which masks “how this surplus-knowledge (sursavoir), of which science is the effect, was produced”, that is to say, the mechanisms of power which enabled the extraction and confiscation of “surplus-knowledge”. See above. 36. The phrase “extraction of surplus knowledge” is a direct reference to the extraction of surplus-value in Marx. Power therefore does not just have the role of enabling the extraction of surplus-value, either directly, as in the feudal system, by assuring compulsory levies on the producers, or indirectly, as in the capitalist system. By a whole set of techniques, it also assures the extraction and harnessing of knowledge. Foucault will come back to this question in “La vérité et les formes juridiques”, pp. 619–620/pp. 1487–1488; “Truth and Juridical Forms”, pp.  83–84, through the notion of an “epistemological power”, as “a power to extract a knowledge from individuals and to extract a knowledge about those individuals who are subjected to observation and already controlled by those different powers”, and at the end of La Société punitive, pp. 236–238; The Punitive Society, pp. 233–235, criticizing the “schema of ideology”, which sees power either in the mode of mute violence, or in the chattering of ideology (i.e., of “false” knowledge), and striving to show the complex bonds which unite power and knowledge. Within this framework, he clarifies what he calls here the “administrative type”, founded on a knowledge of management, a knowledge of inquiry, and a knowledge of police inquisition (with, in particular, the obligation to produce reports) and notes: “A history of this State knowledge could be written, that is to say the history of the administrative extraction of knowledge”. This question is taken up again, less in terms of extraction than this time in terms of the disqualification, normalization, and hierarchization of knowledge in “Il faut défendre la société”. Cours au Collège de France, 1976, ed., M. Bertaini and A. Fontanta (Paris: GallimardSeuil, “Hautes Études”, 1997), pp. 159–166; English translation David Macey, “Society Must Be Defended”. Lectures at the Collège de France 1975–76, English series editor Arnold I.  Davidson (New York: Picador, 2003), pp.  178–183. Foucault briefly returns there notably to “the development of processes that allowed bigger, more general, or more indus-

224

 

Penal theories and institutions

trialized knowledges … to annex, confiscate, and take over smaller, more particular, more local, and more artisanal knowledges”, and to the struggle against artisanal secrets. 37. See above, pp. 199–201 [236/16]–[238/18] and p. 217, notes 9 and 10. 38. The question of the role of the intellectual in relation to power is raised by Foucault at the same time in the discussion with Deleuze: “Les intellectuels et le pouvoir”; “Intellectuals and Power”. In this discussion Foucault is very careful to avoid the posture of the intellectual as the holder of knowledge and truth who is not himself an agent of power relations. He should accept both: (1) that “the masses no longer need him to gain knowledge”, that they do not need him to become conscious, and that there is a people’s knowledge anterior to that of the intellectual. But above all that (2) “there exists a system of power which … invalidates … this knowledge” and, we can add, extracts it and confiscates it. A power of which the intellectual is both “object and instrument”. It is at this level, “against the forms of power … in the sphere of “knowledge”, “truth”, “consciousness”” that the intellectual should struggle. It is understandable from this that one of the important stakes for Foucault is to clarify the position of the intellectual in a whole set of forms of struggles in which he risks repeating the mechanisms of the extraction and confiscation of knowledge historically at work: hence his criticism of the “tribunal” form and the role of “prosecutor” (taken on by Sartre, exemplary figure of the intellectual then criticized by Foucault); and hence especially his uneasiness with the “inquiry” form which he himself retained for the GIP. Doing this he will strive to conceive a practice of inquiry which attempts to get out of the apparatus of extraction of surplus-knowledge described here: it is a matter of letting the “infâmes” speak, those who are not “notables” but know nonetheless, and of deploying secrecy against power. We may wonder whether Foucault, on this point, was not tempted to bring into play a tension between the two genealogies of the inquiry that he distinguishes in “La vérité et les formes juridiques”; “Truth and Juridical Forms”: the Greek version in which the “humble witness, solely by the action of the truth he saw and he utters, can singlehandedly defeat the most powerful of men … summary of one of the great conquests of Athenian democracy … process through which the people took possession of the right to judge … to set the truth against their own masters” (pp. 570–571/ pp. 1438–1439; p. 33), and the medieval version, founded on the administration and formation of the judicial State apparatus, in which public knowledge is established by the notables and/or extracted by a set of power mechanisms, etcetera. An ambivalence of the inquiry which is found again in the valorization of “inquiries about workers produced by the workers themselves” which are a model for the “intolerance-­inquiries” of the GIP. See “Préface à Enquête dans vingt prisons” (Paris: Champ Libre, “Intolérable”) no. 1, 29 May 1971, pp. 3–5), DÉ, II, no. 91, pp. 195–197/“Quarto”, I, pp. 1063–1065. These inquiries are now collected in the pamphlet Intolérable. See also, P.  Artières et  al, Le Groupe d’information sur les prisons. Archives d’une lutte. 1970–1972 (Paris: IMEC, 2003). 39. See H. Rigaudias-Weiss, Les Enquêtes ouvrières (Paris: PUF, 1936), p. 158 sq. The same reflections, more developed, are found again in “Par-delà le bien et le mal”, p. 1093; English translation Donald F. Bouchard and Sherry Simon, “Revolutionary Action: ‘Until Now’” in Language, Counter-Memory, Practice. Selected Essays and Interviews, ed., Donald F. Bouchard (Oxford: Basil Blackwell 1977), p. 219: “There is on one side a whole technical knowledge of the workers which has been the object of a constant extraction, translation, and transformation by the employers … beneath, through and thanks to the division of labor, a whole mechanism of appropriation of knowledge which masks, confiscates, and disqualifies

 

8 March 1972 

225

the worker’s knowledge” and “the workers, at the beginning of the nineteenth century, carried out detailed investigations into their material conditions. This work served for the bulk of his [Marx’s] documentation” [The first part of this quotation, from “There is …” to “… worker’s knowledge”, is not included in the English translation; G.B.]. The question of “worker knowledge” was then the flavor of the day: at this time Foucault proposed that the recently created journal Libération publish a regular column of workers’ memory is based on “their own experience and not yet framed by either the trade unions or political parties” (“Pour une chronique de la mémoire” (interview with José [Duarte] and a journalist, Libération, 22 February 1973, p. 6; DÉ, II, no. 117, p. 400/“Quarto”, I, p. 1268). In his dialogue with Deleuze and later in a dialogue with José, a worker at Renault at Billancourt, Foucault stressed the primacy of worker knowledge over that of the intellectuals (“Les intellectuels et le pouvoir”, p. 308/p. 1176; “Intellectuals and Power”, p. 207, and “L’intellectuel sert à rationaliser les idées …”, DÉ, II, no. 123, pp. 420–421/“Quarto”, I, pp. 1289–1291). The question of “worker knowledge” will then be especially at the heart of Robert Linhart’s work: Lénine, les Paysans, Taylor. Essai d’analyse matérialiste historique de la naissance du système productif soviétique (Paris: Seuil, 1976); L’Établit (Paris: Minuit, 1978). On this subject see P. Saunier, L’Ouvrièrisme universitaire (Paris: L’Harmattan, 1993). 40. The question of the role of the university is referred to by Foucault in “Par delà le bien et le mal”; “Revolutionary Action: “Until Now””, and in “Conversation avec Michel Foucault”. 41. This is clearly a veritable provocation aimed at the Bachelardian–Althusserian tradition from which Foucault takes the vocabulary: “epistemological break” and “threshold of scientificity” (knowing that this expression applies to Foucault himself who uses it in L’Archéologie du savoir, p. 244; The Archaeology of Knowledge, p. 178). The criticism itself takes up Althusser’s terms (“masking”) implying that the concept of “epistemological break” and the science/ideology opposition are themselves ideological elements with the function of covering up the reality of the mechanisms of power at work in the extraction of a surplus-knowledge on which in fine what is presented as science depends. In the context of the time, this criticism takes on a particular prominence: between 1970 and 1972, Dominique Lecourt, Canguilhem’s student and close to Althusser, published a series of studies on Bachelard, Canguilhem, and Foucault (in particular “Sur l’archéologie et le savoir”, La Pensée, 152, August 1970, pp. 69–87). These studies were then republished in Pour une critique de l’épistémologie (Paris: Maspero, “Théorie”, 1972); English translation Ben Brewster, Marxism and Epistemology. Bachelard, Canguilhem and Foucault (London: New Left Books, 1975), in which he criticized epistemology as an “illusion” in the name of an historical materialism based on the Althusserian interpretation of Marx (which rests on the famous thesis of the “epistemological break” by which Marx gets out of ideology in order to found the true science of history). As Canguilhem will cleverly note a little later, “if the epistemology of continuity is illusory, how can the notion of an epistemological break serve as the basis for a reinterpretation of Marxism as the science of history in the name of which that epistemology is rejected as illusory?” (G. Canguilhem, “Le rôle de l’épistémologie dans l’historiographie scientifique contemporaine”, in G. Canguilhem, Idéologie et Rationalité dans le sciences de la vie (Paris: Vrin, 1988), p. 28; English translation Arthur Goldhammer, “Introduction: The Role of Epistemology in Contemporary History of Science”, Ideology and Rationality in the History of the Life Sciences (Cambridge, Mass.: The MIT Press, 1988), p. 17). By system-

226

 

Penal theories and institutions

atically encompassing Bachelardian–Canguilhemian epistemology and Althusserian Marxism in his criticism, Foucault escapes, for his part, this contradiction and takes clear aim at Althusser and his disciples. 42. See the Leçons sur la volonté de savoir; Lectures on the Will to Know, in particular the first two lectures (9 and 16 December 1970, pp.  3–22; pp.  1–18 and pp.  23–30; pp. 22–28). 43. See above, lecture of 23 February 1972, pp. 171–172 [203/8]–[204/9], concerning the link between “extra power” and “extra profit” via the judicial apparatus. “[F]rom the surplus-­product which permits feudal rent, a surplus-power, an extra power (plus de pouvoir) is extracted on the basis of which certainly this rent itself is demanded …”. It is a matter of a sort of general differential analysis, found also in La Société punitive; The Punitive Society and “La vérité et les formes juridiques”; “Truth and Juridical Forms”, for thinking the relations between “surplus power” and “surplus profit”, this time in the capitalist system. A differential relation of power (“surplus power”) is the “condition for surplus-profit”, which increases the power differential, etcetera. Note that in the meantime, Foucault will define the “extra power” as an “infra power (sous pouvoir)” in the sense that it circulates “below the great State structures” (La Société punitive, pp. 223–224; The Punitive Society, p. 219, and “La vérité et les formes juridiques”, pp.  621–22/pp.  1489–1490; “Truth and Juridical Forms”, pp.  86–87). But this power differential is also the condition for a knowledge differential (“extra knowledge”) which is itself the condition for an “extra power” and an “extra profit”. It is this imbrication and auto-implication of differentials (of power, knowledge, and profit) that explains Foucault’s position, constantly repeated from the lecture of 9 February, then in The Punitive Society, and “Truth and Juridical Forms”, that “it cannot be said that these forms of knowledge and these forms of power, operating over and above productive relations, merely express those relations or enable them to be reproduced. Those forms of knowledge and power are more deeply rooted, not just in human existence but in relations of production … Power and knowledge … are not just superimposed on the relations of production but, rather, are very deeply rooted in what constitutes them” (Fr., p. 623/p. 1492; Eng., p. 87). 44. In the Leçons su la volonté de savoir, p. 5; Lectures on the Will to Know, p. 3, Foucault noted the “[i]nadequacy of the instruments of historical analysis provided by epistemology” for analyzing the will to know. The first shift suggested here, from the “sciences or so-called sciences” to major types of discursive practices, extends the distinctions put forward by Foucault in “Sur l’archéologie des sciences. Réponse au Cercle d’épistémologie” (Cahiers pour l’analyse, 9: Généalogie des sciences, Summer 1968, pp. 9–40; DÉ, I, no. 59, pp. 724–725/“Quarto”, I, pp. 752–753; English translation, “On the Archaeology of the Sciences: Response to the Epistemological Circle”, EW, 2, p. 526) to differentiate the archaeological approach, which questions the “conditions of possibility” of the sciences on the basis of knowledge (savoir) as set of discursive formations which have their own regularity and constitute “the field of … actual history” of the sciences, from an epistemological approach which is interested in the “conditions of science as science”, that is to say in the system of its internal laws and in the rules that allow a statement either to belong or not belong to a science. See also, L’Archéologie du savoir, pp.  231–255; The Archaeology of Knowledge pp. 166–186, where these distinctions are explained at greater length. For an analysis of this opposition between historical epistemology of the sciences

 

8 March 1972 

227

and archaeology of knowledges, see A. I. Davidson, “On epistemology and archaeology: from Canguilhem to Foucault”, in A. I. Davidson, The Emergence of Sexuality. Historical Epistemology and the Formation of Concepts (Cambridge, Mass.: Harvard University Press, 2001), pp. 193–206. 45. In this case it is a matter of clarifying the relationship between archaeology and what Foucault calls the “dynastic”, by putting, as the Leçons sur la volonté de savoir, pp. 4–6; Lectures on the Will to Knowledge, pp. 2–5 announced, “the game of truth back in the network of constraints and dominations” in order to show the constitutive bond between truth and power. The major “juridico-political m ­ atrices” Foucault talks about here are the three fundamental forms of “power-knowledge” to which he refers in the “Course Summary” (measure, inquiry, examination) and in “Truth and Juridical Forms”. The idea that the model of the inquiry, the “political, economic conditions of existence” of which the lectures trace, linked in particular “to the birth of a State that tends to confiscate the administration of justice ever more strictly”, is developed in the “Course Summary” and in “La vérité et les formes juridiques”, pp.  586–588/ pp. 1454–1456; “Truth and Juridical Forms” pp. 49–52. 46. The notion of “progress of rationality” very probably refers to Bachelard, for whom science advances by a process of rectification of primary obviousness and errors, of overcoming epistemological obstacles and of the hierarchization of different domains of rationality. He speaks on this subject of “a progressive extension of the domain of rationality” through the “autonomous activity” of reason “which tends to fulfil itself” (G.  Bachelard, La Philosophie du non (Paris: PUF, 1940), p.  33; English translation G. C. Waterston, The Philosophy of No. A Philosophy of the New Scientific Mind (New York: Orion Press, 1968), p. 27). The “surplus-knowledge”, that “extra knowledge” by which the sciences are constituted and transformed, presupposes—like the extraction of surplus value—underlying relations of power which organize the extraction, circulation, confiscation, and accumulation of knowledge 47. Examination, linked to the new forms of repression and penality of the eighteenth–nineteenth century and presented here as matrix of the human sciences, will be one of the main themes in Foucault’s subsequent work. In the “Course Summary” he still links it “to a function of selection and exclusion” (below p. 230), but he later describes it as the correlate of “coercive institutions” (“La vérité et les formes juridiques”; “Truth and Juridical Forms”), and then of “disciplinary power” (La sociéte punitive, pp. 200–201 and pp. 222–224; The Punitive Society, p. 196 and pp. 217–220; Le Pouvoir psychiatrique, pp. 54–60; Psychiatric Power, pp. 53–57; Surveiller et Punir, pp. 186–196 and pp. 227–228; Discipline and Punish, pp. 184–194 (“Examination”) and pp. 225–226; as well as Les Anormaux pp. 155–215; Abnormal, pp. 167–230). The theme of examination is found again in Foucault’s later analysis of the practice of self-examination in the Greeks, Romans, and in early Christianity.



Course Summary *

This year’s lectures were intended to be an historical introduction to the study of penal institutions (more generally of social controls and punitive systems) in nineteenth-century French society. That study forms part of a broader project, outlined the previous year: to follow the formation of certain types of knowledge (savoir) on the basis of the juridicopolitical matrices which gave birth to them and act as their support. The working hypothesis is this: power relations (with the struggles that traverse them and the institutions that maintain them) do not only perform a role of facilitation or obstruction with regard to knowledge; they are not restricted to promoting or stimulating it, distorting or limiting it; power and knowledge are not linked to each other solely by the interplay of interests and ideologies; so the problem is not only to determine how power subordinates knowledge and makes it serve its ends, or how it superimposes itself on it and imposes ideological contents and limitations on it. No knowledge is formed without a system of communication, recording, accumulation, and transfer which is itself a form of power linked in its existence and functioning to other forms of power. On the other hand, no power is exercised without the extraction, appropriation, and distribution or retention of a knowledge (savoir). At this level, there is not knowledge (connaissance) on one side and society on the other, or science and the State, but fundamental forms of “power-knowledge (pouvoir-savoir)”. Last year, measure was studied as a form of “power-knowledge” bound up with the constitution of the Greek city-state. This year, the inquiry was studied in the same way in its relation to the formation of the * Published in the Annuaire du Collège de France, 72e année, Histoire des systèmes de pensée, année 1971–1972, pp. 283–286, and in DÉ, II, no. 115, pp. 389–393/“Quarto”, I, pp.  389–393. An  earlier version of  this summary by Robert Hurley appears with the title “Penal Theories and Institutions” in M. Foucault, EW, 1, pp. 17–21.

230

 

Penal theories and institutions

medieval State; next year, we will consider examination as a form of power-­knowledge linked to the systems of control, exclusion, and punishment characteristic of industrial societies. In their historical formation, measure, inquiry, and examination have all been both means of exercising power and rules for establishing knowledge. Measure: a means for establishing or restoring order, and the just order, in the battle of men and of the elements; but also matrix of mathematical and physical knowledge. The inquiry: a means of establishing or reconstructing facts, events, acts, properties, rights; but also matrix of forms of empirical knowledge and of the natural sciences. The examination: a means of fixing or restoring the norm, the rule, the division, the qualification, the exclusion; but also matrix of all the psychologies, sociologies, psychiatries, and, in short, what are called the human sciences. Of course, in many scientific practices measure, inquiry, and examination are put to work simultaneously as pure and simple methods or strictly controlled instruments. It is also true that at this level and in this role they are detached from their relationship with forms of power. But before appearing together and thus clarified within definite epistemological domains, they were bound up with the establishment of a political power; they were both its effect and instrument, measure fulfilling a function of order, the inquiry a function of centralization, and examination a function of selection and exclusion. The lectures for 1971–1972 were therefore divided into two parts. The first was devoted to the study of the inquiry and its development [during the] Middle Ages. We focused in particular on the conditions of its appearance in the domain of penal practice. Transition from the system of revenge to that of punishment; from accusatory practice to inquisitorial practice; from injury which provokes a dispute to infraction which determines prosecution; from decision by test to judgment on the basis of proof; from combat which picks out the victor and shows who is in the right to the certified report which establishes the fact on the basis of testimony. This whole set of transformations is bound up with the birth of a State which tends to take increasingly strict control of the administration of penal justice; and it does this insofar as the functions of maintaining order are concentrated in its hands and the fiscalization of justice by feudalism has inserted judicial practice into the major circuits of the transfer of wealth. The judicial form of the inquiry may have been borrowed from what remained of

 

Course Summary  

231

Carolingian forms of administration, but much more surely from ecclesiastical models of management and control. Falling under this set of practices are the characteristic questions of the inquiry (Who did what? Is the act common knowledge? Who saw it and can testify about it? What are the indications, what are the proofs? Is there a confession?); its phases (which establish the fact, determine the guilty party, and establish the circumstances of the act); and its characters (the person who prosecutes, the one who informs, the one who denies or who confesses, and the one who has to judge and make the decision). This judicial model of inquiry rests on a whole system of power and this system defines what has to be constituted as knowledge; how, from whom, and by whom it is extracted; in what way it is transferred and conveyed; at what point it accumulates and gives rise to a judgement or a decision. From the fourteenth century, this “inquisitorial model”, transferred and gradually transformed, will be a formative element of the empirical sciences. The inquiry, whether or not linked to experimentation or the voyage, but strongly opposed to the authority of tradition and the decision of the symbolic test, will be put to work in scientific practices (magnetism, for example, or natural history), theorized in methodological reflection (Bacon, the administrator), transposed into discursive types (the Inquiry as form of analysis, as opposed to the Essay, Meditation, or Treatise). We belong to an inquisitorial civilization, which, for centuries now, practices the extraction, transfer, and accumulation of knowledge in increasingly complex forms which are all derived from the same mode. The inquisition: form of power-knowledge essential to our society. Experimental truth is the daughter of the inquisition—of the political, administrative, judicial power to put questions, extort answers, collect testimonies, check assertions, establish facts—just as the truth of measures and proportions was the daughter of Dike–. A day soon came when empiricism forgot and covered up its beginning. Pudenda origo. It contrasted the serenity of the inquiry with the tyranny of the inquisition, disinterested knowledge with the passion of the inquisitorial system: and, in the name of experimental truth, the Inquisition was reproached with giving birth by its tortures to the demons it claimed to drive out; but the Inquisition was only one—and for a long time the most sophisticated—of the forms of the inquisitorial

232

 

Penal theories and institutions

system, which is one of the most important juridico-political matrices of our knowledge. The other part of the lectures was devoted to the appearance in sixteenth-­century France of new forms of social controls. The massive practice of confinement, the development of the police apparatus, and the surveillance of populations prepared the way for the formation of a new form of power-knowledge which would take the form of the examination. The study of this new type, of the functions and forms it took in the nineteenth century, will be undertaken in the lectures for 1972–1973. * In the Monday seminar we continued the study of medico-legal practices and concepts in the nineteenth century. One case was singled out for detailed analysis and a subsequent publication. Pierre Rivière: a little-known murderer of the nineteenth century, at the age of twenty, slaughtered his mother, brother, and sister; after his arrest he wrote an explanatory memoir which was given to his judges and to the doctors called on to provide an expert psychiatric opinion. The complete memoir, which had only partially been published in 1836 in a medical journal, was rediscovered by J.-P. Peter, along with most of the documents of the dossier. This set of documents was prepared for publication with the participation of R. Castel, G. Deleuze, A. Fontana, J.-P. Peter, P. Riot, and M[aryvonne] Saison. Among all the dossiers of penal psychiatry available to us, this one held our attention for a variety of reasons: the existence, of course, of the memoir written by the murderer, a young Norman peasant who those around him seemed to regard as bordering on imbecility; the content of this memoir (the first part, a remarkable document of peasant ethnology, is devoted to an extremely meticulous account of all the contracts, conflicts, arrangements, promises, and splits that, from the time of their plan of marriage, had joined together or split apart the families of his father and mother; in the second part of his text, Pierre Rivière explains the “reasons” for his act); the relatively detailed deposition of the witnesses, all inhabitants of the hamlet, giving their impression of Pierre Rivière’s “eccentricities”; a series of psychiatric expert opinions, representing each of the well-defined strata of medical knowledge: one written by a country doctor, another by a physician from Caen, and others

 

Course Summary  

233

by the major Parisian psychiatrists of the time (Esquirol, Orfila, etcetera); and finally the date of the event (the beginning of criminological psychiatry, great public debates between psychiatrists and jurists regarding the concept of monomania, the extension of mitigating circumstances in judicial practice, and publication of Lacenaire’s Mémoires and the appearance of the great criminal in literature).



Ceremony, Theater, and Politics in the Seventeenth Century*

After prophylactically claiming incompetency in the field of literary studies in the Seventeenth Century, Mr. Foucault briefly outlined the focus of his informal presentation, the phenomenon of the political ceremony in the Seventeenth Century. The political ceremony in the Seventeenth Century was an immensely popular “genre” of a very definite nature. Every utterance and gesture of these ceremonies was carefully planned and regulated according to a particular procedure or “étiquette”. They were rituals with their own code or particular set of rules and ritual formulas. Their functioning can be analyzed on three different levels: first, the level of a ritual in which everything is pre-ordained; second, the level of theatrical manifestation in which various discourses are created with some degree of freedom; and finally, the level of a match, duel, or joust in which there is a confrontation and coercion between two parties or forces. Before attempting the specific analysis, Mr. Foucault explained that this analysis of the political ceremony in the Seventeenth Century would ultimately become part of a larger study of the ceremonial manifestations of political power from the debates in the Greek and Roman agoras to the ceremonies at the end of the Eighteenth Century. This will be a study of how political power takes on visible or theatrical forms and imprints itself on the imagination or behavior of a people. It would really be an ­ethnology of the manifestations of political power, a study of the demarcation of power within a society. * Lecture given at the University of Minnesota, April 7, 1972, summarized by Stephen Davidson (in English) and published in 1972 in Armand Renaud, ed., Proceedings of  the  Fourth Annual Conference on  17th-Century French Literature, University of Minnesota, pp. 22–23.

236

 

Penal theories and institutions

To begin his analysis, Mr. Foucault chose a political ceremony which took place at the end of 1639 and the beginning of 1640 in Rouen immediately following the particular violent peasant and urban revolts* of the preceding year in Normandy.† The ceremony represented the reassumption of power by the apparatus of the monarchical government. This ceremony is particularly interesting because it takes place almost immediately after the military defeat of the rioting factions. Each element of the ceremony was thus extremely important, for each had polemic and strategic value. Beneath the ritual forms of the étiquette, a total redistribution of monarchical power was taking place, a vast centralization of power creating new institutions and profoundly modifying the old ones. The ceremony was like a prefiguration in microcosm of what the monarchical regime would be under Louis XIV (what is roughly called “absolute monarchy”). It represented the mise en jeu of fundamental theories of political authority which had been elaborated a century before and finally formulated by Sessel. Literary historians have looked for manifestations of this revolt of the Nu-pieds (or L’armée de la Souffrance, as the rioters called themselves) in Corneille’s Cinna. It is not there, however, but in the political ceremonies that the theatrical manifestation of these events appear. (Mr. Foucault then uses the theatrical comparison to organize his own description of the ceremony into acts.) Act I: Military Repression (before the ceremony itself) In November of 1639, Normandy is entirely in the hands of rioters. Richelieu sends an army under the protestant Gassion who treats the rioters as if they were traitors or foreign enemies but certainly not as royal subjects. The Nu-pieds try to maintain the distinction between the fiscal agents whom they had attacked, and the King whom they continue to insist they respect. The government, however, refuses to accept this distinction, maintaining that the fiscal agents and the army are mere

* La Révolte des Nu-pieds. After the Fronde this was probably the second most important revolt of the whole century. † See above, lecture of 24 November 1971, p. 5 [8/7] et passim [Editor’s note].

 

Ceremony, Theater, and Politics in the Seventeenth Century  

237

e­ xtensions of the King and thus if one attacks the agents, one attacks the King. One then ceases to be his subject, losing all a subject’s privileges in the process. Gassion thus billets his troops on the property of certain subjects who would have been exempt from such treatment. Normans are massacred exactly like enemies of the kingdom or traitors. Some even are hung and then cut into pieces which are then hung at the city gates according to the medieval ritual for the execution of a traitor. Act II: The Last Judgement The Chancelier Séguier is named in the beginning of December to proceed to Rouen and in his own words, “faire régner la justice armée”. He proceeds as slowly as possible in order to make his ominous presence hang over the Normans and to make the three orders of society come to him to offer their acts of submission. It is at this point that the ceremony begins. The notables appear before Séguier— first the Parlementaires, then the mayor of Rouen, and finally the archbishop, de Harlay. In each of their acts of submission, they refuse to recognize Séguier as the agent of unlimited power. Their attitudes within the framework of the étiquette manifest the traditional political theory of the three freins or checks on monarchical power which were religion, the judiciary, and the administration or police. Séguier replies to these acts of submission in such a way as to make it clear that he refuses to accept their ideological premisses. First, he will not accept the Parlement’s refusal to ratify the government’s decrees. He forbids Godard, the mayor of Rouen, to go to Paris to confront “the person of the king since the king in his decision has already manifested himself and there is no recourse.” Finally, he refuses archbishop de Harlay’s pretensions to be held the principal “shepherd of his sheep” and therefore ultimately responsible for them. In accordance with the theory that God speaks through the King (outlined by Budé and Gracian) the Chancelier maintains that the King is the voice of God in the domain of justice and God’s will manifests itself in the will of the King. The King thus fulfills the function which God will fulfill on Judgement Day.

238

 

Penal theories and institutions

Act III: Séguier’s Entrance Into Rouen Gassion’s army enters Rouen on Christmas Day, the day of Christ’s advent on earth. Séguier himself enters the city on January 1 and Gassion and his army pass (through their own act of submission) under Séguier’s control. This was a monstrosity, according to tradition (Histoire de la Grande Chancellerie 1670–1674*). Nevertheless, it was formulated within the code of the étiquette by transferring the white flags of command from Gassion to Séguier and then having the officers meet each evening with the Chancelier Séguier who, as representative of the King, now also represented both the civil and the military authority in the province. He punished civilians according to military procedure without hearing the accused or accepting any other oral or written testimony. Gorin, for example, one of the principle seditioners was condemned in this way by Séguier. Séguier also received military honors normally only accorded to the King. Thus, in Séguier, a new character appears in political ceremony, the visible body of the state. Kantorowizc has distinguished two bodies of the King, the physical and the spiritual.† In the Rouen ceremony a third body appears, the body of the state apparatus made up of functionaries, with the number one functionary at its head. The state becomes the source of all hierarchies, of all authorities, and of all regulations. The army and the judiciary are only two facets of this new body. Act IV: Two Of Séguier’s Acts After Making His Entrance He first suspended all the constituted authorities of the city like the Parlement and the municipal government and replaced them by other constituted bodies, other “actors”. The Parlementaires become only royal agents rather than checks on the royal power.

* A. Tessereau, Histoire chronologique de la Grande Chancellerie de France (Paris: Pierre le Petit, 1676), [Editor’s note]. † E.  H. Kantorowicz, The King’s Two Bodies: A Study on Medieval Political Theology (Princeton, NJ: Princeton University Press, 1957), [Editor’s note].

 

Ceremony, Theater, and Politics in the Seventeenth Century  

239

Act V: The Underlying Strategy The political power allied itself to the economic interests of the kingdom’s notables. All arms were confiscated and redistributed to the notables, and a fine was levied on the town which was advanced by the town’s richest elements. They became the creditors of the other elements of the society. Thus an equilibrium was established beneath the ceremony, a sort of contract between the rich and the poor. This equilibrium was to be thrown into question at the time of the Fronde, but the form of that power, fixed in the ceremony, would remain the same.



Course Context François Ewald and Bernard E. Harcourt

Penal Theories and Institutions is the second course given by Michel Foucault at the Collège de France. The thirteen lectures were delivered from 24 November 1971 to 8 March 1972. The course continues the research on the will to know on the basis of the study of juridical and judicial institutions which Foucault began the previous year. After “measure”, Foucault introduces here, on the basis of the study of these institutions during the Middle Ages, the “inquiry”, the theme to which he will almost exclusively devote the course summary provided for l’Annuaire du Collège de France. Rather than pursue his work chronologically, Foucault devotes the first seven lectures to a detailed study of the suppression of the Nu-pieds revolt (1639–1640) by the Chancellor Séguier. He sees in this the birth of that “new repressive system” that will become penal justice, the justice that will make confinement its main penalty—and that will be accompanied by the distinction between political prisoners and common law delinquents, the challenging of which motivated the Groupe d’information sur les prisons (GIP). Lectures 8 to 12 (2 February—1 March 1972) are devoted to the study of medieval judicial institutions and of the factors which will lead to the establishment of this new repressive system, whose birth we see in the suppression of the Nu-pieds and which is constantly consolidated from thereon. Lecture 13 (8 March 1972), as if orthogonal in relation to the previous lectures, draws out the models of knowledge-power relations which characterize the judicial institutions of the Middle Ages. In this Course Context, we will provide some elements which may be useful to the contemporary reader regarding, first, the documents used to establish the text and its critical apparatus, second, the context in

242

 

Penal theories and institutions

which the course was delivered, and finally, the place of the course in Foucault’s work.

I The Condition of the Manuscript: The Dossier For these lectures we do not have any recordings of the words spoken by Foucault available to us. We publish Foucault’s manuscript as preserved in the manuscript department of the Bibliothèque nationale de France/BNF. But we know from the testimony of some auditors that the manuscript corresponds well to Foucault’s words. We have a set of elements available to us, deposited at the BNF, which includes (a) the manuscript notes of the thirteen lectures of the course, (b) a set of lecture files, and (c) some fragments of expositions appearing in the “notebooks”. We have called upon these three sets of manuscript elements in editing the lectures. a. The course is preserved in a folder with the title “1971–1972”, classified in the inventory of the Fonds Foucault in the BNF under the shelf mark: “Cours 1970–1984”. The manuscript is divided into thirteen lectures numbered 1 to 13 by Foucault. It appears to be complete except for one missing page in lecture 2 (1 December 1971) and several missing pages in lecture 13 (8 March 1972).1 The transcription was realized in such a way as to be as faithful as possible to the manuscript, particularly with regard to the presentation of the articulations in the argument, always very detailed, and which we have sought to reproduce. Every intervention on the manuscript is marked by square brackets or indicated in a note. The rules for editing the text are presented just before the first lecture. b. A set of dossiers, carefully classified in bound folders, bring together, by theme, the files written by Foucault on the basis of his reading.2 They are mostly in the form of A4 sheets. They systematically have a title, usually followed by quotations from books or articles whose titles are indicated in the margin.3 These files, which organize the quotations by categories, evidence a stratum of Foucault’s problematization of the domains on which he worked. They are thus of interest for much more than just the sources he used. It is noteworthy that the quotations reproduced on these sheets never take up the general exposition of the authors cited. Foucault notes, according to the cat-

 

Course Context 

243

egories which give the titles to each of the files, only the most precise elements that he can extract from his reading. A striking illustration of his “Nietzsche, Genealogy, History”: “Genealogy is gray, meticulous, and patiently documentary”.4 This set of dossiers testifies to Foucault’s work. The files are not dated, and nor are the folders which contain them. So it is not possible to know when they were written, nor even when the dossiers which bring them together by themes were constituted. They were undoubtedly not written specifically for the courses. They have their autonomy. They testify to what could be called the “inquiries” Foucault conducted, which seem to have their own coherence. It is something like a personal library, always available. Foucault uses them on different occasions: the courses, lectures, books. The same dossiers may be taken up on several occasions. Among these “dossiers” are two folders more particularly devoted to the Nu-pieds. The first, with the title written in Foucault’s hand, “the Nu-pieds”, focuses essentially on the tactical aspects of the revolt (organization of the revolt, military aspects, acts of popular justice, operations of repression carried out under the aegis of the Chancellor Séguier), and which correspond to what Foucault will call “political ceremony”. The second, entitled “Popular movements in the seventeenth century”, comprises a set of sheets essentially written on the basis of Boris Porchnev’s book (for the most part) and Roland Mousnier’s book. Foucault is interested here in the economy, taxation, and class relations. This division marks the two planes of analysis of the Nu-pieds revolt: that of the “political ceremony” of the manifestations of power, the originality of which Foucault is the first to emphasize, and that of the economy, taxation, and class relations.5 These dossiers have been used by Claude-Olivier Doron to establish the critical apparatus and are indicated in the notes. For all that we cannot say that Foucault’s documentation ends with these files (he certainly had recourse to other references, in particular some exchanges he was able to have with his colleague Georges Duby on institutions of the Middle Ages), just as we cannot say that the files were written for the course. c. Finally, Foucault took notes, developed arguments, constructed first versions of the texts in “notebooks”, also preserved in the BNF. Notebook 11 of the box XCI of the Fonds Foucault contain some expositions regarding the course with dates close to those of the

244

 

Penal theories and institutions

delivery of the lectures.6 They are given in notes in the lectures to which they are related. If we do not know the words actually spoken by Foucault, we find in texts of the same time (Dits et Écrits, numbers 82, 84, 86, 87, 88, 89, 90, 91, 94, 95, 98, 105, 106, 107, 108, 117, 119, 123, 125, 132, 139)7 the way in which Foucault might have formulated some of the themes developed in the lectures. In addition, some later texts echo his works of the same period (for example, Dits et Écrits, numbers 281, 297).8

II The Context Autumn 1971–Winter 1972, in France we are right in the middle of the repercussions of the May 68 events. General de Gaulle resigned the day after losing the referendum on regionalization and reform of the Senate (April 27, 1969). Georges Pompidou replaced him as President of the Republic. Jacques Chaban-Delmas, his Prime Minister, defined the program of a “New Society”: “A prosperous, young, generous, and liberated society”. He starts with an acknowledgement of the existence of a “blocked society” in which the conservatism of social structures encourages ideological extremism: “We only manage to accomplish reform by pretending to make revolution”.9 It is necessary to act so that French society “manages to evolve other than by major crises”. This involves, on the one hand, “enacting reforms” (“modernization”, “decentralization”, “social dialog”, “participation”), and on the other, controlling and repressing the most radical actors of the social movement, “the supporters of violence and enemies of the Republic” (the “anti-rioters” law of 4 June 1970, aiming to suppress “new forms of delinquency”). In a word, reforms are played off against revolution. “Repression” is on the agenda.10 It is aimed most specifically at the Maoist movement of the “Gauche prolétarienne”. Leaders and militants are imprisoned, its paper—La Cause du peuple—is banned, and the editors of the paper are imprisoned. There is always a very heavy police presence in the Latin Quarter. Access to the major university buildings is controlled. Foucault is no doubt alluding to this in the first sentences of the course.11 One still has to pass through several police cordons to enter the Collège de France when Foucault is giving his lectures. Repression gives rise to several forms of resistance which involve intellectuals: defense of the major freedoms of association and expression

 

Course Context 

245

(creation of the association “Friends of La Cause du peuple”, Jean-Paul Sartre takes on direction of La Cause du peuple), support for political prisoners, creation of “Secours Rouge”, an organization intended to “ensure the political and legal defense of the victims of repression”.12 In Une vie politique,13 Daniel Defert has traced how Foucault’s mobilization for the defense of political prisoners will make possible the transition from the initial “Organisation des prisonniers politiques (Organization of Political Prisoners)” (arising from the Gauche prolétarienne) to the “Groupe d’information sur les prisons (Information Group on Prisons)” (GIP, February 8, 1971), with a very different strategy from that previously adopted. Several elements which distinguish Foucault’s vision may be recalled: abandonment of the perspective of arraigning the police before a court (inspired by the popular tribunal organized by Secours Rouge at Lens in December 1970 in defense of imprisoned Maoist militants), development of a tactic of defense of political prisoners which goes through, on the one hand, refusal to deploy the distinction between political and common law prisoner, and, on the other, the organization, through a process of “intolerance inquiries”, of prisoners speaking for themselves without this being taken over and re-codified in a discourse of justice which would be provided particularly by intellectuals. Reading Dits et Écrits, it is possible to reconstruct what the movements stemming from May 68 meant for Foucault. We can detect, first of all, a certain reticence. Foucault is not living in France during May 68 (but he goes to Paris during the events and takes part in the meeting at the Charléty stadium). He is living and teaching in Tunisia. Since 1967 Tunis has been the center of student revolts (linked to the Six Day War) which are suppressed by force. Foucault protects students from the repression. He will often refer to the radical nature of these Tunisian student movements, to their courage in face of the risks taken in contrast to the relative comfort of the French student movement. This devalorization of the French student movement of May 68 no doubt refers to the unease he felt living in France, to his desire for expatriation (he will say that if he were younger he would have become an expatriate in the United States). At the same time he is interested in certain international revolutionary movements (reading Rosa Luxembourg, Che Guevera, the Black Panthers). However, in a way, May 68 catches up with him—in several ways. First of all because he takes charge of the philosophy department at the experimental university of Vincennes (where he teaches from the end of 1968 until his election to the Collège de France). In some texts, Foucault refers

246

 

Penal theories and institutions

to what is then taking place in the French University and analyzes the student and teacher unease which was expressed in the days of May. He expresses reservations regarding some of the pedagogical innovations (criticism of the lecture course—while dreaming later of working in a seminar), while acknowledging the significance of the student movement.14 And then, and above all, because he becomes aware and feels that what is in action in the movement which bursts out in 68 actualizes (or reactualizes) what was at the heart of his first works, History of Madness and The Birth of the Clinic, and which failed to find an echo at the time of their publication: “To start with no-one was interested in my first book, apart from some literary people like Barthes and Blanchot. But no psychiatrist, no sociologist, no-one of the Left. With Birth of the Clinic it was even worse: total silence. Madness, health, had not yet become worthy t­ heoretical and political problems at this time. What counted was re-reading Marx, psychoanalysis, and semiology. So I was greatly disappointed by this lack of interest, I make no secret of it … And then, in 68, suddenly, these problems of health, of madness, of sexuality, of bodies entered directly into the field of political concerns. The status of the mad suddenly interested everyone. Suddenly, those books were over-consumed, whereas previously they had been under-consumed. So after this date I resumed my furrow with greater serenity and more certainty that I was not mistaken”.15 He also says that from that moment he found it easier to live in France. “I resumed my furrow”: Foucault will reinsert his work in the field of problematization of History of Madness: re-actualization of the theme of confinement, which Foucault decides to take up again, and actualize, around the question of the prison. He generalizes the thesis regarding “confining” societies (as opposed to those that exile or slaughter) and undertakes the reconstruction of their genealogy. But his experience at this moment goes much deeper than the re-actualization of a sociological theme. The events have a decisive subjective dimension concerning the status of the intellectual and the act of writing: “The problem is … the following: before anything, if French intellectuals find themselves in an absolutely difficult situation and if they are forced to experience a sort of vertigo, if not despair, it is because, since the Chinese Cultural Revolution, and in particular since the revolutionary movements which developed not only in Europe, but in the whole world, they have been led to ask themselves this series of questions: Does writing still have a subversive function? Is not the period already over when the act of writing on its own, when making literature exist by one’s own writing was

 

Course Context 

247

enough to express a challenge to modern society? Has not the time come to move on to genuinely revolutionary actions? Now that the bourgeoisie, capitalist society has totally dispossessed writing of these actions, does not the fact of writing serve only to reinforce the repressive system of the bourgeoisie? Is it not necessary to cease writing? Please do not think I am joking when I say this. This is someone who continues to write talking to you. Some of my closest and youngest friends have definitively renounced writing, or so it seems to me. Honestly, faced with that renunciation in favor of political activity, not only am I full of admiration, but I am overwhelmed by a violent vertigo. At the end of the day, now that I am not so young, I content myself with continuing this activity which may have lost the critical meaning I wished to give it”.16 This interview expresses in a unique way what could be called the 68 effect on Foucault: if, on the one hand, there is the objective and happy aspect regarding the re-actualization of themes which, amidst almost general indifference, he had placed on the agenda almost ten years earlier, there is, on the other and interdependently, an aspect which, with the act of writing, concerns him in his own subjectivity. The new conjuncture deprives him of his raison d’être (the act of writing, from which he reasserts he does not separate himself) and forces him to rethink its meaning. The criticism of the theme of intrinsically subversive writing is not aimed solely at Derrida, it expresses above all the need he feels to rethink his own work, the direction, the perspectives of his own work of writing (Les Mots et les Choses, in particular, which made his name, becomes for him a marginal exercise, realized out of disappointment and to conform to French university requirements in philosophy). But at the same time Foucault says clearly that, unlike some of his closest friends, he will not become a revolutionary militant and remains tied to the act of writing (even if deprived of the sense, the self-evidence which had motivated him until then). To describe this moment, this conversion (in its double dimension, both objective—re-actualization of the theme of confinement—and subjective—the act of writing), Foucault uses the notion of “experience”, “expérience à fond”, he says to Ducio Trombadori: “I tried to do things that required a personal, physical and real involvement, things that would address problems in concrete, precise and definite terms in a given situation. It was only from that moment that necessary analyses could be proposed. Working with the GIP on the problem of the prisoners, I attempted to initiate and carry out a deeply engaged investigation

248

 

Penal theories and institutions

(effectuer un expérience à fond)”.17 This is an essential notion in Foucault which comprises several interdependent dimensions: 1/ Experience first of all has an affective, personal dimension: it is described through emotions, affects—“vertigo”, “despair” –, torments. It has an existential dimension. It is by no means a psychological question; it refers to one’s manner of existing, which is linked to the act of writing (in its questioning, challenging dimension), that is to say its relation to others and the world. Deprived of the self-evidence which linked him to writing, and unable to give himself a different form of existence, he needs to reinvent, as it were, the motivations, meaning, requirement, and necessity of writing. Experience is that which requires one to change oneself. But precisely, this moment which deprives him of the self-evidence of writing will give him new reasons for it—as a function of what actualizes the social movement and the quite particular place he will find in it (which he will describe as being the new one of “the specific intellectual”). 2/ Second dimension of experience: it is intersubjective. Experience does pass through writing, but the latter changes referent. It no longer refers to itself, in the subversive self-evidence of which it is henceforth deprived, but to what happens in the street, in society, in the struggles which motivate it: it is directly political (without ever complying with a partisan commitment), because writing is a political act. It is thought and reflected in a relationship to others, to the struggles undertaken. Writing becomes, so to speak, a collective act. Writing is no longer subversive by itself, but only in its relationship with the social movement—a relationship which will have to be defined or redefined. A way of being with others. Precisely, one of the components of this experience is finding and defining a new relationship, the good relationship between himself as an intellectual, as a philosopher, and others (the specific intellectual), himself and struggles (but, with regard to his disappointment at the reception of History of Madness and Birth of the Clinic, he had already said that he wrote for others, in reference to a possible social movement, in a relationship with other subjects who would find a relay and motivation in his texts). This is the dimension of philosophical work in experience: how to articulate philosophical work (which he had already said no longer found its reference in itself in the twentieth century, philosophical “acts” henceforth finding their place of birth outside philosophy, in particular in scientific activity) in a way that corresponds to the moment; in a way that is neither reduced to the writing of pamphlets (even though Foucault will go very far in putting his pen in the service of social struggles, he will not

 

Course Context 

249

hesitate to put his writing talent at their service), nor to new explanations of Marx and Freud? The answer will be through genealogy, the writing of a ne history of our societies, of an original history which will establish the social movement on a new stage and insert it in a new imaginary. 3/ But “experience” is understood in a third, directly political sense. May 68 describes the moment of possibility of a political practice which is no longer indexed to parties and programs, but in which “transformations” (the term is Foucault’s and in some texts he identifies it with “revolution”) come from collective processes: “I would oppose … experience to utopia. The future society may be glimpsed through experiences like drugs, sex, communal life, a different consciousness, a different type of individuality … If scientific socialism emerged from the utopias of the nineteenth century, maybe a real socialization will emerge, in the twentieth century, from experiences”.18 This is a theme that he will frequently take up until the end of his life, and that describes the way in which experience of self is inseparably experience of others, with others. For Foucault, experience has no other than a political meaning, than its power of collective transformation (which explains the choice of his battles: among the many undertaken at any moment, which struggles have the greatest power of “transformation”?). There can be experience of self only as a function of or in collaboration with a collective experience,—experiences of transformation which are themselves only possible through a process of liberation of thought, a process of loss of self-evidence (the work if not of the intellectual, at least of the philosopher). 4/ Experience therefore also passes through setting up political apparatuses (dispositifs), collective dispositifs, forms of organization intended to make experiences possible. This will be the GIP in 1971 (which is not the only dispositif created by Foucault).19 We know moreover that Foucault was always eager for meetings and exchanges with the actors of certain social movements (the magistrates’ union, participation in the Faire collective); and nostalgic for collective seminar work that encouraged exchanges, unlike the lecture courses. What then is that collective experience of the social movement, of societies traversed by the movement of May taken in its totality, the student or university movement being just one of its components? It is marked both by new forms of problematization or politicization, by new objects, political terrains concerning “daily life” (as opposed to the usual products of political parties since the nineteenth century: pro-

250

 

Penal theories and institutions

grams within the perspective of State power), and by the fact that these struggles, these experiences, these transformations concern the question of power and power relations: “Is this not precisely what characterizes the present political movements: the discovery that the most everyday things—the way of eating, of feeding oneself, the relations between a worker and his boss, the way of loving, the way in which sexuality is repressed, family constraints, the prohibition of abortion—are political? In any case, making it the object of a political action is what politics today consists in”.20 These struggles may be diverse, dispersed, varied (police, justice, prison, madness, medicine, sexuality, etcetera), but what is at stake in them is the same: the question of power. Hence the need for an ontology of power. Through a sort of retrospective effect, Foucault constantly returns to this experience, expanding its dimensions in both space and time: –– generalization in space, internationalization: the student struggles are worldwide (the United States, Tunisia, France and Europe), prison revolts affect the United States as well as France. In his interviews in Japan, Foucault discusses with his interlocutors movements in Asia which are comparable to those in the West (or the experience of which is comparable); –– generalization in time: this experience of power is not due to the students, it is due to a generation, the generation that lived those pathologies of power, those forms of “excess” of power, fascism (Nazism) and Stalinism. Obviously, this re-dimensioning of May 68 according to these new spatio-temporal coordinates, which makes it a worldwide experience and part of the extended time of those practices of power in the twentieth century, is essential for understanding the extent of the phenomena of power (in Foucault’s sense), what is at stake here and now through the question of power. Foucault will go a long way in this deepening: in the last texts, after bringing to light the pastoral dimension of power in the West, and its renewal by the Welfare State, he will posit that these struggles around “everyday life”, which constitute philosophical and political actuality since at least May 68, are in fact challenges to the pastoral dimension of power in our societies. Which gives the post-May 68 movements both a moral and a religious dimension (and gives the last volumes of the History of Sexuality, which, let us recall, are organized around the

 

Course Context 

251

analysis of the Christian experience of the flesh, their political dimension). This is the context in which Foucault develops and delivers Penal Theories and Institutions. According to the testimonies he left us, in November 1971, when he began the lectures, all the components of the experience in which he is henceforth involved are given: insertion of his work in a relationship with the struggles of the new social movement, (non-exclusive) choice from the multiplicity of these struggles of the one regarding prisons as actualization of his original project on confinement, creation of and work within the GIP, but also identification of what the struggles of May and post-May, in France and the world, question as a deeper reality than the sociological fact of confinement, and that he calls “power”. More precisely, all the components of the “experience” are given, save one: the discursive component, the genealogical component in which intellectual work should enable self-evidences to be shaken, filiations and hidden origins to be rediscovered, and the possibilities of new thought to be opened up, the original, unprecedented staging of the history in the process of being made, intended to decenter and open up new possibilities of thought and action (freed from the schema of the proletarian revolution re-actualized by the “leftist sects”). This is what Foucault embarks on with Penal Theories and Institutions— and it will engage him for several years. And this is what makes Penal Theories and Institutions an exceptional document: it is the first elaboration, the first philosophical problematization of the project in which he is henceforth involved. It is fascinating to see how Foucault mobilizes the resources then available to him, and the first historical depth he gives to contemporary struggles: the absolutist seventeenth century, the birth of the modern repressive apparatus, but also the private wars of the early feudal world. On this “expérience à fond”, three testimonies are as unavoidable as they are indispensable: those of Daniel Defert,21 Gilles Deleuze,22 who shared with Foucault and Daniel Defert the experience of the GIP, and Claude Mauriac,23 associated with all his battles from June 1971. On this “expérience à fond”, which will enable Foucault to cut through “the rigid crust of the sects and the endless theoretical debates”, we now have a decisive and hitherto missing component: Penal Theories and Institutions, the lectures Foucault delivered in 1971–1972 and which testify to the opening up of the philosophical pathway on which he embarks (and the

252

 

Penal theories and institutions

definitive form of which will only later result in Discipline and Punish, which for a long time he will say was his “first” book). When Foucault begins his lectures at the end of 1971, a year of such intense actuality, he has made his decision, he knows what he is going to commit his work to for several years, he has made his choice, and he ­presents it.24 The auditor following the lectures lives at the rhythm of the different episodes Foucault traces of the movement of the Nu-pieds revolt. They no doubt hear in them a sort of metaphor or allegory of what is happening in French current events, around developments of the social movement, of its police and judicial repression, of the revolts in the prison which come to a head at the end of 1971. He knows of Foucault’s commitments. What he does not know (and Foucault does) is where it is going to take him: not only to see in Richelieu’s suppression of that popular revolt the origin of the judicial State whose strongly repressive actuality he is witnessing, but above all to learn to read the social movement of which he is the contemporary, and maybe an actor, as having to be inserted in the still new reality of “power”. The post-68 actuality of 1971 had to be sought in the Normandy of 1639! The auditor is thus transported onto a different scene, a well thought-out scene, whose episodes Foucault will construct—on the model of his lecture at Minneapolis. If we retain the hypothesis that Penal Theories and Institutions belongs to the moment at which Foucault decides to set off on the new track that will enable him to problematize the question of power, we still have to understand why, in order to do this, he chooses to focus on the Nu-pieds revolt, a revolt, according to historians of popular movements, which scarcely warrants special attention, there being so many anti-tax revolts from the end of the sixteenth century.25 We may think that Foucault chooses to study this popular movement for three reasons. The first is that he has extremely well-documented material on this historical episode in the works of Boris Porchnev and those of Roland Mousnier and his students. The second is because he sees in the operation of “armed justice” led by the Chancellor Séguier the particular moment, the contingent and necessary event, in which justice as repressive State apparatus is truly born. The third is his choice to isolate the question of power through a ­confrontation with historical material which forms part of the Marxist corpus. Foucault chooses to isolate the question of power by a sort of confrontation with Marxism, in particular with two eminent Marxist authors: Boris Porchnev, on the one hand, a Soviet historian

 

Course Context 

253

and author of the major thesis on popular movements, but also Louis Althusser, his old teacher at the École normale supérieure, who, for almost ten years, has been trying to renew Marxism through a new reading of Marx, and who has just published an important text on the “ideological State apparatuses”. Foucault conducts this confrontation in an exemplary manner: he is never polemical. But where Althusser focuses on the State and its apparatuses, Foucault isolates the dimension of power; where Marxist analysis sees law and judicial institutions as “superstructures”, Foucault sees economic institutions; where Althusser sees in the seduction of ideology what secures the reproductive function of the repressive apparatus, Foucault finds the notion of knowledge-power. The analytic of power which Foucault endeavors to isolate thus appears first of all as a “counter-­ Marxism”, a way of getting free from Marxism, from a certain Marxist discourse, but which to start with falls within its field, its categories. To use Deleuzian terminology, it is a way of “folding” Marxism. In any case, Penal Theories and Institutions is a key document, a decisive element for those who want to work on Foucault and Marxism. Biographers, who did not have the text of these lectures, generally contrast Foucault’s theoretical work and his political activism. The period 1971–1972 is often described as a “militant” period, as if he had neglected philosophical work. Apart from the fact that these oppositions between philosopher and activist are questionable, especially in Foucault’s case (Foucault thinks of philosophy as act26), Penal Theories and Institutions invites us to reconsider things. At the time, Foucault did not give up theoretical work, quite the contrary, as these lectures testify, this is one of the richest, most innovative, and no doubt most intense periods.

III The Penal Theories and Institutions Moment in Foucault’s Work The stakes of the lectures operate at several levels. First of all, the explicit object of these lectures: the birth of “justice” as repressive State apparatus, putting to work a “system of repression” which no longer has the function of ensuring the circulation of wealth, as in the Middle Ages, but the repression of popular revolts by the segregation of people. More immediately, Foucault seeks to rediscover the origin of the distinction between common law delinquency and political criminality (adopted

254

 

Penal theories and institutions

without discrimination by the Maoists of the “Gauche prolétarienne” before the creation of the GIP). He finds that this division goes back to the establishment of justice as a “judicial State apparatus” (Richelieu), to the moment when punishing becomes “confining”. Change in the economy of justice: from a levy on property to a segregation of people. Foucault directs this genealogy in two stages which do not follow a chronological order: there is the decisive moment, the singular, chance event into which everything plunges, the crucial battle in which the new configuration is imposed: the suppression of the Nu-pieds by the Chancellor Séguier, which marks the end of the feudal world and the true birth of the State, with a specific body, independent of the king’s person27; there is the slower, older, very long-term process which explains the formation of the monarchical judicial apparatus on the basis of the forms of justice of the earliest feudal world (Germanic rights) and its contradictions (which will lead to the privileges of the big feudal lords as agents of justice having to be given up to a centralized royal body). In reality, this double genealogy, in the longue durée of the transformations of penal law throughout the Middle Ages (several centuries) and the short time of a campaign of r­epression, provides the Foucauldian vision of the birth of the State he has so often been reproached with having failed to provide.28 Second level: in this genealogy Foucault isolates the question of “power”, of “relations” or “relationships of power” (as opposed to the Marxist terminology of State apparatuses). A question which, as we know, will become the very object of his later research, a question in terms of which he will reinterpret the whole of his work and which will finally lead him to challenge the instruments which served to construct it (the emphasis on repression, the use of juridical material to grasp power, the link between power relations and class struggle),29—a bit like the way the finished painting makes the canvas, which made it possible, disappear. One should re-read in this perspective his famous conversation with Gilles Deleuze on “intellectuals and power”, which took place at the time he delivered the final lecture of Penal Theories and Institution, and which sounds like the double appraisal of the struggles conducted around the prison (with Deleuze) and of the research conducted in his lectures: “we continue to ignore the problem of power”.30 But the lectures will have enabled him to define the problem and its stakes. Penal Theories and Institutions is the site where Foucault isolates the question of “power” (although power was present in the previous year’s

 

Course Context 

255

analyses, in particular in his reading of Oedipus the King), on the one hand through the analysis of the dramatization of the suppression of the Nu-pieds revolt by the Chancellor Séguier and, on the other, in the analysis of the economic and epistemological function of juridical and judicial institutions from Germanic law up to the threshold of modernity.31 Power in repression, power and war, power and the circulation of goods, power-­knowledge: these lectures give a striking vision of institutions of justice as sites of the exercise of power, which is something entirely different from the question of law. Justice is at the heart of the analytic of power; at the heart of practices of justice, power relations connect up with economic relations, on the one hand, and with formations of knowledge, on the other. A. Foucault, Althusser, and Marxism In the letter to the editor of these lectures, Étienne Balibar writes: “my impression is that Foucault proceeded in three stages to a major settling of accounts with Marxism …”32 “Major settling of accounts …”: the words are maybe excessive. We have spoken of a “counter-Marxism”. Foucault’s counter-Marxism is not an anti-Marxism, nor a denunciation of its errors (which is not found anywhere in Foucault, who would much rather call for true Marxist analyses). Foucault does not challenge the categories of Marxist analysis, which he takes over from Boris Porchnev or Louis Althusser; on the contrary, he takes them up, even if he complicates them, revealing their limitations for describing certain dimensions of historical reality. We can thus establish a list of differences between the Foucauldian analysis and what Marxist analysis proposes: a. Difference of objective: Marxists either make historical analyses, which may be extremely precise and detailed, but which often aim to ratify a schema of class struggle justifying the great march towards the proletarian revolution (Porchnev), or they devote themselves to an exegesis of what Marx, Engels, or Lenin are supposed to have really said (Althusser).33 Foucault’s problem is not to validate a construction, Marxist or otherwise, but to understand what is in action in present reality.34 Each book, each moment of his work has its own schema of intelligibility, the one that enables the event in play to be

256

 

Penal theories and institutions

grasped. Foucault devotes himself to precise historical analyses and confronts the categories of Marxism with the reality of the historical facts.35 He makes the detailed analysis of a social movement (like Marx36): for him, the aim of historical analysis is to enable the event to be grasped, letting oneself be surprised by the new.37 b.  Difference of method: Foucault deploys a Nietzschean-inspired method in the field of social struggles. He prefers the genealogy of the event38 to the dialectic of contradictions (which is also present in Penal Theories and Institutions). Penal Theories and Institutions offers the example of an improbable marriage: Marx and Nietzsche, a Nietzscheo-Marxism which should be set against the reigning Freudo-Marxism of the time.39 Class struggles are really at the heart of the narrative (Marx), but the perspective, the way in which light is cast on them, and so what is at stake also changes: it could be said that, in a kind of way, the psychological prevails over the sociological, but that would be wrong. There are two ways of viewing politics: in one the end always justifies the means, in the other the ends (what comes out of the battle) depend on the means (the state of the forces, the context, the conjuncture). Such that not only is the result of the history always precarious, the outcome in suspense, the victory uncertain and vulnerable,40 but what matters is not where this or that struggle, battle, or confrontation is to be situated in the general law of the revolution, it is rather to grasp precisely the irreducibility of what emerges on each occasion. To the pathos of the historical fresco, always in danger of falling into official art, is opposed research of the episode, of the anecdote in which everything is at stake. An art of the detail. The Foucauldian narrative is a composition of details. The miniature as opposed to official art.41 To rediscover the contingency of the event. Everything could have happened differently, yet everything had to happen, could only happen thus. In reality, in Penal Theories and Institutions, Foucault puts to work two planes of analysis to explain the birth of modern penal justice, a line of the event (the singular moment of the suppression of the Nu-­pieds revolt), and a line of logical or dialectical necessity which explains the process of the State takeover of penal justice from the dispersion of the private justices of Germanic law (a necessity which may itself be seen as the linking of a series of chance events).

 

Course Context 

257

c. Difference of objects: In this context, we should really distinguish between the question of power and the notion of State apparatus. We can note three differences in particular: –– First of all, Foucault is not so much interested in institutions for their own sake as insofar as they are the site of relations of forces, of confrontations between one force and another, one of which will have to give way when the other demonstrates its éclat (its power) in the very wound it inflicts (what Foucault calls: the “mark”). This is not at all a problem of violence. As Gilles Deleuze recalls, the Foucauldian conception of power relations is very close to the Nietzschean vision of the will to power (as reinterpreted by Gilles Deleuze).42 Institutional analysis, or analysis in terms of State apparatus, offers a passive vision of power, whereas everything is active in power relations. As Foucault never ceases to recall, power is never static, it is grasped only in its “exercise”, in its movement, in its operations.43 The vision in terms of State apparatus is static, whereas the analysis of power is dynamic, always active, always in movement. State apparatus and relations of power no doubt refer to the same reality, but seen from two different angles. This changes everything.44 An illustration is the repressive “ceremony” carefully organized by the Chancellor Séguier which Foucault analyzes in no less detail. Power manifests itself here less as military violence, through the brutality of arms and sanctions, the rapid and implacable crushing of the sedition, than through a refined management of time, a skillfully dosed restraint, a calculated suspense (the “last judgment”), intended to bend the wills and humble the arrogance of the established powers. Gassion’s army crushes the popular revolt, ruthlessly, but the repression is not reduced to this. It could almost be said that, in the Foucauldian account, the “political ceremony” begins once the people are defeated.45 It is directed at the established powers, the constituted authorities (the archbishop, mayor, Parlement). Here, it is literally a matter of humiliating (humbling), mortifying, degrading, demeaning, of getting the other to acknowledge his weakness in public, of getting him to recognize his dependence and inferiority—and so his defeat.46 The objective of power is not ­military; it is political (in the acknowledgement of relationships of obedience). The repressive ceremony is organized entirely by reference to the fact that the opposing parties, from “seditious masses (plèbe)” to constituted bodies, will

258

 

Penal theories and institutions

successively have to acknowledge their defeat in a public act. Indignity (indignation) of the dignitaries. This is how the process of subjugation, the “mark” of power, takes place, a psychological process which is never passive, but always active. –– Then, we need to distinguish the political functions embodied in a State apparatus from the apparatus itself. There is no coincidence between the function (which depends on something Foucault designates as “system”, for example, “repressive system”47) and the State apparatus supposed to embody it. One precedes the other, or goes beyond it. The repressive function of justice depends on a “system of repression” which is irreducible to the repressive State apparatus, but which will transform it: “pre-state” functions exist before the State apparatuses.48 More precisely, Foucault invites us to distinguish between “form”, “function”, and “apparatus”.49 To speak of State apparatus reduces things to a single dimension of the institution endowed with an abstract and general function (the reproduction of capitalism). Precisely, power cannot be identified with the institution (State apparatus) because it is the force that has the potential to transform it, disrupt it, or make it work against itself. –– Finally, analysis in terms of State apparatus fails to understand the double economic and epistemological function of juridical and judicial institutions as sites of the exercise of power relations—and the way power establishes a relation between these functions. Hence the criticism of the Marxist view that makes law a superstructure and the judicial apparatus an instrument in the service of the reproduction of capitalist relations of production. Justice organizes and institutes relations of power-­knowledge that are at the heart of economic organization.50 Foucault thus gives himself a specific grid of analysis for such historical analyses of power, which he recalls at several points.51 d. In “Society Must Be Defended”, Foucault refers to the letter in which Marx recalls that the class struggle goes back to the struggle of “races” used by French historians.52 Penal Theories and Institutions offers another way of differentiating itself from the schema of a history for which the class struggle provides the framework53: this is the idea that, basically, the motor of history is war, civil war. Not a ­metaphorical war, as in Hobbes, but very real wars whose trace

 

Course Context 

259

Foucault finds here in Germanic juridical and judicial institutions. Rather than the schema of class struggle (which is already an interpretation), Foucault prefers the (more original) one of civil war.54 This primordial or original state of war plays a double role: on the one hand, it is a sort of historical invariant: social relations, like power relations, can take many forms, they always translate the state of a war underway; there is no history but the history of battles, confrontations, victories, and defeats (which have always existed and will never be ended). The philosopher’s role is to discover the actuality of a war in his present reality, the moment, the identity of a battle which began long before, whose early stages have been forgotten, covered up, disguised. That is why, here, he cannot not be an historian: his task is to reconstruct the battle’s thread, its stages, and development, to elucidate the battle presently underway. According to this aspect, war is a pure relation, the form itself of the power relation.55 But according to the other axis, that of history as we observe it, with its singularities, contingences, and varied colors, war constantly changes form, escapes its structure, confounds its structural identity. In Penal Theories and Institutions there are first of all the private wars of the Germans, those wars that are also legal relations.56 And then there is a moment when, due to transformations in social relations, the first concentrations of power, the first State control, war becomes social war (essentially turned towards the suppression of riots and revolts at the end of the Middle Ages). This is the modern state of war, organized by reference to a repressive function; it will mobilize penal law and judicial (and police) institutions. In Penal Theories and Institutions it is only ever a matter of wars (since the “original war” of the Germans), and battles (for example, the suppression of Nu-pieds revolt by the Chancellor Séguier). Penal Theories and Institutions offers a wholly original view of war.57 War here should not be understood as a confrontation between armies. War is “struggle”. At the same time as he accords a kind of omnipresence to war relations, Foucault frees war from the military model (which appears only in the seventeenth century): war is a matter of legal right; it is the very form of relations of justice in old Germanic law. This war does not have a wild, unrestrained character; it is not war before war. War here is a civil relationship (private wars). War does not precede law; it is not the opposite of law. Law is a way of waging war. Peace is only a (precarious) state of the domination of one protagonist over others (a way for royal

260

 

Penal theories and institutions

power to appropriate the monopoly of justice). There is not a state of war which would precede the institution of societies (hence the criticism of theories of natural law—Hobbes/Rousseau). A major difference from classical political philosophy: Foucault does not see our origin in the institutions of ancient Greece, but in the private wars making up the life of the Germans. The problem is not finding the fine, pure forms of Athenian democracy, for if there were something to be found it would be the still smoking remains of original (and primordial) battles.58 This model of war will play a decisive role in Foucault’s thought for a long time.59 One cannot help thinking that in the institutions of Germanic private war Foucault finds a sort of historical point of origin, a principle of original confrontation which will ceaselessly unfold its consequences and be repeated in the struggles in the course of history, and which will serve as its ultimate truth. The model of war will not only help him think about power relations, free himself and distinguish himself from the Marxist schema of class struggle, and develop his own view, it will also help him analyze the conjuncture and the political context (which, moreover, accords greater actuality to the theme of war). e. Last difference from Marxist analysis: this is the well-known criticism of ideology, of the notion of ideology. Law, juridical and judicial institutions are not superstructures, instruments of the reproduction (of capitalism) but relations of production (in any form of economy). Thus, criticism of the opposition between infra- and superstructure: law institutes certain types of economic relations;60 Law becomes the site where power relations institute economic realities, organize the economy, and, conversely, where economic relations, the forms of struggle on the terrain of the economy, are consolidated in power relations; and criticism of the notion of ideology because there is no real world (the economy) behind an apparent world (of law). The set of these differences between Marxist forms of analysis and the Foucauldian analysis of power is expressed in conflicts, antagonisms, and struggles as much on the philosophical and theoretical terrain as on that of political strategies. Thus, on the theoretical terrain, Foucault will be able to say that the checks to the expansion of antipsychiatry (as questioning of practices of power in the psychiatric hospital), and likewise the non-­reception of History of Madness on its publication (1961), were

 

Course Context 

261

the product, the result and expression of Marxist doctrine and the use the Communist Party could make of it.61 This is how, if not Marx, at least Marxism (and Freud) are obstacles in contemporary struggles, and that it is a good idea to “free oneself from Marx and Freud as reference points for the resolution of problems as they are posed today”.62 It is also how the Marxist view in terms of State apparatus and of seizing the State apparatus leads to major political errors inasmuch as it reinforces the persistence of precisely those power relations and relationships that the struggles question.63 This is how the Soviet Union can be discovered to be the place where the mechanisms of power forged by the capitalist and bourgeois world to struggle against revolts (against challenges to itself) are intensified: trials,64 concentration camps65 … This is also how Marxist humanism, focused on the question of alienation, in reality extends the view of the “normal and healthy” man from which struggles seek to free themselves. Finally, this is how Marxism (along with Freudianism), unable to think the struggles stemming from May 68, struggles revolving around power, are ultimately the major losers: “If the two great losers of the last fifteen years are Marxism and psychoanalysis, it is because they were much too linked, not to the class in power, but to the mechanisms of power. It is precisely these mechanisms that have been the targets of recent social revolts: failing to abandon these power mechanisms, they [Marxism and psychoanalysis] have had no part in these struggles”.66 B. Power, law, war Penal Theories and Institutions is Foucault’s most important course on law—along with “Truth and Juridical Forms” and Wrong-doing, Truthtelling—or at least it is the course in which the analysis rests almost exclusively upon juridical material. But we now know, thanks to consulting the sources deposited in the BNF, that Foucault conducted a systematic inquiry on the history of juridico-judicial institutions from the fall of the Roman Empire up to the nineteenth century, which, for each period, focuses on (a) the juridical and judicial institutions, (b) the inventory of penalties and infractions, and (c) the proofs and procedures. From this point of view, Penal Theories and Institutions must call for a thorough reexamination of the question of Foucault’s relationship to law.

262

 

Penal theories and institutions

One remembers Paul Veyne’s famous text: Comment on écrit l’histoire,* followed by: Foucault révolutionne l’histoire,† in which he endeavored to bring out the originality of the Foucauldian practice of history. After Penal Theories and Institutions we may wonder: “How Foucault revolutionizes law”. Or the study of law. Here are some indications. –– To start with, Foucault does not talk much about “law”. The characteristics of juridical and judicial institutions are not to be derived from “law”. Conversely, one should start from the institutions, from “acts of justice”. Foucault makes a very precise distinction between justice (Justice or justices), the juridical, the judicial, and law.67 –– At a first level there is justice (la justice): more exactly, “acts of justice”. These are ritualized acts of defense or attack which characterize the state of private war. We are in the domain of the dispute, of the claim, of what will become the trial. Justice, before the judicial, is private war; it is a ritualized form of civil or social relations. The dispute is used to wage war. But precisely, by virtue of this, justice cannot be obtained outside of this type of relationship. Justice, the institutions of justice are original. They cleave to social relations. Nothing before them, nothing outside them. In the Middle Ages these acts of justice will be progressively framed and appropriated by the privileged (feudal lords, Church, royalty) who will reserve for themselves the right to dispense justice (because it is very lucrative). Later, in the modern period (at the time analyzed in the first part of Penal Theories and Institutions), acts of justice, “dispensing justice”, will be monopolized by a State apparatus (a specialized administration): the judicial apparatus, which is still called “justice”. But originally the only justice is private. And justice is not opposed to war; it is a way of waging it. –– Prior to the judicial, there is the juridical. The juridical designates the ritualized forms to which acts of justice conform, those through which private wars are conducted: “The rule and the struggle, the rule in the struggle, this is the juridical”.68 That ritualization changes form with

*  English translation, Mina Moore-Rinvolucri, as Writing History. Essay on Epistemology (Middletown, Conn.: Wesleyan University Press, 1984) †  English translation, Catherine Porter, as “Foucault Revolutionizes History” in Arnold I.  Davidson, ed., Foucault and his Interlocutors (Chicago: University of Chicago Press, 1997)

 

Course Context 

263

the first forms of judicialization,: thus forms of procedure appear which tie the outcome of the dispute to forms of truth. –– The judicial describes the institutionalization of acts of justice, giving form to them in institutions. A “first” form of this institutionalization is recourse to the court.69 It is essential to understand that justice may exist without being judicialized, without being instituted, captured, appropriated in specific apparatuses.70 The judicial begins with the court, but the court is not the only form of judicial institution. Others will be developed around the royal function (which will claim the monopoly of it): Parlement, the procurator of the Middle Ages, then the distinction within the State administration of an apparatus dedicated to “justice”, the judicial apparatus as we still know it (and the appearance of which characterizes Absolutism). Judicialization is always an appropriation, that is to say an expropriation: the centralization of justice in the king’s hands is only ever the result of a process of expropriation or of the transfer of old private justices. It may claim to express the general interest, to express the Law, but it is only ever a way of expressing its law, of practicing that ritualized war that characterizes justice. –– From the viewpoint of the attention he brings to bear on juridical and judicial practices, Foucault is not very interested in law or in penal theories here. Law is a latecomer, a discourse after the event. It serves to recodify institutions, to legitimize forcible takeovers. It is an instrument of power, an instrument in relations of force. Here, Foucault shows how our view of natural rights, our moralizing view of law is linked to State justice. Unlike the juridical, law (as theory) does not describe procedures or institutions, but justifies them (the ideological function of law).71 The approach Foucault proposes in Penal Theories and Institutions revolutionizes our way of viewing law. It serves as a vehicle for the representations that have accompanied the monopolization of juridical and judicial functions by the State. Foucault invites us and helps us to free ourselves from this view. He establishes equations which are impossible, prohibited, or contradictory for us: continuum between justice and war; juridical without judicial; disconnection of justice from any conception of law and in particular from natural law … In doing this, Foucault’s analysis of juridical and judicial institutions is equivalent to a “critique of law”, and should be analyzed in comparison with the tradition of the

264

 

Penal theories and institutions

“Marxist critique of law” (in France72) and with that, in the United States, of American Legal Realism,73 of the Critical Legal Studies movement,74 and of contemporary critical thought more broadly.75 A major difference from the Marxist critique is that Foucault takes law seriously: the juridical phenomenon is not reduced to being only the illusory scene in which battles of already clear-cut interests would be justified. The juridical and the judicial are (at least in Penal Theories and Institutions) the eminent site where power is exercised as such.76 It is worth emphasizing some characteristics: –– In its function, justice is an economic and epistemological institution. Foucault will put great stress on the power-knowledge dimension (epistemology; “Course Summary”; “Truth and Juridical Forms”) which corresponds to his project of a history of truth. In Penal Theories and Institutions, this aspect is only dealt with in the last lecture, whereas Foucault devotes long sections to studying the economic function of justice and of juridical and judicial institutions, where justice represents much more a way of taking or of defending oneself against a seizure.77 In these lectures, justice is an economic before being an epistemological institution, although the economic function of justice is transformed: in Germanic law, in the Middle Ages, justice, penal justice in particular, ensures the circulation of wealth. In the modern period it changes its function: it becomes repressive. Its task is to remove and ensure productive order. Juridical and judicial institutions are that form of power in which economic and epistemological dimensions are articulated on each other.78 –– In its form, justice is always “armed”. “Armed justice” should be understood in several senses. To start with there is the fact that “originally” (Germanic law) acts of justice are acts of war. To assert one’s right is at the same time to manifest one’s strength. Then there is the fact that military force is always needed to apply the decisions of justice. The expression “armed justice” (with which Foucault plays) is only apparently paradoxical. But the forces mobilized by justice are not the same in different judicial systems. One of the major problems is that for a long time this force was the army, and that the armies were formed by the armed gathering of those on whom power had to be exercised. Hence, at the time of the State’s appropriation of justice, the institution of a specialized, dedicated armed force: the police.

 

Course Context 

265

But for Foucault, justice is armed in yet another sense: the juridical and judicial institutions are eminent sites where power is exercised, where power relations and relationships are put to work. It may be noted that it is in the study of juridical and judicial institutions that Foucault first develops his analytic of power (which he will greatly expand subsequently). “Justice is a crucial element of power”.79 The 1972 lectures also represent an important stage in the development of Foucault’s thought on penal law. In these lectures Foucault develops a political theory of penal law. As he will say on 1 March 1972: “Penality is political from top to bottom”.80 This theory of the penal consists of several elements. First, in a rigid distinction between law and criminality. Penal law is not a consequence of criminality. Penal law is not a reaction to delinquency or criminality, which are rather fabricated by penal law as an effect of a social struggle. Second, penal law is a response or reaction to political revolt. This thesis, which will be modified in 1973 with the move from the repressive to the productive, is fully operational in 1972 however, as we can see in the lecture of 26 January: “all the major phases of the evolution of the penal system, of the repressive system, are ways of responding to forms of popular struggles”.81 Or more precisely: “The penal system–delinquency couple is an effect of the repressive system–sedition couple. An effect in the sense that it is a product, a condition of maintenance, a displacement, and an occultation of it”.82 From this point of view, crime is seen as an attack against power: “if the public power suffers injury through the crime, then crime is always, in at least one of its dimensions, an attack on the public power, a struggle against it, the provisional suspension of its laws”.83 Which means, third, that penal law can only be understood as a weapon in that social struggle. As Foucault explains in his discussion with the Maoists on February 5, 1972: “Penal law was not created by the common people (la plèbe), nor by the peasantry, nor by the proletariat, but entirely by the bourgeoisie as an important tactical weapon in this system of divisions which they wished to introduce”.84 To this political theory of penal law could be added an important change in the nineteenth century, “a caesura and displacement” through which “crime is assumed to attack, not power, but nature, morality, natural law, it attacks the general interest”.85 So, what predominates is a theory of penal law as weapon, tactic, or strategy in a civil war being waged within society. This connects up with

266

 

Penal theories and institutions

the analysis of the relations between juridical forms and truth which Foucault will develop in Rio in 1973 and at Louvain in 1981. In the lecture of 2 February 1972 we already encounter Foucault’s view of the links between inquisition, confession, torture, and truth. The practical implications are important and they are made explicit in the discussion with the Maoists, particularly on the strategic question of the means of practicing justice: “This is why the court, an exemplary form of this judicial system, seems to me to be a possible location for the reintroduction of the ideology of the penal system into popular practice. That is why I think that one should not make use of such a model”.86 Or even more explicitly, on the question of the political: “This is why the revolution can only take place via the radical elimination of the judicial apparatus”.87 C. And After … March 4, 1972: Michel Foucault and Gilles Deleuze take stock of the struggles in which they took part together for two years; they sketch out the picture of the new philosophical and political configuration.88 This exchange, well-known because it is where Foucault describes the figure of the “specific intellectual” for the first time, takes on a renewed interest today now that we have Penal Theories and Institutions (the last lecture of which was delivered on 8 March). His remarks there can actually be read as a sort of course summary. In the exchange he comes to view that “expérience à fond” in which he is engaged and of which the lectures are a form of problematization. He notes that the “antijudicial struggle”— meaning those that they conducted together, in particular within the GIP—“is a struggle against power” (and not “against the injustice of the judicial system”) and emphasizes above all: “Isn’t this difficulty of finding adequate forms of struggle a result of the fact that we continue to ignore the problem of power?”89 With Gilles Deleuze he takes stock of the “expérience à fond” he has carried out according to its three planes: that of the GIP, that of the problematization of the question of power (which will henceforth occupy him for several years), and that of his personal position within the struggles (as intellectual). This is a configuration which articulates (a) a philosophical program: to understand “what power is”, for which Marx and Freud are of little help; that power of which Foucault isolated the specific dimension, of which he proposes, in an inaugural manner, a first problematization; (b) the opening up of a new political field—that of struggles against

 

Course Context 

267

power (which are not those of the proletariat against exploitation), which call together each, in equality around their own experience, and their own intolerance, which are dispersed struggles, without hierarchy, which do not have to be centered, and which (c) give the intellectual a specific position, one which provides arms by removing secrets. The philosophical program will be undertaken by Foucault in the following years, up to the publication of Surveiller et punir (Discipline and Punish) on February 9, 1975. Penal Theories and Institutions is like its first version. On 7 and 14 January 1976—four years later—Foucault delivers the first two lectures on his new course at the Collège de France, “Society must be defended”. Far from taking pleasure in the satisfaction of the work completed, Foucault goes back critically over the cycle of his work begun in 1971: (a) criticism of the use of Marxist categories of the class struggle (bourgeoisie); (b) criticism of the notion of repression,90 or, more exactly, criticism of the juridical vision of power (criticism of recourse to law to think about power); but also (c) criticism of the model of war for analyzing power relations (or perhaps better, genealogy of the use of the notion of civil war which finds its source in certain historians of the monarchy). How are we to understand that disenchanted retrospective view? The analytic of power at which he has henceforth arrived enables him to free himself from the categories, frameworks, and scaffolding he had to use to build it. Finally, war does not explain power; it is a particular, interested way of dramatizing certain power relations. Power relations exist as such. They need to be rethought. In the same period, Foucault took a gloomy view of the political situation when compared with the hopes he had previously entertained. He speaks of a change of conjuncture. If we are to believe the testimony of Claude Mauriac, Foucault had hoped or believed that the period which opened in 1971 was going to be if not the revolution, at least a profound, rapid, irreversible transformation, as opposed to which he observes the sad persistence of Giscardism on the one hand, and, on the other, the difficulty for the left to take power, its reluctance to bring the battles of the social movement onto the political terrain.91 How are we to understand Foucault’s backward glance, that critical relation with regard to himself, ultimately that distress if we think of the “experience” in which he was engaged?92 Some will see this as the moment of a renunciation, of an abandonment of the problematization of power, which foreshadows his long silence and the lengthy gestation

268

 

Penal theories and institutions

of the “final” Foucault of the arts of living and aesthetics of existence. It is quite the opposite of abandonment however: it is the moment of both a deepening and a redeployment. Not only of the philosophical program, but of the political program, of “experience”. Freed from the model of war, Foucault will be able to rethink the question of power in the problematization of “government” (governmentality). Government is, as it were, the opposite of war.93 Or, more precisely, the view one gets of power when one frees oneself from the model of war. At the same time, Foucault does not abandon political battles. He redeploys them and pursues them in several directions: redeployment around the question of nationalism,94 on the one hand, strengthening of struggles around the Soviet threat,95 and in the criticism of Marxism on the other.96 He examines them closely inasmuch as he emphasizes the specifically moral dimension of struggles against power. Foucault does not aim political struggle at institutions (this is only a means) but at the transformations of self it permits. But in addition he does not abandon the collective vision of experience. He will find other forms, other connections, such as, for example, around the question of friendship. If he distances himself from the notion of revolution (in the double sense of the French and the Marxist Revolution), he replaces it with a program of “transformation” (which is found already formulated at the beginning of the 1970s), which he expands to the domain of transformations of self. The ethical program is not reduced, rather it is deepened, it becomes more demanding. This leads him to change his view of the past period. There was no revolution, but this does not mean that there were no “transformations” in lives, in everyday lives. One is in a process of transformations, of permanent changes which do not depend on the hold of State power (contrary to the experience of proletarian revolutions). There is nothing to expect from programs, but everything from experimentations. The program was that politics be played out on the terrain of ethics, since power is not to be seized, but changed. As for his personal position, it is not that of a return to writing, but of a deepening of the field of problematizations. And therefore also, a new relation to writing (taken up in the notion of the essay, a change of style, but especially the idea of writing as ascesis). Foucault often described his own ethics around the slogan of “detachment from oneself” changing oneself, transforming oneself.97 At the same time, he was always aware that exercises in detachment from self

 

Course Context 

269

often just bring us back to our starting point. Perhaps this is how the manuscript of Penal Theories and Institutions should be read: understanding that, although Foucault was able to free himself from it, he never separated himself from it. F.E. and B.E.H.

Notes 1. BNF, NAF 28730. A photocopy of the missing page (lecture 2, folio 10) has been deposited at the BNF. 2. The folders contain themes such as, for example, “Revolts in the Middle Ages”, “Delinquency in the M[iddle] A[ges]”, “Accusation. Inquisition”, “Ordeals and tests”, “Roman law in the M[iddle] A[ges]”, “Organization of institutions in the M[iddle] A[ges] [penal law, justice, etcetera]”, “The Nu-pieds”, “Popular movements in the seventeenth century”. See BNF, NAF 28730, boxes 1 and 2. 3. For example, in the folder “Revolts in the Middle Ages”, the files have, amongst others, the titles: “Exploitation of the peasants in the eleventh-twelfth c. Justice/tax collection”, “The right to armed resistance in the M[iddle] A[ges]”, “Uprisings in Suffolk and Norfolk”, “Robin Hoods and Gamelyn”, “Repression in Paris after the 1382 riots”, “Riot of March 1382 in Paris: release of the prisoners”. See BNF, NAF 2873, boxes 1 and 2. 4. “Nietzsche, la généalogie, l’histoire” in Hommage à Jean Hyppolite (Paris: PUF, “Épiméthée”, 1971) pp.  145–172; DÉ, II, 84, p.  136/“Quarto”, I, p.  1004; English translation, “Nietzsche, Genealogy, History”, EW, 2, p. 369. 5. BNF, NAF 28730, box 2. For a detailed presentation of the sources on which Foucault relied in his analysis of the Nu-pieds, see above, lecture of 24 November 1971, p. 00, note 2. 6. BNF, NAF 28730, box 91. 7. “Folie, littérature, société”; “Nietzsche, la généalogie, l’histoire” (Eng., in EW, 2: “Nietzsche, Genealogy, History); “Tract ronéotypé (Manifeste du G.I.P.), 8 février 1971”; “(Sur les prisons) in J’accuse, no. 3, 15 mars 1971, p. 26 (Groupe d’information sur les prisons)”; “Enquête sur les prisons: brisons les barreaux du silence”; “A conversation with Michel Foucault”; “La prison partout”; “Préface à Enquête dans vingt prisons”; “Je perçois l’intolérable”; “Un problème m’interesse depuis longtemps, c’est celui du système pénal”; “Par-delà le bien et le mal” (Eng.: “Revolutionary Action: “Until Now””); “Les intellectuels et le pouvoir” (Eng.: “Intellectuals and Power”); “Table ronde”; “Sur la justice populaire. Débat avec les maos” (“On Popular Justice: A Discussion with Maoists”); “Pour une chronique de la mémoire ouvrière”; “De l’archéologie à la dynastique”; “L’intellectuel sert à rassembler les idées, mais “son savoir est partiel par rapport au savoir ouvrier””; “Prisons et révoltes dans les prisons”; “Human Nature: Justice versus Power”; “La vérité et les formes juridiques” (Eng., in EW, 3: “Truth and Juridical Forms”).

270

 

Penal theories and institutions

8. “Entretien avec Michel Foucault” (Eng., in EW, 3: “Interview with Michel Foucault”); “Les mailles du pouvoir”. 9. Online document: http://www.assemblee-nationale.fr/histoire/ Chaban1969.asp Accessed September 26, 2018. 10. See “Tract ronéoté (Manifeste du G.I.P.)”, February8, 1971, DÉ, II, 86, p. 174/“Quarto”, I, p. 1042. 11. See the first page: “The reason for these lectures? //—You just have to open your eyes …” 12. Appeal launched by Jean-Paul Sartre, June 11, 1970. 13. D. Defert, Une vie politique, interviews with Philippe Artières and Éric Favereau, with the collaborations of Joséphine Gross (Paris: Seuil, 2014), pp. 36–76. 14. M.  Foucault, “Par-delà le bien et le mal” (interview with school students), Actuel, 14, November 1971, pp.  42–47, DÉ, II, 98, p.  227sq/“Quarto”, p.  1095 sq.; English translation Donald F.  Bouchard and Sherry Simon, “Revolutionary Action: “Until Now”” in Language, Counter-Memory, Practice. Selected Essays and Interviews, ed., Donald F. Bouchard (Oxford: Basil Blackwell, 1977), p. 223 sq. 15. “Michel Foucault, l’illégalisme et l’art de punir”, interview with G. Tarrab, La Presse, 80, April 3, 1976, p.  2 and p.  23; DÉ, III, 175, pp.  88–89/“Quarto”, II, pp. 88–89. See J.-C. Zancarini, “Foucault et les “années 68””, in “Mai 68 in quarantaine”, ed., Boris Gobille, Emmanuel Renault and Anne Sauvagnargues, colloquim organized by the ENS of Lyon, May 23–25, 2008. 16. M. Foucault, “Folie, littérature, société, DÉ, II, 82, p. 115/“Quarto”, I, p. 983 (the interview was granted in September–October 1970 during Foucault’s visit to Japan). 17. See “Entretien avec Michel Foucault”, interview with D.  Trombadori, Paris, end of 1978, Il Contributo, 4th year, no. 1, January–March 1980, pp. 23–84; DÉ, IV, 281, p. 80/“Quarto”, II, p. 899; English translation Robert Hurley, Interview with Michel Foucault, in EW, 3, p 281 (translation slightly modified; G.B.). 18. M.  Foucault, “Par-delà le bien et le mal”, DÉ, II, 98, p.  234/ “Quarto”, I, p. 1102; “Revolutionary Action: “Until Now””, p. 231 (translation modified; G.B.). 19. See also, for example, the “Académie Tarnier”, the dispositif he created with Médecins du monde in order to respond to the charge of “the intellectuals’ silence” made by the new socialist government in 1982–83. 20. M. Foucault, “Prisons et révoltes dans les prisons” (interview with B. Morawe, trans. J. Chavy, Dokumente: Zeitschrift für übernationale Zusammenarbeit, 29th year, no. 2, June 1972, pp. 133–137; DÉ, II, 125, p. 428/“Quarto”, I, p. 1296. 21. The elements of which are found in the “Chronologie” which opens Dits et Écrits, and more recently in the book of interviews, Une vie politique (Paris: Seuil, 2014). 22. G. Deleuze, Pourparlers. 1972–1990 (Paris: Les Éditions de Minuit, 1990) ch. III, 11, p. 142: “Un portrait de Foucault”, p. 142; English translation Martin Joughin, “A Portrait of Foucault” in, Negotiations New York: Columbia University Press, 1995) pp. 104–105: “[I] think Foucault’s thought is a thought that did not evolve but went from one crisis to another … The History of Madness was of course itself the result of a crisis. Out of it came a whole conception of knowledge (savoir), fully elaborated in the Archaeology of 1969—that is, in the theory of statements (énoncés)—but leading into a new crisis, that of ‘68. For Foucault it was a great period of energy and exhilaration, of creative

 

Course Context 

271

gaiety: Discipline and Punish bears its mark, and that’s where he moves from knowledge to power” (translation slightly modified: G.B.). 23. See C.  Mauriac, Le Temps immobile, in particular t. 3: Et comme l’espérance est violenté (Paris: Grasset, 1976) and Une certaine rage (Paris: Robert Laffont, “Violence et société”, 1979). 24. This is very clear to the reader of the interview Foucault gives to Actuel (published in November 1971); see “Par-­delà le bien et le mal”, DÉ, II, 98, p. 224, p. 226, p. 231/“Quarto”, I, p. 1092, p. 1094, p. 1099; “Revolutionary Action: “Until Now””, pp. 219–220, pp. 220–221, p. 227. 25. Exchange with Yves-Marie Bercé, great historian of popular movements, June 2014. The interpretation of these popular movements gave rise to a famous quarrel between the Soviet historian Boris Porchnev and Roland Mousnier, the French historian of institutions. On this quarrel see Section D1, Claude-Olivier Doron’s analysis, “Foucault and the historians”, in particular pp. 285–301. 26. “Actuality is what interests Foucault, although it’s what Nietzsche called the inactual or untimely; it’s what is in actu, philosophy as the act of thinking”; G. Deleuze, Pourparlers, p. 130; Negotiations, p. 95. On the formation of the GIP as act of thought, see G. Deleuze, “Foucault et les prisons”, in G. Deleuze, Deux Régimes de fous, edition prepared by David Lapoujade (Paris: Les Éditions de Minuit, “Paradoxe”, 2003) p. 254 sq. 27. In Sécurité, Territoire, Population. Cours au Collège de France, 1977–1978, ed., M.  Senellart (Paris: Gallimard-Seuil, “Hautes Études”, 2004), lecture of 8 March 1978; English translation Graham Burchell, Security, Territory, Population. Lectures at the Collége de France 1977–1978, English series editor Arnold I.  Davidson (Basingstoke: Palgrave Macmillan, 2009), Foucault interprets the paradox of Louis XIV’s statement— “The State is me”—as the expression of “raison d’État”. Without, moreover, referring to the 1971–1972 lectures. See ibid., Fr., p. 252; Eng., p. 247. 28. See M. Walzer, “The Politics of Michel Foucault” in David C. Hoy, ed., Foucault: A Critical Reader (Oxford: Basil Blackwell, 1986), p. 66; S. W. Sawyer, “Foucault and the State”, to appear in Toqueville Review. These lectures explain why he will not return to them, having discovered that the problem is not the State, its apparatuses and/or its institutions, but the relations of power thus put to work. 29. See M. Foucault, “Il faut défendre la société. Cours au Collège de France, 1976, ed., M. Bertani and A. Fontana (Paris: Gallimard-Seuil, “Hautes Études, 1997); English translation David Macey, “Society Must Be Defended”. Lectures at the Collège de France, 1975–1976, English series editor, Arnold I. Davidson (New York: Picador, 2003), the first two lectures (7 and 14 January 1976) in particular. See also M. Foucault, La Société punitive. Cours au Collège de France 1972–1973, ed. B.  E. Harcourt (Paris: EHESSGallimard-Seuil, “Hautes Études”, 2013), pp. 18–19, note 6 and pp. 290–292; English translation Graham Burchell, The Punitive Society. Lectures at the Collège de France, 1972–1973, English series editor Arnold I. Davidson (Basingstoke: Palgrave Macmillan, 2015) pp. 16–17, note 6 and pp. 279–281. 30. M. Foucault, “Les intellectuels et le pouvoir”, conversation with Gilles Deleuze, March 4, 1972, L’Arc, 49: Gilles Deleuze, 2nd quarter 1972, pp.  3–10; DÉ, II, 106, p.  312/“Quarto”, I, p.  1180; English translation, Donald F.  Bouchard and Sherry

272

 

Penal theories and institutions

Simon, “Intellectuals and Power” in M.  Foucault, Language, Counter-Memory, Practice, p. 212. 31. See “Entretien avec Michel Foucault” (conducted by A.  Fontana and P.  Pasquino, June 1976, trans. C.  Lazzeri in A.  Fontana and P.  Pasquino, eds., Microfisica del potere: interventi politici (Turin: Einaudi, 1977) pp.  3–28; DÉ, III, 192, p.  146; English ­translation Colin Gordon, “Truth and Power” in Michel Foucault, Power/Knowledge. Selected Interviews and Other Writings 1972–1977, ed., Colin Gordon (Brighton: The Harvester Press, 1980) pp. 115–116; reprinted in EW, 3. 32. A very illuminating letter, reproduced as an appendix below pp. 279–283. See also Étienne Balibar, “L’Anti-Marx de Michel Foucault”, closing lecture of the international conference “Foucault & Marx”, University of Paris-Ouest and Collège International de Philosophie, December 18–20, 2014. 33. See, for example, the “Avertissement au lecteur”, written by Louis Althusser as an introduction to his essay Sur la reproduction (Paris: PUF, 1995), p. 25; English translation G. M. Goshgarian, “To My Readers” in Louis Althusser, On the Reproduction of Capitalism. Ideology and Ideological State Apparatuses (London: Verso, 2014) p. 6: “To put it very simply, taking stock of the current state of Marxist-Leninist philosophy means understanding clearly and as profoundly as possible, what this philosophy is, how it produces its effects … [It] also means recalling … the basic acquisitions of the new science founded by Marx, historical materialism, without which Marxist-Leninist philosophy would not exist” (emphasis in the original). 34. “I think of myself as a journalist, to the extent that what interests me is actuality, what is taking place around us, what we are, what is happening in the world … Nietzsche was obsessed with actuality. I think it is we who make the future. The future is the way we react to what is taking place, the way we transform a movement, a doubt, into truth. If we wish to be masters of our future, we must pose fundamentally the question of today. That is why, for me, philosophy is a kind of radical journalism”. M. Foucault, “Le monde est un grand asile”, (words recorded by R. G. Leite, trans., P. W. Prado, Jr., Revista Manchete, June16, 1973, pp. 146–147; DÉ, II, 126, p. 434/“Quarto”, I, p. 302. 35. “I have to say that I am extraordinarily uncomfortable with the way some European Marxists practice historical analysis”. M.  Foucault, “De l’archéology à la dynastique” (interview with S. Hasumi, Paris, September 27, 1972), Umi, March 1973, pp. 182–206; DÉ, II, 119, p. 406/ “Quarto”, I, p. 1274. “[A] feature of many of today’s Marxists is ignorance of history”. “Anti-Rétro” (interviews with P.  Bonitzer and S.  Toubiana), Cahiers du cinéma, no. 251–252, July–August 1974; DÉ, II, 140, p. 659/“Quarto”, I, p. 1527. 36. Foucault always says that he feels closer to Marx than to Marxists, notably to The 18th Brumaire of Louis Bonaparte, cited in Surveiller et Punir. Naissance de la prison (Paris: Gallimard, “Bibliothèque des Histoires”, 1975); English translation Alan Sheridan, Discipline and Punish. The Birth of the Prison (London: Allen Lane, 1977). 37. “We have employed a wide range of categories—truth, man, culture, writing, etc.—to dispel the shock of daily occurrences, to dissolve the event. The obvious function of those famous historical continuities is to explain; the obvious function of the eternal “return” to Freud, Marx, and others is to lay a foundation. In both cases this involves excluding the radical break introduced by events”. “Par-delà le bien et le mal” p. 226/p. 1094; “Revolutionary Action: “Until Now””, p. 220 [translation modified; G.B.].

 

Course Context 

273

38. On “l’événementialisation”, apart from “Nietzsche, la généalogie, l’histoire”; “Nietzsche, Genealogy, History”, see the “Table ronde du 20 mai 1978”, DÉ, IV, 278, p. 23/ “Quarto”, II, p. 842. 39. In the interview with Ducio Trombadori, Foucault traces the project of this incongruous marriage to the 1950s: “Being a “Nietzschean communist” was really untenable and even absurd. I was well aware of that”. DÉ, IV, p.  50/ “Quarto”, II, p. 869; EW, 3, p. 249. 40. We have a good example of this here with the way Foucault describes the suppression of the Nu-pieds (the “political ceremony”) and the precariousness of the result. 41. The comparison is made by Foucault himself: “Socialist realism … incredibly recalls the academic and official painting of 1850”. “Michel Foucault. Les réponses du philosophe”, DÉ, II, 163/“Quarto”, I, p. 1680. 42. See G. Deleuze, Pourparlers, p. 159; Negotiations, pp. 117–118. 43. See M. Foucault, La Sociéte punitive, pp. 231–237 and pp. 300–301; The Punitive Society, pp. 227–233 and pp. 288–289; Le Pouvoir psychiatrique. Cours au Collège de France, 1973–1974, ed., J. Lagrange (Paris: Gallimard-Seuil, “Hautes Études”, 2003) p. 34 and p. 42, fn.*; English translation Graham Burchell, Psychiatric Power. Lectures at the Collège de France, 1973–1974, English series editor Arnold I. Davidson (Basingstoke: Palgrave Macmillan, 2006) p. 33 and p. 40, fn.*; Surveiller et Punir, pp. 31–33; Discipline and Punish, pp. 26–27; La Volonté de savoir (Paris: Gallimard, “Tel”, 1976) p. 117; English translation Robert Hurley, The History of Sexuality. Volume 1: An Introduction (London: Allen Lane, 1979) pp. 89–90. 44. “It was Nietzsche who specified the power relation as the general focus, shall we say, of philosophical discourse—whereas for Marx it was the production relation”. “Entretien sur la prison: le livre et sa méthode”, interview with J.-J. Brochier, Magazine littéraire, 101, June 1973, pp. 27–33; DÉ, II, 156, p. 753/“Quarto”, I, p. 1621; English translation Colin Gordon, “Prison Talk” in Power/Knowledge, p. 53. 45. There is a selective distribution of arms, of the tools of the repression, according to whether or not the targets are the lower classes. The people are fought ferociously with arms: it is suppressed, terrorized, as if the public power judged that it had no real hold over it. The same does not go for the representatives of established bodies with which one sees those kinds of tests that Foucault is no doubt thinking of precisely when he speaks of “power relations” or “relationships”. 46. Hence the importance of the theme of “the enemy”, of the way in which the person from whom one wants to get the acknowledgement is objectified. See above, lecture of 22 December 1971, p. 45 [59/15]–46 [60/16]. 47. What is “system” in Penal Theories and Institutions will become “diagram” in Discipline and Punish. 48. Lecture of 16 February 1972, p.  152 [180/7]. But see also the lecture of 1 December 1971 regarding the connection between the new system of repression and the royal apparatuses of justice. 49. “from a methodological point of view we should no doubt distinguish: – the institutional and regular forms of the exercise of power, – the State apparatuses, – the State or pre-State functions they perform” (ibid., above, p. 153 [181/8].

274

 

Penal theories and institutions

50. “We have the penal system we deserve. There is a somewhat facile, so-called Marxist analysis which consists in putting all this on the side of the superstructures. At this level, one can always imagine some adjustments and modifications. But, in fact, I do not think that the penal system is part of the superstructures. In reality it is a system of power that penetrates deeply into individuals’ lives and that bears on their relation to the apparatus of production. To that extent it is not at all a matter of a superstructure”. “Prisons et révoltes dans les prisons”, DÉ, II, 125, p. 430/“Quarto”, I, p. 1298. In On the Reproduction of Capitalism, Louis Althusser is far from reducing the “legal ideological State apparatus” to just a superstructure: It is “the specific apparatus articulating the superstructure upon and within the base” (p. 169). 51. Lecture of 15 December 1971: “These are, perhaps, the three levels at which a political event can be analyzed: – production of a relation of force – strategic regularity – manifestation of power. Let’s say that it can be grasped at the level of its conditions of possibility; of the rationality of the struggle that appears in it; of the stage on which it occurs” (above, p. 44 [57/13]). Foucault takes up this schema of analysis again in the lecture of 22 December: “level of relations of force”, “level of strategic calculations”, “level of manifestations of power” (above p. 59 [70/4]). 52. See “Il faut défendre la société” p. 69 and p. 74 n.6; “Society Must Be Defended”, p. 79 and p. 85 n.6 (letter from Marx to J. Weydemeyer, March 5, 1852). 53. “The history of all hitherto existing society is the history of class struggles”. K. Marx and F. Engels, The Communist Manifesto. 54. See La Société punitive, pp. 14–33, p. 281 et passim; The Punitive Society, pp. 13–32, p. 271. On the relation between power, war, and battle in Foucault, see P. Chevalier, Michel Foucault. Le pouvoir et la bataille (Paris: PUF, 2014). 55. Later, after having privileged this schema of civil war, Foucault will question the role the model of war plays in his analytic of power. See “Society Must Be Defended”, lecture of 21 January 1976. It may be thought that the “power/resistance” model put forward in La Volonté de savoir; The History of Sexuality, Volume 1, will be a first way of escaping the schema of war—before that of governmentality (which is no longer very warlike). 56. In “La scène de la philosophie”, Foucault shows how the state of war in the Middle Ages is not one of a militarized society—which only appears in the seventeenth century. See interview with M. Watanabe, April 27, 1978, Sekai, July 1978, pp.312–332; DÉ, III, 234, pp. 581–582/“Quarto”, II, pp. 581–582. 57. We know that the theme of war recurs in Foucault: it runs through The Punitive Society and “Society Must Be Defended”; it is found again at the end of Discipline and Punish (hearing the “distant roar of battle”), and in one of last interviews Foucault indicates his intention to return to the theme of war/army. See below, note 57. 58. Foucault’s first lectures at the Collège de France do not deal with the classical question of Athenian democracy, but rather with the question of agonistic combat and the state of war.

 

Course Context 

275

59. In 1981 again, Foucault will say that his next project (after completion of the History of Sexuality) will concern the army. Although we must be very careful not to confuse war and army, one cannot help seeing in this an insistence on an old question (relations between power/struggle/war). 60. In Louis Althusser we find both a critique of the Marxist base/superstructure “topography” and a situating of law as not falling within the superstructure: “The legal Ideological State apparatus is the specific apparatus articulating the superstructure upon and within the base” (On the Reproduction of Capitalism, p. 53 sq. and p. 169). 61. See “Entretien avec Michel Foucault”, p.  142/p. 142; “Truth and Power”, pp. 112–113. 62. M. Foucault, “Asiles. Sexualité. Prisons”, recorded at São Paulo, trans. W. Prado Jr., Revista Versus, no. 1, October 1975, pp.  30–35; DÉ, II, 160, p.  779/“Quarto”, I, p. 1647. 63. “The example of the Soviet Union has been decisive. The Soviet Union is a country in which we can say that since the Revolution the relations of production have changed. The legal system of property was changed. Also the political institutions have been changed since the Revolution. But all these small and very minute power relations in the family, in sexuality, in the factory, among the workers, etc., all those relations are still in the Soviet Union what they are in other Western countries. Nothing has really changed”. M. Foucault, “Dialogue on Power”, interview with Los Angeles students, in S. Wade, ed., Chez Foucault (Los Angeles: Circabook, 1978), p. 17; French translation F.  Durand-Bogaert, “Dialogue sur le pouvoir”, DÉ, III, 221, p.  473/“Quarto”, II, p. 473. 64. See, “Michel Foucault: Les réponses du philosophe”, DÉ, II, 163, p. 812/“Quarto”, I, p. 1680. 65. See “Foucault Examines Reason in Service of State Power”, interview with M. Dillon, Campus Report, 12th year, no. 6, October 24, 1979, pp. 5–6. 66. “Sur la sellette”, interview with J.-L. Ezine, Les Nouvelles littéraires, no. 2477, March 17–23, 1975, p. 3; DÉ, II, 152, p. 724/“Quarto”, I, p. 1592. 67. “In societies such as our own … the judicial apparatus has been an extremely important state apparatus whose history has always been obscured. People do the history of law, and the history of the economy, but the history of the judicial system, of judicial practices—of what has in fact been a penal system, of what have been systems of repression—this is rarely discussed”. “Sur la justice populaire. Débat avec les maos” interview with Gilles and Victor, February 5, 1972, Les Temps Modernes, no. 310bis: Nouveau Fascisme, Nouvelle Démocratie, June 1972, pp.  365–366; DÉ, II, 108, p. 350/“Quarto”, I, p. 1218; English translation John Mepham, “On Popular Justice: A Discussion with Maoists” in, Power/Knowledge, p. 14. 68. Lecture of 2 February 1972, above p. 115 [143/10]. “Up to that point, everything that we have called penal law was the ritualization of a dispute and a struggle between two individuals”; Lecture of 1 March 1972, above, p. 187 [219/8]. See also, “La vérité et les formes juridiques”, DÉ, II, 139/“Quarto”, I; “Truth and Juridical Forms”, EW, 3. 69. See “La vérité et les formes juridiques”; “Truth and Juridical Forms”; Mal faire, dire vrai. Fonction de l’aveu en justice, ed., F. Brion and B. E. Harcourt (Chicago/Louvain:

276

 

Penal theories and institutions

University of Chicago Press/Presses universitaires de Louvain, 2012); English translation Stephen W.  Sawyer, Wrong-Doing, Truth-Telling. The Function of Avowal in Justice (Chicago: University of Chicago Press, 2014). 70. See “Sur la justice populaire. Débat avec les maos”; “On Popular Justice: A Discussion with Maoists”; “Human Nature: Justice versus Power”, interview with N. Chomsky and F. Elders, in F. Elders, ed., Reflexive Water: The Basic Concerns of Mankind (London: Souvenir Press, 1974). 71. A conception to which Foucault will later return with regard to law as instrument of legitimation of monarchical power. See “Il faut défendre la société”; “Society Must Be Defended” and La Volonté de savoir; History of Sexuality, Volume 1. 72. See M.  Miaille, Une introduction critique au droit (Paris: Maspero, 1976); N. Poulantzas, L’État, le Pouvoir, le Socialisme (Paris: PUF, 1978); English translation Patrick Camiller, State, Power, Socialism (London: Verso, 2014); M. Jeantin, M. Miaille & J. Michel, Pour une critique du Droit (Paris: Maspero, 1978); F. Collin, A. Jeammaud et al, Le Droit capitaliste du travail (Grenoble: PUG, 1980); M. Miaille, “La critique du droit”, Droit & Société, 20–21, 1992, pp. 75–92. Another important work in the Marxist tradition of the critique of law: E. Pasukanis, La Théorie générale du droit et le marxisme [1924], (Paris: Éditions de l’Atelier, 1990); English translation (from German translation) Barbara Einhorn, The General Theory of Law and Marxism (New Brunswick and London: Transaction Publishers, 2003). 73. See R. Hale, “Coercion and Distribution in a Supposedly Noncoercive State”, Political Science Quarterly, vol. 38, 1923, pp. 470–494; Id., “Force and the State”, Columbia Law Review, vol. 35, 1935, pp. 149–201; Id., “Bargaining, Duress, and Economic Liberty”, Columbia Law Review, vol. 43, 1943, pp. 603–628. 74. See R.  Mangabeira Unger, The Critical Legal Studies Movement (Cambridge, Mass.: Harvard University Press, 1983); M. Kelman, A Guide to Critical Legal Studies (Cambridge, Mass.: Harvard University Press, 1987); D.  Kennedy, A Critique of Adjudication (Cambridge, Mass.: Harvard University Press, 1997). 75. See A. Hunt and G. Wickham, Foucault and Law: Towards a Sociology of Law as Governance (London: Pluto Press, 1994); W.  Brown & J.  Halley, Left Legalism/Left Critique (Durham, NC: Duke University Press, 2002); B. Golder & P. Fitzpatrick, eds., Foucault’s Law (Aldershot: Ashgate, 2009). 76. Foucault’s is still of great actuality: the privatization of acts of justice is a major contemporary phenomenon (arbitration, the attraction of States for civil jurisdictions); in the eyes of those who know the stakes and rules of trials, the closeness of war is obvious (and often expressed by the parties themselves); what else are “social rights” if not forms of goods appropriated as the result of acts of justice? 77. See lecture of 23 February 1972: “power relations are not superimposed on economic relations. They form a single framework with them.// Power relations are as deep as the relations of production. The former are not deduced from the latter. They accompany and relay each other” (above, p. 172 [204/9]). 78. Penal Theories and Institutions should lead to completion of the view that Foucault offers of law in the Middle Ages in “Society Must Be Defended (and History of Sexuality, Volume 1) where he stresses the political dimension of law (construction of sovereignty). This characterizes the law as theory. The interplay of juridical and judicial institutions in the Middle Ages should not be reduced to that one dimension.

 

Course Context 

277

79. Lecture 9 February 1972, above p. 133 [161/12]. This intertwining of justice (act of justice) and power relations may explain not only the importance of judicial combats according to Foucault, but the way in which they are conducted: in military terms, strategy and tactics (see Vergès). 80. See above p. 190 [224/13]. 81. See above p. 102 [123/2]. 82. Ibid., [124/3]. 83. Lecture of 1 March 1972, above p. 190 [225/14]. 84. “Sur la justice populaire”, p. 352/p. 1220; “On Popular Justice”, p. 22. 85. Lecture of 1 March 1972, above, p. 190 [225/14]. 86. “Sur la justice populaire”, p. 352/p. 1220; “On Popular Justice”, p. 16. 87. Ibid. 88. See “Les intellectuals et le pouvoir”, p.  306 sq and p.  311/p. 1174 sq and p. 1179; “Intellectuals and Power”, p. 205 sq. and p. 211. 89. Ibid., p. 311 and p. 312/p. 1179 and 1180; Eng., p. 210 and p. 211. 90. Althusser himself voices a criticism of the repressive view of power (as expression of an anarchist view). See Sur la reproduction, p. 213; On the Reproduction of Capitalism, p. 178. 91. “Our action had meaning only in the hope of an acceleration of history such that we could reasonably foresee, in the near future, a profound transformation, a revolution. Instead of which, what do we see? Local elections which announce for sure a probable victory, in the end, of the left, but from which we can at best hope for a social democratic government”. (Claude Mauriac, Tuesday March 3, 1976, Une certaine rage, p.  83). Already, in 1973, he declared: “I have had enough. I have the impression of being an ant climbing up a slope of sand and endlessly sliding, finding myself endlessly at the same point …” (Wednesday March 21, 1973, Le Temps immobile, t. 3, p. 463). 92. Claude Mauriac: “I see he who reinvents everything, in anguish and solitude” (March 12, 1976, Une certain rage, p. 78). 93. It is singular, remarkable that Foucault never mentions Penal Theories and Institutions in the 1978 lectures, notwithstanding the fact that the latter are largely devoted to “raison d’État”. 94. A question that is clearly at the heart of “Society must be defended” and so present in the final chapter of La Volonté de savoir, ch. V: “Droit de mort et pouvoir sur la vie”, pp.  175–211; History of Sexuality, Volume 1, “Right of Death and Power over Life”, pp. 135–159. 95. Claude Mauriac: “It is true that I put the emphasis entirely on anti-communism at that moment. A bit too much perhaps. But not without reason. The fact is that the USA have given up. That the USSR risks prevailing. That the danger is extreme. And that I do not forgive those of my generation for not having found anything with which to oppose Marxism. For not having tried to construct something else … Marxism maybe carried in itself … Have you read Glucksman? It is quite convincing. I do not forgive myself …” (Saturday, February 14, 1976, Une certaine rage, p. 70 sq). Organization of the meeting of Soviet dissidents at the Récamier theater during the reception of Leonid Breznev in Paris by Valéry Giscard d’Estaing.

278

 

Penal theories and institutions

96. See M. Foucault, “La grande colère des faits”, Le Nouvel Observateur, no. 652, May 9–15, 1977, pp. 84–86; DÉ, III, 204, p. 277 sq./“Quarto”, II, p. 277 sq. 97. “There is irony in those efforts one makes to alter one’s way of looking at things, to change the boundaries of what one knows and to venture out a ways from there. Did mine actually result in a different way of thinking? Perhaps at most they made it possible to go back through what I was already thinking, to think it differently, and to see what I had done from a new vantage point and in a clearer light. Sure of having traveled far, one finds that one is looking down on oneself from above”. M. Foucault, The Use of Pleasure, trans. Robert Hurley (London: Viking, 1986) p. 11. See Mal faire, dire vrai, pp. vii-viii and pp. 304–305; Wrong-Doing, Truth-Telling, pp. 5–6 and pp. 309–310.

 Letter from Étienne Balibar to the Editor

4 December 2014 Dear Bernard Thank you for doing me the extraordinary favor of sending me the preliminary version of the 1971–1972 lectures with some annotations. I have read it all with passion and it gives rise to a mountain of reflections which I hope we will have an opportunity to talk about at leisure. For now, and with time being short, I will content myself with some notes on the “trace” of Althusser in these lectures. Naturally there is no question of my claiming absolute objectivity, or reliability of memory, but I know you will receive all this both favorably and with proper judgement. By way of preliminary, I shall say—but I recognize that this is a rather impressionistic hypothesis—that the successive publication, in reverse chronological order, of the lectures on “Society must be defended”, then on The Punitive Society, and finally on Penal Theories and Institutions (this, sadly, only in the form of preparatory notes—I am sure he said much more orally, for the notes contain dry “theses” and supporting documents, and it is enough to look at the other lectures to understand that there was considerable oral elaboration), so my impression is that Foucault proceeded in three stages to a major settling of accounts with Marxism (underlain of course by the debates of the time, and “refereed”, so to speak, by the young of my generation, Maoists whom he mixed with in the GIP in particular, and others also): first (71–72) we have a criticism of the “Marxist” theory of the State, which, not by chance, focuses on the question of the invention of the modern “class” State by the (French) absolute monarchy, a point of honor for historical and philosophical Marxism (including Althusser here, I come to this); second (72–73) we have an alternative theory of the “reproduction” of the conditions of capitalism (and in particular of the

280

 

Penal theories and institutions

proletariat); for a “Marxist” (or a post-Marxist like me), this is the most impressive; in some respects it is also a rectification of the way in which, the previous year, Foucault had dismissed the idea of “reproduction”: he finds another use for it; finally, third—long postponed, after the completely different inquiry on psychiatric power and the abnormals, which, I believe, profoundly modified his methodology—in 75–76 we have a devastating refutation of the very idea of the “primacy of the class struggle” in the form of the (quite brilliant, but which I, for my part, find debatable) genealogy of the notion of “class struggle” from the “counter history” of the “war of races”, which opens out onto a different concept of politics, competing with Marxism (and in some respects close to Schmitt, but that is another question). We find again then the “disqualification” of Marxism which The Order of Things had carried out in 66, but on an entirely different politico-historical, and not “epistemological”, basis. Throughout this trajectory, but especially in the first two moments (so the lectures of 71–72 and 72–73), the confrontation with Marxism is constantly doubled with a confrontation with Althusser. This can be seen as much in the themes Foucault chooses, and even in the sources he consults, as in direct references. This is a tricky, but in my view very important point, and it functions in several senses. On the one hand, there is the fact that Foucault more or less systematically attributes to Althusser the theory of ideology in Marxism that Althusser sought to rectify and replace. This is the major point of friction and incompatibility between them (certainly sharpened by discussions with the “disciples”, of whom I was one in the previous period, up to the foundation of Vincennes, or the old disciples, like most of the Maoists, but the question of intellectual hegemony was not completely settled in 71–72). It should be said that Althusser had then already published some texts which had very much moved away from the idea of an “epistemological break”, by “politicizing” the relation of ideology to history, but it should also be said that these texts were fragmentary and contradictory, and that Foucault takes advantage of this in order to systematically choose the most scientistic interpretation and to attribute it to Althusser. On the other hand, and this is what I find most interesting today, there is the fact that Foucault focuses on the question of the constitution of “the repressive State

 

Letter from Étienne Balibar to the Editor 

281

apparatus”, an absolutely Marxist and even Althusserian terminology, but already so as to propose an alternative to Althusser: while the latter had said, in the article on the ideological State apparatuses, that the repressive State apparatus is something simple and well-known, and that we need to focus our efforts on the “missing piece”, which would be the ideological apparatuses, Foucault shows that on the contrary the “repressive” apparatus is something complex, that it has a differential structure, that it is the seat of internal and external struggles (which often very much makes one think of Poulantzas,* whom he had surely read, and who precisely disagreed with Althusser’s rigid “Leninism” on this point), and that one should undertake a precise historical genealogy of it (while using it to interpret contemporary phenomena, as you note with good reason: “repression” was then on the agenda) (clearly this is also what Foucault will later abandon, at the same time as “leftism”, by criticizing “the repressive hypothesis”, and by developing fully the idea that power is not “repressive” but “productive”, you draw attention to this moreover). In the midst of all this there is something absolutely important, I think, which is Foucault’s use of Porchnev. The great “debate” of the time on the genesis of the bourgeois State in the form of the absolute monarchy was between Marxists and Mousnier. The Marxists made use of Porchnev, but with some reservations because he was not completely orthodox and especially because he was competing with French historians, even Marxist ones, on their own ground. Althusser, on the other hand, admired him enormously and invoked him, in particular in his short book on Montesquieu.† At the time, only the introductory part of Porchnev’s book was translated into French. However, there was a German translation and Althusser used the edition of this in the ENS library (I think, moreover, that it was he who got the library to purchase it); it was his major reference, and Foucault must have known

*  N. Poulantzas, “À propos de la théorie marxiste du droit”, Archives de Philosophie du Droit, 1967, pp. 145–147, and Pouvoir politique et Classe sociale (Paris: Maspero, 1968); English translation Timothy O’Hagan, Political Power and Social Classes (London: NLB, Sheed and Ward, 1973) [Editor’s note]. †  L. Althusser, Montesquieu, la politique et l’histoire (Paris: PUF, 1956); English translation Ben Brewster, in, Politics and History: Montesquieu, Rousseau, Marx (London: Verson, 2007) [Editor’s note].

282

 

Penal theories and institutions

this. As for Foucault, he made use of the French translation of this work (published in SEVPEN), precisely using Mousnier as a check. So Foucault takes Althusser’s main source and partially “turns” it against him … Some other quick reactions. First of all, in the notes of the eleventh lecture, the reference to Bourdieu and Passeron is important*: in fact the ideological relation is triangular (Foucault, Althusser and the Althusserians, Bourdieu and Passeron). One would need to look at the dates in detail, but Baudelot’s and Establet’s book, L’École capitaliste en France, appeared in 1972.† I do not know to what extent Foucault was aware that this was a partial product (after a split between us …) of a more wide-ranging project of Marxist theory of the School as “ideological apparatus” on which I was working from 69 with Macherey, Tort, Baudelot, and Establet, and that it did not come to completion. But in my opinion he must have known it. Maybe Tort or myself spoke to him about it. Then, in the thirteenth lecture, on “surplus-knowledge (sur-savoir)” and its “extraction” (a question which comes back later). This is very interesting: the rivalry is not just with the Marxists here (including Althusserians, but not especially: it is only at the beginning of the 80s that Lefebvre and his collaborators will propose “survaleur (surplusvalue)”, but above all I think that there is rivalry with Lacan (here again there are “disciples” to be divided up …) who, in his seminar of 68–69, “D’un Autre à l’autre (From an Other to the other)” had introduced “plus-de-­jouir” on the Marxist model. Foucault goes even further … Also, in this thirteenth lecture, we touch on some truly tricky questions regarding the triangular relationship between Althusser–Foucault– Canguilhem,. For this relationship is not a simple matter. Canguilhem would certainly not have been soft with Foucault’s suggestions, which are absolutely “leftist” (I do not think this was his last word …). It

*  P. Bourdieu and J.-C. Passeron, La Reproduction. Éléments pour une théorie du système d’enseignement (Paris: Minuit, 1970); English translation Richard Nice, Reproduction in Education, Society and Culture (London: Sage Publications, 1977) [Editor’s note]. †  C.  Baudelot and R.  Establet, L’École capitaliste en France (Paris: Maspero, 1972) [Editor’s note].

 

Letter from Étienne Balibar to the Editor 

283

would be good to cite Foucault’s great text on Cuvier* (for the “Journées Cuvier” organized by Canguilhem at the Institut d’histoire des sciences in 1969): in this article Foucault is very epistemological, he elaborates on the “threshold of scientificity” but not really on the “epistemological break”. Forgive these somewhat disjointed reactions. I hope they may be useful for you. With all my friendship and, again, my thanks. Étienne

*  M. Foucault, “La situation de Cuvier dans l’histoire de la biologie”, Revue d’histoire des sciences et de leurs applications, XXIII, 1, January-March 1971, pp. 63–92; DÉ, II, no. 77, pp. 30–66/“Quarto”, I, pp. 898–934; English translation “Cuvier’s position in the History of Biology” in Critique of Anthropology, Vol. 4, no. 13–14, January 1979 [Editor’s note].

 Foucault and the Historians: The Debate on “Popular Uprisings”1 Claude-Olivier Doron

When Michel Foucault offers his analysis of the Nu-pieds revolt and its suppression, in which he identifies a key moment in the constitution of a “new repressive system”, the historians’ world still echoes with the last throes of a quarrel which, since 1958, set Roland Mousnier, distinguished historian of monarchical institutions in the modern period, against the Soviet historian and philosopher Boris Porchnev, author in 1948 of a thesis on “the popular uprisings in France from 1623 to 1648”.2 We will not go back over the now well-known details of the controversies which Porchnev’s work gave rise to in France (as well as in Russia, moreover, where Porchnev was far from winning unanimous support).3 It is necessary, rather, to recall the major lines of a debate in which taking a position on the question of popular seditions at the beginning of the seventeenth century, and the Nu-pieds in particular, as Foucault does in 1971–1972, means taking a position in a broader discussion on the Marxist interpretation of these popular movements, on the role of the peasants, bourgeoisie, and nobility in the development of the class struggle, and on the relations between the monarchical State, feudalism, and the development of capitalism. We stress that the beginning of the 1970s are a turning point on this theme. In 1970 Madeleine Foisil, Mousnier’s student, publishes her thesis on the Nu-pieds (La Révolte des Nu-pieds et les révoltes normandes de 1639), which Foucault often uses. This monograph will be a milestone and is still regarded as the most complete source on the subject. In 1972, moreover, Yves-Marie Bercé (another of Mousnier’s students) defends her thesis on the popular uprisings in the southwest of France in the seventeenth-­century, which on a number of

286

 

Penal theories and institutions

points will change the interpretation of seditions in the modern age. So the Mousnier–Porchnev debate is still open, but closing, when Foucault joins it. It is important to see what position he adopts in relation to the main conflicting arguments.

I The Pen, The Hammer And The Sickle: The Mousnier–Porchnev Debate A. An enfeoffed bourgeoisie: Porchnev’s thesis

In broad outline, Porchnev’s position is the following. 1/ The popular movements of the beginning of the seventeenth-­ century concern first and foremost taxation (“weak link on which the whole feudal and absolutist regime depended”4); they are spontaneous (not led by nobles or bourgeois) and are the action of a part of the people (peasants, “seditious populace (plèbe)”5) placed in conditions of unbearable poverty by tax increases. 2/ These movements are not directed against the king, but the set of beneficiaries of “feudal rent”: the nobles, but also an important part of the bourgeoisie. The “fundamental” characteristic of feudalism, according to Porchnev, is that it constitutes “a system of exploitation of the serfs by feudal land-owners” and that its entire organization revolves around the problem of the extraction and maintenance of feudal rent.6 From the sixteenth-­ century, according to Porchnev, the monarchical State is responsible for assuring the imposition and maintenance of this henceforth centralized feudal rent made up of different taxes, which it then redistributes to the nobility and, in part, to a bourgeoisie, which is thereby integrated into the feudal system. The monarchical State does not break with the feudal system: it is its agent, in the sense that it is what assures the imposition and centralization of the rent, and, above all, its redistribution to the dominant classes. 3/ In the seventeenth century, therefore, France remains fundamentally characterized by a feudal system: the developments of capitalism are marginal to it, localized, and above all the bourgeoisie is integrated within this system, bound to it by its interests, through the system of offices, through ennoblements, which in addition block the development

 

Foucault and the Historians: The Debate on “Popular Uprisings” 

287

of capitalism by drawing the bourgeoisie’s capital to investments which are non-­productive (offices, debts, rents) and exempt from many levies. Porchnev certainly recognizes that there are possible tensions between the “centralized feudal rent” (which presupposes the development of a specific State apparatus and a royal tax system) and the rents and interests of the local lords and bourgeois; but—unlike Foucault—he does not think that there was a real contradiction between rent and tax (feudal rents and State taxation), any more than between a State apparatus, with its own logic and objectives, and the dominant classes it is supposed to serve (nobility and, to a quite considerable extent, bourgeoisie). Hence, Porchnev’s recurrent assertions that one of the characteristics of the popular revolts up to the Fronde is that, even if the bourgeoisie may let the popular seditions play out for a while, the reflex of protection of their interests and property quickly returns, and a “class front” forms naturally in order finally to suppress these movements. The underlying thesis is the following: at the beginning of the monarchical period, the bourgeoisie did not play its role in the class struggle. It constantly “repudiated its class” so as to turn itself into a “feudal bourgeoisie”.7 In fact a good part of the bourgeoisie sought to become noble and enter feudalism much more than to destroy it, and the feudal system was organized in such a way that it could easily assimilate it. Conversely, Porchnev gives the peasantry a more important place in the class struggle than Soviet historiography traditionally does. According to him, the peasants (and particularly the Nu-pieds) are capable of real political struggles. Although he deplores the “social blindness” of a basically anti-tax movement, which cannot “develop into a revolutionary anti-feudal and anti-absolutist movement”,8 he nonetheless notes some more revolutionary dimensions, indeed the quasi-counter-­power aspect (organization, program, etcetera) adopted by the Nu-pieds. In other words, the peasants are not present here either as a passive element, necessarily subject to and guided by “reactionary” forces, or as a purely “impulsive” element that is unable to arrive at a certain level of revolutionary consciousness. In the context of the Maoist movements of the 60s and 70s, quick to revalorize the revolutionary role of the peasantry and to insist on the necessary alliance between workers and peasants, this type of foregrounding of the revolutionary force of the peasants was somewhat seductive: it is not surprising to find a more thorough examination of these analyses in Foucault.9

288

 

Penal theories and institutions

B. The dust and the cloud: Mousnier’s analysis Mousnier’s position is opposed to Porchnev’s analysis on every point. His comments fit into a series of wider criticisms directed at Marxist history in general (which claims to identify horizontal “class” relations in a society structured by vertical bonds of loyalty and “orders”, and which reduces everything to the economic infrastructure of modes of production) and Porchnev in particular. Mousnier and Porchnev worked on the same source (the archives of the Chancellor Séguier), which did not fail to provoke personal jealousy and tensions between the two men.35 But above all Mousnier accuses Porchnev of treating history from above, of being indifferent to the complexity of the facts to the advantage of the application of an a priori Marxist reading grid of history. In short, Mousnier does not approach the problem of seditions from at all the same point of view as Porchnev: the latter integrates them within a general reflection on popular struggles up to the Fronde (and beyond up to the Revolution) and in an economico-political analysis of the relations between monarchical State, bourgeoisie and feudalism. Mousnier views them rather as an historian of absolutism in the seventeenth-century and “specialist” in the sale of offices, a system whose effect according to him was to soften the absolute character of the monarchy and to form a social group of “officers”, a mixture of nobles and enriched bourgeois, sharing the sovereign’s power and, at the same time, bound to its interests. For Mousnier, the popular seditions are relatively insignificant: they never endangered monarchical power, save in cases where they might bring together the interests of the “Great”, local nobles, or religious stakes. His first criticism aimed at Porchnev is thus that he overvalues the seditions, which were basically run of the mill in the Ancien Régime and hardly affected monarchical power. Where Porchnev sees “the motor of everything else” in these uprisings, and above all an interpretive key for understanding the Fronde, Mousnier sees only “local episodes” which should not be given too much weight.11 Moreover, where Porchnev sees the spontaneity of the “people”, exasperated by taxation and exploitation by the dominant classes, Mousnier reiterates a more classical reading, according to which these movements were often secretly directed by nobles, bourgeois, and sometimes even Princes. He emphasizes that society was then organized according to a network of

 

Foucault and the Historians: The Debate on “Popular Uprisings” 

289

vertical bonds (of loyalty, kinship, etcetera) which cut across supposed “class” divisions and bound, for example, local lords to their peasants. He clearly marks, furthermore, the deep tensions between the development of centralized monarchical institutions and the local nobility or bourgeoisie (including officers of justice), who are often the first to be opposed to royal taxation. In doing this he disputes that there was a “class front” at the time of the suppression of the seditions. At a more general level, Mousnier sharply disputes several of Porchnev’s central theses which actually challenge him directly. For Porchnev, the sale of offices “did not contribute to the subjection of the monarchy to the bourgeoisie but to a progressive submission of the bourgeoisie to the aristocratic monarchy”. It “was a means of distancing the bourgeoisie from the revolutionary battle against feudalism”.12 For Mousnier, on the other hand, it is false to maintain that in the seventeenth century the State is a “State of nobility” which assures the maintenance of “feudal” order, the levy of “feudal rent”, and its redistribution to the nobility. The monarchical State is opposed to most of the elements of the feudal regime and was constructed by dismantling feudal bonds. In order to do this it depended on the bourgeoisie, which it assimilated into the State apparatus. “I see nothing to change the theory that the progress of the absolute monarchical State was facilitated by the possibility of setting bourgeois against gentry, of using the bourgeois in the State apparatus … It was the monarchy that subjugated all the classes by reconstructing the State. But, in this work, it is aided by the bourgeoisie, and I maintain that the State allowed it a participation in political and administrative power”.13 As for Porchnev’s thesis that in the seventeenth century France is still characterized by a feudal system and the monarchical State is a brake on the development of capitalism, Mousnier makes short work of it by firstly criticizing the extensive and vague use of the term “feudalism (féodalisme)” in Porchnev,14 and by noting in particular that ground rent, as it is levied in the seventeenth-­century (lease-farming, royal taxation, etcetera), no longer has anything to do with “feudal ground rent”. As for the fact that the economic and political regime in force had been a brake on the development of capitalism, Mousnier considers rather that “the monopolies and privileges granted to the big merchant manufacturers … are” rather “a condition of its development, at this stage, and without which prices would have been too low to be remunerative”.15

290

 

Penal theories and institutions

II Event and Change: the Foucauldian Reading of the Nu-pieds Faced with these contrasting positions, which he was familiar with and analyzed in detail in his preparatory files,16 Foucault carries out a series of displacements which enable him to avoid remaining a prisoner of either of them. Above all, he stresses an aspect which neither Mousnier or Porchnev had really emphasized: the specificity of the suppression of the Nu-pieds and the way in which it marks the entry on the scene of a new repressive function of the State, not yet endowed with its “apparatuses” (intendants of justice, police, confinement …), which it will create subsequently in the seventeenth-century.17 The sense of this displacement may be read in the continuation of the reflections on the role of history which Foucault put forward in his lecture of October 1970 entitled “Revenir à l’histoire”: “History was a discipline thanks to which the bourgeoisie showed first of all that its rule was only the result … of a slow maturation and that, to that extent, this rule was absolutely justified … This vocation and role of history must now be revised … It should be understood rather as the analysis of the transformations of which societies are actually capable. The two fundamental notions of history as practiced today are no longer time and the past, but change and the event.”18 Time, that is to say the effort to trace the phases of the continuous development of this or that great historical unit posited a priori (“feudalism”, “capitalism”, “monarchy”, “the State”, …); the past, that is to say the effort to found (or challenge) the legitimacy of the current situation (the domination of the bourgeoisie or the necessity of the proletarian revolution, for example) through the evocation of the past: such were the constitutive categories of history which in these lectures Foucault wished to replace with the event and change. These categories enable us to understand how the Foucauldian reading of the Nu-pieds is situated in relation to Porchnev and Mousnier. In a sense, it dismisses both without taking sides: Porchnev’s reading, in particular, is only the bourgeois reading reversed. It aims to show that the bourgeoisie did not play its role in the development of the class struggle; that in the seventeenth-century this role was taken on by popular s­ editions. Mousnier and Porchnev are ultimately situated in a perspective which stresses time (to describe the development of capitalism, the class struggle, or monarchical institutions) and the past.

 

Foucault and the Historians: The Debate on “Popular Uprisings” 

291

A. The Nu-pieds event Foucault replaces this with a lecture founded first of all on the event. 1/ This means, on the one hand, inserting the Nu-pieds event in a series of similar events (serial dimension of the event) which appears, basically, as a “continuous series of refusals to accept the law and struggles against power”.19 On this point, Foucault, in the manner of Porchnev, takes the seventeenth-century series of seditions, even the smallest, seriously. This is not so as to immediately assimilate them, as episodes, in the grand narrative of the development of the class struggle, but rather to see them as a series of sporadic, heterogeneous challenges to power and its agents.20 2/ On the other hand, it means a detailed examination of the properties and especially the singularities of the Nu-pieds event in this series, so as to clearly mark levels of discontinuities (differential character of the event). He picks out several: the evasion of the traditional bodies for maintaining order (Parlement, bourgeois militia, local lords); but in particular, “there is a very specific feature of the Nu-pieds revolt: this is the way in which royal power was attacked”21 and, especially, the singular character of the suppression, the way in which the public power responded to it (its strategies, its ritual forms). We can see that what Foucault reveals by taking the Nu-pieds event seriously in its serial and singular dimensions is first of all the struggles around power which are at stake in it. If, in fact, Foucault agrees that in the first place the Nu-pieds constitute an anti-tax riot, he strongly enhances their dimension of counterpower. The Nu-pieds mimic the acts and insignia of public power: “They took themselves to be a (military, political, judicial, and financial) power”.22 The specificity of the Nu-pieds, according to him, is that they sought to constitute themselves (symbolically at least) as a political power, and in doing so they went beyond a simple anti-tax revolt. Foucault stresses here a feature already picked out by Porchnev. But this analysis should be brought together with what Foucault himself said in an interview at the same time: “official knowledge has always represented political power as arising from conflicts within a social class … or, perhaps, as a conflict generated between the aristocracy and the middle class. Popular movements, on the other hand, are said to arise from famines, taxes, or unemployment; and they never appear as the result of a struggle for power, as if the masses could dream of a full stomach but never of exercising

292

 

Penal theories and institutions

power. The history of this struggle for power and the manner in which power is exercised and maintained remain totally submerged”.23 So, the heart of the Nu-pieds event is that it brings to light this submerged history: that of “struggles for power” and especially “of the real conditions of its exercise and maintenance”. This history is revealed in a whole set of forms, signs, and strategies, to which Foucault pays meticulous attention. His strategic analysis enables Foucault to situate himself in a different way than Mousnier and Porchnev. With Mousnier, he thinks that the interests of the different local social groups (members of the parlements, nobles, bourgeois, peasants, and plebeians …) sometimes agglomerate against the State’s fiscal apparatus and its agents. What characterizes the Nu-pieds sedition (as other revolts), is “the weakness of the Parlement, the bourgeoisie, and the local nobility”.24 If, nonetheless, there was finally a “class front” to put down the revolt, Foucault’s whole analysis seeks to show that this front does not (as Porchnev would have it) follow from the objective common interests shared by the set of “dominant classes” of the feudal order; on the contrary, it is the product of an interplay of thought-­out strategies, operations of division, and cunning pressures effectuated by the agents of repression (Séguier and Gassion). There is an interplay of strategies which turns out to be very precarious and which to function fully ultimately presupposes the establishment of a new repressive apparatus. All these elements are essential to account for “the real conditions of the exercise and maintenance” of power: the latter presupposes an active work of division, distribution, and isolation of certain parts of the people at the cost of others: “lines of separation … between town and country” and “between the poorest (the humble folk) and the better off classes (the privileged)”.25 This will be one of the roles of the new repressive system established in the second half of the seventeenth century, that of carrying out these divisions and clearly marking these breaks. But this strategic analysis is also essential for a history conceived as “analysis of the transformations of which societies are actually capable”. By showing the operations of the repressive system, showing that it “brought into play a certain number of strategies, types of functioning, and relations of power which … have persisted and remained constant”, ultimately to be “taken over to a great extent … by the State apparatus of bourgeois society”,26 one gives oneself the means to isolate the operations and functions of this system and better attack them in order to bring about transformations in present reality. Here, the historical study of the event conditions the possibility of future changes. It is clear, in fact, that the analysis of divisions

 

Foucault and the Historians: The Debate on “Popular Uprisings” 

293

at work in the repressive system of the second half of the seventeenth-century aims to be extended into the actuality of the 1970s: the divisions between common law and political delinquents, between “non-proletarianized common people (plèbe)” and proletariat, effectuated by the judicial institution and the prison, are extensions of that repressive function at work since the seventeenth-century, and which the Nu-pieds event manifests openly. These are all questions, moreover, that Foucault was addressing at the time in the framework of the Groupe d’information sur les prisons.27 Together with this strategic analysis of the Nu-pieds event, Foucault provides a “dynastic” reading attentive to the ritual forms, the signs and symbols through which the underlying relations of force manifest themselves. As Foucault notes in his lecture at the University of Minnesota, what he means by this is integrating the Nu-pieds event (and its suppression in particular) within an analysis of the “ceremonial manifestations of political power”, of “how political power takes on visible and theatrical forms”, in the seventeenth century in particular.28 Hence the attention given to the way in which different bodies of notables come to beseech Séguier, to the formulae and rituals that they use, and to how Séguier replies to them, and to the forms taken by the suppression at each of its stages. These forms, in fact, are read as so many “marks” indicating how the underlying forces are distributed (the rebels rejected as “enemies”; the refusal to accept the role of “checks” claimed by the notables). In doing this Foucault brings to light what for him constitutes the major singularity of the Nu-pieds event: it presents, for the first time on the scene of power, “the visible body of the State”, a body of functionaries (and financiers) endowed with every prerogative, occupying the empty place left by the King, and uniting the double power of justice and the army in a repressive function of the State. This enables him to extricate himself from a perspective of the history of monarchical institutions and/or State apparatuses.29 Here, as Foucault notes, the repressive function of the State appears in the pure state; but it is not yet endowed with the institutions or apparatuses (intendants of justice, police, administrative confinement, etcetera) that will perform this function from the end of the seventeenth century. What the Nu-pieds event reveals, therefore, is not just the existence of this function and of the “body” that assumes it, but also the need to invent new institutions in order to carry it out. Where for Mousnier these popular revolts of the beginning of the seventeenth century were of scarce significance for the

294

 

Penal theories and institutions

formation of the monarchical State, Foucault stresses the fact that the repressive institutions that will be put in place are “all called for by the needs of an anti-seditious repression” and by the obligation to find another mode of repression than the one that prevailed hitherto.30 So the popular revolts really are an essential motor in the history of the State. But certainly not in the sense understood by Porchnev, who did not see the specificity—the real discontinuity—introduced here in relation to the feudal system, with the genesis of a repressive system radically distinct from the feudal system of repression. What focusing on the Nu-pieds event reveals is a level of discontinuity seen neither by Porchnev (entirely taken up in demonstrating that the bourgeoisie and the monarchical State were directly involved in a feudal mode of production dominated by the question of “feudal rent”), nor by Mousnier (concerned with describing the phases of construction of the monarchical State and the integration of the bourgeoisie in this political system, and for whom the revolts are infinitely negligible). It is this level of discontinuity that Foucault characterizes through the structural opposition between two heterogeneous systems of repression: “the feudal repressive system” and the “state repressive system”. The Nu-pieds event (like other revolts in the seventeenth century) is situated “at the point of division” between these two systems.31 B. “To give a rigorous form to the analysis of change” “To give a rigorous form to the analysis of change” is, according to Foucault, the principle characteristic of a structural analysis like that of Dumézil. A structural analysis, he adds, is “not the analysis of a resemblance, but of a difference and of a play of differences”: between a set of elements, it establishes “the system of differences, with their hierarchy and their subordination”, but also their sequential links, that is to say, “what are the conditions of a … transformation” between two systems”. An analysis is structural, he concludes, “when it studies a transformable system and the conditions on which its transformations are effectuated”.32 It is clear that this is how Foucault conceives of the play of differences that he constructs between “feudal repressive system” and “State repressive system”. The problem running through the whole course is the following: what is it that differentiates the feudal repressive system (the history of which occupies the whole of the second part of the course) from the State repressive system that we see emerging in the seventeenth century?

 

Foucault and the Historians: The Debate on “Popular Uprisings” 

295

And—more precisely, if we remain in the seventeenth century—what are the conditions of their transformation? It is not a matter of replying to that question here, but of emphasizing how it enables Foucault to think about some of the problems raised by Porchnev and Mousnier in a different way: tensions between taxes and rent, the place of the bourgeoisie, the relationship of these questions to the development of capitalism. 1/ To start with, Foucault establishes a distinction between two aspects of the “State repressive system” that arises in the seventeenth century: (a) its formal character (centralized repressive State apparatus, of administrative form, in strict opposition to feudal repressive bodies and modalities: parlements, seigneurial justice, etcetera); (b) its purpose (levy of “centralized feudal rent”). This is what allows him to complicate the role of both the members of the parlements and the bourgeoisie: the members of the parlements (and other feudal bodies) are hostile to the form of this system, that is to say its centralized and administrative character, subject to the “visible body of the State”, its police dimension. But they are not hostile to its purpose, that is to say to the system of levy, of taxes and exemptions for which it is supposed to act, permitting the levy of “centralized feudal rent”. Conversely, the “bourgeois” might well be hostile to its purpose, but they were in no way hostile to its form, which explains that this “State repressive system” will ultimately be widely taken over and ratified after the Revolution. Foucault’s central idea is indeed to establish an important continuity between the State repressive system imposed under the absolute monarchy and the system taken over by the bourgeoisie at the end of the eighteenth century. 2/ Foucault clearly distinguishes between different dimensions of “feudalism (féodalisme)” which Porchnev mixes up. If he seems to accept to some extent that the monarchical State secures the maintenance of the economic dimension of “feudalism”, that is to say feudal rent (but in the form of a “centralized rent” which enters into competition and contradiction with seigneurial rent), he clearly thinks that the repressive system established from the second half of the seventeenth century completely breaks with “feudalism”. The interplay of engagements, guarantees, and privileges, which Séguier’s repression still seeks to preserve, is no longer tenable and involves the irruption of a radically distinct system to resolve its contradictions. These contradictions are of an economico-political order: they bear on the two points which guide the rest of Foucault’s

296

 

Penal theories and institutions

course: 1. Where are arms and armed force situated? (question of power)—2. Where is wealth situated: how are levies and the circulation of goods carried out? (economic question). If the feudal repressive system is abandoned, it is because it is contradictory on these two aspects: contradiction between State taxation and the rents of the privileged, which clearly explodes the Porchnevian schema of a monarchical State called on to redistribute the “centralized feudal rent”; contradiction in the system of repression (armed force and arming of the privileged), too costly and too risky. A modality of repression needs to be found which is also exercised (in a certain form) on the privileged and which in particular is less costly than recourse to the army. These analyses complicate both Porchnev’s schema and Mousnier’s analyses: they make it possible to reconsider the relationships between feudalism, capitalism, and the monarchical State. It will be noted in particular that they increase the levels of “contradictions”, outlining a sort of very specific dialectical materialism that connects the Marxist question of the relations and modes of production to the (more Nietzschean) question of relations of force and modalities of power.33 3/ In actual fact, Foucault’s thesis is that while the initial function of the new State repressive system established from the middle of the seventeenth century is to “protect the remains of a regime of feudal rents” (within which the old feudal repressive system, increasingly reduced to its economic dimension of rents and profits, is integrated via the system of the sale of offices), the new system “gradually reduces to nothing what it is called on to protect”. In other words, it “facilitates the development of the capitalist economy”. The reasons Foucault gives for this are worth noting. First, it reduces the political and economic interest of “fiscalized justices”, the purchase of offices of justice, permitting “bourgeois wealth to be directed towards new forms of investment”. So, at this level, the development of the monarchical State apparatus, in its administrative form, is not in contradiction with the development of capitalism, quite the contrary. All the more so given that it plays a protective role against revolts which is less costly and more effective than direct repression carried out by the army, and, at the same time, exerts a pressure on wages (via confinement and public projects). We can understand Foucault’s conclusion: “However structurally linked to feudalism (and to its centralized form), it was functionally linked to the development of capitalism. The needs of the formation of capital, the expropriation of

 

Foucault and the Historians: The Debate on “Popular Uprisings” 

297

the powers of justice, the separation between exercise of justice and tax levy, the transfer of the exercise of justice to the administrative power of the State. These four processes hold together”.34 Here again he dismisses both Mousnier and Porchnev without deciding between them: the sale of offices was certainly an important element in the history of monarchical institutions, but the true break introduced by the absolute monarchy will be precisely reducing its political and economic significance to the advantage of a new form of repression linked to the State administration (with centralized justice and police apparatus). At first sight, the monarchical State apparatus may certainly appear structurally linked to a feudal mode of production but, in actual fact, its functioning made it an essential element in the development of capitalism. C.-O. D.*

Notes 1. This appendix does not claim to provide an exhaustive analysis of the relations between Foucault’s lectures and the historical and philosophical debates taking place at the same time. It seeks only to provide readers with some elements concerning the debate regarding the Nu-pieds which then traversed the historians’ community and the way in which Foucault positioned himself in relation to it. It would be a good idea, moreover, to bring this debate together with the discussions in the years 1969–1972 between Nikos Poulantzas and Ralph Miliband on the place of the State in capitalist society and which, at a more theoretical level, intersects with many problems dealt with here from an historical point of view. See in particular N. Poulantzas, Pouvoir politique et Classes sociales (Paris: Maspero, 1968); English translation Timothy O’Hagan, Political Power and Social Classes (London: NLB, Sheed and Ward, 1973); R. Miliband, The State in Capitalist Society (London: Weidenfeld & Nicolson, 1969), as well as the republication of the debate between them in New Left Review, in Robin Blackburn, ed., Ideology and the Social Sciences. Readings in Critical Social Theory (London: Fontana, 1972). On this debate see, for example, C.  W. Barrow, “The Miliband–Poulantzas Debate. An Intellectual History”, in Stanley Aronowitz and Peter Bratsis, eds., Paradigm Lost. State Theory Reconsidered (Minneapolis: University of Minneapolis Press, 2002) pp. 3–52. For some elements of discussion in relation to these lectures, see Étienne Balibar’s letter (above, pp. 279–283). 2. B. Porchnev, Les Soulèvements populaires en France de 1623 à 1648 (Paris: SEVPEN, 1963).

*  Claude-Olivier Doron is Senior Lecturer in the History and Philosophy of Science at the University Paris-Diderot (SPHERE research team/Centre Canguilhem).

298

 

Penal theories and institutions

3. Apart from Porchnev’s book, elements of the debate can be found in the following texts: R. Mousnier, “Recherches sur les soulèvements populaires en France avant La Fronde”, Revue d’histoire moderne et contemporaine, 1958, pp. 81–113, reprinted in Id., La Plume, la Foucille et le Marteau (Paris: PUF, 1970) pp. 335–368; Id., Fureurs paysannes. Les paysans dans les révoltes du XVIIe siècle (Paris: Calmann-Lévy, 1967); English translation Brian Pearce, Peasant Uprisings in Seventeenth-Century France, Russia and China (London: George Allen & Unwin, 1971); a review of the French edition of Porchnev in the Revue belge de philologie et d’histoire, 1965, 43-1, pp. 166–171; R. Mandrou, “Les soulèvements populaires et la société française du XVIIe siècle”, Annales, ESC, 1959, 14-4, pp. 756–765; Y.-M.  Bercé, review of the French edition of Porchnev in Bibliothèque de l’École des Chartes, 122, 1964, pp.  354–358; P.  Gouhier, “Les “Nu-pieds”: Boris Porchnev, Les soulèvements populaires en France de 1623 à 1648”, Annales de Normandie, 14-4, 1964, pp. 501–504. For a very useful study of the context in which these debates took place, see the work edited by S. Aberdam and A. Tchoudinov, Écrire l’histoire par temps de guerre froide. Soviétiques et Français autour de la crise de l’Ancien régime (Paris: Société des études robespierristes, “Études révolutionnaires”, 15, 2014), which brings together several contributions enabling a better understanding of all the ins and outs in France and the USSR. 4. B. Porchnev, Les Soulèvements populaires en France, p. 347. 5. B. Porchnev (ibid., pp. 268–275) constructs the category of “town plebeians” in a precise way, and they are, according to him, “the driving force of the urban uprisings”, as are the peasants in the countryside. As we have seen (see above, lecture of 24 November 1971, p. 14, note 16), this concept is taken from Engels. For Porchnev, these plebeians cover three elements: the workers, that is to say a pre-­proletariat of artisans and manufactory workers; a set of small craftsmen (locksmiths, innkeepers, weavers, etcetera); and a “lumpen-proletariat” made up of déclassé peasants, vagrants, and beggars. We should bring this notion of “town plebeians” or “seditious plèbe”, which Foucault will take up in several texts of the time to criticize the break between “non-­proletarianized plèbe” and proletariat, together with the analyses which Mollat and Wolff devote to “popular elements” (“les petits”, “le maigres”, “les gens mécaniques”) and their role in the revolts of the fourteenth-­fifteenth centuries: M. Mollat & P. Wolff, Ongles bleus, Jacques et Ciompi. Les révolutions populaires en Europe aux XIVe et XVe siècles (Paris: Calmann-Lévy, “Les Grandes Vagues révolutionnaires”, 1970). In all these works, and in Foucault’s reading of them, there is an effort to think of the role of the “people” or the “plèbe” outside of the traditional Marxist categories (proletariat/Lumpenproletariat) and often also emphasizing its link with the peasantry. In Foucault’s case, this is inseparable from a marked distance from the Communist Party, traditional ways of framing the “proletariat”, and the derogatory category of “Lumpenproletariat”. 6. Apart from his work on the popular revolts of the seventeenth-century, Porchnev is the author of several texts on the political economy of feudalism, in particular “À propos de la loi économique du féodalisme” (1953), Essai sur l’économie politique du féodalisme (1956), and Féodalisme et Masses populaires (1964). On this subject see I. Filippov, “Boris Porchnev et l’économie politique du féodalisme”, in Écrire l’histoire par temps de guerre froide, pp. 149–176. Attention to the developments of “feudal rent” is frequently found in Foucault’s lectures, in particular when he is analysing the material c­ onditions

 

Foucault and the Historians: The Debate on “Popular Uprisings” 

299

of the crisis of the fourteenth-century (see in particular the lecture of 23 February 1972). 7. B. Porchnev, Les Soulèvements populaires en France, p. 545. 8. Ibid., p. 327. 9. The debate on the role of the peasantry as revolutionary force goes back to Marx and Engels themselves, for whom the industrial proletariat is the only really revolutionary class. This position, which will be the subject of debates between Trotsky and Lenin (initially hesitant on the question), will finally be reasserted by Lenin in The State and Revolution, and then intensified during the Russian Civil War and the various programs of collectivization in the countryside of 1920–1930 which draw a rather dark figure of the muzhik. As we know, it is above all through Mao Zedong and the Chinese revolution that a re-evaluation of the role of the peasantry as revolutionary class takes place (on this subject see L.  Bianco, Les Origines de la révolution chinoise, 1915–1949 (Paris: Gallimard, 1967)). This re-evaluation will be accentuated by various Marxist-inspired movements of national independence in the period 1950–1970 (from Castro and Guevara to Ho Chi Minh passing through the Khmer Rouge or Omar Oussedik); and, in the West, by the Maoist sects, some (including in France) dreaming of the realization of a union of poor peasants and proletarians, to the point that one could speak of a “peasant messianism” as previously of a “proletarian messianism”. If Foucault does not share this dream of a union of peasants and workers in France in the 1970s, preferring to lay stress on removing the split between the non-proletarianized plèbe and the proletariat (see above, lecture of 15 December 1971), in his historical analysis of the seditions he seems more attentive to the peasant (or plebeian) movements as essential elements in the different phases of the constitution of the monarchical State and the repressive apparatus. We can see this as much in his analysis of the fourteenth-century revolts (which generally combine urban sedition and peasant revolt) as in the analysis he offers of seditions in the seventeenth-century. 10. On the archives of the Chancellor Séguier, their history, and the PorchnevMousnier rivalry on this subject, see, for example, F. Hildesheimer, “Les archives du chancelier Séguier entre Paris et Saint-Pétersbourg”, in Écrire l’histoire par temps de guerre froide, pp. 53–67. 11. R. Mousnier, “Recherches sur les soulèvements populaires en France avant la Fronde”, pp. 83–84. 12. B. Porchnev, Les Soulèvements populaires en France, p. 577. He notes that it did not involve power ““becoming bourgeois” but the “feudalization” of a part of the bourgeoisie”. 13. R. Mousnier, “Recherches sur les soulèvements populaires…”, p. 110. 14. The 1960s and 1970s are a moment of intense debate on the pertinence of the characterization of a “feudal mode of production”, applied by Marxists to a multitude of historical situations from Medieval Europe to nineteenth-century Russia and China of the first half of the twentieth-century. “Feudalism (féodalisme)” then designated a wider concept that that of “feudality (féodalité)”, limited to the bonds of lord and vassal and to the system of benefices, which seem above all valid up to the fourteenth-century. “Feudalism” refers to a social organization founded on the levy of ground rent by an aristocracy endowed with rights of justice and political privileges. Some prominent texts in these debates appear precisely at the start of the 1970s: the proceedings of the confer-

300

 

Penal theories and institutions

ence of the CERM held in April 1968 (Sur le féodalisme, (Paris: 1971)) and those of the Toulouse conference on feudality organized by J. Godechot (L’Abolition de la féodalité dans le monde occidental, (Paris: CHTS, 1971)), as well as the classic work by W. Kula, Théorie économique du système féodal (Paris: Mouton, 1970). For more details, see G. Lemarchand, “Féodalité, féodalisme et classes sociales en France au XVIIe siècle. Le débat dans l’historiographie 1960–2006”, in Écrire l’histoire par temps de guerre froide, pp. 133–148. 15. R. Mousnier, “Recherches sur les soulèvements populaires …”, p. 108. 16. Of the two dossiers of preparatory sheets in the BNF collection regarding the Nu-pieds, the second, entitled “Popular movements in the seventeenth-century”, contains an extremely detailed summary of Porchnev’s work as well as a precise analysis of Mousnier’s arguments, as Foucault had read them in the republication of the 1958 article in La Plume, la Faucille et le Marteau. 17. More recent historians agree that Foucault is right on certain strong points of his analysis: the original character of the suppression of the Nu-pieds assured by the Chancellor Séguier, who holds concurrently the functions of justice and the military; the idea that the “visible body of the State” is seen clearly to emerge here and that this body takes on ritual, almost theatrical forms with marked religious connotations (the division of the wicked and the innocent). We thank Y.-M. Bercé and A. Teyssier for their stimulating comments on this subject. 18. “Revenir à l’histoire”, Paideia, 11: Michel Foucault, pp. 40–60; lecture delivered at the University of Keio, October 9, 1970; DÉ, II, no. 103, pp. 272–273/“Quarto”, I, pp. 1140–1141. Our emphasis. 19. Lecture of 24 November 1971, above p. 3 [5/4]. 20. “…a long series of popular riots at the beginning of the seventeenth century”; “a series of riots, revolts, and movements which took place in Normandy”, ibid., p. 2 [2/1]. One of the interests of the serial approach, as Foucault noted, is that it “does not give itself general objects constituted in advance, like feudalism (féodalité)” and does not seek to decipher them immediately in “pre-existing categories” (“Revenir à l’histoire”). In the present case, this avoids him immediately codifying these revolts as episodes of the class struggle or anti-tax riots. He stresses moreover “contact” with a multiplicity of acts of brigandage and illegalism without accepting a priori a division between popular struggles and criminality for example. We find again here Foucault’s idea, developed in The Punitive Society and in Discipline and Punish, that in the seventeenth-eighteenth centuries there is considerable contact and continuity between various illegalisms, political struggles, brigandage, and criminality. The role of the repressive system will consist precisely in breaking this continuity by creating divisions between political crimes and common law offences, between the delinquent plèbe and organized bourgeoisie/proletariat, etcetera, (on this subject see already the lecture of 24 November 1971). 21. Lecture of 1 December 1971, above p. 24 [33/12]. Our emphasis. 22. Ibid., p. 24 [34/13]. 23. “Par-delà le bien et le mal” (interview with school students, published in Actuel, 14, November 1971; DÉ, II, no. 98, pp. 224–225/ “Quarto”, I, pp. 1092–1093; English translation Donald F.  Bouchard and Sherry Simon, “Revolutionary Action: “Until Now”” in Michel Foucault, Language, Counter-Memory, Practice. Selected Essays and

 

Foucault and the Historians: The Debate on “Popular Uprisings” 

301

Interviews, ed., Donald F.  Bouchard (Oxford: Basil Blackwell, 1977) p.  219. Our emphasis. 24. Lecture of 1 December 1971, above p. 24 [33/12]. 25. Lecture of 15 December 1971, above p. 43 [55/11]. 26. Ibid., [56/12]. 27. On this subject see the notes to the lectures and the context in Section II, “Course Context”, above, p. 240 sq. 28. See above, “Ceremony, Theater, and Politics in the Seventeenth Century”, p. 234 sq. 29. This position is constant throughout the lectures. See, for example, the lecture of 16 February 1972, in which Foucault reasserts the existence of “pre-State functions” prior to and independent of State apparatuses, which allows him to think the imbrication of the economic and the political independently of solely State institutions. This position should be situated in the debate between Foucault and the Althusserians. 30. Lecture of 26 January 1972, above p. 102 [123/2]. 31. Lecture of 1 December 1971, above p. 21 [29/9]. 32. “Revenir à l’histoire”, pp. 274–276/pp. 1142–1144. Our emphasis. 33. This will to think about the way in which economic relations (relations of production, circulation, and the accumulation of wealth) are connected to, reinforce, or clash with political relations that are not reducible to State apparatuses alone guides all the following lectures on the establishment of the medieval repressive system. 34. Lecture of 26 January 1972, above, p. 105 [129/8].

Index of Concepts and Notions Compiled by Nicola Lennon

Page numbers followed by n refer to end of chapter notes a fortiori 104, 187 à mortier (black velvet toque) 13n abduction (ransoms) 135, 154 abnormality psychiatric xxiii abortion 250 absolute monarchy 121n, 144n, 236, 279, 286, 295, 297 absolutism 16n, 33n, 174, 286–9 abuse of authority 135 accepted fact (fait notoire) 220n accusation 269n accusatory procedure 127–8, 200, 230 German 140n inquisitorial form vs 140n accusers 128 role of 188, 193n acknowledgement 139 acquittals 37 acts of settlement 125n acts of submission 237 actuality 271–2n, 276n administrative acts 27 administrative tribunals 94 adultery 135 Advent 67, 164n aesthetics of existence 268 aggression prohibition of 164n agō n 217n agoras (Greek and Roman) 53n, 235 Aides 192n offices of 15n Albigensian Crusade 162n alienation 261 altercatio 156, 164n Althusserians 216n American Legal Realism 264

Ancien Régime 81n, 288 anti-judicial struggle 266 anti-rioters law (1970) 244 anti-sedition 102, 106, 108n, 139, 149, 152–3, 162n apparatus (dispositif) 147n, 217n collective 249 appropriation direct vs indirect 154 history of 146n relations of 133, 138, 144n wars of 150 aprise (public knowledge) 188, 219n definition 193n Aquitaine revolt (1635) 50n arbitration 53n, 276n archers 165n Armagnac–Burgundian civil war 180–1n armed attack 3 armed force 296 court form and popular justice 146n organization of 115 police 95 problem of 89–90, 139 armed intervention 94 armed justice 31n, 37–55, 57 century of 17, 20 operations of 38–9 armed resistance right to 269n arms 296 bearing 154, 156, 186, 192n centralization of 160, 174 concentration of 159 distribution of 149, 153–60, 167, 169–70, 191, 197, 273n formation and development 167 presence of the 101

304

  INDEX OF CONCEPTS AND NOTIONS

arms—continued professional 137 right to 159 as sole guarantor 17 war vs 275n arson 164n voluntary 135 artisans 212, 298n arts of living 268 ascesis (exercise of oneself, in thought) xxviii writing as 268 assassination 207 asseurements (assurances) 111, 164n, 184–7, 192n personal 156 atopos xxvii attack 186, 265 avoueries 169, 177n avowal 139 Bachelardian–Althusserian tradition 225n bail 161n bailliage 32n, 38, 76, 81n baillis 112, 120n, 169 banditry 113, 122n banishment 135, 137, 147n banking practices 114 bargus 123n battle of Avranches 34n battles 53n, 259–60 beggars 26 beggary 17 bellum et injuria 157–8 beyond sense (hors-sens) 217n bifrons character 211 billeting 46, 53–5n, 58, 237 biology 214 Black Death 146n, 173 Black Panthers 245 blackmail 86, 211 blasphemy 135 blocked society 244 blue nails 179n bonnets-rouges (red caps), 121n bourgeois ideology 108n branding iron 129 Bras-nus (Bare-arms) 46, 54n brawl 155, 163n brigandage 135, 164n, 300n brigands 114 burden of proof 140–1n bureaucracy 211 Cabochiens 174 revolt 180n caesura 190, 212, 223n, 265 Cambodia 51n

Camisards 113 revolt 122n suppression of 20 canon law 141n capital accumulation of 97n, 109n formation 106, 296 capitalism 23, 32n, 85, 92, 95–6, 99n, 101, 108n, 260–1 capitalist economy 101, 105, 296 capitalist production 105, 109n, 112, 258 capitalist societies 147n, 211 capitalist system 194n, 223n criminality and 109n development of 105–6, 109n, 285–90, 295–7 nascent 104–5 reproduction and 179n, 279–80 Carolingian Empire 112, 133, 145n forms of administration 230–1 inquiry 202, 218–19n mallus publicus 120n period 124n, 129 State 170 cartesianism xxv castration 118 categorical imperative xxv cavalrymen 165n celestial world xxvi, 66n censuses 220n châtellenie 32n checks role of 293 theory of the three 57, 61, 65n, 237 chess xxvi children 8, 15n, 65n Chinese Revolution 51n, 299n Cultural Revolution 246 Christianity 54–5n, 111, 119, 127, 132–3, 140n, 164n, 250–1, 227n law 65n medieval organization of pastoral power xxiii morality 190 religious ideology 221n circulation removal from 139 civil dispute 149–50 civil order 45–6 civil procedure rules 164n civil rights loss of 193n civil war 258–9, 265, 268, 274n claie punishment of 35n class relations 179n, 243, 254, 258, 260, 267, 280, 287–8

  Index of Concepts and Notions clearings 146n clida (scaffold) 123n coercive apparatus 147n coercive institutions 227n colonial trade 95 colonization 137, 146n, 151, 173 combat 130, 230 commise 145n committimus 175, 181–2n common knowledge (notoire) 201 common law 130, 194n crime 1, 4 delinquency 142–3n, 241 offences 300n political law vs 131, 142n, 191 commune charter (1368) 29 communes 144n communism 109n, 273n anti-277n Communist Party 261, 298n compensation 111, 127, 132, 135, 140n, 147n, 157, 192n of judgment 119 purificatory 139 societies 147n see also rachat composition 117, 123–4n, 128, 134, 149–50, 210 comtales courts 112, 120n Comté 133 concentration camps 261 concordiae 131, 144n condemnation 151 confession (aveu) 139, 147n, 197, 203–7, 218–19n, 231, 266 history of practices 219n medieval procedure 220n confinement 85, 93, 98–9n, 101–2, 107, 232, 246–7, 251, 254, 290 administrative 293 apparatuses (dispositifs) of 147n police and 95–6 societies 147n confiscation 127, 134–40, 144n 149, 151–2 of goods 162n as main penalty 145n conflicts of attribution 113, 121n confrontation 206, 259 connaissance see knowledge consciousness intellectual power 224n conscription of troops 27 conservatism 244 contracts 53n, 149 contravention 193n control 53n corporal mark 139 Council of Charroux 164n, 170

305

Council of Limoges 170, 177n Council of Poitiers 156, 164n, 170 counter-attacks 158, 190 counterfeiting 154, 192n see also forgery Cour des Aides 30–1n, 43, 51n, 91, 162n court form genealogy of 146n cowardice 124n craft industry/craftsmanship 14n, 173, 222n, 298n crime 65n, 114 attack and 265 capital 222n categories of 118 common law 142n legalist definition of 193n political 130, 142n, 143n, 191, 300n serious 221n crimen majestatis 190 criminal law 114 criminal procedure 32n criminality 106 capitalism and 109n law vs 265 popular struggle vs 300n criminals 114 criminology 109n crisis medical notion of 217n Critical Legal Studies 264 Croquants 19, 80 cross 129 culture established values xxvi global xxvi Curia Regis 31n curiosity xxiv customs duties 98n tariffs 12n daily life 249–50 damages 134, 157 dangerous individual concept of 221n dangerous population 95 death 139, 147n penalty 35n, 80, 135 debt 111, 115, 121n, 151, 222n decentralization 244 defeat 259 delinquency 101–3, 106–8, 159, 165n, 244, 265, 269n, 300n common law vs political 142–3n, 241, 253 political dimension 194n

306

  INDEX OF CONCEPTS AND NOTIONS

democracy Athenian 224n, 260 social 277n denunciato (denunciation) origins and meaning 141n denunciators 141n, 193n deportation 85, 101–2 desertion 118, 124n, 135 detachment (se déprendre) xxvi diffamatio 127–8 definition of 141n difference of objects 257–8 differentials 226n differentiations 86 dikaion 222n disciplinary apparatus 147n discontinuity 294 disorder 201, 204 displacement 265 Domesday Book (1086) 220n double guarantee system of 86 double-sided systems 1–2 dregs 14n dues 127 dynastic concept of 51–3n, 199, 217n, 227n, 293 ecclesiastical inquiry 202 see also inquiry échevinage Douai commune 144n échevins 47, 60, 75–6, 131, 155, 163n éclat (power) 257 economic neoliberalism xxiii economic relations 260, 301n économistes (partisans of rent) 91–2 Écorcheurs 159, 165n, 174 edicts 65n education 210–12 egoism 109n elected (élus) 81n Élections regime 71 emergence (Entstehung) 52–3n emotions 248 empiricism 220n employment 95, 173 encis 135 endogenous process 167, 172 enemy 273n engagement (feudal system) 64, 73–9, 86, 89, 93, 101, 106, 295 definitions xix-xx feudal form of xix England empiricism 205

hue and cry 141n enlistment 93 Epiphany 164n epistemology 223n, 255, 264, 280 Bachelardian–Canguilhemian 226n of continuity 225n epistemological break 225n, 280, 283 epistemological domains 230 epistemological matrices 214 epistemological obstacles 227n epistemological power 223n historical analysis 226n as an illusion 225n error in law 164n essay xxviii Estates General of Langue D’oïl 180n system of 81n États regime 71 ethics 268 ethnology peasant 232 étiquette 70, 235–8 event 290 Nu-pieds 291–4 evidence (evidentia rei) 218n evident character (evidentia facti) 220n examination 222n, 227n, 232 definition 230 self- 227n exceptional jurisdiction 94 exchange 139 exclusion 139, 147n excommunication 156 execution 37, 50n, 54n, 58, 69, 80, 119, 237 exile 147n grief of 140n institutions 140n societies 147n exogenous process 167 experience (expérience à fond) 247–51, 266–8 spatio-temporal generalization of 250 expiation 155, 163n pilgrimage of 163n extra knowledge (plus de savoir) 217n, 226–7n, 214–15 extra power (plus de pouvoir) 217n, 219n, 226n extra profit (plus de profit) 217n, 226n Faire collective 249 falsity xxviii false accusation 140n false evidence 135 false sentence 145n, 156, 164n see also truth

  Index of Concepts and Notions fascism 250 fees 134–5 feudal rent 6, 15n, 20, 22–3, 98n, 103, 112, 172–3, 226n, 289, 296 centralization of 286–7, 295 developments of 298–9n state tax vs 287 feudalism (féodalisme) 71, 92, 160–1, 172, 230, 285–90, 299–300n aristocracy 41 armies 165n bodies 295 bourgeoisie 287 centralization of 105 concept of 44, 299n crisis of 183–4 economic dimension of 101, 104–5, 295–6 institutions 101 justice 23 law 177n levies 137 lordship 145n, 156, 159, 164–5n, 254 mode of production 299n order 289 political economy of 298n property 208 relations 112 society 43–4 structures of 112, 159 system of 16n, 21–2, 96, 97n, 103, 223n, 294 toppling of 149 feudality (féodalité) 299–300n concept of 299n fiance 163n fidem facere 124n fief/arrière-fief 175–6, 182n financial acts 27 financial control 94 fines 28, 101, 119, 127, 134–5, 145n, 149 system of 77–8 fiscal agents 236–7 fiscal bodies (cours des Aides) 19 fiscal State apparatus 73 fiscal system 109n flagrante delicto 141n Flanders war 164n foedus (juridical form of the pact) 156 Fonds Foucault 242 fons justitiae 175, 189, 198, 202 food shortages 2 foot soldiers 165n force inequality of 199 intervention of 167 relations of 37, 44, 53n, 57, 178n, 199, 220–1n, 274n, 296

307

forgery 135 currency 154 see also counterfeiting fouage (fiscal measures) 192n franc fiefs 7, 9 France 298n confession, importance of 205 confiscation of goods 162n French Crown 121n judicial procedure 123–4n tax system 121n fraud 193n fredus/fredum (compensation) 119, 124–5n, 133, 144n, 168 Freudo-Marxism 256 see also Marxism friede (price of peace) 124–5n, 131 friendship 268 Fronde 23 fruitio bonorum 62 gabeleurs 35n gabelles 10, 14–16n, 28, 30n, 192n collector 13n gage (pledges/surety) 73–9, 111, 119, 139 definition xx gallows 50n genealogy 52n, 243, 249, 251, 254, 268, 281 general and lower bodies (présidial) 19 general court (plaid) 134, 145n généralités repressive function of 94 genre 235 Germanic law 114–19, 122n, 124n, 127–32, 157, 197, 202–3, 254–6, 259–60, 264 oaths 141n penality 147n ghiselscepe 163n Giscardism 268 God’s will 237 Gombette law (lex Gundobada) 129, 142n goods circulation of 140n, 144n confiscation of 162n moveable/immovable 161n movement of 114 redistribution of 149 governmentality 268, 274n grammar 214 Great Charter of the Gantois (1297) 155, 163n Great Companies (14th Century) 159, 165n Great Plague 138 Greece 260 ancient society 209–10, 217–18n, 222–4n, 227n city state 229 see also democracy: Athenian

308

  INDEX OF CONCEPTS AND NOTIONS

guarantees 295 contractual 114 game of 101 guarantors 125n, 129 system of 89–90 guidon (flag) 35n Harelle Riots (1382) 80 health 246 examination of 215 heresy 135 heretics 162n hermeneutic approach 52n heteroclite amalgam 14n hierarchy (gradus probationis) 220n highways 192n history 243 discipline of 290 historical accident 107 historical materialism 225n, 272n historical object 1 ideology and 280 science of 225n homicide 135 homme de robe 15n homo missus a Deo (man sent from God) 29 hoplite revolution 222n Hospitallers 161n hostages system of 155–6, 164n human sciences 215, 227n, 230 birth of 197 see also science hunger strikes 143n ideological extremism 244 ideological operations 198, 216n ideological State apparatuses (ISAs) 179n, 221n, 253, 275n, 282 ideology 253 notion of 216n, 221n, 260 function of law 263 history and 280 religious 221n schema of 223n science and 223n, 225n theory of 280 illegalisms 33n, 68, 300n imprisonment 139–40, 147n restoration of freedom post-161n in flagranti 69, 80 incest 135, 140n in primitive societies 147n indebtedness 101 indignity (indignation) 258 individuals, exclusion of 138–9

infamatus 141n infâmes 224n infamia 141n informers 128 infra power (sous pouvoir) 226n infraction 151, 193n, 230 inimici 123n injuria 167–8 injury 186, 192n, 201, 204–5 categories of 116 inquest 193n inquiry 202, 204–6, 218n, 223n. 229–30, 241, 243 administrative 212 Carolingian 202, 218–19n definition of 230 ecclesiastical 202, 219n forms of judicial 220n genealogies of 224n inquiry-bureaucracy system 211 inquiry-truth 201 intolerance 224n, 245 judicial model of 230–1 knowledge and 222n measure vs 197, 208–11 model of 227n practice and form of 224n procedures of 202 as restoration of order 197 sworn (inquisitio per patriam) 219–20n without consent 221n inquisitio (Church control) 209 generalis 219n inquisition 209, 231, 266, 269n model 231–2 procedure 141n, 230 inquisito specialis 219n intellectuals’ silence 270n intendants of justice 98–9n, 101–2, 107, 113, 290, 293 internal coherence 85–9, 97n administrative state apparatus 86–9 coherence of the tactic 85–6 type of solution 86 internal enemy 59 international revolutionary movements 245–6, 268 interpellation 221n intersubjectivity 248 investigation (effectuer un expérience à fond) 247–8 Jacques revolt (jacquerie) of 1358 146n Jansenism 23 milieus 121n tradition of the parlements 113

  Index of Concepts and Notions Jews 150–1, 161–2n ‘joust of fortunes’ 149–50 judges 104, 115, 117, 119, 134 judging as risk-taking 111, 134 judgments respect of 125n judicial apparatus 112–13 permanency and specificity 127 public intervention 127 judicial assembly plaid 124n thing 123n judicial control 106 judicial duel 127, 129–30, 134–5, 142n, 164n, 189. 200 judicial instance 117 judicial institutions 103 judicial practice criticism of 113 judicial settlement (liquidation) 218 judicialization 262–3 juridical, the 262–3 juridical–fiscal institutions 160 juridico-military state power juridico-political matrices 227n justice acts of 28, 115–16, 166, 262, 276–7n administration of 119, 123n, 227n apparatus of 194n appropriation of 133 armed 264–5 arms and 169 attack in 128 authoritarian 172 birth of 253, 256 centralization of 102, 137, 160, 167, 183–4, 191, 263, 297 circulation of wealth and 144–5n civil 134 coercive 166 compulsory 161n, 166 concentration of 161n, 167 costs of 149–50 criminal 134 denial of 156, 164–5n dispensation of 18, 104–5, 164–6, 184, 262 dispute and war 131 distributive 32n, 133 duties of those subject to 119 economy of 254 enfeoffed 104 as an essential element of power 133–4 expropriation of the powers of 106 feudal 23, 114 fiscalization of 149, 159, 169, 191, 230, 296

309

free 110n functions of 68, 194–5n, 300n fundamental rules of 68 history of 194n ideology of 194n independence of 17, 24 injustice of 158 intendants of 98–9n, 101–2, 107, 113 as judicial State apparatus 160, 254 officers of 289 order of 115–16 paramilitary 59 parlementary 21–2, 167, 174–6 penal 197–8, 230, 241, 265 popular 51n, 146n power of 195n, 265, 297 practice of 29, 266 présidial 21–2 pre-State function 160 prévôtal 21–2 private acts of 157, 276n profits of 103, 119, 166–9 purchase of offices of 296 readjustment/increase of 138 reform of 32n, 109–10n rejection of 17 relationships of 114 repressive function of 258 rights of 144n risk and 124n seigneurial/royal 20–2, 103–4, 108–9n, 149, 160, 295 self-dispensation of 123n social struggles and 167 as a source of revenue 145n sovereign 31n spontaneous 166 ‘spreading out’ of 136–7 State apparatus 112–13 State takeover of 167 struggles 250 tax and 8, 104, 161n tax levies vs 106, 297 theory of the three checks 61, 65n transfer to administrative power 106 transformation of 174 wealth and 97n will of individuals in dispute 118 see also peace institutions Justinian Code 132 justitia 167–8, 170 kantianism xxv kerke (penance) 144n king as guardian of order theory of 198, 200, 202

310

  INDEX OF CONCEPTS AND NOTIONS

king’s bourgeois 169, 177n knowledge (savoir) 202, 212, 226n, 229, 270n accumulation of 227n archaeology of 214–15, 226–7n artisanal 224n bodily (de visu) 220n circulation of 227n common (notoire) 201, 231 connaissance 216n, 229 confiscation of 227n differential 226n disqualification of 223n effects 198, 204–15 extra (plus de savoir) 217n, 226–7n, 214–15 extraction of 201, 211, 219n, 221n, 223n, 227n form of 213 hierarchization of 223n history of 220–1n inquiry as a form of 222–3n inquisitorial 212 intellectual power 224–5n normalization of 223n penal system 204–15 of police inquisition 223n official 291 placed 213 popular 212 power-209–15, 218n, 222–3n, 226n, 229–30, 232, 241, 253, 255, 258, 271n public (notoire) 220n root of 213 scientific (connaissance) 212 search for (l’égarement de celui qui connaît) xxiv subject of 213–14, 216n surplus 211–12, 215, 223n, 227n, 282 transformative xxviii truth 217n worker’s 224–5n see also aprise la maréchaussée 59 labor-power 178–9n landowners 18 Latin America 51n Law affair 113, 121n law as legitimation of monarchical power 276n conceptions of 263 corruption of 29 criminality vs 265 critique of 263 ideological function of 263 Marxist critique of 263 political dimension of 276n study of 262

leasing 78 leftism 281–2 sects 251 legal homicide 123n legislation 208 corpora of 21 legislative institutions 17 penal 113 positive 5 theories and bodies of 5 Leninism 281 Lent 164n lèse-majesté crimes of 46, 118, 129, 132, 135 lettres de cachet 23 level examination of 215 levy of goods 140n power of 152 see also tax: levies lieutenant général 81n lieutenant particulier 81n lieutenant of police, office of 32n linguistics see structural linguistics literary history 236 litigants tests on 198–200 Lombards 150–1, 162n longue durée 254 loyalty duty of 142n lumpen-proletariat 14n, 298n madness 181, 246, 248, 250 see also mental health magnati 179n magnetism 231 Maillotins 174, 180n maîtres des requêtes 67, 71, 75, 80 Mâl 123n mala fama 141n manifestations notion of 53n manufacturers 212 Maoism 142–3n, 146n, 245, 265–6, 279–80, 287, 299n French circles 51n Gauche prolétarienne 244, 254 Marcellin laws 142n market system 96 marks/marking 293 notion of 52–3n, 147n, 199 marriage 150 history of xxiii Marxism 216n, 252–64, 272n, 274–5n, 277n, 279–82, 288, 296

  Index of Concepts and Notions Althusserian 225–6n categories 298n counter-253, 255 criticism of 268 disqualification of 280 feudal mode of production 299n Freudo-256 historical materialism 178n humanism 261 national independence movements 299n relations of production 178–9n humanism 261 Marxist-Leninist philosophy 272n Marxist Revolution 268 Nietzscheo-256 theory 109n see also capitalism; historical materialism Maupeou conciliation 106 Parlement 113 reform 23, 110n mayors or intendants (villici) 30n measure 227n, 222n, 241 definition of 230 as a form of power-knowledge 222n, 229–30 inquiry vs 197, 208–11 types of 222–3n Médecins du monde 270n medicine 250 medico-legal concepts 232 medieval proofs 129 memoir 232 mental health 215, 246 see also madness mercantilist policy 93 mercenaries 159–60, 165n, 170, 173–4 merchant economy 114 merchants 192n Merovingian kingdom 133 metaphysics of memory and forgetting 213 militarized society 274n military cowardice 118 institutions 160 measures 77 organizations 27 repression 236 service 124n strategy 4, 277n transformations 222n militias bourgeois 31n communal 31n minuti 179n mise en jeu 236

311

Mishnah xxviii missi dominici 144n mitigating circumstances 233 modernity 255 modernization 244 modes of production 97n money 222n monetized exchange 151 monomania concept of 233 monopolists 35n moral expiation (penence, kerke) 163n morality 1–2, 138, 265 Christian 190 examination of 215 good/evil 2 history of 123n shameful morals 124n social system of 123n Mousnier–Porchnev Debate 286–9 murder 123n, 131, 206–7, 232 ritual societies 147n mutilation 135, 139 Napoleonic period 23 nationalism 268 natural history 231 natural law 260, 263, 265 natural sciences see science(s) Nazism 250 new ordinance on peace (1296) 163n new repressive system 241, 285, 290 Nietzscheanism 213, 296 Nietzscheo-Marxism 256 see also Marxism nihilism 142n nobiliary privileges 30n nobility evasion of 17, 18 State of 289 nomos 222–3n normality examination of 215 Norman custom haro 141n notables 239 notoriety notion of 218–19n notorious (notoire) 218n, 220n notorious fact 218n not-thought (non-pensée) 217n Nu-pieds (Barefeet) uprising 33–4n, 40, 42, 50n, 53n, 58, 73, 85, 88, 236, 252, 254–6, 269n, 300n definition 1, 4–18 event 291–4

312

  INDEX OF CONCEPTS AND NOTIONS

Nu-pieds—continued Foucauldian reading of 290–7 power of 24–9 revolt 241, 243, 259, 285 suppression of 162n oaths 111, 127, 129, 141–2, 154–6, 163n, 177n, 184 abuse of 142n false 142n Germanic law 141n of obedience 119 of undertaking (fidem facere) 124n obedience relations of 257 obligation (engagement) 53n octrois (tax on goods and foodstuffs) 78 offense (délit) 193n officers “of the long robe” 120n officers “of the short robe” 120n offices of judicature 104 purchase and sale of 99n, 110n system of 109n onus of proof 140–1n opinion (fama) 208 ordeals 127, 129, 142n, 217n, 221n. 269n Ordinance (1670) 32n, 59, 103, 108n, 113, 121n, 186 Ordinance of Blois (1499) 32n Ordinance of Villers-Cotteret (1539) 32n ordinances 175, 146n, 165n, 181n, 221n breaches of 184, 186 ordinary life xxv ost (military service) 124n otagement 163n outlaws 3 overpopulation 173 pacification 134 rituals of 131 pacts 149 pagi 164n paiseurs (peaceful settlement) 131, 144n, 154–5 panoptic gaze xxv Papacy 162n pardon 48, 54n, 79 sovereign 161n Parisian butchers 180n parlement 103, 112 competences 181n as component of state apparatus 167, 176 creation and development 31–2n decrees of 74 function of 174–6 jurisdiction of 175

literature on 181n parlementaires 238 structure and composition 181n participation 244 partisans (financiers) 15n, 16n, 26, 35n, 41–3, 51n, 57, 121n patrimonial cases 192n pax et justitia 116, 149, 157–8, 170 concept of 198 pax romana 157 pays d’Élection 81n pays d’États 81n peace 259–60 decreed by ordinance 156 definition of 163n elements of 155 local 164n of the market, fairs, roads 156 pacts 149, 154–5, 163n selective 156 peace institutions 144n, 149, 154–5, 157, 160, 162n, 191 continuation of 167 function of 167–76 operation of 158–9 Peace of God movement 163n peasantry messianism 299n revolutionary role of 287, 299n warfare 51n Peasants’ Revolt (1381) 180n pedagogy 210–11, 245–6 peine infamante 193n Penal Code (1810) 101, 187, 189, 192–3n penal law 115, 128, 158, 275n history of 190 political theory of 265–6 penal practice 1, 132–3, 139, 147n, 149, 230 penal repression 33n penal ritual 5 penal system 106–8, 110n, 127, 274n analysis of 1–2 function of 51n knowledge effects 204–15 as penal theory, institutions and practice 1, 4 population movement 137 theory 5 trial 150 penalties 130, 151 abolition of 37 accessory 145n carceral 139n 140n confiscation as main 145n corporal 193n correctional 193n

  Index of Concepts and Notions criminal cases 134–5 demand for 159 distribution of arms 153–60 domains of 185–6 fiscal 139, 140n Germanic 147n history of 186 police 193n political 190–1, 265 production and 140n theories of 113 penance 140n kerke 144n penitence 138, 147n penitential ceremony 5 Pentecost 164n perpétuel 47, 81n Perpignan notarial registers 162n peuple gras 180n phenomenology 52n, 217n philosophy 223n, 247, 272n philosophical activity, definition of xxviii philosophical acts 248 Physiocrats 91–2 economic doctrine 98n piéger sa propre culture (trapping one’s own culture) xxvi pilgrimage of expiation 144n, 163n plague 160 plaid (judicial assembly) 124n plèbe (common people) 33n, 51n, 108n, 162n, 257, 265, 286, 293, 298–300n concept of 14–15n pledges (gages) 111, 125n, 127, 133–4, 150 Poitiers uprising (1631–1632) 6 police 101, 107, 221n, 237, 250, 290, 293 apparatus 232, 297 armed force 95 centralized 95 confinement and 95–6 function of 32n inquisition 223n lieutenant generals of 99n penalties 193n theory of the three checks 61, 65n political authority 158 theories of 236 political ceremony 235–6, 243, 257, 273n political crime 1, 4 political criminality 253 political parties 225n, 249 political philosophy 260 political power see power political prisoners 143n, 241, 245 see also prisoners political struggles 300n

313

political theory 62, 71 politico-military strategy 37, 42–4 politics concept of 280 popolani 179n grassi 179n populace 14n popular movements 271n, 300n popular revolt State tax system 17–35 popular riots seventeenth century revolt 1–3, 13n, 16n popular struggles 102 popular uprisings debate on 285–97 population arming of 159, 161n growth 137 removal of 101–2 Porchnev’s theses 33n portatio armorum 184, 186 power acts committed in the exercise of 17 administrative 87–8, 106, 119, 231, 297 centralization of 41–3, 92, 183–4, 236 civil 42, 46, 57, 67 coercive 173 concentration of 152 counter-291 critics of 223n differential 226n disciplinary 227n displacement of 152 epistemological 223n excess of 250 extra , 200–1, 217n, 219n, 226n forms of 46, 229 founders of 223n goods, circulation of 255 historical analyses of 258–61 identical 28 intellectuals and 224–5n, 254 judicial 231 juridical vision of 268 juridico-military 87–8 justice and 133–4, 195n, 265 justiciar 201 knowledge (pouvoir-savoir) 209–11, 213–15, 218n, 222–3n, 226n, 229–30, 232, 241, 253, 255, 258, 271n labor 178–9n maintenance of 292 manifestation of 5, 37, 44, 53n, 57, 70, 88, 243, 274n mark of 257–8 military 136–7

314

  INDEX OF CONCEPTS AND NOTIONS

power—continued modalities of 296 monarchical 236–7 Nu-pieds 25–9 ontology of 250 pastoral dimension of 250 pathologies of 250 political 53n, 101, 104, 111–12, 119, 127, 136–9, 143n, 151, 191–2, 230–1, 235, 257, 291, 293 princely 114, 122n productive 281 psychiatric 280 public 3–4, 6, 116, 127–8, 187–91, 201, 204, 265, 291 quasi-counter 287 redestribution of 29, 57 relations of 53n, 97n, 171–3, 178–9n, 197–8, 227n, 229, 250, 254–9, 268, 271n, 273n, 276–7n in repression 255 repressive view of 69, 277n risk and 118–19 royal 17, 29, 57–8, 61–4, 73, 113, 132, 138–9, 177n, 208, 276n signs of 26–8, 58, 88 state apparatus 257 struggles against 266, 268 struggles for 291–2 surplus 226n technology of 147n theatrical representation of 5, 54n of transformation 249–50 war, battle and 255, 274n will to 257 pre-existing categories 300n présidial 51n, 54n, 76, 81n présidiaux 32n, 103, 112, 120n pre-State functions 301n prévost 35n prévôts (praepositi) 30n, 32n, 103 des maréchaux 59, 65n price of peace see friede princeps 164n principle of the balance of cities 210 principle of the proportion of things 210 printed commands 34n prison 96, 99n, 110n, 127, 135, 140n, 155, 250, 293 politicization of 143n prisoners 247–8 see also political prisoners private disputes 118–19, 127–8 private interest 186 private law 114, 122n private war 127, 130–3, 135, 156–60, 164n, 194n, 199, 259–60

acts of 155 interruptions of 144n suspension of acts of 149 privileged cases specification of 184 probabilis certitudo 218n probabilistic thought 222n profit 103–4 extra 217n, 226n prohibition 151 of incest 140n proletarianization 162n proletariat 108n, 298–9n proletarian messianism 299n proletarian revolution 251 proofs, legal 188, 197, 207–8, 220n, 222n, 230 barbarian system of 200, 218n corporeal 142n of social importance 142n verbal 142n property 91, 104 commercial 104 movement of 137 private 104, 111, 113 redistribution of 149–50 prosecution 230 prosecutors discourse 191 role of 224n prudens 202 psychiatry 140n, 230, 232–3 abnormality xxiii antipsychiatry 260 criminological 233 legal 221n psychiatric power 280 psychoanalysis 246, 261 psychologisms 139 psychology 1–2, 140n, 230, 248, 256, 258 of curiosity 213 delinquency 2 public action 118–19, 127, 131–2 public interest 186, 192n public law 114. 122n, 182n public works 93, 95 publicity of the act 116–17, 123n Pudenda origo 231 punishable acts 187 punishment 57, 140n, 190, 230 categories of offence 118 of the claie 35n guilt and 49 judicial practice of 29 public 118 urban 42

  Index of Concepts and Notions see also redemption punitio malorum 62 punitive society emergence of xxiii purification 140n quadrivium (crossroads) 123n quam pacem nominant 178n quart-bouillon (free extraction of salt, a quarter to the king) 5, 14n Quercy revolt (1624) 80 questioning 206, 221n rabble 14n races struggle of 258 rachat (compensation/indemnity) 111, 117, 124–5n, 133, 140n, 149 rachète 144n rachimbourgs 123n rape 118, 135 rationality 212, 215, 218n, 274n progress of 227n redemption (rachat) 138–40, 147n regicide 124n relations of production 226n, 275n, 301n religion 61 religious ideology 113 religious imagery 66n, 300n see also celestial world; Christianity remission 149 letters of 161n rent centralization of 40–1, 71, 92, 295 distribution of 121n fall of 138 feudal ground 97n imposition of 115 seigneurial 295 tax vs 85, 91–3, 295–6 payment of sums by 135 see also feudal rent repentance 163n representation conditions of 53n repression 29, 194n, 213, 244–5 characteristics of the system of 101–7 definition 37–8 function of 69 hetereogeneous systems of 294 legal 37 mass 86 notion of 267 organization for 98n political 142n power of 69

repressive pomp 5 severe vs lenient 37 State apparatus of 17 system of 1–2, 97n repressive apparatus (dispositif) 33n, 107 function of the State 293 purpose of 22–3 repressive hypothesis xxv, 281 repressive system 32n, 258 anti-seditious function 108n economic effect of 105 institutional effect 105 jurisdictional effect of decisions 105 political function 108n strategic effect 105 reproduction 279–80 capitalism and 179n res invasae 156, 164n reserved cases 184 restriction complex systems of 53–4n retaliation 116, 118, 158 revenge 230 revolution 249 notion of 268 right to intervene 127 ritual 53n ritualized development 149 Roman Empire 261 Roman law 122n, 127, 132, 190, 227n, 269n Romania 129 oaths 141–2n Routiers 159, 165n royal absolutism function of 63, 66n royal agents 238 royal cases 184–9, 192n royal ideology 177n royal orders 34n royal privileges 192n royal procurators 197, 200 establishment of 188–91, 193n Russian Civil War 299n Salic law 129 salt 12n, 17, 27, 30n salvation 139 sanctions 86, 111, 117, 132, 156 religious 164n subtle tactics of 147n savoir (conception of knowledge) 270n scenes (ceremony) 53n science(s) 223n archaeological approach 226–7n common sense and 223n empirical 214, 231

315

316

  INDEX OF CONCEPTS AND NOTIONS

science(s)—continued history of 215, 226–7n human 215, 227n, 230 ideology and 216n, 223n, 225n of the kosmos 215 natural 215, 230 profitability of 213–14 scientific knowledge (connaissance) 212 scientificity 212 threshold of 225n, 283 seals 192n Secours Rouge 245 secrecy 212 Séguier’s repression visible precariousness of 85, 89–93, 97n seigneury 108–9 seigneurial agents (ministeriales) 19, 30–2n seigneurial economy 138–9 seigneurial exactions 146n seigneurial fairs 177n seigneurial rights 175 seisin (legal possession of justice rights) 182n semiotics/semiology of signs 52n, 217n, 246 sénéchaussée 32n, 112, 120n, 162n, 164n Septuagesima (third Sunday before Lent) 164n sexual transgression 118 sexuality 246, 250–1 history of xxiii-xxiv signification 52n sin concept of 132 sine manus et sine pedes 123n Six Day War 245 Slavic law 122n smuggling 3–4, 10 social control 232 social crisis 191 social democracy 277n social dialog 244 social enemy 57, 59 social mark 139 social movement 248–51, 256, 268 social protection 140n social reform 244 social rights 276n social struggles 174, 208, 248 social war 158 socialism 249, 270n socialist realism 273n sociology 1–2, 230, 246, 251, 256 deviance 2 integration 2 sodomy 118, 124n, 135 sol pour livre 13n sovereignty construction of 276n

monarchical 69, 167 Soviet Union 261, 268, 275n, 277n, 298n specific intellectual 248, 266 spectator judge 199 Stalinism 250 stamped-paper revolt, Brittany 113, 121–2n State, the 290 arms of 5 birth of the 1 judicial conception of 132–3 triumph of 5 state apparatus 140n, 273n analysis in terms of 258 contradictions of 112 justice and 194n, 254 medieval pre-State structures vs 149, 152 parlement as a component of 167, 176 point of view of 143n power and 257 repressive system 21–2, 39, 280–1, 294–5 stoicism xxv strict discipline 27 structural linguistics fundamental concepts of 52n structuralism 52n subjugation 258 Sühngeld (expiation money) 144n, 163n superiority of right 199 superstructures 253, 260, 274n, 275n supplice (penalty of the wheel) 46, 58, 80, 124n suppression missions of 13n wild/lenient 5 surety 155 surplus value 227n surplus enjoying (plus-de-jouir) 217n, 282 knowledge (sur-savoir) 282 power, extraction of 197 value (survaleur) 223n, 226n, 282 surveillance 33n, 102, 232 symbolic violence 179n system of proof 127–9 system of repression 253, 273n, 275n tactics: punitive 147n taille 6–7, 16n, 90, 98n tangano (reply, on pain of a fine) 140–1n Tard-Venus 159, 174 taxation agents 7 agricultural 98n anti-tax movement 5–6, 287, 291, 300n on cloth and canvas 6 collection of 180n, 269n convoys 4

  Index of Concepts and Notions crimes concerning 30n data on the causes of 14n direct and indirect 98n on dyeing and leather 8 élection regime 6–7 exemption 30n farms 8, 18, 30n, 71–2, 97n feudal 23 feudal ground rent 97n flow of 40–1 on goods and foodstuffs 78, 82n imposition of 115 increased pressure 17 increases in 6 justice and 8, 161n levies 80, 85, 91, 97n, 104, 106, 111, 151, 158, 168, 194–5n, 197, 223n, 295 multiplication of offices 9 on wine 6, 12n, 14n paulette 9 payment of 109n popular movements 286 popular revolt and State apparatus 17–35 regulation of 71 reimbursement of 15n rent vs 85, 91–3, 287, 295–6 resistance to 3 royal/seigneurial 6–7, 9, 12n, 15n salt 12n seizure of receipts 7 State system, development of 192n system of Estates 81n zones of 167–8 Templars 151, 161n test system 216–17n, 269n characteristics 217n corporal tests 217n inquisitorial tests 221n macro-religious tests 217n social tests 217n verbal tests 217n testimonies 204–5, 218n, 230, 238 theft 135, 154, 207 theology 71, 206 of fault 138, 147n theory of the three checks 57, 61, 65n, 237 threat 86, 102 thunginus 123n topography 275n torrébens 121n torture 33n, 197, 207, 221n, 266 totam et meram veritatem 220n town plebeians concept of 14n, 298n town/country split 51n trade unions 225n

317

traitants 78, 91 transfer of rights 135 transfers of actuality 203 transformations 249–50, 268, 294 treason 118, 124n political 118 Treaty of Arras (1435) 181n trêves (truces) 144n trials 261 tribunal form 224n Trotskyism 142n truce of God (1082) 156, 164n truces 154–6 definition 163n peace vs 163n truste (men bound by oath to the king) 142n truth 144n, 266 of the crime 127, 132 demonstration 217n discourses of 223n discovery of 197, 206 established by witnesses 203 ethics and 207 experimental 231 falsity and xxv game of xxviii history of 217n, 264 indicators of 199 intellectual power 224n knowledge 217n respect for 198 -telling xxiii test of 217n, 221n torture and 221n truth-test-event series 219n untruth vs 216n see also confession Tuchins 180n undertakings (engagements) 156 universities role of 225n urbanization 137 urban civilization 155 urban communities 155, 170 urban peaces 177–8n usury 86, 115, 145n, 151 utopia 249 vassalage 175, 184–5 vassals in arms 159 venality 110n vengeance 117, 123–4n, 170, 189–90, 192n, 199 compensation for private (faida) 125n right of private 144n

318

  INDEX OF CONCEPTS AND NOTIONS

veridiction 216n vertical bonds 288–9 victory 259, 277n Vietnam 51n vigor et justitia 38 violence 257 blind 5 collective acts of 144n excessive acts of 12n violent despoilment 149–51, 154, 161n violent occupation 154 visible body of the State 300n visitatio 219n voluntary submission 48, 55n war army vs 275n benefits of 173 functions of 68 military model 259 model of 268

original state of 258–9 of races 280 theme and schema of 274n War of The Roses (1455–1485) 181n Wars of Religion 4, 19 water 129 wealth accumulation of 152–3 circulation of 98n, 114, 123n, 127, 134, 136–7, 139, 144n, 197, 222n, 230, 253, 296, 301n redistribution of 149–50 wergeld (man price) 119, 125n, 133, 144n, 168 white hands 179n will to know 197, 213 wisdom xxviii women 8, 10, 15n, 65n writing 203–5, 220n as ascesis 268 subversive act of 246–8 wrongdoing concept of 132

Index of Names Compiled by Nicola Lennon

Page numbers followed by n refer to end of chapter notes Agulhon, M. 122n Allard, A. 31n Althusser, Louis xvii, 178n, 179n, 216, 221n, 223n, 225n, 226n, 253, 255, 272n, 274n, 277n, 279–82 Aristotle xv Auguste, Philippe 145n Ayrault, P. 68, 80n Bachelard, Gaston xxvi, xxvii, 225n, 226n, 227n Bacon (administrator) 231 Balibar, Étienne xvii, 255 Ball, John 180n Barthes, Roland 52n, 246 Basso, Elisabetta xvi Baudelot, Christian 282 Bensaïd, Daniel 142n Bercé, Yves-Marie xvi, 12n, 271n, 285 Bernard (councilor of the King) 26 Bertani, Mauro xvii Bexon, S. 193n Bianco, Lucien 51n Bigot de Monville, Alexandre 11n, 26, 33n, 46, 54n, 68, 79n, 82n Blanchot, Maurice 246 Bloch, M. 144n Bonger, W.A. 109n Bongert, Y. 120n, 124n, 144n, 145n, 218n, 219n Bonnaud-Delamare, R. 162n, 165n, 177n Boulays (lieutenant of the bailliage) 76 Bourdieu, Pierre 177n, 179n, 282 Bourquin, M.-H. 122n Boutaric, E. 178n Breznev, Leonid 277n Brissaud, J.-B. 123n Brunner, H. 122n, 124n Budé, G. 62, 237 Burchell, Graham xxiii

Canguilhem, Georges xxv, 216n, 225n, 226n, 282–3 Castel, R. 232 Castro, Fidel 299n Chaban-Delmas, Jacques 244 Charlemagne (Charles the Great) 129, 142n Charles II of Navarre (Charles the Bad) 165n Charles V, king of England 29, 146n, 165n Charles VI, king of England 69, 165n, 174n, 181n Charles VII, king of England 31n, 32n, 165n, 181n Chenevelles (tenant) 28 Church, W.F. 65n, 66n Clamageran, J.-J. 144n Colbert, Jean-Baptiste 94, 99n Corneille, Pierre 236 Crémieu, Adolph 32n Cuvier, Georges 283 d’Orléans, Louis 181n d’Ormesson (councilor) 71, 80n Davidson, Stephen 235n De Blair, Louis-Guillaume 94n, 98n De Bourbon, Aimon 165n, 177n De Bourges, Aimon 170 de Bracquetiut, Godart (councilor) 50n de Faucon, Alexandre 55n de Gaulle, Charles 244 de Thémines (maréchal) 80n De Verdun, Henri 164n Declareuil, Joseph 142n Defert, Daniel xv, xvi, 22, 245, 251 Delaporte Jouvinière (lieutenant of the prévost) 35n∗ Deleuze, Gilles xxv, 52n, 224n, 225n, 232, 251, 253–4, 257, 266 Derrida, Jacques 220n, 247 Descartes, René xxvi, 220n

320

  INDEX OF NAMES

Doron, Claude-Olivier xvi, 243, 271n, 297n Duarte, José 225n Duby, Georges 120n, 144n, 162n, 243 Ducoudray, G. 181n, 193n Dumézil, Georges 294 Duplessi-Mornay, Philippe 9 Edward III, king of England 181n Emery, Richard W. 162n Engels, Friedrich 14n, 298n, 299n Épernon, Duc d’ (Duke of) 12n, 24, 33n, 50n, 80n Esmein, A. 121n, 140n, 141n, 193n, 218n, 219n, 221n Espinas, G. 162n Esquirol, Jean Etienne 233 Establet, Roger 282 Ewald, François xvii Faucon de Ris, Charles (first President of the Parlement) 11n, 47, 49, 50n, 55n Fawtier, R. 120n, 146n, 178n, 181n, 192n, 193n Floquet, Amable 11n, 12n, 51n, 79n, 81n Foisil, Madeleine 11n, 13n, 82n, 285 Fontana, Alessandro xvi, xvii, 232 Fortin, Jean 30 Foucault, Michel 68 effect 247 A History of Madness 65n À propos de l’enfermement pénitentiaire 143n Abnormal. Lectures at the Collège de France, 1974–1975 147n, 219n, 221n, 227n academic response to xxvii atopos xxvii Cérémonie, théâtre et politique au XVIIe Siècle 53n, 54n Classes laborieuses et classes dangereuses 108n De l’archéologie à la dynastique 52n Discipline and Punish xxvii, 32n, 53n, 221n, 227n, 267, 272n, 274n dossiers 242–4 effect of his lecturing style/éclat xxv Essential Works of Foucault 1954–1984 xvi experience and the ‘militant’ period 244–53 foucauldean provenance xxv hierarchy of values xxvi-xxvii History of Madness xxvii, 98n, 99n, 220n, 246, 248, 260, 270n History of Sexuality 250, 274n, 275n, 276n homage to Gaston Bachelard xxvi Intellectuals and Power 108n, 194n, 224n, 225n L’Affaire de Bruay-en-Artois 194n Language, Counter-Memory, Practice. Selected Essays and Interviews 33n Le grand Enfermement 99n, 108n, 143n, 145n, 147n, 194n lectures, delivery of 241–4

Lectures at the Pontifical Catholic University of Rio de Janeiro, 21–25 May 1973 52n Lectures on the Will to Know 52n, 216n, 217n, 218n, 219n, 220n, 221n, 223n, 226n, 227n Les rapports de pouvoir passent à travers les corps 53n Les vols dans les grands magasins 194n L’Ordre du discours 54n Marxism, Althusser and 255–61 methodological rules xxvii modes of thinking 278n Nietzsche, la généalogie, l’histoire52n, 53n, 242 Normalisation et contrôle social (Pourquoi le travail social?) 108n Notebook no. 11 97n, 194n Oedipal Knowledge 223n On the Archaeology of the Sciences: Response to the Epistemological Circle 226n On the Government of the Living. Lectures at the Collège de France 1979–1980 219n, 220n Penal Theories and Institutions moment 253–69 political ceremony and theatre 235–9 On Popular Justice: A Discussion with Maoists 108n, 143n, 144n, 146n, 162n, 178n, 194n, 276n, 277n popular uprisings debate 285–97 Power/Knowledge. Selected Interviews and Other Writings 1972–1977 51n power, law and war 261–6 power relations, conception of 257 Prisons et révoltes dans les prisons 143n, 194n Psychiatric Power. Lectures at the Collège de France, 1973–1974147n, 217n, 219n, 221n royal power 276n self-description xxiv Society Must Be Defended. Lectures at the Collège de France 1975–76 xvii, 223n, 267, 276n, 277n, 279 subjectivity 247 Table ronde 143n, 147n, 194n The Archaeology of Knowledge 216n, 225n, 226n The Birth of the Clinic 246, 248 The Order of Things. An Archaeology of the Human Sciences 98n, 280 The Punitive Society 32n, 52n, 53n, 98n, 99n, 108n, 110n, 122n, 123n, 147n, 178n, 179n, 216n, 217n, 223n, 226n, 227n, 274n, 279 The Use of Pleasure 278n Truth and Juridical Forms 52n, 53n, 142n, 178n, 179n, 199n, 201n, 216n, 217n, 218n, 219n, 223n, 224n, 226n, 227n, 261, 264 Trapping one’s own culture xxvi users of his work xxiv-xxv Wrong-Doing, Truth-Telling. The Function of Avowal in Justice 220n, 221n, 261 Fourquin, G. 144n

  Index of Names François I, king of France 80n François II de Harlay, archbishop of Rouen 47–8, 54n, 60, 65n, 237 Freud, Sigmund 249, 256, 261, 266, 272n Gál, Alexander 142n Ganshof, François-Louis 120n, 144n Gascony, Duke of 163n, 177n Gassion, Jean de 13n, 39–40, 42–3, 46, 50n, 51n, 58, 68, 79n, 236–8, 257, 292 Gilles (André Glucksmann) 51n, 277n Giscard d’Estaing, Valéry 277n Goaslin (brother-in-law of Nicolle) 28 Godart du Becquet, d’Arthus (maire perpétuel) 38, 47–9, 50n, 54n, 55n, 60–3, 66n, 76, 81n, 237 Godechot, J. 300n Goldmann, Lucien 121n Gombaud, Archbishop Duke of Bordeaux 163n Gorin (artisan clockmaker) 7–8, 10, 13n, 28, 35n, 37, 50n, 68–9, 80n, 238 Gracian, B. 237 Grassaille, C. de 62, 66n Gros, Frédéric xxv Grotius, Hugo 8, 16n Guevera, Che 245, 299n Guilhiermoz, P. 218n Guillemard, M. 218n Gundobad, king of Burgundy 142n Gustavus-Adolphus, king of Sweden 50n Haggai (Hebrew prophet) 48, 54n, 61 Harcourt, Bernard E. xvi Harcourt, François de 16n Henry II, king of England 32n, 65n Henry IV, king of England 19, 64n, 65n, 181n Henry VII, king of England 181 Hồ Chí Minh, Former Prime Minister of Vietnam 299n Hobbes, Thomas 258, 260 Honorius III, Pope of the Catholic Church 129 Hugot (general collector of francs fiefs) 9, 15n Huguccio (Hugh of Pisa) 220n Hyppolite, Jean xiii Jeremiah (Hebrew prophet) 48, 54n, 61 Jesus Christ 54n John, Saint 29 John of Gaunt, Duke of Lancaster 181n Jordan of Limoges 177n Joris, A. 162n Joüon des Longrais, F. 219n Jousse, Daniel 80n Juillard, M. 122n

321

Kantorowicz, E.H. 34n Krynen, Jacques xvi La Basilière (military chief) 9 La Vrillière (secrétaire des commandements) 67, 71, 80n Lacan, Jacques 217n, 282 Lacenaire, Pierre François 233 Lackland, John 145n Lalouey (son of a bailiff) 9, 28 Laubardemont (councilor) 71, 80n Laubespine (Keeper of the Seals) 10n Le Coutelier, Simon 180n Le Gros, Guillaume (Count of Aquitaine) 177n Le Mauvais, Charles 146n Le Noble (councilor) 50n Le Normand, Simmonet 161n Le Poupinel, Charles 7, 13n, 15n Le Roy de La Potherie, Charles 13n Le Tellier de Tourneville (general collector of gabelles) 9–10, 13n, 16n, 41, 51n, 71, 80n Lecourt, Dominique xvi, 225n Lemoine, J. 122n Lenin, Vladimir 272n, 299n Lévi-Strauss, Claude 147n Lévy, J.-P. 141n, 220n Lorenzini, Daniele xxv Lot, F. 120n, 146n, 178n, 181n, 192n, 193n Louis IX, king of France 151, 160n, 170 Louis VI, king of France 160n, 170, 177n Louis VII, king of France 177n Louis X, king of France 221n Louis XII, king of France 32n Louis XIII, king of France 31n, 50n, 65n Louis XIV, king of France 20, 236 Louis XVI, king of France 110n Luxembourg, Rosa 245 Macherey, Pierre 282 Madoul, Jean (the elder) 154, 163n Mao Zedong 299n Marescot (councilor) 71, 80n Marie, Jacques 78 Marillac, Michel de 2, 10n Marion, M. 122n Martin, Jean 154, 163n Marx, Karl 109n, 178n, 216n, 223n, 225n, 226n, 249, 252–6, 258, 260–1, 264, 266–8, 272n, 273n, 274n, 277n, 279–82, 288, 296, 298n, 299n Maupeou, Rene-Nicolas Augustin de 106, 109n, 110n, 113 Maurel, J.M. 122n Mauriac, Claude 251, 267, 277n Mauriac, Nathalie xvi

322

  INDEX OF NAMES

Meienberg, N. 99n Ménardière (lawyer) 9 Mercœur, Duke of 9 Miliband, Ralph 297n Mirot, L. 80n Mittermaier, C.J.A. 140n Mollat, M. 179n, 298n Monier, R. 122n, 178n Moran, M. 77, 82n Morel (councilor) 28, 34n Mousnier, Roland xvi, 11n, 50n, 243, 252, 271n, 281, 285–97 Muyart de Vouglans, Pierre-François 186, 192n Nicolas, Jean 12n Nicolle (gabelles farmer) 28 Nietzsche, Friedrich xv, 52n, 213, 220n, 256–7, 271n, 272n, 273n, 296 Nu-pieds, Jean 27, 29, 34n, 35n Orfila (psychiatrist) 233 Panofsky, Erwin 177n Passeron, Jean-Claude 179n, 282 Patin, Guy 6n, 14n Pearce, Brian 11n Perrot, E. 124n, 192n Peter, J.-P. 232 Petit-Dutaillis, C. 162n Petitjean, Gérard xiv Philip the Bold, Duke of Burgundy 169, 177n, 181n Philip the Fair (Philippe IV), king of France 18, 156, 161n, 164n, 192n, 221n Pompidou, Georges 244 Ponthébert (military chief) 9, 33n Porchnev, Boris xvi, 11n, 12n, 14n, 15n, 33n, 34n, 50n, 97n, 98n, 109n, 243, 252, 255, 271, 281, 285–97, 298n Poulantzas, N. 178n, 281, 297n Pussort, H. 192n, 193n

Richard II, king of England 181n Richelieu, Cardinal Armand Jean du Plessis, 1st Duke of Richelieu xvi, 20, 48, 60, 65n, 236, 252, 254 Riguadière, Albert xvi Riot, P. 232 Rivière, Pierre 232 Rousseau, Jean-Jacques 260 Routry (lawyer) 9 Saison, Maryvonne 232 Sans Peur, Jean (John the Fearless) 180n, 181n Sartre, Jean-Paul 224n, 245, 270n Séguier, Pierre 5, 11n, 13n, 37–8, 40, 42, 46, 48–9, 50n, 51n, 54n, 55n, 60–3, 65n, 67–71, 75, 78, 79n, 86, 89, 92–3, 95, 101–2, 237–8, 241, 243, 252, 254–5, 257, 288, 292–6, 300n Séguier, Tannegui 81n Seyssel, C. 61, 65n Sohm, R. 122n, 123n Suger (Abbot of Saint-Denis) 170, 177n Talon (councilor) 71, 80n Tanon, L. 193n Tardif, A. 182n Tessereau, Abraham 38 Teyssier, Arnaud xvi Thierry, Augustin 33n Thonissen, J.-J. 122n, 123n, 124n, 140n, 141n Thou, Laurent de 3 Timbal, P. 145n, 162n Tort, Michel 282 Trombadori, Ducio 247, 273n Tyler, Wat 180n Verthamont, François de 11n, 12n, 69–71, 80n Veyne, Paul 262 Vicomte de Coutances 49, 51n, 63 Vuillemin, Jules xiii

Quétil, Jean (squire of Ponthébert) 33n

William the Great (Duke of Aquitane) 164n, 177n Wolff, P. 179n, 298n

Racine, Bruno xvi Rebuffi, P. 63 Revel, Judith xxv Réville, A. 180n

Zeller, G. 31n, 65n, 120n Zoma, Ben xviii