Peasant Revolts, Germanic Law and the Medieval Inquiry



by Stuart Elden

Théories et institutions pénales: Cours au Collège de France 1971-1972,
by Michel Foucault, edited by Bernard E. Harcourt,
Paris: EHESS/Gallimard/Seuil, 2015.

Foucault remains full of surprises. This course, Théories et institutions pénales (“Penal Theories and Institutions”), was the second he delivered as Professor of the History of Systems of Thought at the Collège de France. In it, he discusses two main historical themes: popular revolts in seventeenth century France, and medieval practices of inquiry and ordeal. The second theme relates to Foucault’s longstanding interest in what he called the ‘politics of truth’. From courses given in Rio de Janeiro in 1973 and Louvain in 1981, it is clear Foucault saw the medieval period as crucial to that story (a review of the second appeared in Berfrois last year). He said in Brazil that “one could write an entire history of torture, as situated between the procedure of the ordeal and inquiry”. But only now do we have the sustained study of the inquiry that those two later courses drew upon. The first theme merely receives hints elsewhere. Foucault’s example is the Nu-pieds (“bare feet”) revolts of 1639-40 in Normandy. Given that Foucault is often criticised for talking of the positive, productive side of power, but rarely examining it outside of antiquity; or of never showing how resistance takes place or is even possible, this course provides an important corrective.

The course was delivered between late November 1971 and early March 1972. This was a time when Foucault was involved in some of the most radical political activism of his life, working with the Groupe d’information sur les prisons along with groups on health and, less directly, asylums. Interviews conducted around the period of this course’s delivery give some sense of his political views. They include the discussion with students for Actuel, translated as ‘Revolutionary Action: Until Now’; the ‘Intellectuals and Power’ interview with Gilles Deleuze; and the debate ‘On Popular Justice’ with Maoists. This course goes a long way to show the impact that militant activism had on his theoretical work, and vice versa. In the parallel seminar to the course, he and his colleagues prepared the I, Pierre Rivière collection of documents and commentaries for publication (p. 234).

There are, however, textual issues with which to contend. In character, this course is closest to the one that precedes it, now translated into English as Lectures on the Will to Know. This is because Théories et institutions pénales is one of only three courses for which no tape recordings are extant. With Lectures on the Will to Know, Foucault’s long-term partner, Daniel Defert, edited a course from the basis of Foucault’s manuscript. Reading that course made it clear that while Foucault prepared his courses in extensive detail, he did not write them out in fully formed sentences to be read word-for-word. Instead, contrary to a report included in the preface to all volumes of this series (p. VIII), there was some improvisation and extrapolation around planned themes. With the third course, 1972-73’s La société punitive (“The Punitive Society”), the tape recording was erased, but not before a transcript was fortunately prepared. That was made on Foucault’s request, and the surviving archival copy was corrected by him. It was then edited by Bernard Harcourt for the published version. Harcourt also serves of the editor of Théories et institutions pénales.

For this course there is only a manuscript along with some preparatory materials, now all archived at the Bibliothèque nationale de France. Harcourt has, unusually for volumes in this series, worked with a team. Elisabetta Basso and Claude-Olivier Duron provided the manuscript transcription and notes respectively; while the ‘Situation du cours’ – a long essay devoted to providing a context and analysis of the course – is co-authored with Foucault’s former assistant, François Ewald. A number of historians were consulted for the notes. Defert is credited for his assistance with the volume, which also includes an invaluable analysis of Foucault’s relations to historians by Duron, and two other supplementary texts: a long email from Étienne Balibarg to Harcourt, outlining his thoughts on a preliminary version of the transcription; and the first French edition of a summary of a lecture Foucault gave in Minnesota on 7 April 1972, shortly after the end of this course. That lecture, entitled ‘Cérémonie, théâtre et politique au XVIIe siècle’ was previously only available in an English summary made by Stephen Davidson, in relatively hard-to-find conference proceedings. Foucault clearly drew on material from the first half of this course in his lecture, even though he reframed it for the specific event. The lecture summary, not being by Foucault’s own hand, did not appear in the major edition of his shorter writings produced by Defert and Ewald in 1994, but is here given semi-canonical status. This text and especially the third of the 1973 ‘Truth and Juridical Forms’ lectures from Rio, demonstrate what Foucault did with this material when he took it on the road. The Rio lecture, being based on a recording, shows how he elaborated from these fragmented notes. It remains a tantalising glimpse of what might have been done with the material in Paris.

For this course is, unfortunately, at times difficult to follow. Foucault’s manuscript is frequently cryptic, and Harcourt has, entirely correctly, reconstructed what is there, with scrupulous textual fidelity, rather than extrapolated from it to what might have been said. Notes specify where material was crossed out, pages inserted, or where Foucault reorganised the running order. Some passages are written out, others are more note-like. Readers are forced to do some of the interpretative work themselves. Ewald and Harcourt note that the manuscript accords well with the course as actually delivered (p. 246), but the auditors who confirmed this are not generally used to provide further detail. The one exception I noted is where a diagram in Foucault’s manuscript – but on a page where the original is missing and replaced by a photocopy – is confirmed by Defert’s notes from the lecture (p. 24). Despite these textual challenges, there is much to discover and consider here.

In the detailed analysis of the Nu-pieds revolt against taxation, and in particular the repression that followed, Foucault makes extensive use of documentary materials, especially an 1842 collection compiled by Amable Floquet. Much of his source material though derives from the work of earlier historians, including Roland Mousnier’s Fureurs paysans (“Peasant uprisings”), and most importantly, Boris Porshnev. Porshnev’s Les soulèvements populaires (“Popular Protests”) en France de 1623 à 1648 was originally published in Russian in 1948, and translated into French in 1963, before being reprinted in 1972. Its theses were challenged by Mousnier in a 1958 article, and later reprinted in his 1970 book La plume, la faucille et le marteau (“The pen, the hammer and the sickle”). Foucault also makes extensive uses of Madeleine Foisil’s 1970 thesis La Révolte des Nu-pieds et les révoltes normandes de 1639. Foisil was a student of Mousnier, and it would appear that contemporary Francophone debates have largely followed his lead. There is therefore a specifically French nature to the material and the debate around it: of these books, only Mousnier’s Peasant Uprisings is available in English. For those outside the discussion, and also for those better-versed in Francophone historiographical debates of the period, Doron’s essay is an invaluable overview. Essentially, Porshnev proposed a class analysis of this period; while for Mousnier class only emerged as a central theme in the eighteenth century. Mousnier thought seeing class-parallels with later proletarian struggles was anachronistic. Foucault steers a course between these two positions, though I would suggest he is closer to Porshnev politically and to Mousnier historical-conceptually. It is intriguing, given the proximity of Foucault to Maoism at this time, that his choice of focus is a peasant, rather than worker, uprising.

Yet it becomes increasingly clear that Foucault’s principal interest is not so much in the revolt itself, but the reaction of the authorities, the subjugation of the peasants, and the emergence of a new repressive State or system. The key figures are Cardinal Richelieu and Chancellor Séguier, and Foucault thinks it is important that he can discern the “first great deployment of the ‘arms’ of the State independent of the person of the King” (p. 7). It is significant that Foucault stresses the clash of competing exercises of power: this is not power imposed simply from above. The King, the State, individuals such as Séguier, and the peasants all exercise power. “For the Nu-pieds, the rejection of the law is at the same time a law… the rejection of justice is like the exercise of justice; the struggle against power is a kind of power” (p. 30). Nonetheless, as the notes to an early lecture suggest, “power is still here studied as a form of representation (manifestations, gestures, ceremonies, symbols, etc.)” (p. 54 n. 16).

The Minnesota lecture is an example of this, and in Paris too Foucault suggests that Séguier provides both a “political distribution of repression”, and “a theatrical representation of power: that is a development (déroulement) in time and space, in a visible and ceremonial form, of man, signs and discourse, through which the exercise of power takes place” (p. 7). Just as in Minnesota, Foucault presents the successive elements of the repression as a ceremony, a sequence of scenes or theatrical acts. While the visual, spectacular nature of exemplary power would play a central role in the opening scene of Discipline and Punish, Foucault was searching for formulations that traced a less visible, more anonymous form of power. There are initial traces of that here, developed in much more detail in the 1972-73 course, where de-personalised systems and relations become his predominant focus. But the events outlined in this first part of the course are, for Foucault, fundamental to the emergence of a new system of the exercise of political power, which becomes the idea of penal justice.

This reading occupies the first seven lectures. The next five are on early Germanic law and the medieval practices. The shift from the reading of Nu-pieds to the Middle Ages is rather abrupt in the manuscript, though there are important indications (i.e. p. 114) of how Foucault would have explained the transition to his audience. It becomes clear that if 1639-40 marks an emblematic moment of emergence, the lineage of the concepts and practices stretches much further back. It is to that deeper history that the second half of the course turns, outlining both the system that the new supplants, but also its roots and descent. A variety of economic, political and military apparatuses emerge, to be doubled and reinforced by the repressive use of power. To undertake the genealogy of these practices, Foucault explores a wide set of themes, including legal codes, crimes and punishments, different mechanisms of rule in medieval Europe and pre-state political formations. The remarks on the code of talion – a punishment of retribution on the basis of equivalence – are significant in terms of the contrast with what was to follow. There are discussions of the status of the king, of feudalism, and practices of confession, the notion of l’aveu, sometimes translated as ‘avowal’. While that notion can be found in some of Foucault’s earlier texts, and takes on a significant role from the mid 1970s in his work on sexuality, this course is a crucial moment in his engagement with the concept and practice.

The final lecture is the crowning glory, a synthetic and programmatic summary of power-knowledge relations in the legal systems of the Middle Ages. It comes in two parts, one of which was clearly the basis for the oral delivery, and some ‘Complementary Remarks’, whose status seems unclear. Unfortunately six pages of that part are missing from the archive. But there are still some real riches here, offering the most detailed contrast between ‘measure’ and ‘inquiry’ we yet have; showing how the inquiry relates to issues of proof and confession. Measure is an “instrument and form of a power of distribution”, whereas the inquiry is an “instrument and technical form of a power of information” (p. 210). Measure was a fundamental theme of Lectures on the Will to Know, and a third element, examination, was a focus of La société punitive. Here we have the work on the inquiry.

This three-way relation forms the basis for the 1973 ‘Truth and Juridical Forms’ lectures, which used and developed material from the first three Collège de France courses. Théories et institutions pénales thus completes a powerful initial triptych of courses in Paris, developing conceptual terminology for the examination of a wide range of phenomena. The focus on power alongside knowledge (i.e. p. 210), and genealogy alongside archaeology, is ever clearer. Over the next courses, in publications, and in collaborative work within and beyond the Collège de France, Foucault would turn his attention to progressively detailed examinations of asylums, hospitals and public health, and of course, the prison. Surveiller et punir, which we know in English as Discipline and Punish, was the principal output from that work, but by no means the only one. By the time that book appeared in early 1975 Foucault had already begun to prepare materials for his last major project on sexuality and government of the self, which would occupy him until his untimely death in 1984.

Ewald and Harcourt describe the two halves of the course as a “double genealogy”: the latter covering multiple centuries, the former just a few short years. Together they afford, for them, a Foucauldian vision of “the birth of the state, which he is often reproached for not having provided” (p. 261). There are some interesting gestures towards an understanding of the spatial dynamics of the state, especially around circulation, which anticipate later work on governmentality (i.e. p. 185). And indeed, for the later Foucault, the question of the state becomes subsumed within his wider inquiry. As he said in 1979, “the state is nothing else but the mobile effect of a regime of multiple govermentalities”. Here, though, the state is a crucial focus, and it is because of this, along with its engagement with the historical debates, that Ewald and Harcourt suggest that this course is “a decisive element” for Foucault’s engagement with Marxism (p. 259). It is a course where the stress is firmly, as it would be for Foucault’s more famous analyses of the later 1970s, on power and relations of power, yet there is due deference to the emergence of ‘state apparatuses’. As Balibar indicates, there is certainly a ‘trace’ of Althusser in this course (p. 291). Foucault links this emergence to nascent capitalism (p. 104), but stresses that it is not capitalism that produces criminals, as many Marxist accounts suggest. Rather Foucault argues – and he elaborates this in much more detail the following year – capitalism is reliant on a repressive apparatus that produces a “certain penality-delinquency coding” (p. 106).

The course summary, included here, which was written in June following the course, focuses predominantly on the analysis of the inquiry in the medieval period, and says only a few lines on the theme of popular revolt and mechanisms of social control (pp. 232-33). The focus of those lines is almost exclusively to lead to the work anticipated for the following course. It is almost as if Foucault has used the analysis of the Nu-pieds, Richelieu and Séguier entirely instrumentally, and was now moving on. Yet the work conducted here is important both in the next course and can be traced through to Discipline and Punish. Indeed, Ewald and Harcourt suggest that this course is almost a “first version” of that book (p. 279). But it is more than this, for as they also suggest, it is one of the deepest engagements Foucault provided with multiple topics, including the already-mentioned encounter with Marxism, with the Middle Ages, with popular revolt, but also with the question of law (pp. 272-3). It indicates all sorts of potential avenues for research, scrupulously documented in the notes to the lectures, which are themselves heavily reliant on Foucault’s own preparatory materials. It is a course that enables, and requires, multiple readings.

This is the last of Foucault’s courses from the Collège de France to be published. Thirteen volumes in all, edited to the highest standards and an invaluable catalogue of his interests from late 1970 until his death. But this is not yet all. I understand that there will be more volumes of lectures to come, including a course on Descartes from his time in Tunisia (currently only available in Arabic), the long-rumoured course on Nietzsche from Vincennes in the late 1960s, and possibly a 1950s course on Anthropology. Lectures originally given in English are now being translated into French, furnished with an entire critical apparatus, and then appearing again in English with the benefits of the French scholarship. A case in point are the lectures Foucault gave in Berkeley and Dartmouth in late 1980, originally edited by Mark Blasius for Political Theory in 1990, which appeared in French in 2013, and are forthcoming with University of Chicago Press in 2015. Other texts may yet be given the canonical treatment. Taken together, alongside the books and short pieces Foucault published in his lifetime, these courses and lectures constitute a remarkable intellectual trajectory. Tantalizingly fragmented though its content often is, the editorial apparatus helps to make clear how Théories et institutions pénales is an essential part of that story.

About the Author:


Stuart Elden is Professor of Political Theory and Geography at the University of Warwick, UK and Monash Warwick Professor in the Faculty of Arts at Monash University, Australia. He is the author of five books, including Terror and Territory: The Spatial Extent of Sovereignty (University of Minnesota Press, 2009); and The Birth of Territory (University of Chicago Press, 2013). His next book is Foucault’s Last Decade (Polity Press, forthcoming 2016) and he is now turning his attention to the previous period of Foucault’s work. He runs a blog at which has regular updates on the writing of his books on Foucault.