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From sovereignty to society:

the emergence of normalization as naturalization of finitude

The opening pages of Discipline and Punish describe an agonistic ritual:

the torture of Robert-Franois Damiens, who attempted to assassinate Louis

XV of France in 1757. The spectacle of the scaffold, as Foucault names it,

corresponds to the manifestation and affirmation of the power of the King

over the body of the condemned. During the Middle Ages and the Classical

Age, public executions were indeed the scene of a confrontation which

reaffirmed the just order associated to the sovereignty of the King. Every act

of torture takes place within a rigorous economy of pain and a rigorous

economy of the corporal whereby the hierarchy between the sovereign and

the condemned was expressed and restored. The way the power of the King

reduces the body of Damiens to pieces reverses the wrong committed by the

regicide. It restores the truth associated to the political power of the

sovereign. As Foucault puts it in Discipline and Punish:

As a ritual of armed law, in which the prince showed himself, indissociably, both as
head of justice and head of war, the public execution had two aspects: one of
victory, the other of struggle. It brought to a solemn end of war, the outcome of
which was decided in advance, between the criminal and the sovereign; it had to
manifest the disproportion of power of the sovereign over those whom he had
reduced to impotence. The dissymmetry, the irreversible imbalance of forces, were
an essential element in the public execution. A body effaced, reduced to dust and
thrown to the winds, a body destroyed piece by piece by the infinite power of the
sovereign constituted not only the ideal, but the real limit of punishment. (Foucault:
1995, 50)

The logic which governs this economy of punishment is one of a struggle

whose outcome is predetermined by the power of the King restored through

the affirmation of its infinite superiority. The ritualistic dimension of this

strife makes the affirmation of the truth of sovereignty and of its power a case

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of strict coincidence. It is the reduction of the body of the condemned to

impotence which actualizes the power of the King.

Conversely, the first volume of the History of Sexuality tells us that the

spectacle of torture no longer occupies the center of the public scene. Quite

the contrary, Foucault describes a move through which death becomes the

very limit of power:

One might say that the ancient right to take life or let live was replaced by a power
to foster life or disallow it to the point of death. This is perhaps what explains the
disqualification of death which marks the recent wane of the rituals that
accompanied it. That death is so carefully evaded is linked less to a new anxiety
which makes death unbearable for our societies than to the fact that the procedures
of power have not ceased to turn away from death. In the passage from this world
to the other, death was the manner in which a terrestrial sovereignty was relieved
by another, singularly more powerful sovereignty; the pageantry that surrounded it
was in the category of political ceremony. Now it is over life, throughout its
unfolding, that power establishes its domination; death is power's limit, the
moment that escapes it, death becomes the most secret aspect of existence, the most
"private". (Foucault: 1998, 138)

It is with the emergence of a new economy of power that the violence exerted

upon life disappears from public view. Whereas the execution marked a

passage from the sovereignty of the King to the sovereignty of God (and

therefore a continuity within the logic of sovereignty itself), death becomes

with modern politics the very limit of the grasp of political power. Whilst

sentencing a subject to death was the paroxysmal expression of sovereign

power under a ritual form whereby the power of the King was exerted and

expressed through carefully measured acts of torture, modern politics are

concerned with the existence of individuals and of a population as a group of

living beings. The decline of sovereign power at the end of the Classical Age

sees the emergence of a new political reality according to which the law

operates more and more as a norm. However, this does not mean that the

institutions of justice disappear but that which grounds the just decision is no

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longer the sovereign truth and will expressed through his power but the truth

of norms.

The emergence of disciplinarity already operates upon the basis of

norms, although the concept will itself be developed further in Foucaults

lectures at the Collge de France. In Society Must Be Defended for example,

Foucault claims that:

The discourse of discipline is alien to that of the law; it is alien to the discourse that
makes rules a product of the will of the sovereign. The discourse of disciplines is
about a rule: not a juridical rule derived from sovereignty, but a discourse about a
natural rule, or in other words, a norm. Disciplines will define not a code of law, but
a code of normalization, and they will necessarily refer to a theoretical horizon that
is not the edifice of the law, but the edifice of human sciences. (Foucault: 2003, 38)

It is a shift of jurisdiction which allows anthropological knowledge to become

the theoretical basis of justice with the 19 century. This economy of


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punishment does not merely correspond to the emergence of the concept of

life (understood as natural or biological) within the field of political strategies.

It describes a different historical form taken by the relationship between

justice and truth.

It is precisely on Foucaults attempt to historicize the relationship

between justice and truth that I would like to insist. It is a task Foucault

undertakes as soon as 1970 in the Lectures on the Will to Know and later in

Truth and Juridical Forms (a series of lectures given at the Catholic University

of Rio de Janeiro in 1973). During the latter, Foucault examines how truth and

justice have been tied together differently through history. Foucault looks at

three different historical moments corresponding to three modes of

establishing justice (the agonistic structure of Archaic Greek justice and

Germanic law, the emergence of the inquiry during the Middle Ages and of

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examination after the 19 century. th
What interests me in this historical

characterization is that each morphology of jurisdiction entails a different

understanding of the concept of truth.

The first one corresponds to an agonistic judicial practice through which

someone claims he or she has been wronged and asks for retribution. It 1

works on the basis of a trial Foucault calls test or ordeal. In this case, the

truth of justice is not based upon an a priori knowledge which grounds it, but

rather upon the outcome of the ordeal once the accused has accepted to

undertake it. Foucault will come back to this manner of producing justice and

truth in Thories et Institutions Pnales where he insists upon the fact that the

test [lpreuve] does not need proof [preuve] in order to be acknowledged as

true. Rather, it displays an imbalance of forces within the strict event of the

confrontation. Foucault writes:

Whereas proof establishes facts which order the law, which in its turn must bend
all the forces, the test establishes events where inequality is manifested (the one of
rights and of forces). (Foucault: 2015, 200)
2

The reason why Foucault insists upon this mode of production of justice is

that it works upon the basis of a concept of truth which does not rely upon

the knowledge of facts. It is the confrontation which produces a truth in the

strict immanence of the event, in the way the confrontation between the King

and the body of the condemned does. In Truth and Juridical Forms, Foucault

describes the truth produced by the test as follows:

This is a peculiar way to produce truth, to establish juridical truth not through the
testimony of a witness but through a sort of testing game. [] And it would be
Zeus who, by punishing the one who uttered the false oath if that were the case,

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1
This way of producing justice and truth is also found in Foucaults study of Homers Song
XXIII in Wrong-Doing, Truth-Telling: the Function of Avowal in Justice (Foucault: 2014, 27-56).
2
Alors que la preuve tablit des faits auxquels sordonne le droit, qui son tour doit plier
galement toutes les forces, lpreuve instaure des vnements o se manifeste lingalit
(celle, solidaire, des droits et des forces).!

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would have manifested the truth with his thunderbolt. Here we have the old and
very archaic practice of the test of truth, where the latter is established judicially not
by an investigation, a witness, an inquiry, or an inquisition, but, rather, by a testing
game. The test is a feature of archaic Greek society. We will meet it again in the
early Middle Ages. (Foucault: 2000, 18)

Such a production of truth, which bypasses an a priori knowledge, also

appears in Foucaults characterization of divine or oracular justice in Archaic

Greece. Inspired by the work of the historian Marcel Dtienne, it corresponds

to a mode of truth-telling which is realized through the strict immediacy of an

act. It is in The Order of Discourse, his inaugural lecture at the Collge de

France, that Foucault expresses this immediacy the most clearly. He writes:

For the Greek poets of the sixth century BC, the true discourse (in the strong and
valorised sense of the word), the discourse which inspired respect and terror, and to
which one had to submit because it ruled, was the one pronounced by men who
spoke as of right and according to the required ritual; the discourse which
dispensed justice and gave everyone his share, the discourse which in prophesying
the future not only announced what was going to happen but helped to make it
happen, carrying mens minds along with it and thus weaving itself into the fabric
of destiny. Yet already a century later the highest truth no longer resided in what
discourse was or did, but in what it said: a day came when truth was displaced
from the ritualised, efficacious and just act of enunciation, towards the utterance
itself, its meaning, its form, its object, its relation to its reference. (Foucault: 1981, 54)

Within the paradigm of Archaic Greek justice, truth did not preexist the act of

justice as an external body of knowledge to be discovered. What I want to

stress is that the forms of justice Foucault describes prior to the emergence of

the inquiry operate upon the basis of a concept of truth which is not

epistemological but immanent and actual. Dtienne writes that the poet

who sings the power of the gods possesses the privilege to devise and

accomplish (noseai te krenai te): Apollo realizes through his speech, and Zeus

realizes everything (Dtienne: 1999, 71). In all those cases, it is the

immediacy of the act of speech which produces truth and justice at the same

time.

The agonistic opposition between the condemned and the King also

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corresponds to this idea of immediate manifestation of truth. However, a

discourse about the natural rule presupposes the possibility of a disjunction

between the discourse which conveys the truth of this the natural rule and the

strict actualization of the nature it presupposes and describes. It is in the 1970-

1971 Lectures on the Will to Know that Foucault provides the genealogy of the

inquiry as a technique which provides the basis for epistemological truth.

Foucaults analysis of Sophocles Oedipus Rex, which is taken up again in the

1973 series of lecture Truth and Juridical Forms and in the 1981 lecture course at

the Catholic University of Lewen (Wrong-Doing, Truth-Telling: the Function of

Avowal in Justice), sees throughout Sophocles play the discovery of a

knowledge which is made fully accessible only once the visible and the

expressible are brought back together (when the visual testimony of the

peasant corresponds either to the discourse of Tiresias or to the discourse of

Oedipus and Jocasta. This production of truth, which is made possible

through the testimony obtained after inquiry, makes true and actual a

discourse which is severed from the actuality of the fact it recounts (all

characters of the play, apart from Tiresias, are talking about what they

remember). Foucault calls it the game of the sumbolon which introduces a link

of signification between what is said and what is seen. The production of

truth no longer relies upon the performance of an immediate act of power (as

it was the case with Archaic Greece justice) but upon the link of signification

established between discourse and the fact it describes.

In the first volume of the History of Sexuality, both the influence of

Dtienne and Foucaults study of the dependence between the expressible

and the visible is perceptible. Thus, when he refers to the 19 century th

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physician who registers the modern subjects confessions, he calls him a

master of truth:

The truth did not reside solely in the subject who, by confessing, would reveal it
wholly formed. It was constituted in two stages: present but incomplete, blind to
itself, in the one who spoke, it could only reach completion in the one who
assimilated and recorded it. It was the latters function to verify this obscure truth:
the revelation of confession had to be coupled with the decipherment of what it
said. The one who listened was not simply the forgiving master, the judge who
condemned or acquitted; he was the master of truth. His was a hermeneutic
function. With regard to the confession, his power was not only to demand it before
it was made, or decide what was to follow after it, but also to constitute a discourse
of truth on the basis of its decipherment. By no longer making the confession a test,
but rather a sign, and by making sexuality something to be interpreted, the
nineteenth century gave itself the possibility of causing the procedures of confession
to operate within the regular formation of a scientific discourse. (Foucault: 1998, 67)

We see that the morphology of truth which corresponds to anthropological

knowledge operates upon the basis of the disjunction between the visible and

the expressible. Foucault insists upon the distinction between the immanent

production of truth through the trial or the test and the possibility of truth

determined by the postulate of a human nature discovered through the

technique of knowledge. This is according to this distinction that Foucault

claims that the confession is no longer a test but a sign: the spoken words

of the subject correspond to the visible manifestation of a nature which does

not exist in a strict actuality but only through the potentiality of a future

actualization. Conversely, the words of the confessed only acquire a truth-

value in relation to the postulate of the nature they express.

It is indeed in the space opened by the distance between the discourse of

the subject and the postulate of the nature it expresses (or between the acts of

the subject and the rational discourse which explains them) that the concept

of norm grounded upon the postulate of a natural rule operates. Will then

be qualified normal a conduct that finds a place within the field of

representation defined by the correspondence between the discourse of

knowledge which describes and the facticity which is described. In the last

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lecture from Thories et Institutions Pnales, Foucault tells us that the three

juridico-political matrices gave birth to three types of sciences throughout

Western thought:

From these three juridico-political matrices are born the sciences:


" measuring the $,
" describing nature,
" normative of man. (Foucault: 2015, 215)
3

These three juridico-political matrices (which correspond to the measure,

the inquiry and the examination) are the three main forms taken by the

relationship between justice and truth to produce positive knowledge. To

these three juridico-politico matrices can be linked the three juridical forms

Foucault describes in his 1973 series of lectures (the trial or the test needed

to restore measure, the inquiry and the examination).

Whereas Foucault studies the historical emergence of the first two in the

Lectures on the Will to Know (either when he studies the emergence of the

nomos at the end of Archaic Greece or the emergence of the inquiry through

his reading of Sophocles Oedipus Rex) and which implies the possibility of a
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coincidence between words and things, the normative knowledge of man

relies upon the examination. In contrast with the measure (which corresponds

to a retrieval of the divine law through the knowledge of the nomoi) or of the

inquiry (which presupposes the possible correspondence between the visible

and the expressible), the juridico-political framework of examination deals

with the continuous control of the behaviours of individuals (Foucault:

2000, 59) which digs the gap between the strict actuality and immanence of

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3
A partir des trois matrices juridico-politiques sont nes les sciences:
- mesurantes du $,
- descriptives de la nature,
- normatives de lhomme.
4
See the 3 March 1971 lecture (Foucault: 2013, 149-166).!
rd

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individuals actions and their positive knowledge within the discourse of

human sciences. It is the anticipation of the individuals behaviours through

the juridico-political matrix of examination and the presupposition of norms

which express a natural rule that the imbalance of power which

characterized the agonistic opposition between the King and the body of the

condemned becomes an excess of knowledge which, in the last lecture from

Thories et Institutions Pnales, Foucault calls sur-savoir. As he clearly puts it,

it is the encounter of justice and truth within the juridico-political matrix of

examination which produces an excess of knowledge whose effect will be

the apparition of human sciences (Foucault: 2015, 215). 5

In conclusion, I would like to stress the fact that the juridico-political

matrix of examination, which attempts to establish the positivity of the

individuals natural rule, works upon a disjunction between the visible and

the expressible corresponding to the exact opposite of the sovereign

coincidence between the performance of truth and the establishment of

justice. In the last lecture from Thories et Institutions Pnales, Foucault

establishes a link between the great Western empirical sciences and the

practice of the inquiry. He says:

Thus in the great Western empirical sciences like biology or grammar, it is not
administrative inquiry that is found; but the inquiry as a form of exercise of power
and constitution of an excess of knowledge has led to discursive practices [] 6

(Foucault: 2015, 214).

The practice of the inquiry produces an excess of knowledge because it is the

positive knowledge and truth the inquiry discovers which allows to establish

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5
dont leffet sera lapparition des sciences humaines.
6
Ainsi dans les grandes sciences empiriques de lOccident comme la biologie ou la
grammaire, on ne retrouve pas lenqute administrative elle-mme; mais lenqute comme
forme dexercice du pouvoir et de constitution dun sur-savoir a donn lieu des pratiques
discursives [].!

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the truth of facticity. It is, as Foucault describes it in the Lectures on the Will to

Know, the a priori status theoretical truth and knowledge acquire at the end of

Archaic Greece which masks the strict expression of power at their basis. If 7

this is also true within the logic of anthropological knowledge (as it is also the

postulate of the truth of man and its emergence as object of knowledge which

masks the juridico-political strategies at the basis of disciplinarity and

governmentality), I would like to express the hypothesis that the excess of

knowledge which characterizes human sciences conversely corresponds to

the annihilation of the power of the subject (as the possibility for the subject to

distance itself from its behavior and to modify it). By attempting to assign

concrete forms to finitude, anthropology attempts to predict the reality of

human existence precisely where the concrete existing individual has

disappeared. Ironically, the imbalance of power, which characterized the

confrontation between the law of the King and the condemned, seems to find

a reversal within the paradigm of anthropological knowledge: to speak like

Foucault, it is the excess of knowledge (sur-savoir) of human sciences which

prevents the power of the subject to live differently.

Maxime Lallement,
Manchester Metropolitan University

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7
See the 9 and 16 December 1970 lectures (Foucault: 2013, 1-30).
th th

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Bibliography

Detienne, M., & Vidal-Naquet Janet, P. A.-L. (1999). The Masters of truth in

Archaic Greece: / Marcel Detienne (1st ed.). New York: Zone Books.

Foucault Graham, M. A.-B. (2013). Lectures on the Will to Know: 1970-1971 and

Oedipal Knowledge. Palgrave Macmillan.

Foucault Robert, M. A.-H. (1998). The History of Sexuality: The Will to

Knowledge: v. 1: The Will to Knowledge. London: Penguin Books.

Foucault, M. (1981). The Order of Discourse. In R. Young (Ed.), Untying the

Text: A Post-structuralist Anthology. Boston: Routledge & Kegan Paul.

Foucault, M. (1995). Discipline and Punish: The Birth of the Prison. New-York:

Vintage Books.

Foucault, M. (2000). Truth and Juridical Forms. In Power: Essential Works of

Foucault, 1954-1984, Volume III (pp. 189). New York: W.W. Norton.

Foucault, M. (2014). Wrong-doing, Truth-telling: The Function of Avowal in

Justice. United States: University of Chicago Press.

Foucault, M. (2015). Thories et Institutions Pnales. Paris: Seuil.

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