JL: Psychoanalysts, and Freud first of all, have stud- ied this
question
at length.
Foucault-Live
Monsieur Badinter, are giving but a minimal interpretation of what you have done.
You said to the jurors: "In the end your conscience doesn't allow you to
? 164 The Anxiety of Judging
? condemn someone to death! " And you said equally; "You don't know this individual; the psychiatrists haven't been able to tell you anything about him, and you're going to condemn him to death! " You have also criticized the exemplarity of the punishment. Yet these arguments are possible only because penal justice doesn't function so much as the application of a law or a code than as a sort of corrective mechanism in which the psychology of the defendant and the conscience of the jurors interfere with one another.
? If your strategy appears shrewd to me, it's because it puts the way penal justice has worked since the beginning of the 19th century into a trap. You have taken it literally. You have said to yourself: "According to our justice the jurors, these people chosen randomly, are reputed to be the universal conscience of the people. But there is no reason that twelve people can suddenly, by a kind of judicial grace, begin to function as the universal conscience. " Having raised this chal- lenge, you have said to them: "Monsieur Untel, you have your humors, your mother-in-law, your Uttle hfe. Can you take it upon yourself, such as you are, to kill someone? " And you were right to speak to them like that. For justice functions on the equivocation between the juror as universal conscience, as abstract citizen, and the individual juror drawn randomly according to a certain number of criteria.
Similarly, you have said: "At bottom, we judge peo- ple not so much according to their acts as according to their personality. " The best proof: We bring in a psychiatrist, character witnesses, we ask the little sister if the accused was nice, we question his parents about his childhood. We judge the criminal more than the crime. And it's the knowledge we gain of the criminal that justifies whether we inflict such and such a punishment. But, continuing to raise the challenge, you have drawn the consequences: "The psychiatrists have not been capable of telling us about Patrick Henry, we don't really know him. We cannot therefore kill him. "
? ? The Anxiety of Judging 165
? Your arguments were tactically skillful, to be sure. But above all they had the merit of openly making use of the logic of the current penal system, and of turning it back against itself. You have demonstrated that the death penalty couldn't function within such a system. But then Jean Laplan- che intervenes by saying that this system is dangerous.
JL: If I say that it's dangerous it's because it leads us to a conformism much worse than that of the law: that of con- formity. Foucault emphasizes an evolution but he pushes also in the direction of the latter. The law whose death he an- nounces is replaced, in an insidious way, by the manipulation of man in the name of a "norm" claimed to be rational. And the "norm" will not be so easily put off: it's the crabgrass that ceaselessly pushes back the ground "liberated" from the law.
MF; Let's imagine a justice that functions only ac- cording to a code: if you steal, your hand is cut off; if you
commit adultery, your sex organs are slit; if you murder, your head is cut off. It's a system of arbitrary and obligatory rela- tionships between the acts and the punishment that sanctions the crime in the person of the criminal. Thus it is possible to condemn someone to death.
But, if justice is concerned with correcting an individ- ual, of gripping the depths of his soul in order to transform
him, then everything is different: it's a man who is judging another and the death penalty is absurd. Monsieur Badinter has proved it; his defense, in this sense, is un-arguable.
JL: Not only does the death penalty become impos- sible but no punishment is truly possible.
MF: That's right. Today two systems are super- imposed on one another. On the one hand, we are still living
? ? ? ? 166 The Anxiety of Judging
? under the old traditional system which says: we punish be- cause there is a law. And then, on top of that, a new system has penetrated the first: we punish according to the law but in order to correct, to modify, to redress; for we are dealing with deviants and the abnormal. The judge thinks of himself as a therapist of the social body, a worker in the field of "public health" in the larger sense.
? JL: I think it's a little exaggerated to proclaim that we have finished with the law in order to enter the universe of the norm--even if it's to contest it in its tum. For the people, in spite of everything, the notion of justice remains intact. There's justice, there's no justice. This man has acted badly, he must be punished: we hear this everywhere, all around us-- the need for law manifesting itself in this great collective mur- mur. It's striking to see our jurists and modem criminologists treat with contempt the notion of punishment as "retribution. "
In order to trace this current course or degradation back a little I alluded to Hegel, who anticipated the major objection: if one keeps to the level of materiality, of suffering, nothing justifies the addition of another crime and the further suffering that is imposed on the criminal. It doesn't change anything, it doesn't bring back the dead! The evil, far from being balanced, is only added to. Yet this objection, so pow- erful, can be transcended only through reference to another level, that of the law. The punishment, Hegel says forcefully, only makes sense if it abolishes, symbolically, the crime. But that, in its tum, is only comprehended because the crime itself does not lie in the material violence where it is manifested. It only exists in and through the law. We are animals dedicated to symbols and the crime adheres to our skin, hke the law. . .
? RB: A little while ago I evoked the relationship es- tablished between the one whose task is to judge and the deci-
? The Anxiety of Judging 167
? sion. You say to me: the law survives. It's true. Only we must not forget the extenuating circumstances. For the same crime you can be condemned to death or to three years in prison with a suspended sentence. Of course the range of possible sen tences is not infinite, but all the same it's very large. The di versity of possible decisions confers on judges a great power.
? In fact, if one has thus been oriented toward an expansion of the possible, it's because the judicial institution has been demanding it. Recall the thesis of Montesquieu and the Constituent Assembly: the judge must be "the mouth of the law. " It was infinitely easy for him. It sufficed that he ask himself the question: guilty or not guilty? If he were convinced that the accused was guilty, he pronounced the penalty provided by the texts. And he had the comforting feel- ing of having applied the general will. That must have been agreeable. But too easy. Today the judge, groping and uncer- tain, assumes responsibihty for the decision. But it's infinitely preferable to this automatic cleaver of abstract retribution.
? The drama is that we haven't gone to the end of per- sonalization. Of course we talk about treatment, re-education, rehabilitation. But we are given a caricature of treatment. We talk of the social rehabilitation of the convicted. And, in fact, we wimess a political exploitation of the fight against crime. No government has ever wanted to provide itself with the means to carry out these beautiful statements.
JL: We are marching in giant steps toward a total psychiatricalization of justice.
RB: No, psychiatry is only one means among others that are available to judges.
JL: I would mention psychoanalysis, which seems to me just as serious. Psychoanalysis is not there to cure dehn- quency on command.
? ? 168 The Anxiety of Judging
? MF: I will go further: what is this strange postulate according to which, from the moment someone has committed a crime, it signifies that he is sick? This symptomatization of the crime is the problem . . .
RB: Don't make me say what I didn't say: it would be a gross caricature of my thinking. Crime is a social sick- ness. But it's not by killing the ill or by confining them sepa- rately from the so-called healthy that one fights the sickness.
MF: Perhaps, but it's not a caricature of what all of criminology has been saying since 1880. We still have, in appearance, a legal system which punishes the criminal. In fact, we have a justice that proves itself innocent of punishing by pretending to treat the criminal.
? It is around this substitution of criminal for the crime that things have pivoted and that we have begun to think: "if we are dealing with a criminal, to punish him doesn't make a lot of sense unless the punishment is inscribed in a technology of human behavior. " And it is there that the criminologists of the 1880s and 90s began to advance strangely modem state- ments; "The crime cannot be, for the criminal, but an abnor- mal, disturbed behavior. If he upsets society, it's because he himself is upset. " They have drawn two kinds of conclusions: in the first place, "the judicial apparatus is no longer useful. " The judges, as men of law, are no longer competent to treat so difficult a matter, one so little juridical and so properly psychological as the criminal. Therefore, for the juridical apparatus we must substitute technical commissions of psy- chiatrists and doctors. Very specific projects were elaborated in this direction.
Second consequence: "We must certainly treat this individual who is dangerous only because he is sick. But, at the same time, we must protect society against him. " Hence
? ? The Anxiety of Judging 169
? the idea of an internment with a mixed function: therapeutic
and social preservation.
These projects aroused very hvely reactions from ju-
dicial and political authorities in the 1900s. However, in our day they have found a very large field of application, and the USSR--once more "exemplary"--^is not the exception.
RB: But all the same, one cannot advocate a return to the abstract retribution of the penalty. You speak of crime, Michel Foucault, but it's the criminal one judges. One can try to make reparations for a crime but it's the criminal that one punishes. The judges couldn't refuse to go in the direction of judicial treatment. How could they refuse the idea that one was going to change the criminal by bringing him back to the norm? What was there to do? Throw him into a hole for twenty years? It's not possible any longer. Cut him in half? It's not possible. What then? Re-integrate him by normalizing him. From the point of view of judicial technology--judge or lawyer--^there is no other possible approach. And it's not nec essarily practiced according to the Soviet system.
The other aspect of the thing that really upsets me is this rising clamor: "Death! Death! Let's hang them, let's torture them, let's castrate them! " Why? If I was so disap- pointed by reading Laplanche's article it was because he didn't respond to the question. At bottom, the only interesting approach to the problem of the death penalty is not that of the technicians of justice, nor that of the moralists nor of the phi- losophers. It is another that I would like to see bom and that will respond to all those investigating the secret function of the death penalty.
? The death penalty, in France, concems only a very small number of criminals. In the last nine years there have been only five executions. Considering these figures, look at the enormity of the passions vented. Why does one receive, as
? 170 The Anxiety of Judging
? soon as one publishes an article on the death penalty, two hundred letters of insult and delirium. For the Patrick Henry case I'm still receiving an unbelievable amount of mail: "You filth, if you think you're gonna save your own skin after let- ting him go--that monster! " Threats of torture against my wife and children then follow. Can you explain this anguish? Why do non-criminals have such a need for expiatory sacrifice?
? MF: I think you are integrating two things into the same question. It's certain that spectacular crimes set off a general panic; it's the irruption of danger in daily life, a resur- gence exploited shamelessly by the press.
? On the other hand, you can't imagine the efforts needed to interest people even a little in what you will agree is the real problem of criminal punishment, that is, the flagrant offences, the diet in correctional institutions, the trial-a-minute (proce`s-minute) where some kid, because he has stolen a piece of scrap iron off some vaguely defined lot, finds himself spending eighteen months in prison, which means that he will have to start over again, etc. The intensity of feelings that surround the death penalty is intentionally maintained by the system, since it allows it to mask the real scandals.
We have then three superimposed phenomena out of keeping with one another: a penal discourse that claims to treat rather than punish, a penal apparatus that never ceases to pun- ish, and a collective consciousness that demands several sin- gular punishments and is ignorant of the daily punishment that is silentiy exercised in its name.
JL: It seems arbitrary to me to separate so distinctly the population of delinquents fi^om that of the non-delinquents. There exists, on both sides, depths of common anguish and guilt. The great waves of anguish you were speaking of are not linked to fear but to something much deeper and harder to
? ? ? The Anxiety of Judging 171
? pinpoint. If people investigate the death penalty so much, it's because they are fascinated by their own aggressivity. Because they know in a vague way that they bear the crimes in them- selves and that they resemble the monster that confronts them.
? As for the criminals--whom I don't know so well as Monsieur Badinter--they themselves remain faithful to the law. Don't you hear, from one cell to another: "It's not fair, he got too heavy a rap," or "He got what was coming to him! "
? No, there isn't on one side a population white as snow who's afraid of lawbreakers and wants them punished, and on the other a group of criminals who hve only in and through lawbreaking. Well, what's there to say, if not that there exists a gap between the unnameable anguish that comes from our own death drive and a system that introduces the law? And that it's just this gap that permits a certain psychic equilibrium. I don't think at all that the appUcation of the law is an element that exists impUcidy, even in the one who vio- lates it. Inversely, the crime exists in each one of us, but what is psychically devastating is to treat someone as an "irrespon- sible child" when he manifests this imphcit crime in his acts. One could refer here to psychoanalysis and to its evolution in relation to the problems of education: it has been observed that the absence of law--or at least its partial deficiency, or its am- biguity--^is very anguishing, indeed "psychotizing" for the child brought up in a "permissive" environment.
? RB: There's no question of suppressing the law. It has not only a technical and repressive function but also an expressive function, in the sense that it expresses what the collective conscience judges to be proper.
? JL: I would say, in the strongest sense, that it has a
subjective function that operates in each of us; that of prohibitions that we respect--^in our unconscious--^like parri- cide and incest.
? 172 The Anxiety of Judging
? MF: For Laplanche the subject is constituted because there is law. Suppress the law and there will be no subject.
RB: I'm very sorry that psychoanalysts haven't in- vestigated any further the origin of the need for punishment that they seem to assume is a given. To say that at the same time there is identification with the criminal and anguish in this identification are words . . .
MF: It appears to me to be dangerous to demand the reason and foundation of the social act of punishment from psychoanalysts.
RB: Not reason and foundation but explication and clarity.
?
JL: Psychoanalysts, and Freud first of all, have stud- ied this question at length. If one had to try and summarize their point of view in two sentences, I would say that there exists two levels of guilt: the one where it is co-extensive with the anguish of our own self-aggression; and the other where it comes to be symbolized in the constitutive systems of our social being: linguistic, juridical, religious. The need for pun- ishment is already a way of making a primordial anguish pass into something expressible, and, consequendy, "negotiable. " That which can be expiated can be aboUshed, compensated for symbolically. . .
? RB: We are content then to accept the need for pun- ishment as a given without looking for the causes. But, once the public has been informed about a punishment, the second aspect of things begins: the treatment, the personalized ap- proach to the criminal. The judiciary must then satisfy the collective need for punishment, without forgetting about re-
? The Anxiety of Judging 173
? habilitation. Obviously that sometimes grates on nerves, and the public becomes indignant: "He was condemned to twenty years and he's being let go after eight! " But why should he be kept longer if he's been reformed?
JL: One might even wonder if it's absolutely neces- sary to punish some criminals if we are sure they are reformed before being punished.
RB: We ought not. But the public demands pun- ishment. And if the judicial institution did not satisfy the need for punishment, that would produce a formidable ftiistration, which would be taken out in other forms of violence. That said, once the judicial dramaturgy is performed, the substitu- tion of treatment for punishment allows the accused to be re- inserted without affecting the ritual. And so the game is played.
? MF: Of course that grates, but see also how well oiled everything is! Of course there's someone there to punish the crime, but the president, with his ermine and his cap, what does he say? He leans over toward the deUnquent: "What was your childhood like? Your relationship with your mother? Your little sisters? Your first sexual experience? " What do these questions have to do with the crime he has committed? Naturally, that has to do with psychology. Psychiatrists are brought in to make everyone feel stupid, with discussions as much from the psychiatric point of view as fi-om the judicial, and that everyone pretends to consider as highly competent exposes. At the end of this great juridico-psychological hturgy the jurors finally accept this enormous thing: to punish with the feeling that they have accomplished an act of social secu- rity and public health, that one deals with "evil" by sending a fellow to prison for five years. The incredible difficulty of
? 174 The Anxiety of Judging
? punishing someone is dissolved into theatricality. It doesn't function badly at all.
RB: I'm not as sure as you are that the juror allows himself to be seduced by this medical approach. He thinks more simply: "He was abandoned by his mother? Let's take two years off the sentence. " Or again: "His father beat him? Then reduce the solitary confinement by four years. He had a praiseworthy childhood? Then take off three yeras. He deser- ted his wife and children? Then add on three years. " And so it goes. I'm caricaturing the situation a little, but not so much.
JL: Psychiatric expertise, such as I've known it, has been preoccupied above all with the protection of society. What would be most effective from that point of view? Therapeutics didn't have much to do with it? I saw cases involving minor offenses: knowing that the prison term would be very short, the expert advises to intern the delinquent, even recommending that the authorities not follow the advice of the top doctor who may be too intelligent and let him go free.
? MF: There is a circular on this subject that dates from after the war, according to which the psychiatrist must respond in court to three questions in addition to the tradi- tional "Was he of sound mind? " These questions are extraordi- nary if one considers them: (1) Is the individual dangerous? (2) Can he be given criminal punishment? (3) Is he curable or can he be rehabilitated? Three questions which make no sense judicially. The law has never pretended to punish someone be- cause he is "dangerous," but because he was a criminal. But in the realm of psychiatry the question isn't any more mean- ingful: as far as I know "danger" is not a psychiatric category, nor is the concept of "rehabihtation. " Here we have before us a strange mixed discourse where the only thing that matters is
? The Anxiety of Judging 175
? the danger to society. This is the game that psychiatrists have agreed to play. How is it possible?
JL: Indeed, when psychiatry submits to this game, it assumes a double role: of repression and adaptation. For what concerns psychoanalysis, things are a little different. It is dedicated neither to an expertise nor to rehabilitation. Crimi- nality in itself is certainly not a motive for analytic cure; with all the more reason if the dehnquent was sent to the analyst by the authorities. However, one could easily imagine a delin- quent undertaking an analytic cure in prison. If he expresses such a wish, there is no reason not to try to accommodate him. But in no case could the treatment be an alternative to the punishment: "If you get better, you will be fireed sooner. . . "
MF: Certain legislation has foreseen judicial deci- sions for obligatory treatment, as in the case of drug addicts and trials for minors.
JL: That's aberrant. One knows how very difficult it is to approach addicts, even when they agree to be tteated . . .
RB: It's not an aberration from the judge's point of view. Even so, it's more valuable than to keep the addict locked up for several months.
? JL: But, precisely in this regard, to want to remove
the addict from a possible confrontation with a prison term is to put oneself in the worst conditions, from the point of view of psychotherapy. Psychotherapy could not be an alternative to prison without undermining itself.
? RB: That said, our justice has never really wanted to go all the way with treatment.
? 176 The Anxiety of Judging
? JL: It's not because the penitential framework is de- testable that it must be replaced by a no less detestable psychi- atric one.
? RB: I'm not talking about a psychiatric framework. It's not a matter of giving psychiatry full power. What I'm saying is that one can't be ignorant of it. Up to the present it has been used as an alibi. Never for curative purposes.
? MF: You seem to think of psychiatry as a system that might really exist, like a marvelous instrument prepared in advance. "Ah, if finally the psychiatrists would come to work with us, how good that would be! " Yet I believe that psychia- try is not capable of responding to such a demand, and that it never will be. It is incapable of knowing if a crime is a sick- ness or of transforming a delinquent into a non-delinquent.
? It would be serious if justice washed its hands of its responsibihties by delegating them to psychiatrists. Or if the sentence became a kind of transactional decision between an archaic code and an unjustified knowledge.
? RB: It's certainly not a question of delegating re- sponsibilties. But psychiatry is one instrument among many, badly or hardly utilized up till now in judicial matters.
MF: But its value is exactly what has to be put into question.
RB: But then must all psychiatric research be ex- cluded from judicial concems? Do we retum to the beginning of the 19th century? To prefer the penal colony, to get rid of them by sending them as far away as possible where they can starve in indifference would be a frightful regression.
? ? The Anxiety of Judging 177
? JL: Psychiatry is more and more infiltrated with psy- choanalytic concepts. Yet psychoanalysis can in no case make pronouncements about the irresponsibility of a delinquent. On the contrary: one of the postulates of psychoanalysis is that those analyzed must become responsible again, as subjects of their acts. To use psychoanalysis to make them "irresponsible" would be an absurd reversal.
? MF: It suffices to listen to these "experts" who come to analyze a fellow. They say just what anyone in the street would say: "You know he had an unhappy childhood. He's a difficult person. . . " Of course all that is dressed up in techni- cal terms, which doesn't fool anybody. Yet it works. Why? Because everyone--the prosecuting attorney, the lawyer, the presiding judge--needs a modulator for the punishment. It al- lows one to make the code function as one wants, and to retain a good conscience. In fact, the psychiatrist doesn't discuss the delinquent's psychology: it's to the liberty of the judge that he addresses himself. It's a question not of the criminal's uncon- scious but of the judge's consciousness. When we publish some of the psychiatric testimony we have gathered over the past few years, one will be able to determine to what extent psychiatric relationships constitute tautologies: "He killed a
little old lady? Well then he's an aggressive subject! " Do we need psychiatry to perceive that? No. But the judge needs psychiatry in order to reassure himself.
? This "modulator" effect works moreover in both di- rections; it can also increase the sentence. I saw expert testi- mony on homosexual subjects formulated in such terms as: "These are abject individuals. " But "abject" is not an accepted technical term! It's a way of reintroducing, under the honor- able cloak of psychiatry, certain connotations of homosexual ity in a trial where they don't belong. Take Tartuffe at Elmira's knees proposing "a love without scandal and a pleasure with-
? 178 The Anxiety of Judging
? out fear. " Substitute prison term and punishment for pleasure and love and you have psychiatric tartufferie at the feet of the court of justice. Nothing works better against the anxiety of judging.
? RB: But it is anguishing to judge! The judicial insti- tution can function only to the extent that the judge is liberated from his anxiety. To succeed in it he must know in the name of what values he condemns or absolves. Until a recent period everything was simple. Political regimes changed, but not the values of society. The judges were comfortable. But today in this uncertain society in the name of what does one judge, by means of what values?
? MF: I fear that is is dangerous to allow judges to continue to judge alone, by liberating them from their anxiety and allowing them to avoid asking themselves in the name of what they judge, by what right, by what acts, and who are they, those who judge. Let them become anxious like we become anxious when we meet so few who are disturbed. The crisis of the function of justice has just been opened. Let's not close it too quickly. A
Note
? ' On February 28, 1977, Laplanche published an article on the then-current trial of Patrick Henry, provoking numerous re- actions. The renowned psychoanalyst in essence dismissed both adversaries and advocates of capital punishment. Robert Badinter, the lawyer who contributed to saving Pat- rick Henry from the guillotine (later Socialist Minister of Justice), here debates the issue of the death penalty and capital punishment with Laplanche and Michel Foucault.
^ Robert Badinter, L'Execution (Paris: Grasset, 1973).
? ? 15
Clarifications on the Question of Power
Q: Your research since, let us say. Discipline and Punish, has begun to extend into and bring to light the realm of power relationships and the technology of power; this fact has created problems and difficulties now that these analyses have started to have echoes in the political and intellectual fields. In the United States they are wondering into which university discipline your work ought to be placed; in Italy they want rather to know what is the political effect of your ideas.
1. How would you define the field of your work to- day, and what might its political implications be?
2. In your analyses there would be no difference be- tween ideology and the process of power, between ideology and reality. This type of analysis, this mise a plat--for which you are criticized--would be nothing more than an echo of what already exists, a confirmation of the real.
3. The metaphor of Bentham's Panopticon--to which one attempts to reduce all your analyses--would take us back to an absolute transparency of power which is all-seeing.
? 180 The Question of Power
? 4. The concept of resistance can easily function as repoussoir, as the external limit of an analysis which would bring to light in the presence of this concept the notion of Power with a capital P. In reality, you are probably thinking the opposite, in particular in The History of Sexuality. But this is a problem to which we shall undoubtedly have to retum.
? MF: By way of introduction, it is perhaps worth it to say something on this problem of the "amalgam," because I think it might be an important factor. I have the impression that the whole operation can be summarized in this way: there is no difference between what Deleuze says, what Foucault says and what the "new philosophers" say. ' I suppose, though it would have to be verified, that yet a fourth adversary has been as- similated here, the theory of radical needs, which is, I believe, rather important in Italy today and of which the PCI would also Uke to rid itself. Here we find something worth emphasiz- ing: these are the old tactics, both political and ideological, of Stalinism, which consist of having at all times only one adver- sary. Also, or rather above all, when you strike on several fronts, you must do it in such a way that the battle seems like a battle against one and the same adversary. There are a thou- sand devils, the Church used to say, but there is only one Prince of Darkness. . . And they do the same thing. This pro- duced, for example, social-fascism, in the very moment when it was necessary to fight against fascism; but they wanted at the same time to attack social democracy. There has been the category of Hitlerian-Trotskyism; or Titoism as the unchang- ing element of all the adversaries. So they maintain absolutely the same procedure.
? Secondly, it has to do with a judiciary procedure, and one which has acted out a very precise role in all the trials, those of Moscow, those of the post-war popular democracies; that is, the role of saying: since you are nothing more than one
? The Question of Power 181
? and the same enemy, we shall ask you above all to account not only for what you have said, but also for everything you have not said, if it is one of your so-called allies or accomplices who has said it. Hence a totalization of sins on each of the accused heads. And then: as you can well see, you contradict yourselves, since, even though you are all one and the same adversary you say one thing but you also say the opposite. So you must account for what has been said and for the opposite of what has been said.
? There is also a third element which seems important to me and which consists of the act of assimilating the enemy and the danger.
? 164 The Anxiety of Judging
? condemn someone to death! " And you said equally; "You don't know this individual; the psychiatrists haven't been able to tell you anything about him, and you're going to condemn him to death! " You have also criticized the exemplarity of the punishment. Yet these arguments are possible only because penal justice doesn't function so much as the application of a law or a code than as a sort of corrective mechanism in which the psychology of the defendant and the conscience of the jurors interfere with one another.
? If your strategy appears shrewd to me, it's because it puts the way penal justice has worked since the beginning of the 19th century into a trap. You have taken it literally. You have said to yourself: "According to our justice the jurors, these people chosen randomly, are reputed to be the universal conscience of the people. But there is no reason that twelve people can suddenly, by a kind of judicial grace, begin to function as the universal conscience. " Having raised this chal- lenge, you have said to them: "Monsieur Untel, you have your humors, your mother-in-law, your Uttle hfe. Can you take it upon yourself, such as you are, to kill someone? " And you were right to speak to them like that. For justice functions on the equivocation between the juror as universal conscience, as abstract citizen, and the individual juror drawn randomly according to a certain number of criteria.
Similarly, you have said: "At bottom, we judge peo- ple not so much according to their acts as according to their personality. " The best proof: We bring in a psychiatrist, character witnesses, we ask the little sister if the accused was nice, we question his parents about his childhood. We judge the criminal more than the crime. And it's the knowledge we gain of the criminal that justifies whether we inflict such and such a punishment. But, continuing to raise the challenge, you have drawn the consequences: "The psychiatrists have not been capable of telling us about Patrick Henry, we don't really know him. We cannot therefore kill him. "
? ? The Anxiety of Judging 165
? Your arguments were tactically skillful, to be sure. But above all they had the merit of openly making use of the logic of the current penal system, and of turning it back against itself. You have demonstrated that the death penalty couldn't function within such a system. But then Jean Laplan- che intervenes by saying that this system is dangerous.
JL: If I say that it's dangerous it's because it leads us to a conformism much worse than that of the law: that of con- formity. Foucault emphasizes an evolution but he pushes also in the direction of the latter. The law whose death he an- nounces is replaced, in an insidious way, by the manipulation of man in the name of a "norm" claimed to be rational. And the "norm" will not be so easily put off: it's the crabgrass that ceaselessly pushes back the ground "liberated" from the law.
MF; Let's imagine a justice that functions only ac- cording to a code: if you steal, your hand is cut off; if you
commit adultery, your sex organs are slit; if you murder, your head is cut off. It's a system of arbitrary and obligatory rela- tionships between the acts and the punishment that sanctions the crime in the person of the criminal. Thus it is possible to condemn someone to death.
But, if justice is concerned with correcting an individ- ual, of gripping the depths of his soul in order to transform
him, then everything is different: it's a man who is judging another and the death penalty is absurd. Monsieur Badinter has proved it; his defense, in this sense, is un-arguable.
JL: Not only does the death penalty become impos- sible but no punishment is truly possible.
MF: That's right. Today two systems are super- imposed on one another. On the one hand, we are still living
? ? ? ? 166 The Anxiety of Judging
? under the old traditional system which says: we punish be- cause there is a law. And then, on top of that, a new system has penetrated the first: we punish according to the law but in order to correct, to modify, to redress; for we are dealing with deviants and the abnormal. The judge thinks of himself as a therapist of the social body, a worker in the field of "public health" in the larger sense.
? JL: I think it's a little exaggerated to proclaim that we have finished with the law in order to enter the universe of the norm--even if it's to contest it in its tum. For the people, in spite of everything, the notion of justice remains intact. There's justice, there's no justice. This man has acted badly, he must be punished: we hear this everywhere, all around us-- the need for law manifesting itself in this great collective mur- mur. It's striking to see our jurists and modem criminologists treat with contempt the notion of punishment as "retribution. "
In order to trace this current course or degradation back a little I alluded to Hegel, who anticipated the major objection: if one keeps to the level of materiality, of suffering, nothing justifies the addition of another crime and the further suffering that is imposed on the criminal. It doesn't change anything, it doesn't bring back the dead! The evil, far from being balanced, is only added to. Yet this objection, so pow- erful, can be transcended only through reference to another level, that of the law. The punishment, Hegel says forcefully, only makes sense if it abolishes, symbolically, the crime. But that, in its tum, is only comprehended because the crime itself does not lie in the material violence where it is manifested. It only exists in and through the law. We are animals dedicated to symbols and the crime adheres to our skin, hke the law. . .
? RB: A little while ago I evoked the relationship es- tablished between the one whose task is to judge and the deci-
? The Anxiety of Judging 167
? sion. You say to me: the law survives. It's true. Only we must not forget the extenuating circumstances. For the same crime you can be condemned to death or to three years in prison with a suspended sentence. Of course the range of possible sen tences is not infinite, but all the same it's very large. The di versity of possible decisions confers on judges a great power.
? In fact, if one has thus been oriented toward an expansion of the possible, it's because the judicial institution has been demanding it. Recall the thesis of Montesquieu and the Constituent Assembly: the judge must be "the mouth of the law. " It was infinitely easy for him. It sufficed that he ask himself the question: guilty or not guilty? If he were convinced that the accused was guilty, he pronounced the penalty provided by the texts. And he had the comforting feel- ing of having applied the general will. That must have been agreeable. But too easy. Today the judge, groping and uncer- tain, assumes responsibihty for the decision. But it's infinitely preferable to this automatic cleaver of abstract retribution.
? The drama is that we haven't gone to the end of per- sonalization. Of course we talk about treatment, re-education, rehabilitation. But we are given a caricature of treatment. We talk of the social rehabilitation of the convicted. And, in fact, we wimess a political exploitation of the fight against crime. No government has ever wanted to provide itself with the means to carry out these beautiful statements.
JL: We are marching in giant steps toward a total psychiatricalization of justice.
RB: No, psychiatry is only one means among others that are available to judges.
JL: I would mention psychoanalysis, which seems to me just as serious. Psychoanalysis is not there to cure dehn- quency on command.
? ? 168 The Anxiety of Judging
? MF: I will go further: what is this strange postulate according to which, from the moment someone has committed a crime, it signifies that he is sick? This symptomatization of the crime is the problem . . .
RB: Don't make me say what I didn't say: it would be a gross caricature of my thinking. Crime is a social sick- ness. But it's not by killing the ill or by confining them sepa- rately from the so-called healthy that one fights the sickness.
MF: Perhaps, but it's not a caricature of what all of criminology has been saying since 1880. We still have, in appearance, a legal system which punishes the criminal. In fact, we have a justice that proves itself innocent of punishing by pretending to treat the criminal.
? It is around this substitution of criminal for the crime that things have pivoted and that we have begun to think: "if we are dealing with a criminal, to punish him doesn't make a lot of sense unless the punishment is inscribed in a technology of human behavior. " And it is there that the criminologists of the 1880s and 90s began to advance strangely modem state- ments; "The crime cannot be, for the criminal, but an abnor- mal, disturbed behavior. If he upsets society, it's because he himself is upset. " They have drawn two kinds of conclusions: in the first place, "the judicial apparatus is no longer useful. " The judges, as men of law, are no longer competent to treat so difficult a matter, one so little juridical and so properly psychological as the criminal. Therefore, for the juridical apparatus we must substitute technical commissions of psy- chiatrists and doctors. Very specific projects were elaborated in this direction.
Second consequence: "We must certainly treat this individual who is dangerous only because he is sick. But, at the same time, we must protect society against him. " Hence
? ? The Anxiety of Judging 169
? the idea of an internment with a mixed function: therapeutic
and social preservation.
These projects aroused very hvely reactions from ju-
dicial and political authorities in the 1900s. However, in our day they have found a very large field of application, and the USSR--once more "exemplary"--^is not the exception.
RB: But all the same, one cannot advocate a return to the abstract retribution of the penalty. You speak of crime, Michel Foucault, but it's the criminal one judges. One can try to make reparations for a crime but it's the criminal that one punishes. The judges couldn't refuse to go in the direction of judicial treatment. How could they refuse the idea that one was going to change the criminal by bringing him back to the norm? What was there to do? Throw him into a hole for twenty years? It's not possible any longer. Cut him in half? It's not possible. What then? Re-integrate him by normalizing him. From the point of view of judicial technology--judge or lawyer--^there is no other possible approach. And it's not nec essarily practiced according to the Soviet system.
The other aspect of the thing that really upsets me is this rising clamor: "Death! Death! Let's hang them, let's torture them, let's castrate them! " Why? If I was so disap- pointed by reading Laplanche's article it was because he didn't respond to the question. At bottom, the only interesting approach to the problem of the death penalty is not that of the technicians of justice, nor that of the moralists nor of the phi- losophers. It is another that I would like to see bom and that will respond to all those investigating the secret function of the death penalty.
? The death penalty, in France, concems only a very small number of criminals. In the last nine years there have been only five executions. Considering these figures, look at the enormity of the passions vented. Why does one receive, as
? 170 The Anxiety of Judging
? soon as one publishes an article on the death penalty, two hundred letters of insult and delirium. For the Patrick Henry case I'm still receiving an unbelievable amount of mail: "You filth, if you think you're gonna save your own skin after let- ting him go--that monster! " Threats of torture against my wife and children then follow. Can you explain this anguish? Why do non-criminals have such a need for expiatory sacrifice?
? MF: I think you are integrating two things into the same question. It's certain that spectacular crimes set off a general panic; it's the irruption of danger in daily life, a resur- gence exploited shamelessly by the press.
? On the other hand, you can't imagine the efforts needed to interest people even a little in what you will agree is the real problem of criminal punishment, that is, the flagrant offences, the diet in correctional institutions, the trial-a-minute (proce`s-minute) where some kid, because he has stolen a piece of scrap iron off some vaguely defined lot, finds himself spending eighteen months in prison, which means that he will have to start over again, etc. The intensity of feelings that surround the death penalty is intentionally maintained by the system, since it allows it to mask the real scandals.
We have then three superimposed phenomena out of keeping with one another: a penal discourse that claims to treat rather than punish, a penal apparatus that never ceases to pun- ish, and a collective consciousness that demands several sin- gular punishments and is ignorant of the daily punishment that is silentiy exercised in its name.
JL: It seems arbitrary to me to separate so distinctly the population of delinquents fi^om that of the non-delinquents. There exists, on both sides, depths of common anguish and guilt. The great waves of anguish you were speaking of are not linked to fear but to something much deeper and harder to
? ? ? The Anxiety of Judging 171
? pinpoint. If people investigate the death penalty so much, it's because they are fascinated by their own aggressivity. Because they know in a vague way that they bear the crimes in them- selves and that they resemble the monster that confronts them.
? As for the criminals--whom I don't know so well as Monsieur Badinter--they themselves remain faithful to the law. Don't you hear, from one cell to another: "It's not fair, he got too heavy a rap," or "He got what was coming to him! "
? No, there isn't on one side a population white as snow who's afraid of lawbreakers and wants them punished, and on the other a group of criminals who hve only in and through lawbreaking. Well, what's there to say, if not that there exists a gap between the unnameable anguish that comes from our own death drive and a system that introduces the law? And that it's just this gap that permits a certain psychic equilibrium. I don't think at all that the appUcation of the law is an element that exists impUcidy, even in the one who vio- lates it. Inversely, the crime exists in each one of us, but what is psychically devastating is to treat someone as an "irrespon- sible child" when he manifests this imphcit crime in his acts. One could refer here to psychoanalysis and to its evolution in relation to the problems of education: it has been observed that the absence of law--or at least its partial deficiency, or its am- biguity--^is very anguishing, indeed "psychotizing" for the child brought up in a "permissive" environment.
? RB: There's no question of suppressing the law. It has not only a technical and repressive function but also an expressive function, in the sense that it expresses what the collective conscience judges to be proper.
? JL: I would say, in the strongest sense, that it has a
subjective function that operates in each of us; that of prohibitions that we respect--^in our unconscious--^like parri- cide and incest.
? 172 The Anxiety of Judging
? MF: For Laplanche the subject is constituted because there is law. Suppress the law and there will be no subject.
RB: I'm very sorry that psychoanalysts haven't in- vestigated any further the origin of the need for punishment that they seem to assume is a given. To say that at the same time there is identification with the criminal and anguish in this identification are words . . .
MF: It appears to me to be dangerous to demand the reason and foundation of the social act of punishment from psychoanalysts.
RB: Not reason and foundation but explication and clarity.
?
JL: Psychoanalysts, and Freud first of all, have stud- ied this question at length. If one had to try and summarize their point of view in two sentences, I would say that there exists two levels of guilt: the one where it is co-extensive with the anguish of our own self-aggression; and the other where it comes to be symbolized in the constitutive systems of our social being: linguistic, juridical, religious. The need for pun- ishment is already a way of making a primordial anguish pass into something expressible, and, consequendy, "negotiable. " That which can be expiated can be aboUshed, compensated for symbolically. . .
? RB: We are content then to accept the need for pun- ishment as a given without looking for the causes. But, once the public has been informed about a punishment, the second aspect of things begins: the treatment, the personalized ap- proach to the criminal. The judiciary must then satisfy the collective need for punishment, without forgetting about re-
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? habilitation. Obviously that sometimes grates on nerves, and the public becomes indignant: "He was condemned to twenty years and he's being let go after eight! " But why should he be kept longer if he's been reformed?
JL: One might even wonder if it's absolutely neces- sary to punish some criminals if we are sure they are reformed before being punished.
RB: We ought not. But the public demands pun- ishment. And if the judicial institution did not satisfy the need for punishment, that would produce a formidable ftiistration, which would be taken out in other forms of violence. That said, once the judicial dramaturgy is performed, the substitu- tion of treatment for punishment allows the accused to be re- inserted without affecting the ritual. And so the game is played.
? MF: Of course that grates, but see also how well oiled everything is! Of course there's someone there to punish the crime, but the president, with his ermine and his cap, what does he say? He leans over toward the deUnquent: "What was your childhood like? Your relationship with your mother? Your little sisters? Your first sexual experience? " What do these questions have to do with the crime he has committed? Naturally, that has to do with psychology. Psychiatrists are brought in to make everyone feel stupid, with discussions as much from the psychiatric point of view as fi-om the judicial, and that everyone pretends to consider as highly competent exposes. At the end of this great juridico-psychological hturgy the jurors finally accept this enormous thing: to punish with the feeling that they have accomplished an act of social secu- rity and public health, that one deals with "evil" by sending a fellow to prison for five years. The incredible difficulty of
? 174 The Anxiety of Judging
? punishing someone is dissolved into theatricality. It doesn't function badly at all.
RB: I'm not as sure as you are that the juror allows himself to be seduced by this medical approach. He thinks more simply: "He was abandoned by his mother? Let's take two years off the sentence. " Or again: "His father beat him? Then reduce the solitary confinement by four years. He had a praiseworthy childhood? Then take off three yeras. He deser- ted his wife and children? Then add on three years. " And so it goes. I'm caricaturing the situation a little, but not so much.
JL: Psychiatric expertise, such as I've known it, has been preoccupied above all with the protection of society. What would be most effective from that point of view? Therapeutics didn't have much to do with it? I saw cases involving minor offenses: knowing that the prison term would be very short, the expert advises to intern the delinquent, even recommending that the authorities not follow the advice of the top doctor who may be too intelligent and let him go free.
? MF: There is a circular on this subject that dates from after the war, according to which the psychiatrist must respond in court to three questions in addition to the tradi- tional "Was he of sound mind? " These questions are extraordi- nary if one considers them: (1) Is the individual dangerous? (2) Can he be given criminal punishment? (3) Is he curable or can he be rehabilitated? Three questions which make no sense judicially. The law has never pretended to punish someone be- cause he is "dangerous," but because he was a criminal. But in the realm of psychiatry the question isn't any more mean- ingful: as far as I know "danger" is not a psychiatric category, nor is the concept of "rehabihtation. " Here we have before us a strange mixed discourse where the only thing that matters is
? The Anxiety of Judging 175
? the danger to society. This is the game that psychiatrists have agreed to play. How is it possible?
JL: Indeed, when psychiatry submits to this game, it assumes a double role: of repression and adaptation. For what concerns psychoanalysis, things are a little different. It is dedicated neither to an expertise nor to rehabilitation. Crimi- nality in itself is certainly not a motive for analytic cure; with all the more reason if the dehnquent was sent to the analyst by the authorities. However, one could easily imagine a delin- quent undertaking an analytic cure in prison. If he expresses such a wish, there is no reason not to try to accommodate him. But in no case could the treatment be an alternative to the punishment: "If you get better, you will be fireed sooner. . . "
MF: Certain legislation has foreseen judicial deci- sions for obligatory treatment, as in the case of drug addicts and trials for minors.
JL: That's aberrant. One knows how very difficult it is to approach addicts, even when they agree to be tteated . . .
RB: It's not an aberration from the judge's point of view. Even so, it's more valuable than to keep the addict locked up for several months.
? JL: But, precisely in this regard, to want to remove
the addict from a possible confrontation with a prison term is to put oneself in the worst conditions, from the point of view of psychotherapy. Psychotherapy could not be an alternative to prison without undermining itself.
? RB: That said, our justice has never really wanted to go all the way with treatment.
? 176 The Anxiety of Judging
? JL: It's not because the penitential framework is de- testable that it must be replaced by a no less detestable psychi- atric one.
? RB: I'm not talking about a psychiatric framework. It's not a matter of giving psychiatry full power. What I'm saying is that one can't be ignorant of it. Up to the present it has been used as an alibi. Never for curative purposes.
? MF: You seem to think of psychiatry as a system that might really exist, like a marvelous instrument prepared in advance. "Ah, if finally the psychiatrists would come to work with us, how good that would be! " Yet I believe that psychia- try is not capable of responding to such a demand, and that it never will be. It is incapable of knowing if a crime is a sick- ness or of transforming a delinquent into a non-delinquent.
? It would be serious if justice washed its hands of its responsibihties by delegating them to psychiatrists. Or if the sentence became a kind of transactional decision between an archaic code and an unjustified knowledge.
? RB: It's certainly not a question of delegating re- sponsibilties. But psychiatry is one instrument among many, badly or hardly utilized up till now in judicial matters.
MF: But its value is exactly what has to be put into question.
RB: But then must all psychiatric research be ex- cluded from judicial concems? Do we retum to the beginning of the 19th century? To prefer the penal colony, to get rid of them by sending them as far away as possible where they can starve in indifference would be a frightful regression.
? ? The Anxiety of Judging 177
? JL: Psychiatry is more and more infiltrated with psy- choanalytic concepts. Yet psychoanalysis can in no case make pronouncements about the irresponsibility of a delinquent. On the contrary: one of the postulates of psychoanalysis is that those analyzed must become responsible again, as subjects of their acts. To use psychoanalysis to make them "irresponsible" would be an absurd reversal.
? MF: It suffices to listen to these "experts" who come to analyze a fellow. They say just what anyone in the street would say: "You know he had an unhappy childhood. He's a difficult person. . . " Of course all that is dressed up in techni- cal terms, which doesn't fool anybody. Yet it works. Why? Because everyone--the prosecuting attorney, the lawyer, the presiding judge--needs a modulator for the punishment. It al- lows one to make the code function as one wants, and to retain a good conscience. In fact, the psychiatrist doesn't discuss the delinquent's psychology: it's to the liberty of the judge that he addresses himself. It's a question not of the criminal's uncon- scious but of the judge's consciousness. When we publish some of the psychiatric testimony we have gathered over the past few years, one will be able to determine to what extent psychiatric relationships constitute tautologies: "He killed a
little old lady? Well then he's an aggressive subject! " Do we need psychiatry to perceive that? No. But the judge needs psychiatry in order to reassure himself.
? This "modulator" effect works moreover in both di- rections; it can also increase the sentence. I saw expert testi- mony on homosexual subjects formulated in such terms as: "These are abject individuals. " But "abject" is not an accepted technical term! It's a way of reintroducing, under the honor- able cloak of psychiatry, certain connotations of homosexual ity in a trial where they don't belong. Take Tartuffe at Elmira's knees proposing "a love without scandal and a pleasure with-
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? out fear. " Substitute prison term and punishment for pleasure and love and you have psychiatric tartufferie at the feet of the court of justice. Nothing works better against the anxiety of judging.
? RB: But it is anguishing to judge! The judicial insti- tution can function only to the extent that the judge is liberated from his anxiety. To succeed in it he must know in the name of what values he condemns or absolves. Until a recent period everything was simple. Political regimes changed, but not the values of society. The judges were comfortable. But today in this uncertain society in the name of what does one judge, by means of what values?
? MF: I fear that is is dangerous to allow judges to continue to judge alone, by liberating them from their anxiety and allowing them to avoid asking themselves in the name of what they judge, by what right, by what acts, and who are they, those who judge. Let them become anxious like we become anxious when we meet so few who are disturbed. The crisis of the function of justice has just been opened. Let's not close it too quickly. A
Note
? ' On February 28, 1977, Laplanche published an article on the then-current trial of Patrick Henry, provoking numerous re- actions. The renowned psychoanalyst in essence dismissed both adversaries and advocates of capital punishment. Robert Badinter, the lawyer who contributed to saving Pat- rick Henry from the guillotine (later Socialist Minister of Justice), here debates the issue of the death penalty and capital punishment with Laplanche and Michel Foucault.
^ Robert Badinter, L'Execution (Paris: Grasset, 1973).
? ? 15
Clarifications on the Question of Power
Q: Your research since, let us say. Discipline and Punish, has begun to extend into and bring to light the realm of power relationships and the technology of power; this fact has created problems and difficulties now that these analyses have started to have echoes in the political and intellectual fields. In the United States they are wondering into which university discipline your work ought to be placed; in Italy they want rather to know what is the political effect of your ideas.
1. How would you define the field of your work to- day, and what might its political implications be?
2. In your analyses there would be no difference be- tween ideology and the process of power, between ideology and reality. This type of analysis, this mise a plat--for which you are criticized--would be nothing more than an echo of what already exists, a confirmation of the real.
3. The metaphor of Bentham's Panopticon--to which one attempts to reduce all your analyses--would take us back to an absolute transparency of power which is all-seeing.
? 180 The Question of Power
? 4. The concept of resistance can easily function as repoussoir, as the external limit of an analysis which would bring to light in the presence of this concept the notion of Power with a capital P. In reality, you are probably thinking the opposite, in particular in The History of Sexuality. But this is a problem to which we shall undoubtedly have to retum.
? MF: By way of introduction, it is perhaps worth it to say something on this problem of the "amalgam," because I think it might be an important factor. I have the impression that the whole operation can be summarized in this way: there is no difference between what Deleuze says, what Foucault says and what the "new philosophers" say. ' I suppose, though it would have to be verified, that yet a fourth adversary has been as- similated here, the theory of radical needs, which is, I believe, rather important in Italy today and of which the PCI would also Uke to rid itself. Here we find something worth emphasiz- ing: these are the old tactics, both political and ideological, of Stalinism, which consist of having at all times only one adver- sary. Also, or rather above all, when you strike on several fronts, you must do it in such a way that the battle seems like a battle against one and the same adversary. There are a thou- sand devils, the Church used to say, but there is only one Prince of Darkness. . . And they do the same thing. This pro- duced, for example, social-fascism, in the very moment when it was necessary to fight against fascism; but they wanted at the same time to attack social democracy. There has been the category of Hitlerian-Trotskyism; or Titoism as the unchang- ing element of all the adversaries. So they maintain absolutely the same procedure.
? Secondly, it has to do with a judiciary procedure, and one which has acted out a very precise role in all the trials, those of Moscow, those of the post-war popular democracies; that is, the role of saying: since you are nothing more than one
? The Question of Power 181
? and the same enemy, we shall ask you above all to account not only for what you have said, but also for everything you have not said, if it is one of your so-called allies or accomplices who has said it. Hence a totalization of sins on each of the accused heads. And then: as you can well see, you contradict yourselves, since, even though you are all one and the same adversary you say one thing but you also say the opposite. So you must account for what has been said and for the opposite of what has been said.
? There is also a third element which seems important to me and which consists of the act of assimilating the enemy and the danger.
