Key Arguments

• Foucault rejects the idea that torture is simply a leftover barbarity: “it did not figure in classical law as a survival or defect. It occupied a strict place in a complex penal mechanism,” articulating with inquisitorial and accusatory elements, written and oral procedures, and ritual participation by the accused.
• He insists that it was “not the unrestrained torture of modern interrogations; it was certainly cruel, but it was not savage. It was a regulated practice, obeying a well-defined procedure; the various stages, their duration, the instruments used, the length of ropes and the heaviness of the weights used, the number of interventions made by the interrogating magistrate, all this was, according to the different local practices, carefully codified.”
• He explicitly terms it “a torture of the truth,” whose function is to produce truth through a ritual mechanism linking “the investigation carried out in secret by the judicial authority and that of the act ritually performed by the accused,” with “The body of the accused, the speaking and, if necessary, suffering body” assuring their interlocking.
• Torture retains the logic of older ordeals or duels: “Something of the joust survived, between the judge who ordered the judicial torture and the suspect who was tortured; the ‘patient’ – this is the term used to designate the victim – was subjected to a series of trials, graduated in severity, in which he succeeded if he ‘held out’, or failed if he confessed.”
• It is structurally double: “In torture employed to extract a confession, there was an element of the investigation; there also was an element of the duel. It is as if investigation and punishment had become mixed,” such that the “battle, and this victory of one adversary over the other, … ‘produced’ truth according to a ritual.”

Source Quotes

There are guilty men who have enough firmness to hide a true crime … and innocent victims who are made to confess crimes of which they were not guilty’ (Ferrière, 612). On this basis one may see the functioning of judicial torture, or interrogation under torture, as a torture of the truth. To begin with, judicial torture was not a way of obtaining the truth at all costs; it was not the unrestrained torture of modern interrogations; it was certainly cruel, but it was not savage.

On this basis one may see the functioning of judicial torture, or interrogation under torture, as a torture of the truth. To begin with, judicial torture was not a way of obtaining the truth at all costs; it was not the unrestrained torture of modern interrogations; it was certainly cruel, but it was not savage. It was a regulated practice, obeying a well-defined procedure; the various stages, their duration, the instruments used, the length of ropes and the heaviness of the weights used, the number of interventions made by the interrogating magistrate, all this was, according to the different local practices, carefully codified (In 1729, Aguesseau ordered an investigation into the means and rules of torture used in France. For a summary of the findings, cf. Joly de Fleury, 322–8.) Torture was a strict judicial game.

But it did not figure in classical law as a survival or defect. It occupied a strict place in a complex penal mechanism, in which the procedure of an inquisitorial type was reinforced with elements of the accusatory system; in which the written demonstration required an oral correlative; in which the techniques of proof administered by the magistrates were mingled with the methods of the ordeal to which the accused was challenged; in which he was called upon – if necessary by the most violent persuasion – to play the role of voluntary partner in the procedure; in which it was a question, in short, of producing truth by a mechanism consisting of two elements – that of the investigation carried out in secret by the judicial authority and that of the act ritually performed by the accused. The body of the accused, the speaking and, if necessary, suffering body, assured the interlocking of these two mechanisms; that is why, until the classical system of punishment was re-examined from top to bottom, there were so few radical criticisms of torture (the most famous being Nicolas’s Si la torture est un moyen à vérifier les crimes of 1682).

And, as such, it was linked to the old tests or trials – ordeals, judicial duels, judgements of God – that were practised in accusatory procedures long before the techniques of the Inquisition. Something of the joust survived, between the judge who ordered the judicial torture and the suspect who was tortured; the ‘patient’ – this is the term used to designate the victim – was subjected to a series of trials, graduated in severity, in which he succeeded if he ‘held out’, or failed if he confessed. (The first degree of torture was the sight of the instruments.

The search for truth through judicial torture was certainly a way of obtaining evidence, the most serious of all – the confession of the guilty person; but it was also the battle, and this victory of one adversary over the other, that ‘produced’ truth according to a ritual. In torture employed to extract a confession, there was an element of the investigation; there also was an element of the duel. It is as if investigation and punishment had become mixed. And this is not the least paradoxical thing about it.

Key Concepts

• On this basis one may see the functioning of judicial torture, or interrogation under torture, as a torture of the truth.
• it was certainly cruel, but it was not savage. It was a regulated practice, obeying a well-defined procedure; the various stages, their duration, the instruments used, the length of ropes and the heaviness of the weights used, the number of interventions made by the interrogating magistrate, all this was, according to the different local practices, carefully codified
• it occupied a strict place in a complex penal mechanism, in which the procedure of an inquisitorial type was reinforced with elements of the accusatory system; in which the written demonstration required an oral correlative; in which the techniques of proof administered by the magistrates were mingled with the methods of the ordeal to which the accused was challenged
• Something of the joust survived, between the judge who ordered the judicial torture and the suspect who was tortured; the ‘patient’ – this is the term used to designate the victim – was subjected to a series of trials, graduated in severity, in which he succeeded if he ‘held out’, or failed if he confessed.
• In torture employed to extract a confession, there was an element of the investigation; there also was an element of the duel. It is as if investigation and punishment had become mixed.

Context

Responding to eighteenth‑century criticisms of torture, Foucault reconstructs how judicial torture actually functioned in classical law, emphasizing its codified, quasi‑ritual nature and its role in producing juridical truth.