Key Arguments

• Foucault recalls that historically “to judge was to establish the truth of a crime, it was to determine its author and to apply a legal punishment. Knowledge of the offence, knowledge of the offender, knowledge of the law: these three conditions made it possible to ground a judgement in truth.”
• He argues that now “a quite different question of truth is inscribed in the course of the penal judgement,” expanding the scope of what must be established.
• He lists new questions: instead of only “Has the act been established and is it punishable?”, one must ask “What is this act, what is this act of violence or this murder? To what level or to what field of reality does it belong? Is it a phantasy, a psychotic reaction, a delusional episode, a perverse action?”
• The inquiry into the author similarly shifts from “Who committed it?” to “How can we assign the causal process that produced it? Where did it originate in the author himself? Instinct, unconscious, environment, heredity?”
• The legal question “What law punishes this offence?” is supplemented by “What would be the most appropriate measures to take? How do we see the future development of the offender? What would be the best way of rehabilitating him?”
• He concludes that “A whole set of assessing, diagnostic, prognostic, normative judgements concerning the criminal have become lodged in the framework of penal judgement,” and that “Another truth has penetrated the truth that was required by the legal machinery; a truth which, entangled with the first, has turned the assertion of guilt into a strange scientifico-juridical complex.”

Source Quotes

Or, to be more precise, within the very judicial modality of judgement, other types of assessment have slipped in, profoundly altering its rules of elaboration. Ever since the Middle Ages slowly and painfully built up the great procedure of investigation, to judge was to establish the truth of a crime, it was to determine its author and to apply a legal punishment. Knowledge of the offence, knowledge of the offender, knowledge of the law: these three conditions made it possible to ground a judgement in truth.

Ever since the Middle Ages slowly and painfully built up the great procedure of investigation, to judge was to establish the truth of a crime, it was to determine its author and to apply a legal punishment. Knowledge of the offence, knowledge of the offender, knowledge of the law: these three conditions made it possible to ground a judgement in truth. But now a quite different question of truth is inscribed in the course of the penal judgement.

Knowledge of the offence, knowledge of the offender, knowledge of the law: these three conditions made it possible to ground a judgement in truth. But now a quite different question of truth is inscribed in the course of the penal judgement. The question is no longer simply: ‘Has the act been established and is it punishable?’

The question is no longer simply: ‘Has the act been established and is it punishable?’ But also: ‘What is this act, what is this act of violence or this murder? To what level or to what field of reality does it belong? Is it a phantasy, a psychotic reaction, a delusional episode, a perverse action?’ It is no longer simply: ‘Who committed it?’

It is no longer simply: ‘Who committed it?’ But: ‘How can we assign the causal process that produced it? Where did it originate in the author himself? Instinct, unconscious, environment, heredity?’ It is no longer simply: ‘What law punishes this offence?’

It is no longer simply: ‘What law punishes this offence?’ But: ‘What would be the most appropriate measures to take? How do we see the future development of the offender? What would be the best way of rehabilitating him?’ A whole set of assessing, diagnostic, prognostic, normative judgements concerning the criminal have become lodged in the framework of penal judgement.

What would be the best way of rehabilitating him?’ A whole set of assessing, diagnostic, prognostic, normative judgements concerning the criminal have become lodged in the framework of penal judgement. Another truth has penetrated the truth that was required by the legal machinery; a truth which, entangled with the first, has turned the assertion of guilt into a strange scientifico-juridical complex.

A whole set of assessing, diagnostic, prognostic, normative judgements concerning the criminal have become lodged in the framework of penal judgement. Another truth has penetrated the truth that was required by the legal machinery; a truth which, entangled with the first, has turned the assertion of guilt into a strange scientifico-juridical complex. A significant fact is the way in which the question of madness has evolved in penal practice.

Key Concepts

• Ever since the Middle Ages slowly and painfully built up the great procedure of investigation, to judge was to establish the truth of a crime, it was to determine its author and to apply a legal punishment.
• Knowledge of the offence, knowledge of the offender, knowledge of the law: these three conditions made it possible to ground a judgement in truth.
• now a quite different question of truth is inscribed in the course of the penal judgement.
• What is this act, what is this act of violence or this murder? To what level or to what field of reality does it belong? Is it a phantasy, a psychotic reaction, a delusional episode, a perverse action?
• How can we assign the causal process that produced it? Where did it originate in the author himself? Instinct, unconscious, environment, heredity?
• What would be the most appropriate measures to take? How do we see the future development of the offender? What would be the best way of rehabilitating him?
• A whole set of assessing, diagnostic, prognostic, normative judgements concerning the criminal have become lodged in the framework of penal judgement.
• turned the assertion of guilt into a strange scientifico-juridical complex.

Context

Foucault broadens his analysis of judging the ‘soul’ by detailing how contemporary penal procedures incorporate medical, psychological, and prognostic assessments into sentencing, thereby hybridizing legal truth with expert knowledges.