Magazine: Social Identities; October 1, 1996

                       TRUTH AND JURIDICAL FORMS
                       -------------------------

TRANSLATOR'S FOREWORD: This text was originally presented in French at a
conference at the Catholic University of Rio de Janeiro in May 1973. It
was subsequently translated to Portuguese by J.W. Prado for publication
in the June 1974 issue of Cardernos da PUC, and then into French by P.W.
Prado Jr, published by Gallimard, Paris, in 1994 in M. Foucault, Dits et
ecrits. This French translation was established from the Portuguese
translation with the help of recordings taped during the conference.
This English translation is based on the text published in 1994 by
Gallimard. Footnote 1 refers to a note by the translator of this text,
on the translation from the French into English. In the 1994 French
translation, the translator of the Portuguese text into French indicated
that the word epreuve was left in French in the Portuguese translation.
The translator of this text has decided to keep it in French too.

Foucault, M. (1994) 'La Verite et les formes juridiques,' in D. Defert
and F. Ewald (eds) Dits et ecrits 1954-1988, Vol. II, 1970-1975, pp. 538-
646, Paris: Gallimard. This was translated from the original publication
in Portuguese, M. Foucault (1974) 'A verdade e as formas juridicas',
Trad. J.W. Prado Jr, Cadernos da PUC, 1974: 16, pp. 5-133. (Discussion
with M.T. Amaral, R.O. Cruz, C. Katz, L.C. Lima, R. Machado, R. Muraro,
H. Pelegrino, M.J. Pinto, A.R. de Sant'Anna, at conferences at the
Pontifical Catholic University of Rio de Janeiro, 21-25 May 1973.) From
Dits et ecrits 1954-88, Volume II, to be published by The New Press. (C)
Editions Gallimard 1994.

In the preceding lecture, I made reference to two forms or types of
judicial resolution, litigation, contest, or dispute, present in Greek
civilisation. The first form, being rather archaic, is found in Homer's
writings. Two warriors confronted each other in order to know who was
wrong and who was right, or who had violated the rights of the other.
The task of resolving the matter led to a settled dispute, or a
challenge between the two warriors. One challenged the other thus: 'Are
you capable of swearing under oath and in front of the gods that you
have not done what I have accused you of doing?'. In such a procedure,
there is neither judge, nor sentence, nor truth, nor investigation, nor
testimony to find out who has told the truth. The job of deciding -- not
who was wrong, but who was right -- was left to the fight, or to the
challenge, or to the risks each opponent would take.

The second form is the one that unravels throughout Oedipus the King. In
order to solve a problem which is also, in a way, the problem of
criminal litigation -- who killed King Laius? -- a new character appears
as in the old Homerian procedure: the shepherd. Deep in his cabin, yet
very much an insignificant man, a slave, the shepherd saw, and because
he uses this small fragment of memory, because he carries around in his
discourse the account of what he saw, he is able to challenge and defeat
the pride of the king or the presumption of the tyrant. The witness, the
humble witness, by the sole means of the game of truth that he witnessed
and enunciates, can single-handedly conquer the most powerful of them
all. Oedipus the King is a resume of sorts of the history of Greek law.
Several of Sophocles' plays, like Antigone and Electra, are a type of
theatrical ritualisation of the history of law. This dramatisation of
the history of Greek law provides us with a summary of one of the great
conquests of Athenian democracy: the history of the process by which the
people took hold of the law of judging, killing the truth, pitting the
truth against its own superiors, and judging those who governed them.

The great conquest of Greek democracy, this law of witnessing and
opposing truth to power, consisted of a long process born and
inaugurated definitively in Athens throughout the fifth century. This
law of opposing one truth without power against a power without truth
gave way to a series of great cultural forms, characteristic of Greek
society.

First, there was elaboration of what one could call the rational forms
of proof and demonstration: how to produce the truth, under what
conditions, which forms to observe, which rules to apply? These forms
include philosophy, rational systems, and scientific systems. Second
(and maintaining a link with the preceding forms), there developed an
art of persuasion -- convincing the people of the truth of what one says
-- and obtaining victory for the truth or, moreover, by the truth. Here
we encounter the problem of Greek rhetoric. Third, there is the
development of a new type of knowledge: knowledge through witnessing,
through memory, through inquiry. This is a knowledge of investigation
that historians like Herodotus just before Sophocles, naturalists,
botanists, geographers, and Greek travellers would develop and that
Aristotle would totalise and expand to encyclopedic proportions.

Hence, in Greece there was a great revolution of sorts over the course
of a series of fights and political battles. This revolution resulted in
the elaboration of a determined form of judicial discovery, or discovery
of the truth. This forged the matrix or the model by which a series of
other types of knowledge -- philosophical, rhetorical, and empirical --
were able to develop and characterise Greek thought.

Curiously, the story of the birth of investigation has remained
forgotten and lost. However, several centuries later during the Middle
Ages, this story was told again in different form.

During the European Middle Ages, we see a second birth of the inquiry,
which is slower and more obscure, but which achieved much greater
success than the first. The Greek method of investigation had remained
stationary; it had not succeeded in creating the foundations a rational
knowledge capable of developing indefinitely. However, the investigation
born in the Middle Ages would assume extraordinary dimensions. Its
destiny would be coextensive practically with the culture called
'European' or 'Western'.

The old law that regulated litigation between individuals in Germanic
societies (at the time when these societies came into contact with the
Roman Empire) was very close, in a certain way and in some of its forms,
to archaic Greek law. It was a system of laws in which the investigation
did not exist, because this litigation between individuals was regulated
by challenges and ordeals.

The former Germanic law at the time Tacitus began to analyse this
curious civilisation which spread as far as the borders of the Empire is
schematically characterised in the following way.

First, there is no public action, which means that there is no one
(representing society, the collective group, power or the one who holds
power) in charge of making accusations against individuals. In order to
have a penal trial, there had to be a wrong: someone at least had to
pretend to have been wronged or victimised. This alleged victim needed
to point out the offender, and the victim could be the person directly
offended or part of the family, thus assuming the role of parent. What
characterised a penal case was always a type of duel, whether opposition
between individuals, families, or groups. There was no intervention by
any representative of authority. This was a matter of a claim being made
by one individual regarding another, and only included the intervention
of these two characters: the plaintiff and the defendant. We know of
only two curious cases in which there was a sort of public action:
treason and homosexuality. The community intervened, considering itself
as having been wronged, and collectively demanded reparations from the
individual. Consequently, the first condition for bringing a penal
lawsuit in old Germanic law was the existence of two characters and not
the existence of a third mediating party.

The second condition was that once the penal action was introduced, once
an individual made a claim of being victimised and sought reparation
from another, judicial liquidation needed to be conducted as a
continuation of the fight between the individuals. A private, individual
war developed and the penal procedure would only be the ritualisation of
this fight between the individuals. Germanic law did not oppose war and
justice, and it did not define justice and peace. On the contrary, it
supposed that the law was a certain singular subject and was regulated
to conduct war between individuals and produce acts of vengeance.

The law was therefore a regulated way of fighting a war. For example,
when someone dies, a close relative may execute the judicial practice of
vengeance, which means to vow to kill the person who in principle is the
assassin. To enter into the domain of the law means killing the assassin,
but doing this according to certain rules and certain forms. If the
assassin has committed the crime in this manner or that, it would be
necessary to kill him by cutting him into pieces or by cutting off his
head and placing it on a stand at the entrance of his home. These acts
would ritualise the gesture of vengeance and characterise it as judicial
vengeance. So the law was the ritual of war.

The third condition is that if it is true that there is no opposition
between law and war, it is no less true that it is possible to come to
an agreement, which means interrupting these regulated hostilities.
Ancient Germanic law always offers the possibility of coming to an
agreement or a transaction throughout this series of reciprocal, ritual
vengeance. In this procedure of Germanic law, one of the two adversaries
buys back his right to be at peace and to escape the possible vengeance
of his adversary. He buys back his own life, and not the blood which he
has shed, while thus putting an end to war. The interruption of the
ritual war is the third and final act of the judicial drama in ancient
Germanic law.

The system that regulates conflicts and litigations in Germanic
societies of this period is thus entirely governed by fighting and
transactions; it is a test of strength which can be terminated by an
economic transaction. It is a procedure which does not permit
intervention by a third individual, who would be placed between the two
others as the neutral element searching for the truth while trying to
know which one of the two has spoken the truth. This is the way in which
ancient Germanic law was made up, before the invasion of the Roman
Empire.

I will not spend any time on the long series of events that prompted
Germanic law to enter into rivalry, competition, and sometimes
complicity with the Roman law ruling in the territories occupied by the
Roman Empire. Between the fifth and tenth centuries of our era, there
were a series of penetrations and conflicts between these two systems of
law. Upon the collapse of the Roman Empire, whenever a state emerged,
each time a state-like structure came into being, the Roman law, the old
law of the state, was revived. Under the reign of the Merovingians and
especially during the time of the Carolingian Empire, Roman law
surpassed Germanic law in a certain way. Moreover, each time that there
was a dissolution of these embryos, or traces, of a State, Germanic law
reappeared. When the Carolingian Empire dissolved in the tenth century,
Germanic law triumphed, and Roman law fell into oblivion for several
centuries, only to reappear slowly at the end of the twelfth and during
the thirteenth century. Thus, feudal law was essentially like Germanic
law. The former displayed no elements of the procedures of investigation
nor establishment of the truth as in Greek societies or the Roman
Empire.

In feudal law, litigation between two individuals was settled by the
system of the epreuve,[1] the burden of proof. When an individual
presented himself as the plaintiff bearing a claim or a dispute by
accusing someone else of having killed or stolen, the litigation between
the two was resolved by a series of tasks, accepted by both parties and
to which they were both subject. This system was a way of proving not
the truth, but the strength or weight or importance of the plaintiff.

First, there were social epreuves, which were epreuves of the social
importance of an individual. In old Burgundy law of the eleventh century,
when someone was accused of murder, the accused could perfectly
establish his innocence by gathering twelve witnesses on his side. These
witnesses would swear that he had not committed the murder. The
testimony was not based on the fact that they would have seen the
alleged victim in person, nor was it based on an alibi for the alleged
murderer. In order to testify as a witness that an individual had not
killed anyone, it was necessary to be a relative of the accused. It was
necessary to have a social relationship of kinship with the person,
which guaranteed not his innocence, but rather his social importance.
This displayed the support that any individual had the power to obtain --
his weight, his influence, the importance of the group to which he
belonged -- and the persons prepared to support him in a battle or a
conflict. The proof of innocence, that he did not commit the act in
question, was not at issue in the testimony.

Second, there were types of verbal epreuve. When an individual was
accused of something (robbery or murder), he had to respond to that
accusation by a certain number of formulae, guaranteeing that he had not
committed the murder or the robbery. By enunciating these formulae, he
could fail or succeed. In certain cases, the formula was enunciated, but
the accused lost. This loss was not due to having said something false
nor because it was proved to be a lie, but because the formula was not
enunciated as it was supposed to have been. A grammatical error or a
change of words invalidated the formula, not the truth trying to be
established. Confirmation of the fact that at the level of the epreuve
it was only a matter of a verbal game is found in the case of minors,
women and priests. In such cases the accused could be replaced by
another person. This other person, who would later become known in the
history of law as the lawyer, was the one who would pronounce the
formulae in place of the accused. If this person committed an error in
the enunciation, the one he represented lost the case.

Third, there were old magical-religious epreuves of taking oath. The
accused was asked to take the oath and if he did not dare or hesitated,
he lost the case.
Finally, there were the famous physical epreuves -- called ordeals --
which consisted of submitting a person to a sort of game or fight with
his own body, in order to observe whether the person would succeed or
fail. For example, at the time of the Carolingian Empire, there was a
popular epreuve imposed on the person accused of murder in certain
regions of the North of France. The accused was supposed to walk on
coals and, two days later, if he still had scars, he lost the case.
There were yet other epreuves like the ordeal by water, which consisted
of tying a person's right hand to his left foot before throwing him into
the water. If the person did not drown, he lost the trial, because the
water itself did not accept him well; and if the person drowned, he won
the trial since the water had not rejected him. All of these
confrontations between the individual or his body and natural elements
are a symbolic transposition of the actual fight of individuals among
themselves, the semantics of which should be studied. Actually, it is
always a matter of a battle and knowing who is the strongest. In old
Germanic law, the trial was simply the regulated, ritualised
continuation of war.

I could have given more convincing examples, such as the fights between
adversaries throughout a trial, physical fights, or the famous judgments
of God. When two individuals confronted each other concerning ownership
of goods or murder, it was always possible for them -- if they were in
agreement -- to fight. They needed to observe the pre-determined rules --
length of the fight, types of weapons -- in front of an audience present
only to ensure the legality of what occurred. The winner of the combat
won the trial, without having been given the chance to tell the truth or,
rather, without having been asked to prove the truth of his claim.

In the system of the feudal judicial epreuve, it was a matter not of
looking for the truth, but a binary structured game or test. The
individual accepts the epreuve or relinquishes. If he relinquishes and
does not want to attempt the epreuve, he loses the trial in advance. If
the epreuve is undertaken, he succeeds or fails: there are no other
possibilities. The binary form is the first characteristic of the truth.


The second characteristic is that the epreuve ends with victory or
defeat. There is always someone who wins and someone who loses; the
stronger one and the weaker one; a favourable or unfavourable ending. At
no time does anything like a sentence appear, as emerges at the end of
the twelfth century and the beginning of the thirteenth. The sentence
consists in the declaration -- by a third party -- that a certain person,
having spoken the truth, is right; another, having spoken a lie, is
wrong. Consequently, sentencing does not exist in feudal law:
distinguishing between individuals in terms of truth and error plays no
such role; there is simply victory or defeat.

The third characteristic is that the epreuve is automatic. A third party
is not necessary to observe the two adversaries. It is the balance of
strength, luck, vigour, physical resistance, and intellectual agility
that sets the individuals apart, according to a mechanism which is
developed automatically. Authority intervenes only as a witness to the
legality of the procedure. When judicial epreuves are developed, someone
is present bearing the title of judge -- the political sovereign or
someone designated with the mutual consent of the two adversaries -- in
order simply to see that the fight is carried out according to the
rules. The judge has no testimony concerning the truth, only concerning
the legality of the procedure.

The fourth characteristic is that within this mechanism the epreuve does
not name or localise the one who told the truth. Rather it establishes
that the strongest one is, at the same time, the one who is right. In a
war or a non-judicial epreuve, one of the two is always the stronger,
but that does not prove that he is right. The judicial epreuve is a way
of ritualising war or transposing it symbolically. It is a way of giving
it a certain number of derived, theatrical forms so that the stronger
one will be designated, by this fact, as the one who is right. The
epreuve operationalises the law, a switch of force into the law -- a
type of shifter[2] which allows the passage from force to law. The
epreuve does not have an apophantic function; it does not have the
function of showing the truth, contesting the truth, or revealing it. It
is an operator of the law and not an operator of truth nor an apophantic
operator. This is what the epreuve consisted of in ancient feudal law.

This system of judicial practice disappears at the end of the twelfth
century and during the thirteenth. During the entire second half of the
Middle Ages, we witness the transformation of these old practices and
the invention of new forms of justice, new forms of practice and
judicial procedures. Forms which are absolutely capital for the history
of Europe and the history of the entire world, in so much as Europe
violently imposed her yoke across the world. What was invented during
this re-elaboration of law is something that does not concern the
content so much as the forms and conditions of possibility of knowing, a
determined way of knowing. Invented in law at that time was a determined
way of knowing, or a condition of the possibility of knowing, the
destiny of which would become pre-eminent in the Western world. This
form of knowing is the inquiry, which appeared for the first time in
Greece and remained dissimulated for many centuries after the fall of
the Roman Empire. The inquiry, which resurged during the twelfth and
thirteenth centuries, however, is of a rather different type from the
example we found in Oedipus the King.

I have presented you with some fundamental traits of the old judicial
form. Why does the old judicial form [...] disappear at that time? One
can say, schematically, that a fundamental trait of Western European
feudal society is that the circulation of goods is relatively unassured
by commerce. Circulation is assured by mechanisms of heritage or
testamentary transmission and, especially, by bellicose, military, extra-
judicial, or judicial disputing. One of the most important means of
insuring the circulation of goods in the early Middle Ages was war --the
plundering and occupation of land, a castle, or a city. We are at the
shifting boundary between law and war, in so much as law is a certain
way of contInuing war. For example, someone uses armed force to occupy
land, a forest, any kind of property, and at that time enforces the
validation of his rights. He begins a long dispute at the end of which
the one who does not possess armed force and wants to recover his land
obtains the departure of the invader only by means of a payment. This
agreement is situated at the border between the judiciary and war; it is
also one of the most frequent ways for someone to become wealthy. In
most cases, the process of acquiring wealth, the circulation and
exchange of goods, and bankruptcies occurred at the beginning of the
feudal period according to this mechanical process.

It is interesting, by the way, to compare feudal society in Europe and
the so-called 'primitive' societies presently studied by ethnologists.
In the latter, the exchange of goods takes place through dispute and
rivalry, presented especially in the form of prestige, with
manifestations and signs. In feudal society, the circulation of goods is
also effected in the form of rivalry and dispute. However, the rivalry
and dispute are a matter of prestige, though they are rather bellicose.
In so-called 'primitive' societies, riches are exchanged in performances
of rivalry because they are not only goods, but also signs. In feudal
societies, riches are exchanged not only because they are goods and
signs, but because they are goods, signs, and arms. Wealth is the means
by which one can exercise violence as well as the power over life or
death of others. War, judicial litigation, and the circulation of goods
throughout the Middle Ages are part of a great unique and fluctuating
process.

There is, therefore, a double tendency characteristic of feudal society.
In one way, there is a concentration of arms in the hands of the most
powerful, who tend to prevent their use by the least powerful. To
conquer someone is to take away his arms, leading to a concentration of
armed power, which -- in feudal states -- gave more strength to the
powerful and, ultimately, to the most powerful of all: the monarch. In
another way, and simultaneously, there were judicial actions and
litigation which were a way of making goods circulate. It is thus
understood why the most powerful sought to control judicial litigation,
preventing these disputes from developing spontaneously between
individuals. This is also why the most powerful tried to take over the
judicial and litigious circulation of goods. This implied the
concentration of arms and judicial power, which was forming at the time
in the hands of these individuals.

The existence of executive, legislative, and judicial power appears to
be rather an old idea in constitutional law. Actually, it is a recent
idea dating from the time of Montesquieu. What interests us here,
however, is seeing how something like judicial power was formed. In the
early Middle Ages, there was no judicial power. Liquidation was done
between individuals. One asked the most powerful person (or the one who
exercised sovereignty) not to carry out justice, but to observe --
according to his political, magical, and judicial powers -- the legality
of the procedure. There was no autonomous judicial power, nor was there
even judicial power in the hands of the one who held control of power
with arms or political force. Insofar as it insured the circulation of
goods, the right to command and control the judicial dispute -- because
it was a means of accumulating wealth -- was usurped by the wealthiest
and the most powerful.

The accumulation of wealth and power of arms and the constitution of
judicial power in the hands of a few people are the same processes
prevalent in the early Middle Ages and reached its fruition at the time
of the formation of the first great medieval monarchy, in the middle or
at the end of the twelfth century. At that time things appear that are
totally new in regard to feudal society, the Carolingian Empire, and the
old rules or Roman law.

1. It is a justice that is no longer a dispute between individuals and
free acceptance by them of a certain number of rules of liquidation, but
which, to the contrary, would be imposed from the top on individuals, on
adversaries during challenges. Hereafter, individuals will no longer
have the right -- regularly or irregularly -- to resolve their
litigation; they will have to submit themselves to an exterior power,
which is imposed as judicial power and political power.

2. A totally new character appears, without precedent in Roman law: the
public prosecutor. This curious character, who appears in Europe around
the twelfth century, will be introduced as the representative of the
sovereign -- the king or master. When there is a crime, an offence, or a
dispute between two individuals, the state prosecutor presents himself
as the representative of a power wronged by the sole fact that an
offence or crime took place. The state prosecutor speaks for the victim,
backing up the one who is bound to lodge the complaint by saying, 'If it
is true that this man has wronged another, I, representative of the
sovereign, can affirm that the sovereign, his power, the order he
enforces, and the law he has established have been equally wronged by
him. Thus, I too place myself against him'. The sovereign and the
political power in this way reinforce and, little by little, replace the
victim. This phenomenon, which is absolutely new, will permit the
political power to control judicial proceedings. The state prosecutor,
therefore, is introduced as the representative of the sovereign injured
by wrongdoing.

3. An absolutely new notion appears: infraction. While the judicial
drama was taking place between two individuals -- the victim and the
accused -- it was a matter of wrong that an individual had done to the
other. It was a question of knowing, where there had been a wrongdoing,
who was right. The moment the sovereign or his representative, the state
prosecutor, says, 'I too have been wronged by the offence', it signifies
that the wrongdoing is not only an offence of one individual against
another but also an offence by one individual against the state (the
sovereign as the representative of the state), or an attack not against
the individual but against the law of the state itself. Thus, the notion
of crime or the old notion of wrong is replaced by that of infraction.
Infraction is not a wrong committed by an individual against another; it
is an offence or injury of an individual against the order, the state,
society, sovereignty, or the sovereign. Infraction is one of the great
inventions of medieval thought. We thus see how state-controlled power
confiscates the entire judicial procedure, the entire mechanism by which
inter-individual litigation is liquidated in the early Middle Ages.

4. There is one final discovery or final invention as diabolical as the
state prosecutor and the infraction: the state, or better yet, the
sovereign (since one cannot speak of the state at this time). The
sovereign is not only the injured party, but the one who demands
reparation. When an individual loses a trial, he is declared guilty and
still owes reparation to his victim. However, this reparation is
absolutely not like that of ancient feudal law or ancient Germanic law.
It is no longer a question of buying peace by giving money to one's
adversary. The guilty party will be forced not only to make reparations
to the individual for the offence committed, but also to the sovereign,
the state, and the law. Thus appears, with the mechanism of fines, the
massive mechanism of confiscation. Confiscation of goods is for the
great, newly-born monarchies one of the major ways of becoming rich and
expanding properties. Western monarchies were founded on the
appropriation of justice, which allowed them to apply these mechanisms
of confiscation. This is the political background of this
transformation.

It is now necessary to explain the establishment of the sentence and how
one arrives at the end of a procedure where one of the main characters
is the state prosecutor. If the main victim of an infraction is the king
and If it is the state prosecutor who first lodges a complaint, one
understands that judicial resolution can no longer be obtained by the
mechanisms of the epreuve. The king and his representative -- the
prosecutor -- cannot risk their own lives or their own goods each time a
crime is committed. The state prosecutor and the accused do not meet on
equal terms as in the case of a fight between two individuals. It is
necessary to find a new mechanism, in order to know if someone is guilty
or not, which is no longer like the epreuve nor like the fight between
two adversaries. The bellicose model cannot be applied.

Which model will thus be adopted? This is one of the great moments in
the history of the West. There were two models for solving the problem.
First, there was an intra-judicial model. In feudal law and ancient
Germanic law, there was a case where the collectivity, in its totality,
could intervene, accuse someone, and obtain conviction: this was called
deliberate offence -- where an individual was surprised at the exact
moment of committing the crime. At that moment, the people who surprised
him had the right to take him to the sovereign -- the holder of
political power -- and say, 'We have seen him doing a certain thing and,
consequently, he must be punished or made to make reparation'. Thus, in
the very sphere of the law, there was a model of collective intervention
and authoritative decision-making for the liquidation of judicial
litigation. This was the case of the deliberate offence, when the crime
was discovered while in progress. This model, obviously, could not be
used when the individual was not surprised during the act of crime,
which is most frequently the case. The problem, therefore, was knowing
under which conditions one could generalise the model of deliberate
offence and use it in this new system of law which was being born and
entirely commanded by the political sovereign and by his representative.


A second model was preferred. This was an extra-judicial model which --
in its own right -- is subdivided into two parts. Better yet, it had a
double existence or insertion during this period. It is a model of
inquiry that had existed at the time of the Carolingian Empire. When
representatives of the sovereign had to resolve a problem of law, power,
or a matter of taxes, mores, landed wealth, or property, one proceeded
to something perfectly ritualised or regulated: the inquisitio or
inquiry. The representative of power called the persons considered apt
to be familiar with mores, the law, or titles of property. He gathered
these persons -- making them swear to tell the truth, what they knew,
what they had seen, or what they knew from having heard it said. Then,
left alone, these persons deliberated. At the end of their deliberations,
they were asked for the solution to the problem.

This was a method of administrative management, which the employees of
the Carolingian Empire practised regularly. It was still used after its
dissolution by William the Conqueror in England. In 1066, the Norman
conquerors occupied England; they seized Anglo-Saxon goods and entered
into litigation with the native population and among themselves
concerning the possession of those goods. William the Conqueror, in
order to put everything in order and integrate the new Norman population
with the old Anglo-Saxon population, had a large inquiry into the state
of property, taxes, land income, etc. Hence, the famous Domesday Book,
which remains the only global example of an old administrative practice
of the Carolingian emperors.

This procedure of administrative inquiry has some important
characteristics:

1. political power is the essential component;

2 power is exercised first by asking questions and interrogating. It
does not know the truth and looks for it;

3. power -- in order to determine the truth -- is for notables and those
considered likely to know, given their situation, age, wealth, notoriety,
etc;

4. contrary to what is seen at the end of Oedipus the King, the king
consults notable people without forcing them to tell the truth through
the use of violence, pressure, or torture. They are asked to assemble
freely and render a collective opinion. They are allowed collectively to
say what they esteem to be the truth. We thus have a way of establishing
the truth which is totally linked to administrative management of the
first major state-like form known in the West. The inquiry procedures,
however, were forgotten during the tenth and eleventh centuries in
Europe -- during the early Middle Ages -- and would have been totally
forgotten had the Church not used them in the management of its own
goods. The analysis, however, becomes a little more complicated. For if
the Church once again used the Carolingian method of inquiry, it is
because it already had practised it before the Carolingian Empire for
reasons more spiritual than administrative.

Actually, there was a practice of inquiry in the Church of the early
Middle Ages -- the Merovingian and Carolingian Church. This method was
called visitatio and consisted of the visit the bishop was required to
make statutorily -- by going everywhere in the diocese. This method was
then adopted by the major monastic orders. Upon arriving at a determined
place, the bishop first instituted the inquisitio generalis -- the
general inquisition -- by questioning the elderly and the notable people
who were the most virtuous and knowledgeable. They were supposed to know
and be familiar with what had happened during his absence, especially if
there had been a mistake, crime, etc. If this inquiry concluded with an
affirmative response, the bishop continued to the second stage, called
the inquisitio specialis, or special inquisition, which consisted of
looking for who had done what and truthfully determining the nature and
the perpetrator of the act. Finally, a third element should be noted:
the confession of the guilty party could interrupt the inquisition at
any stage of its general or special forms. The one who had committed the
crime could identify himself and proclaim publicly, 'Yes, a crime has
been committed. It consists of such and such. I am the offender'.

This spiritual, essentially religious, form of the ecclesiastical
inquiry survived throughout the Middle Ages, having acquired
administrative and economic functions. When the Church became the sole
coherent economic-political body in Europe during the tenth, eleventh,
and twelfth centuries, the ecclesiastical inquiry was simultaneously a
spiritual inquiry of sins, mistakes, and crimes committed and an
administrative inquiry into the manner in which the goods of the Church
were administered and profits were collected, gathered, distributed,
etc. This model of the inquiry -- both religious and administrative --
survived until the twelfth century, when the state which was being born,
or rather the emerging figure of the sovereign as the source of power,
began confiscating judicial procedures. These judicial procedures can no
longer function according to the system of trial by ordeal. In what way,
then, will the state prosecutor establish whether someone is or is not
guilty? The spiritual and administrative model -- religious and
political -- the way of directing, surveying, and controlling souls is
found in the Church: the inquiry was considered a look into goods and
wealth as well as hearts, acts, and intentions. It is this model which
would be re-used in judicial proceedings. The state prosecutor would do
the same thing that the ecclesiastical visitors did in their parishes,
dioceses, and communities. He would attempt to establish by inquisitio
(by inquiry) whether there was a crime, which one, and who committed it.


This is the hypothesis I would like to develop. The inquiry had a double
origin: an administrative origin linked to the emergence of the state
during the Carolingian era, and a religious or ecclesiastical origin
present throughout the Middle Ages. It is this procedure of inquiry that
the state or crown prosecutor -- the new-born monarchical justice --used
to fill the function of the deliberate offence, which I have discussed
previously. The problem was knowing how to extend the flagrante delicto
to crimes that were not in the domain of current events; the problem was
also knowing how the crown prosecutor could bring the guilty party
before a judicial proceeding which exercised power if he did not know
who was guilty, since there had been no deliberate offence. The inquiry
would substitute for the deliberate offence. If one actually were able
to assemble persons who could, under oath, guarantee that they had seen,
knew, and were aware of the situation; if it were possible to establish
through them that something actually took place, there would indirectly
be -- through the intermediate inquiry of the persons who knew -- the
equivalent of a deliberate offence. Moreover, one would be able to deal
with gestures, acts, offences, and crimes, which were no longer a matter
of current events, as if they were apprehended during a deliberate
offence. Here we have a new way of prolonging the present events and
transferring them from one time to another and having them seen and
known, as if these events were still present or current. This insertion
of the inquiry's procedure that made the events up-to-date, contemporary,
sensitive, immediate, and true as though one were present at the actual
time constitutes a major discovery.

We can draw some conclusions from this analysis.

1. It is common to oppose the old ordeals of barbaric law to the new,
rational procedure of inquiry. I have previously evoked the different
ways by which one tried to establish who was right in the early Middle
Ages. We have the impression that they are barbaric, archaic, irrational
systems. We remain impressed by the fact that we had to wait until the
twelfth century in order finally to reach, with the procedure of inquiry,
a rational system of establishing the truth. I do not believe, however,
that the procedure of inquiry is simply the result of progress of
rationality. It is not through rationalising judicial procedures that
one reaches the procedure of inquiry. It is an entire political
transformation, a new political structure, that rendered not only
possible but necessary the use of this procedure in the judicial domain.
Inquiry in Medieval Europe is above all a process of government, a
technique of administration, or a mode of management; in other words,
the inquiry is a determined way of exercising power. We would be
mistaken if we saw the inquiry as the natural result of a reason which
acts by itself, is elaborated, and makes its own progress. We would be
mistaken also if we thought that what was being elaborated was an effect
of knowledge or a subject of knowledge.

No account of history presented in terms of the progress of reason or
refinement of knowledge can account for the acquisition of the
rationality of inquiry. Its emergence is a complex political phenomenon.
It is the analysis of political transformations in medieval society that
explains how, why, and at what time we witness this way of establishing
the truth based on completely different judicial procedures. No
reference to a subject of knowledge and an internal history could
account for it. It is only the analysis of the political force at play
here and relationships of power that can explain the emergence of the
inquiry.

2. The inquiry is derived from a certain type of power relation and a
way of exercising power. It is introduced into law by the Church and,
consequently, it is impregnated with religious categories. In the
conception of the early Middle Ages, the wrong committed was essential,
or what happened between the two individuals; there was no fault or
infraction. Fault, or sin, or moral guilt did not intervene whatsoever.
The problem was knowing if there had been an offence, who had committed
it, and whether the alleged victim was capable of enduring the epreuve
he proposed to his adversary. There was no fault, or guilt, or
relationship with sin. However, from the time the inquiry was introduced
into the judicial practice, it brought with it the important notion of
infraction. When an individual wrongs another, there is always, a
fortiori, a wrong committed against sovereignty, the law, and power. In
addition, given all the religious implications and connotations of the
inquiry, a wrong will be a moral fault, almost religious or with
religious connotations. Around the twelfth century, we thus have a
strange conjunction between the breach of the law and religious fault.
To offend the sovereign and commit a sin are two things that begin to
converge. They will be profoundly united in classical law. We are not
yet totally delivered from this conjunction.

3. The inquiry, which appears in the twelfth century as a consequence of
this transformation within political structures and relationships of
power, has entirely re-organised (caused the re-organisation of) all the
judicial practices of the Middle Ages, the classical period, and even
those of the modem era. More generally, this judicial inquiry was
diffused through many other domains of social and economic practice and
many domains of knowledge. It is from these judicial inquiries conducted
by prosecutors of the crown that a series of inquiry procedures was
established starting in the thirteenth century.

Some of these procedures were mainly administrative or economic. Thus,
thanks to inquiries concerning the population, the level of wealth, the
quality of money and resources, royal agents insured, established, and
augmented royal power. In this way a comprehensive knowledge of
economics and economic administration of states was accumulated at the
end of the Middle Ages and during the seventeenth and eighteenth
centuries. From that time forward, a regular form of state
administration, transmission, and continuity of political power was
established, as well as sciences such as political economy and
statistics.

These techniques of inquiry were equally diffused throughout domains not
directly linked to exercising political power: the domains of knowledge
or wisdom in the traditional sense of the word.

>From the fourteenth and fifteenth centuries on, there appear types of
inquiry that attempt to establish the truth from a certain number of
accounts carefully gathered in areas such as geography, astronomy, and
meteorology. In particular, there appeared a technique of travelling --a
political enterprise of exercising power and an enterprise of curiosity
and acquisition of knowledge -- that ultimately led to the discovery of
the Americas. All the great inquiries that dominated at the end of the
Middle Ages are, actually, the unfolding and dispersion of this first
form or matrix which was born in the twelfth century.

Even areas such as medicine, botany, and zoology are -- as of the
sixteenth and seventeenth centuries -- irradiations of this process. The
whole great cultural movement, that after the twelfth century begins to
prepare for the Renaissance, can be defined for the most part as one of
developing and expanding the inquiry as a general form of knowledge.

While the inquiry was developed as a general form of knowledge from
which the Renaissance would open up, the epreuve tends to disappear.
There are only traces left of the epreuve, specifically in the famous
form of torture already linked to the preoccupation with obtaining a
confession, that is, the verification ordeal.

One can make a whole story out of torture by situating it between the
procedures of the epreuve and the inquiry. The epreuve tends to
disappear in judicial practice; it also disappears from the domains of
knowledge. One could point out two examples.

First, there is alchemy. Alchemy is a science which uses the ordeal as a
model. It is a matter of holding an inquiry in order to know what is
happening or to know the truth. It is essentially a confrontation
between two forces: that of the alchemist who is searching and that of
nature which is dissimulating its secrets; darkness and light; good and
evil; Satan and God. The alchemist takes part in a fight in which he is
both spectator -- the one who will watch the unravelling of the combat --
and one of the combatants, which means he can either win or lose. One
can say that alchemy is a chemical and naturalistic form of epreuve. We
have confirmation that alchemistic knowledge is essentially something
acquired through the fact that it is absolutely not transmitted or
accumulated as the result of inquiries that would have uncovered the
truth. Alchemistic knowledge is transmitted only in the form of secret
or public rules of procedures: this is how it must be done, this is how
to act, here are some principles to respect, which prayers to say, which
texts to read, and which codes must be present. Alchemy essentially
constitutes a body of judicial rules and procedures. The disappearance
of alchemy and the fact that a new type of knowledge is comprised of
things totally outside its domain is owed to having taken the matrix of
the inquiry as a model. All knowledge from inquiry -- naturalistic,
botanical, mineralogical, and philological -- is absolutely foreign to
alchemistic knowledge which respects the judicial model of epreuve.

Second, the medieval university at the end of the Middle Ages can also
be analysed in terms of the opposition between the inquiry and epreuve.
In medieval universities, knowledge was manifested, transmitted, and
authenticated through determined rituals, of which the most famous and
well-known was the disputatio, or the dispute. This was a confrontation
between two adversaries who used verbal weapons: rhetorical procedures
and demonstrations essentially based on appeal to authority. One did not
call on witnesses of the truth, but on witnesses of strength. In the
disputatio, the more 'authors' one of the participants had on his side,
the more he could invoke witnesses of authority, strength, and gravity --
and not witnesses of the truth -- the greater chance he would have of
coming out victorious. The disputatio is a form of proof, a
manifestation of knowledge and authentification of knowledge that
respects the general scheme of the epreuve. Medieval knowledge, and
especially the encyclopedic knowledge of the Renaissance (like that of
Pico della Mirandola) which clashes with the medieval form of the
university, would ultimately become a type of knowledge similar to that
derived from the inquiry. Having seen and read the texts, and knowing
what has actually been said; knowing what has been said as well as the
nature of the subject spoken about; verifying what the authors said by
observing nature; using the authors no longer as authority, but rather
as witnesses -- all this would constitute one of the great revolutions
in the form of transmitting knowledge. The disappearance of alchemy and
the disputatio, or rather the fact that the latter was regulated by
completely decaying university forms and as of the sixteenth century no
longer presented any current events, actuality, or effectiveness in real
forms of authenticating knowledge, is one of the numerous signs of
conflict between inquiry and epreuve and of the triumph of the inquiry
over the epreuve at the end of the Middle Ages.

In conclusion, we could say the inquiry is not a question of content,
but rather a form of knowledge which is at the intersection of a type of
power and a certain number of contents of knowledge. Those who try to
establish a relationship between knowledge and the political, social, or
economic structures in which this knowledge is embedded are used to
establish this relationship through the intermediary of conscience or
the subject of knowledge. It seems to me that the true intersection
between the politico-economic processes and the conflicts of knowledge
could be found in these forms which are at the same time modalities or
ways of exercising power and ways of acquiring and transmitting
knowledge. The inquiry is precisely a political form, a form of
management and exercising power which -- through the judicial
institution -- has become a way in Western culture of authenticating
truth, acquiring things which will be true, and transmitting those
things. The inquiry is a form of power-knowledge. It is the analysis of
these forms which must lead us to the strictest analysis of the
relationships between the conflicts of knowledge and their politico-
economic determination.

 Notes 

1. The epreuve is a trial by ordeal.

2. In English in the French text.

~~~~~~~~
By MICHEL FOUCAULT
(translated by LAWRENCE WILLIAMS with CATHERINE MERLEN) Arizona State
University
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Source: Social Identities, Oct96, Vol. 2 Issue 3, p327, 15p.
Item Number: 9701215756