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Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=csid20 Download by: [Anelis Plus Consortium 2015] Date: 08 October 2016, At: 11:06 Social Identities Journal for the Study of Race, Nation and Culture ISSN: 1350-4630 (Print) 1363-0296 (Online) Journal homepage: http://www.tandfonline.com/loi/csid20 Truth and Juridical Forms Michel Foucault To cite this article: Michel Foucault (1996) Truth and Juridical Forms, Social Identities, 2:3, 327-342, DOI: 10.1080/13504639652213 To link to this article: http://dx.doi.org/10.1080/13504639652213 Published online: 25 Aug 2010. Submit your article to this journal Article views: 1062 View related articles Citing articles: 1 View citing articles Social Identities, Volume 2, Number 3, 1996 327 Truth and Juridical Forms MICHEL FOUCAULT (translated by LAWRENCE WILLIAMS with CATHERINE MERLEN) Arizona State University TRAN SLATOR©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 écrits. 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 épreuve was left in French in the Portuguese translation. The translator of this text has decided to keep it in French too. Foucault, M. (1994) ÁLa Vérité et les formes juridiques,© in D. Defert and F. Ewald (eds) Dits et écrits 1954±1988, Vol. II, 1970±1975, pp. 538±646, Paris: Gallimard. This was translated from the original publication in Portuguese, M. Foucault (1974) ÁA 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 écrits 1954±88, Volume II, to be published by The New Press. © 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: ÁAre 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 Ð not who 1350±4630/96/030327±15 © 1996 Journals Oxford Ltd 328 Michel Foucault was wrong, but who was rightÐ 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 Ð who killed King Laius? Ð 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 résumé 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 Ð convincing the people of the truth of what one says Ð 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 Ð philosophical, rhetorical, and empirical Ð 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 Truth and Judicial Forms 329 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 ÁEuropean© or ÁWestern©. 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 uploads/Litterature/ truth-and-juridical-forms.pdf