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🪵 The Threshold

Classical penal evidence worked by continuous gradation, not true-or-false judgement

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tagsja-picks, contrarian_or_surprising, trade, singleton, xref, category/contrarian-or-surprising
aliases@foucault_discipline_1975, loc. 93

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Classical penal evidence worked by continuous gradation, not true-or-false judgement

Evidence

Judicial torture was indeed defined as a way of complementing the demonstration when ‘there are not sufficient penalties in the trial’. For it was included among the penalties; it was a penalty so grave that, in the hierarchy of punishments, the ordinance of 1760 placed it immediately after death. How can a penalty be used as a means? one was later to ask. How can one treat as a punishment what ought to be a method of demonstration? The reason is to be found in the way in which criminal justice, in the classical period, operated the production of truth. The different pieces of evidence did not constitute so many neutral elements, until such time as they could be gathered together into a single body of evidence that would bring the final certainty of guilt. Each piece of evidence aroused a particular degree of abomination. Guilt did not begin when all the evidence was gathered together; piece by piece, it was constituted by each of the elements that made it possible to recognize a guilty person. Thus a semi-proof did not leave the suspect innocent until such time as it was completed; it made him semi-guilty; slight evidence of a serious crime marked someone as slightly criminal. In short, penal demonstration did not obey a dualistic system: true or false; but a principle of continuous gradation; a degree reached in the demonstration already formed a degree of guilt and consequently involved a degree of punishment. The suspect, as such, always deserved a certain, punishment; one could not be the object of suspicion and be completely innocent. — Michel Foucault, Discipline & Punish- The Birth of the…, 93

Categorization

  • XREF: connects to: Eighteenth-century French law graded evidence into proofs combined by fixed arithmetic rules — Michel Foucault, Discipline & Punish- The Birth of the…, 87; Torture and semi-proofs scandalized justice only when the power to punish required certainty — Michel Foucault, Discipline & Punish- The Birth of the…, 158; Direct evidence proves a fact without requiring inference or presumption — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 231 (+5 more)

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