{"id":167,"date":"2015-09-18T14:40:52","date_gmt":"2015-09-18T18:40:52","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/foucault1313\/?p=167"},"modified":"2018-08-11T16:08:48","modified_gmt":"2018-08-11T20:08:48","slug":"epilogue","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/foucault1313\/2015\/09\/18\/epilogue\/","title":{"rendered":"Bernard E. Harcourt | Epilogue: \u201cA thing there is, whose voice is one\u201d"},"content":{"rendered":"

By Bernard E. Harcourt<\/strong><\/p>\n

In the end, it is the third epigraph we discussed at our seminar<\/a> that will\u00a0serve as epilogue to the first set of Foucault\u2019s lectures at the Coll\u00e8ge de France, Lectures on the Will to Know<\/em> (1970-1971):<\/p>\n

\u201cto sum up all of these steps, \u2026 we will have put the game of truth back in the network of constraints and dominations. Truth, I should say rather, the system of truth and falsity, will have revealed the face it turned away from us for so long and which is that of its violence.\u201d (LWK<\/em>, p. 4).<\/p><\/blockquote>\n

This passage underscores, so eloquently, the stakes of our enterprise: the violence of the system of truth and falsity.\u00a0It is that violence that I would like to explore here again to close Foucault 1\/13, drawing on the death penalty case<\/a> I mentioned briefly and on the method of retrospective analysis that my colleague, Jes\u00fas R. Velasco, so brilliantly articulated yesterday<\/a>.<\/p>\n

A retrospective analysis, I take it, must\u00a0begin at the end\u2014for me, here, the present. A most immediate present. The last\u00a0iteration in a decades-long struggle to the death.<\/p>\n

This particular struggle plays\u00a0out in the form of a judicial joust, but a joust that is neither equal from the start, nor intended to discover any truth.\u00a0Just like the chariot race between Menelaus and Antilokus, this competition is not balanced. The parties are not of equal standing. Judges will declare a victor between the two, but the latter\u00a0are unevenly matched. Everything will turn on a determination\u00a0of fact, yet only one party will be given the scepter.<\/p>\n

This joust, like the chariot race, is not a question of who will win. The social order is determined ahead of time. It is not about who is faster on their chariot, who is stronger, whose horses are better; it is not about who has the stronger evidence, or the better argument. Nor is it about who is right, which facts are true, what actually happened.<\/p>\n

For in this struggle, a\u00a0sovereign party\u2014the state of Alabama, through its Attorney General\u2014is gifted sovereign power, or more precisely the judicial quill. And so, on\u00a0habeas corpus review in the state court of Alabama\u2014where all the facts are found\u2014the state of Alabama gets to write the judicial opinion.<\/p>\n

\"Page-1-from-Hamm-Rule-32-Order\"<\/p>\n

On Friday, December 3rd, 1999, the Alabama Attorney General submits his 89-page \u201cproposed memorandum order\u201d to the clerk of the court.<\/p>\n

It is date stamped, and “filed in office” that afternoon.<\/p>\n

The very next business day, Monday December 6, 1999, an\u00a0Alabama judge signs the “proposed memorandum order,” making it his own,\u00a0without even striking the word \u201cproposed.\u201d<\/p>\n

It is “filed in office” December 6, 1999.<\/p>\n

And no one blinks.\u00a0The joust goes on for another round, and then another, and another, but no one seems to notice that three voices had become two, or one.<\/p>\n

\"Page-89-from-Hamm-Rule-32-Order-2\"\u201cIn the system we know today,” Foucault wrote in his manuscript of February 3, 1971, “in the system already installed in the Greek classical epoch, the truthful utterance is above all that of testimony; it has the form of the factual observation; it rests on what has taken place and its function is to reveal it,\u201d \u00a0(LWK<\/em>, p. 84-85).<\/p>\n

That, surely, is the discourse today. But it reflects only an imagination of “the system we know today.” An aspiration for some; a cover for most. Some call it an ideology. Others, an illusion.<\/p>\n

It is seen by all, yet\u00a0by none.<\/p>\n

In Doyle Hamm’s case, not even the noblest, most august federal appellate judges blink.\u00a0One federal appellate judge, at oral argument, acknowledges what everyone else sees: the state judge couldn’t possibly have read the state attorney’s proposed order.<\/p>\n

\"Screen“I don\u2019t believe for a second\u00a0that that judge went through 89 pages in a day and then filed that as his own,” Judge\u00a0Adalberto Jordan of the United States Court of Appeals for the Eleventh\u00a0Circuit declares at oral argument. “As if he had gone through everything, went through his notes, the transcript,\u00a0the exhibit, and the like. It just can\u2019t be done! It just can\u2019t be done.” (Oral argument at\u00a024:50-25:28).<\/p>\n

 <\/p>\n

\"Screen<\/p>\n

 <\/p>\n

The federal judge recognizes the audacity. But has little more to say. “That’s just a comment.”<\/p>\n

And despite it all, the panel of three, august, federal appellate judges ends up seeing it as no more than a \u201cprocedural shortcut.\u201d<\/p>\n

The federal judges do acknowledge, in an orphan footnote to their unpublished\u00a0panel opinion<\/a>\u00a0(depriving Doyle Hamm of the precedential effect and import of the judgment, thus reducing his chances at the next round), that \u201cThe Rule 32 Court did not even strike the word \u2018Proposed\u2019 from the order.\u201d<\/p>\n

But that mere “procedural footnote” is of no real consequence. A slap on the wrist at most.<\/p>\n

\"Screen<\/a><\/p>\n

And so the joust continues, as it must, as it only can. It turns into a\u00a0battle over time. A dual over the clock.\u00a0Another hurdle, another petition, another appeal, another filing. Rehearing today<\/a>, certiorari tomorrow.<\/p>\n

In a\u00a0debate a couple of months after his first lecture series, in a discussion with Benny L\u00e9vy and Andr\u00e9 Glucksmann in June 1971 titled “On Popular Justice,” Foucault strenuously resists the turn to the judicial model as a means of resistance. He emphasizes how, throughout the long history of judicial practices, the penal system has served as a device of repression. “The judicial system, as a state apparatus,” he underscored, “has historically been of absolutely fundamental importance” in fragmenting resistance, in turning some into dangerous individuals, in drawing the line between political and common law prisoners.<\/p>\n

Resistance and disobedience, Foucault\u00a0suggests, “can only take place via the radical elimination of the judicial apparatus.” Foucault is adamant:<\/p>\n

“anything which could reintroduce the penal apparatus, anything which could reintroduce its ideology and enable this ideology to surreptitiously creep back into popular practices, must be banished. This is why the court, an exemplary form of this judicial system, seems to me to be a possible location for the reintroduction of the ideology of the penal system into popular practice. This is why I think that one should not make use of such a model.” (Dits & \u00c9crits<\/em> Quarto I, #108, p. 1220;\u00a0Power\/Knowledge<\/em> p. 16)<\/p><\/blockquote>\n

Perhaps. And perhaps indeed the discursive methods of the G.I.P. were a far better mode, as Foucault\u00a0suggested in March 1971<\/a>, “to\u00a0transform the individual experience into collective knowledge\u2014that is to say, into political knowledge.”<\/p>\n

But Doyle Hamm does not have that choice.\u00a0The state of Alabama, with its bourreau<\/em> impatiently waiting to strap Doyle Hamm onto the gurney, faces down one\u00a0man in isolation, filing another petition, throwing another\u00a0next legal hurdle, desperately trying to save his life.<\/p>\n

And so the joust, over time, reveals its true face: a contest over whether\u00a0a man shall die from a lethal injection intravenously administered, or whether he shall be allowed to die in the confines of his solitary cell, the cell in which he has been isolated since 1988\u2014to die, that is, of the cancer that is eating away at his body.<\/p>\n

This game of truth, it turns out, is stacked. It was determined from the outset by the order in which the contestants rose to do battle\u2014as it was in the Homeric chariot race, the ritual to honor Patroclus’ funeral. The State of Alabama, first, versus Doyle Hamm. And when the state judge signed the Attorney General’s proposed order on December 6, 1999, he consecrated the social order.<\/p>\n

“A thing there is, whose voice is one;
\nWhose arms are two, or rather\u00a0one, then none.”<\/em><\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

By Bernard E. Harcourt In the end, it is the third epigraph we discussed at our seminar that will\u00a0serve as epilogue to the first set of Foucault\u2019s lectures at the Coll\u00e8ge de France, Lectures on the Will to Know (1970-1971):… Continue Reading →<\/span><\/a><\/p>\n","protected":false},"author":1641,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[38605,38954],"tags":[],"class_list":["post-167","post","type-post","status-publish","format-standard","hentry","category-featured","category-lecture-1-13"],"_links":{"self":[{"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/posts\/167","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/users\/1641"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/comments?post=167"}],"version-history":[{"count":0,"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/posts\/167\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/media?parent=167"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/categories?post=167"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.law.columbia.edu\/foucault1313\/wp-json\/wp\/v2\/tags?post=167"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}