The court functions as an institution arbitrating between the people and their enemies to determine truth, guilt, and justice—it is an institution which the state uses to coopt justice and leads to oppression
Foucault 71 [Michel, if you don’t know who this is you should probably admit you’ve lost this kritik, “On Popular Justice: A discussion with Maoists”, June 1971, published in Power/Knowledge: Selected Interviews & Other Writings 1972-1977, edited by Colin Gordon, Vintage Books, New York, p.1-2]AM
In my view one shouldn’t start with the court as a particular form, and then go on to ask how and on what conditions there could be a people’s court; one should start with popular justice, with acts of justice by the people, and go on to ask what place a court could have within this. We must ask whether such acts of popular justice can or cannot be organised in the form of a court. Now my hypothesis is not so much that the court is the natural expression of popular justice, but rather that its historical function is to ensnare it, to control it and to strangle it, by re-inscribing it within institutions which are typical of a state apparatus. For example, in 1792, when war with neighbouring countries broke out and the Parisian workers were called on to go and get themselves killed, they replied: ‘We’re not going to go before we’ve brought our enemies within our own country to court. While we will be out there exposed to danger they’ll be protected by the prisons they’re locked up in. They’re only waiting for us to leave in order to come out and set up the old order of things all over again. In any case, those who are in power today want to use against us—in order to bring us back under control—the dual pressure of enemies invading from abroad and those who threaten us at home. We’re not going to fight against the former without having first dealt with the latter.’ The September executions were at one and the same time an act of war against internal enemies, a political act against the manipulations of those in power, and an act of vengeance against the manipulations of those in power, and an act of vengeance against the manipulations of those in power, and an act of vengeance against the oppressive classes. Was this not—during a period of violent revolutionary struggle—at least an approximation to an act of popular justice; a response to oppression, strategically effective and politically necessary? Now, no sooner had the executions started in September, when men from the Paris Commune—or from that quarter—intervened and set about staging a court: judges behind a table, representing a third party standing between the people who were ‘screaming for vengeance’ and the accused who were either ‘guilty’ or ‘innocent’; an investigation to establish the ‘truth’ or to obtain a ‘confession’; deliberation in order to find out what was ‘just’; this form was imposed in an authoritarian manner. Can we not see the embryonic, albeit fragile form of a state apparatus reappearing here? The possibility of class oppression? Is not the setting up of a neutral institution standing between the people and its enemies, capable of establishing the dividing line between the true and the false, the guilty and the innocent, the just and the unjust, is this not a way of resisting popular justice? A way of disarming it in the struggle it is conducting in reality in favour of an arbitration in the realm of the ideal? This is why I am wondering whether the court is not a form of popular justice but rather its first deformation.
The spatial arrangement of a court implies the neutrality, authority, and validity of decisions arrived at by the judges—this is contrary to the very concept of popular justiceFoucault 71 [Michel, if you don’t know who this is you should probably admit you’ve lost this kritik, “On Popular Justice: A discussion with Maoists”, June 1971, published in Power/Knowledge: Selected Interviews & Other Writings 1972-1977, edited by Colin Gordon, Vintage Books, New York, p 8-9]AM
Are you certain that it is merely the form of the court that is involved here? I do not know how these things are done in China, but look a bit more closely at the meaning of the spatial arrangement of the court, the arrangement of the people who are party of or before a court. The very least that can be said is that this implies an ideology. What is this arrangement? A table, and behind this table, which distances them from the two litigants, the ‘third party’, that is, the judges. Their position indicates firstly that they are neutral with respect to each litigant, and secondly this implies that their decision is not already arrived at in advance, that it will be made after an aural investigation of the two parties, on the basis of a certain conception of truth and a certain number of ideas concerning what is just and unjust, and thirdly that they have the authority to enforce their decision. This is ultimately the meaning of this simple arrangement. Now this idea that there can be people who are neutral in relation to the two parties, that they can make judgments about them on the basis of ideas of justice which have absolute validity, and that their decisions must be acted upon, I believe that all this is far removed from and quite foreign to the very idea of popular justice. In the case of popular justice you do not have three elements, you have the masses and their enemies. Furthermore, the masses, when they perceive somebody to be an enemy, when they decide to punish this enemy—or to re-educate him—do not rely on an abstract universal idea of justice, they rely only on their own experience, that of the injuries they have suffered, that of the way in which they have been wronged, in which they have been oppressed; and finally, their decision is not an authoritative one, that is they are not backed up by a state apparatus which has the power to enforce their decisions, they purely and simply carry them out. Therefore I hold firmly to the view that the organization of courts, at least in the West, is necessarily alien to the practice of popular justice.