新译 福柯 《论法国19世纪法律关于危险个体的概念》

楼主:王道振法 时间:2009-11-09 12:41:50 点击:967 回复:6
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  About the Concept of the “Dangerous Individual”
  in 19th Century Legal Psychiatry
  Michel Foucault*
  I would like to begin by relating a brief exchange which took place the other day in the Paris criminal courts.
  A man who was accused of five rapes and six attempted rapes, between February and June 1975, was being tried.
  The accused hardly spoke at all.
  Questions from the presiding judge:
  Have you tried to reflect upon your case?
  Why, at twenty-two years of age, do such violent urges overtake you?
  You must make an effort to analyze yourself.
  You are the one who has the keys to your own actions.
  Explain yourself.
  Why would you do it again?
  Then a juror took over and cried out:“For heavens sake, defend yourself!”
  Such a dialogue, or rather, such an interrogatory monologue, is not in the least exceptional.
  It could doubtlessly be heard in many courts in many countries.
  But, seen in another light, it can only arouse the amazement of the historian.
  Here we have a judicial system designed to establish misdemeanors, to determine who committed them, and to sanction these acts by imposing the penalties prescribed by the law.
  In this case we have facts which have been established, an individual who admits to them and one who consequently accepts the punishment he will receive. All should be for the best in the best of all possible judicial worlds.
  The legislators, the authors of the legal codes in the late 18th and early 19th centuries, could not have dreamed of a clearer situation.
  And yet it happens that the machinery jams, the gears seize up.


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楼主王道振法 时间:2009-11-09 12:48:00
  Why? Because the accused remains silent. Remains silent about what? About the facts? About circumstances? About the way in which they occurred? About the immediate cause of the events?
  Not at all. The accused evades a question which is essential in the eyes of a modern tribunal, but which would have had a strange ring to it 150 years ago. Who are you?
  And the dialogue which I just quoted shows that it is not enough for the accused to say in reply to that question, I am the author of the crimes before you, period. Judge since you must, condemn if you will. Much more is expected of him.
  Beyond admission, there must be confession, self-examination, explanation of oneself, revelation of what one is.
  The penal machine can no longer function simply with a law, a violation and a responsible party.
  It needs something else, a supplementary material.
  The magistrates and the jurors, the lawyers too, and the department of the public prosecutor, cannot really play their role unless they are provided with another type of discourse, the one given by the accused about himself, or the one which he makes possible for others, through his confessions, memories, intimate disclosures, etc.
  If it happens that this discourse is missing, the presiding judge is relentless, the jury is upset. They urge, they push the accused, he does not play the game. He is not unlike those condemned persons who have to be carried to the guillotine or the electric chair because they drag their feet. They really ought to walk a little by themselves, if indeed they want to be executed. They really ought to speak a little about themselves, if they want to be judged.
楼主王道振法 时间:2009-11-09 12:49:00
  The following argument used recently by a French lawyer in the case of the kidnapping and murder of a child clearly indicates that the judicial stage cannot do without this added element, that no judgment, no condemnation is possible without it being provided, in one way or another.
  For a number of reasons, this case created a great stir, not only because of the seriousness of the crime, but also because the question of the retention or the abolition of the death penalty was at stake in the case.
  In his plea, which was directed against the death penalty more than in favor of the accused, the lawyer stressed the point that very little was known about him, and that the nature of the man had only barely been glimpsed at in the interrogations and in the psychiatric examinations.
  And he made this amazing remark (I quote approximately): Can one condemn to death a person one does not know?
  This is probably no more than one illustration of a well-known fact, which could be called the law of the third element, or the Garofalo principle, since Garofalo was the one who formulated it with complete clarity: Criminal law knew only two terms, the offense and the penalty.
  The new criminology recognizes three, the crime, the criminal and the means of repression.
  In large part, the evolution, if not of the penal systems, at least of the day to day penal practice in many countries, is determined by the gradual emergence in the course of the 19th century of this additional character.
  At first a pale phantom, used to adjust the penalty determined by the judge for the crime, this character becomes gradually more substantial, more solid and more real, until finally it is the crime which seems nothing but a shadow hovering about the criminal, a shadow which must be drawn aside in order to reveal the only thing which is now of importance, the criminal.
  Legal justice today has at least as much to do with criminals as with crimes.
  Or more precisely, while, for a long time, the criminal had been no more than the person to whom a crime could be attributed and who could therefore be punished, today, the crime tends to be no more than the event which signals the existence of a dangerous element-that is, more or less dangerous -in the social body.
作者:凯华 时间:2009-11-10 12:05:00
楼主王道振法 时间:2009-11-10 12:59:00
作者:欧阳慕云猫 时间:2009-11-13 07:06:00