2 FEBRUARY 1972

Abstract

Opposition of the new repressive system to the old one: antagonism between processes which gives rise to the birth of justice as both a specific and a state controlled apparatus. I. History of the judicial apparatus in the eighteenth century: political struggles, operational conflicts, and determinant contradictions forged the different discourses of penality, crime, and penal justice. ~ Need to return to feudal justice and Germanic law. II. History of Germanic penal law. The juridical order defined by the rules of the dispute; the act of justice is not organized by reference to the truth, nor by the judicial instance, but through a regulated struggle. ~ Closure of war by payment of an indemnity (rachat* ), and not sanction for the offense. ~ The activity of judging as risk-taking, the danger of private war producing a system of assurances (oaths, compensations, pledges (gages)).

[The French rachat can mean payment as compensation or indemnity to free oneself from a liability or obligation, payment to liquidate a debt, a ransom to free a prisoner or hostage, or redemption in the Christian sense (see below p. 136), but also in the sense of a payment to recover something given as surety or pledge. Here, the rachat is a payment which buys off or liquidates the “debt”, as it were, of another’s future act of war or retaliation G.B.]