Brendon Murphy, The Technology of Guilt, Australasian Journal of Legal Philosophy, Volume 44, 2019, pp. 64-99
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Introduction
Arguably, the most important event in criminal law is the determination of guilt. Indeed, the entire intellectual architecture of criminal law is directed towards a moment when a court declares the subject guilty, or not. That determination, through ‘due process of law’, is essential to the legitimation of punishment. Without this mechanism, punishment is simply an exercise in violence and oppression. The declarative moment, at the conclusion of a rule-governed process of evidence and reason, transforms the brutality of the state into lawful enforcement of law and legitimate action in the eyes of the world. This process is fundamental to the political and intellectual economy of the criminal law, and necessarily invites questions: what is this process; where did it come from; and what are its characteristics? This article aims to answer these questions by drawing on the work of Michel Foucault, situated in a legal analytic, for the purpose of proposing new ways of thinking about the concept of guilt, and how it is determined in criminal law. The overarching position of the paper is that a genealogy of guilt reveals ancient links between modern techniques for determining guilt, theology, and the construction of truth. We begin by considering the idea of guilt and how the criminal law makes that assessment.
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On reading The Odyssey translated by Fagles this ancient genealogy is exposed. The accused swore by Zeus and that was the end of it. The judicial response lay in the hands of the God. Zeus would punish if the person were guilty and it was n longer in the hands of men. Then it began to change until CONFESSION became the criterion. There are more steps and all one needs to understand guilt is to have their thinking on default Foucault. Psychoanalysis considers guilt as a way of warning the subject not to do that again. But that too is complicated.
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