Foucault 4

“To return to our subject, namely punishment, one must distinguish two aspects: on
the one hand, that in it which is relatively enduring [das relativ Dauerhafte], the
custom, the act, the ‘drama,’ a certain strict sequence of procedures; on the other,
that in it which is fluid [das Flüssige an ihr], the meaning, the purpose, the
expectation associated with the performance of such procedures. In accordance
with the previously developed major point of historical method, it is assumed
without further ado that the procedure itself will be something older, earlier than its
employment in punishment, that the latter is projected and interpreted [hinlegen,
hineindeuten] into the procedure (which has long existed but which has been
employed in another sense.” (Nietzsche, Genealogy of Morals, 2nd Essay, 13)

And the sentence that condemns or acquits is not simply a judgment of guilt, a
legal decision that lays down punishment; it bears within it an assessment of
normality [une appréciation de normalité et une prescription technique
pour une normalisation possible] and a technical prescription for a possible
normalization. Today the judge – magistrate or juror – certainly does more than
‘judge.’ (E20-21/F28)