From Justification To Explanation
Implicit in Hegel's theory of punishment is the socially vital role of both the criminal and the act of punishing; far from being an unfortunate aberration, punishment is a constitutive force of social life and proves the law's force. This idea that crime and punishment play a necessary role was emphasized by a number of social thinkers at the beginning in the late nineteenth century. In the late nineteenth century, an alternative set of philosophical and historical speculations arose, which were more interested in explaining and examining the function of punishment within a social system than in justifying or legitimizing any particular set of practices.
This shift in philosophical attention came from multiple and not always reconcilable directions. Three key exemplars are the sociological analysis of Émile Durkheim (1858–1917), the Marxian tradition, and the genealogical method of Nietzsche and Michel Foucault (1926–1984). Despite their differences, these approaches have important similarities. First, these theorists did not see crime and punishment as aberrant, but as having the power to construct a larger social order. Thus, rather than intimately linking crime with punishment, they saw both within the context of a greater social and economic environment. Second, they were skeptical, if not outright dismissive, of the two conventional theories of penal justification. Third, all three showed an interest in the philosophical ramifications of taking seriously the historical changes in penal practices.
In The Division of Labor in Society (1893), Durkheim rejected the contention that punishment must break its ties with either vengeance or the emotional satisfaction it provides. For Durkheim, the social function of punishment is to give effect to the emotional outrage of a society whose norms have been breached by the criminal act. A criminal act is identified as that which shocks the social conscience; criminality functions as a way to clarify the moral boundaries of the social group. Punishment is the reciprocal effect of society's moral outrage, generating and maintaining a solidarity that society cannot readily do without.
Calls for restorative justice are one contemporary manifestation of Durkheim's theory of social solidarity. Rather than in placing either the crime or the criminal at center stage, this theory focuses on the injuries and needs of the victim and of the community as a whole. Offenders must be held accountable to these victims, and part of their penalty may involve direct restitution, apologies to the victims, and community service. The goal is begin a process of restoring the trust and solidarity that is broken by a criminal act, and although restorative justice draws on both retributivism and therapeutic consequentialism, it offers a clear alternative to both theories by concentrating on the social relationships that are harmed in the wake of crime.
Marxist analysis of crime has often emphasized the political economy of penology and sought to strip the practices of punishment from their juridical justifications. Although he wrote infrequently on legal matters, Karl Marx (1818–1883) criticized the failure of penal theory to consider the social factors, especially economic inequality and poverty, that underlay criminal activity. Using this framework, Georg Rusche (1900–1950) and Otto Kirchheimer (1905–1965), in Punishment and Social Structure (1939), examined the development of various forms of punishment in the context of the labor market's fluctuating needs, from the Middle Ages through to the modern day. Imprisonment, for example, functions both as a useful source of cheap labor for the state and, during periods of high unemployment, as a useful way of clearing the streets of potentially dangerous subversives who have little to lose. Less deterministic in the way they linked the economy and penology were the works of British historians and sociologists led by E. P. Thompson (1924–1993), whose Whigs and Hunters: The Origin of the Black Act was published in 1975. In this important work, he used the relationship between capital punishment and property laws to examine how the law in general legitimates economic inequalities and mediates relationships between economic classes.
By looking at the social context of crime, skeptics inside and outside of the Marxist tradition have challenged the unequal distribution of punishment along racial lines, pointing to, for example, the disproportionate number of racial minorities filling prisons in the West and the statistical correlation between the severity of punishments (especially the death penalty) and the race of the victim. Criminologists studying the sociology of deviance have also examined the phenomenon of the "moral panic"—exaggerated responses to perceived outbreaks of deviance or criminal behavior.
In On the Genealogy of Morals (1887), Nietzsche sought to disrupt the ahistorical tendencies of utilitarian histories of punishment that conflated the current function of punishment with its origin, "just as one formerly thought of the hand as invented for the purpose of grasping" (Second Essay, Section 13, p. 79). He offered an alternative origin of penal practices in a primitive economic version of the lex talionis, in which the physical tortures associated with juridical punishment were associated not with a guilty subject but rather only with the pleasure a creditor took in harming a debtor with an outstanding bill.
The genealogical perspective has been most importantly taken up by the French historian Michel Foucault. In Discipline and Punish: The Birth of the Prison (1975), Foucault explains how imprisonment emerged out of a wide array of potential penalties in the late eighteenth and early nineteenth centuries to become almost the sole means of punishing criminals. He describes a shift away from sovereign authority acting publicly against those who transgressed its laws and toward a complex and fractured form of power exercised through the techniques of discipline and centered in the controlled spaces of the prison, away from public sight. In describing this movement, Foucault challenges the Enlightenment's representation of itself. Whereas eighteenth century European penal reformers argued that they sought to humanize punishment by making its exercise equal, consistent, and beneficial to all of society, Foucault argues that they helped bring forth a new economy of power, one that shifted the emphasis away from the crime and onto the "moral" reform of the criminal. Bentham's Panopticon prison design is emblematic of this system of social knowledge gained through surveillance and a careful arrangement of the body in time and space. The prison, in Foucault's eyes, becomes not only the site of disciplinary mechanisms but also a sign of a how the incarceration model of punishment has bled into many other social institutions, including schools and the workplace. Perhaps the most important ramification taken from Foucault's work is a radical reconceptualization of how power operates in society. Rather than modeling power on the tops-down physical coercion of a sovereign, Foucault conceives of power relations as derived from the mutually reinforcing links between social practices such as punishment and systems of scientific knowledge such as penology. Ironically, this radical critique of the therapeutic model occurred at the same time that retributivist arguments favoring greater use of imprisonment gained a new lease on life, indicating a dearth of new justifications for prisons combined with a practical lack of penal alternatives.
No other penal issue has attracted such controversy since the mid-1970s as the death penalty. Abolitionists argue that morally it is inhuman and practically it is ineffective in deterring crime. Abolitionists also argue that it grants the state too much power, and is too often used as a tool of political terror, or used unequally upon minority communities. While some supporters of capital punishment argue from consequentialist principles that the death penalty is a deterrent to crime, most adopt a modern version of the lex talionis. By the end of the twentieth century many Western nations, especially throughout Europe, had banned this practice. The United States, along with many regimes in Africa, Asia, and the Middle East, continues to apply the death penalty. While the practice has been challenged as a violation of individual civil liberties, its popularity in the United States remains strong in the early twenty-first century.
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Nietzsche, Friedrich. On the Genealogy of Morals. 1887. Reprint, translated by Walter Kaufmann. New York: Vintage, 1967.
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Douglas C. Dow
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