Punish and Critique

Towards a Feminist Analysis of Penality

Adrian Howe

• Publisher: Routledge
• Year: 2005
• eBook ISBN: 9781134941322
• Edition: 1
• Topic: Medicine
• Subtopic: Health Care Delivery

Acknowledgements Introduction 1. Political economies of punishment 2. 'New histories of punishment regimes 3. The Foucault Effect: from penology to penality 4. Feminist analytical approaches to women's imprisonment 5. Postmodern feminism and the question of penalty 6. Towards a postmodern penal politic? Bibliography

1

Political economies of punishment

The year 1968 was a momentous one in the recent history of the politicisation and delegitimation of knowledge claims in the social sciences in the West. In particular, the fallout from the heady events of that year was to transform radically two of the disciplines most directly concerned with crime, punishment and social control—criminology and the so-called sociology of ‘deviance’. Indeed, it ignited the movement which was to give birth to ‘the new criminology’. The connectedness of the political struggles of the late 1960s with the transformation of these disciplines is well known. However, 1968 was critical for this knowledge field in another crucial but as yet largely unregistered way. The unsung, watershed event was the republication of a little-known 1939 text, Rusche and Kirchheimer’s Punishment and Social Structure. Over the next two decades, this book was to achieve ‘classic’ status and, tellingly, the dubious distinction of being widely acclaimed as the ‘seminal’ text for critical analysis—especially Marxist analysis—within the newly emerging field of the sociological study of punishment. More, it is seen to have had a ‘seminal influence’ on that crucially significant movement from traditional, positivistic penology to the ‘social analysis of penality’ which would construct the penal realm as an object of knowledge in its own right (Garland and Young 1983:5–7). Inasmuch as Punishment and Social Structure provides an important materialist interpretation of some of ‘the master patterns’ of social control in Western industrial societies (Cohen 1985:13), this text has proved to be ‘seminal’ indeed. It has become the foundational text in the genre of prison writing which is the subject of this chapter, namely, political economies of punishment.

‘FOUNDING FATHERS’

It is the rediscovery of Punishment and Social Structure in 1968, and not the text itself, which should be seen as the rupturing event enabling critical analyses of penality to emerge from the intellectual deadwood of traditional penology. When it was first published in 1939 in the United States it had little impact, remaining under-utilised and largely uncited by Western criminologists and penologists until it was re-published thirty years later. Moreover, the text itself may seem a curious choice as the key or foundation text for critical sociologies of punishment. As we shall see, the authors did not work on the book together or even consult each other. Consequently, the text is internally inconsistent and even contradictory. Indeed, Kirchheimer’s chapters tend to undermine Rusche’s carefully elaborated thesis, much to the latter’s dismay. And as for the book’s reputation as the foundation Marxist political economic account of punishment—Marx is cited once in the text and only fleetingly in the references. Yet in the 1970s, the Rusche-Kirchheimer thesis, as it came to be called, was to become the point of departure for a reconsideration of ‘the penal question’ within a determinedly materialist and political economic framework. Without question, the re-publication of Punishment and Social Structure in 1968 signified the emergence of a ‘new concern with the formulation of a general, and genuinely political economic, theory of punishment’ (Garton 1988:311). More broadly, it opened the way for a new mode of critical sociological analysis which would liberate punishment from the restricting confines of penological and philosophical discourses.

To privilege Punishment and Social Structure as the starting-point for critical sociological studies of the penal realm is to invite controversy. No doubt it will be objected that there are other more deserving contenders for the honour of father—if father there must be—of a sociological analysis which takes punishment or ‘penality’ as a discrete object of knowledge. One possibility is Willem Bonger, the Dutch Marxist criminologist whose work, especially Criminality and Economic Conditions (1916), has received the ambivalent accolade of assuming ‘the mantle of the Marxist orthodoxy’ in the crime field ‘if only because (with the exception of untranslated writers inside the Soviet bloc) no other self-proclaimed Marxist has devoted time to a full-scale study of the area’ (Taylor, Walton and Young, 1973:222). But it is precisely Bonger’s concern with crime, specifically with how economic conditions in capitalist societies produce crime, which eliminates him as a candidate for founder of critical sociologies of punishment. Not only did he fail to transform punishment into an analytical field; his ideas on social control and penal law were undeveloped and failed to advance a Marxist theory of punishment (1973:230–2).

The Bolshevik legal scholar, Pashukanis, deserves more serious consideration. As we shall see, his thesis in Law and Marxism: A General Theory (1978) about the emergence of the specific form of capitalist punishment, has received much critical acclaim from Marxist legal analysts over the past decade. Moreover, they have drawn on Pashukanis’s work to elaborate a more precise Marxist theory of capitalist penal forms than the Rusche-Kurchheimer thesis allows. Yet if Rusche and Kirchheimer ‘did not use and probably did not know of Pashukanis’s work’ (Melossi 1978:75), it is also the case that critical analysis of his work in Western Europe and North America postdated that of Rusche and Kirchheimer. The 1968 re-publication of Punishment and Social Structure catapulted this German work to front-runner status in the field, while the Pashukanis revival was to await the 1978 English translation of Law and Marxism: A General Theory.

The third and final contender for line honours as founding father of critical sociological studies of the penal realm is that sine qua non of sociological exegesis—Emile Durkheim. While his work has traditionally been the key reference point for the sociology of punishment, it may seem paradoxical that Durkheim, a non-Marxist, has been seriously considered as a founder of a critical sociological approach to the subject. However, Marxist and other critical analysts have closely scrutinised Durkheim’s work on crime and punishment for sociological insights and, somewhat surprisingly, several claim to have found some. For example, Taylor, Walton and Young reclaimed Durkheim as a ‘radical’, a worthy forerunner of the ‘New Criminology’, one who broke with the ‘analytical individualism’ of social contract theory and with positivism (1973:67–73). But it is not only Durkheim’s work on crime, in particular his concept of ‘anomie’ and his notion of the ‘normality’ of crime which has attracted the attention of critical scholars: there has also been a resurgence of interest in those aspects of his work dealing with the links between punishment and social structure.

Here David Garland is a prominent admirer. Notwithstanding his damaging critique of Durkheim’s theoretical account of law, punishment and the state, Garland still finds a purchase in his work, and has set about the task of ‘rehabilitating Durkheim’. It is a strange rehabilitation. On the one hand, he argues that Durkheim’s ‘positions’ on the subject of the form, history and social significance of punishment are incoherent, even contradictory, and that, moreover, ‘Durkheimian concepts arbitrarily close off certain crucial questions concerning punishment’ (Garland 1983a:37). He warns that Durkheim’s conception of punishment as ‘unitary, essentialist and of a singular and pre-given significance’ forecloses empirical investigation and radically limits the questions which need to be asked about the complex nature of diverse penal practices and discourses. Indeed, anyone wishing to understand this complexity ‘would be advised to look elsewhere’ as punishment was ‘not a serious object of analysis at all’ for Durkheim.

To those looking for the theoretical tools to guide political intervention, one can only say that Durkheim’s theory of punishment renders any such intervention all but unthinkable.

(Garland 1983a:58)

On the other hand, while Garland concedes that there is ‘little prospect of a reformed Durkheimian sociology of punishment’, he nevertheless maintains that there are ‘progressive and important elements in Durkheim’s work’ which make it ‘an indispensable resource’. Most importantly, Durkheim’s approach is seen to have been ‘doggedly social and historical’: he insisted on the social construction of penal technologies and his historical method was ‘materialist’ and ‘non-functionalist’ in that it sought to explain institutions in terms of their ‘necessary conditions’. To quote Durkheim’s famous 1899 essay, ‘The two laws of penal evolution’:

To explain an institution, it is not enough to establish that when it appeared it served some useful end; for just because it was desirable it does not follow that it was possible. In addition, one must discover how the necessary conditions for the realisation of that goal came into existence.

(Durkheim 1973:297)

Equally significant, Durkheim, according to Garland, understood punishment to be ‘both positive and productive’. That is, Durkheim saw that punishment was not merely a negative response to crime; punishment actually constituted crime—defined what is criminal—and had positive social effects such as reinforcing solidarity by symbolically displaying the collective sentiments. Finally, Garland credits Durkheim’s recognition of the crucial ideological and symbolic significance of penal law with opening up an important area of analysis in which punishment becomes ‘a system of signs’ (Garland 1983a:58–9).

For Garland, the recognition of ‘the positivity of punishment’—‘the necessary first principle of any social analysis of penality’—is Durkheim’s most important contribution to the field. Moreover, he maintains that it is one which is ‘rarely accredited, even when subsequently rediscovered’ by Rusche and Kirchheimer and then later by Foucault (1983a:59). Accordingly, by the time he came to write Punishment and Modern Society, Garland devoted two chapters to reworking ‘the Durkheimian legacy’. Here Durkheim is accorded legendary status, but in a manner which appears to contradict Garland’s earlier assessment of this founding father’s failure to take punishment as a serious object of analysis.

More than any other social theorist, Durkheim took punishment to be a central object of sociological analysis and he accorded it a privileged place in his theoretical framework…

(1990a:23)

And

Durkheim’s questions about the moral basis of penal law, about the involvement of onlookers in the penal process, about the symbolic meanings of penal rituals, and about the relationship of penal institutions to public sentiment, are all questions which are worthy of our close attention, even when the answers which Durkheim suggests are not themselves convincing.

(1990a:27)

Finally, Durkheim’s reading of punishment as a moral process ‘opens up important aspects of the penal complex and reveals dynamics and dimensions which are not otherwise visible’ (1990a:47).

Garland, then, makes a strong case for Durkheim as founding father in the field of penality. Interestingly, Garland is supported in this view by Steven Spitzer, a leading Marxist sociologist of law. Spitzer also believes that Durkheim should be reclaimed. In his view, critical analysts, such as Steven Lukes and Andrew Scull, have failed to provide a ‘positive appreciation’ of Durkheim’s contribution to the sociology of law and punishment. In particular, they have failed to recognise a number of important ‘tendencies’ in Durkheim’s thought—tendencies which ‘could contribute to a truly critical understanding of the dialectical relationship between “laws” and “societies”’. These ‘tendencies’ include Durkheim’s attention to the positive and productive nature of legal controls (Spitzer 1984:864–5). According to Lukes and Scull, Durkheim’s focus on the ‘negative and constraining aspects’ of law ‘precluded any systematic inquiry into its positive or enabling aspects’ (Lukes and Scull 1983:7). In contrast, Spitzer, following Garland, claims that Durkheim’s recognition of the positive effects of punishment established a mode of analysis which others (again, Rusche, Kirchheimer and Foucault) would follow (Spitzer 1984:866).

Spitzer’s spirited defence of Durkheim’s founding role in the sociology of punishment is all the more remarkable when juxtaposed with his earlier empirical critique of Durkheim’s theory of penal evolution. Briefly, Durkheim proposed that changing modes of punishment are linked to transformations in the nature of social structure. As societies become more complex and differentiated—to Durkheim, as they evolve from ‘mechanical’ to ‘organic’ solidarity—penal sanctions become less severe. More specifically, repressive (penal) law which reinforces mechanical solidarity is replaced by restitutive (civil) law which facilitates organic solidarity. Durkheim also claimed that as society became more complex, individual crimes—crimes against the person—come to replace collective crimes such as sacrilege and blasphemy. And finally, he proposed that deprivation of liberty, which he equated with incarceration, tends to become the dominant sanction in complex societies (Durkheim 1964; 1973). However, subsequent research on penal evolution, Spitzer’s included, has yielded findings which tend to contradict Durkheim’s claims. In particular, Spitzer’s study of penal evolution in forty-eight societies indicated that punishment did not become less severe as society became more complex. On the contrary, greater punitiveness is associated with higher levels of structural differentiation. Moreover, the evidence challenges the contention that offences against the collectivity disappeared as societies became more complex. Indeed, Spitzer found all of Durkheim’s assertions about the evolution of penal sanctions wanting in empirical corroboration (Spitzer 1975a:623–30).

Spitzer’s critique was an important contribution to the debate about the validity and usefulness of Durkheim’s work on punishment. Another debate has centred on Durkheim’s suggestion that society’s reliance on penal sanctions tends towards a state of equilibrium—that is, a corollary to his notion that crime is both normal and functional for social solidarity is that the extent of crime in any society will be maintained at a stable level. This has led to the development of ‘homeostatic’ models which attempt to account for the ‘constancy of punishment’ by, for example, suggesting that oscillations in imprisonment rates are a manifestation of a homeostatic or self-regulating punishment process (Blumstein and Cohen 1973:199). The details of these debates and the lines of division between Durkheim’s supporters and his critics need not detain us.¹ Suffice it to note that Spitzer concluded his critique of Durkheim’s propositions thus:

Whatever its shortcomings, Durkheim’s approach to the study of punishment provides a valuable model for the study of social control. In linking the nature of control to the organisation of society Durkheim makes explicit what too many investigators ignore—the fact that punishment is deeply-rooted in the structure of society.

(Spitzer 1975a:634)

Others, as we have seen, are less sanguine about the usefulness of Durkheim, even a rehabilitated Durkheim, for the sociology of punishment. Most damning, Durkheim is seen by his critics to have foreclosed important sociological questions about law by interpreting social solidarity as a ‘completely moral phenomenon’—in his view law was always ‘derivative from and expressive of a society’s morality’. Moreover, in the process of elaborating his functionalist and organicist conception of society, Durkheim ignored power. Consequently, the limitations of Durkheim’s view of law do not derive solely from his major errors of historical interpretation; his whole theory is no longer convincing (Lukes and Scull 1983). As such it scarcely warranted continuing attention. As one critic argued, Durkheim’s attempt to render ‘moral evolutionary beliefs into sociological propositions’ was unsuccessful, flying in the face of the empirical evidence for the relationship between punishment and social order; and furthermore, his ‘moral evolutionary’ approach failed to question ‘sociologically’ his own assumptions about ‘repression’ and ‘humanitarianism’.

A truly sociological account of punitive practices must explain not only why certain forms are predominant under given social conditions but must also explain the nature and form of the penal and moral ideologies which justify and promote them.

(O’Malley 1983:149–50; my emphasis)

My main concern in all this is not to enter a debate of the ’tis/’tisn’t kind about the most impressively credentialled ‘founding father’ of the sociology of punishment, let alone about the most ‘truly’ sociological, nor is it to arbitrate between conflicting assessments of the worth of Durkheim’s potential as a critical theorist in the field. Rather, it is to comment that we can concede that Durkheim’s proposals, even or perhaps especially those which are the most empirically or theoretically suspect, have proven fertile ground for further research, without overstating his contribution. For however many insights he provided into the connectedness of punishment and society, he remained locked within a moral evolutionary schema which failed, ultimately, to disconnect punishment from crime. While punishment was not, in his schema, a merely negative response to crime, it was still dependent on and inextricably linked to it.

Since punishment results from crime and expresses the manner in which it affects the public conscience, it is in the evolution of crime that one must seek the cause determining the evolution of punishment.

(Durkheim 1973:300)

Furthermore, if Durkheim’s work on the evolution of penal forms can be dismissed as not ‘truly’ sociological, the ‘materialist’ historical method which Garland attributes to him can just as readily be dismissed as not properly materialist. For example, the ‘necessary conditions’—for Garland, the ‘material conditions of possibility’ (Garland 1983a:59)—which must be considered to explain an institution turn out to be nothing more than the existence of ‘sufficiently spacious public establishments, run on military lines, managed in such a manner as to prevent communications with the outside’ (Durkheim 1973:300). Thus are material conditions reduced to spatial possibilities in the Durkheimian ‘materialist’ framework of analysis. Consequently, whatever advances Durkheim made in understanding the ‘positivity’ of punishment, the emergence of a properly materialist history—one which would take account of political economy, of power, of class, and of labour relations and one which would also effect the great disconnection of crime and punishment, thereby enabling punishme...

Table of contents

• Front Cover
• Punish and critique
• SOCIOLOGY OF LAW AND CRIME
• Title Page
• Copyright
• Contents
• Series editor’s preface
• Acknowledgements
• Introduction
• 1 Political economies of punishment
• 2 ‘New’ histories of punishment regimes
• 3 The Foucault effect: from penology to penality
• 4 Feminist analytical approaches to women’s imprisonment
• 5 Postmodern feminism and the question of penality
• 6 Towards a postmodern penal politics?
• Notes
• Bibliography
• Name index
• Subject index