This short article was published in The European Group’s Prison, Punishment and Detention Working Group Newsletter Issue 14 (April 2021) The newsletter can be downloaded here
The publication of the last of Michel Foucault’s College de France lecture series makes available the full range of his thinking on penal law and in this short paper these are used to explore if penal reform should be considered as a success rather than a failure. In the first section Foucault’s methodology is explored. This is used to develop some preliminary ideas of what a Foucauldian political theory of penal law might look like. The paper then uses this to interrogate the relationship between penal law and penal reform. Whilst reform is often conceived as external to penal law, seeking to achieve change from the outside, I argue that reform should be considered as an integral part of a political model of penal law. Although reforms are rarely sustained (and appear to fail) I argue that reform successfully legitimises penal law and helps sustain the unjust social order which it exists to uphold.
Theories, institutions and practices.
In 1971 Foucault began to deliver his second series of lectures at the College de France. The series was titled Penal Theories and Institutions, and over the next five years Foucault in his lectures, interviews, activism and, most famously, in his book Discipline and Punishment, engaged repeatedly, and at some length, with penal law, its origins, practices and functions. In 1971 he set out what I consider his central methodological innovation. Despite the title of his lectures Foucault (2019: 1) stated that his method was ‘to approach it neither on the basis of penal theories, nor on the basis of penal legislation or institutions, but to situate both of these in their overall operation, that is to say in systems of repression’. A focus on theories and institutions, Foucault (2019: 2) argued, allowed the operation of the penal system to be approached from philosophical, sociological and psychological perspectives, all of which led down cul-de-sacs focusing on morality, deviance, delinquency, etc., whereas he argued, what was required was a political analysis that understood penal law as a system of repression. He used this method to explore the 1639 Nu-pieds uprising in Normandy and in particular the response to it, which saw an important development in state building, where ‘the juridico-military form of state power is taken over by an administrative form’ (Ibid: 87).
Although he only acknowledged it on a few occasions, Foucault’s thinking during this period is heavily influenced by Rusche and Kirchheimer’s (1939) classic text Punishment and Social Structure. Their analysis challenged the logic that punishment existed as a response to crime and instead they identified that, entirely independent of crime, punishment performed specific social functions. Rejecting arguments that saw the historic development of punishment as one of social, humanitarian inspired, progress, they instead saw its evolution as an adaption to prevailing social structures. Foucault developed this further in two important ways. Firstly, he tied this development much more explicitly into the process of state formation. Secondly, he extended his analysis to the whole of penal law rather than just focusing on punishment. He focuses on the entire penal system and in particular in Penal Theories and Institutions he considers the birth of modern police in France. Foucault (2019: 102) saw the emergence of both police and exclusionary mechanisms of confinement and deportation as ‘anti-seditious repression’. The penal system evolves as a state response to popular struggles. For Foucault the ‘other side of the repressive system is not delinquency, it is popular struggle, the struggle of the people against power. It is to this that a repressive system responds’ (Ibid). By refusing to get drawn into debates around the validity of different penal theories or the respective merits of penal institutions, Foucault argues that we are able to focus on the realities of penal practice and see penal law as a political intervention. In the subsequent series of lectures Foucault (2013: 13) expands on this arguing that ‘the notion of civil war … must be put at the heart of all … analyses of penality.’
Towards a political theory of penal law
I am currently attempting to use Foucault’s insights to develop a model of the penal system based on his political theory of penal law. I want to unpack and extend Foucault’s three dimensions of the penal system – theory/institutions/practice – to develop a model whose three interlocking parts are discourses (which includes theories, but also extends to include other discourses such as those of the media and moral entrepreneurs/reformers, etc.); structures (which includes institutions but also such things as penal legislation); and practice (to be centred around the lived experience of those subjected to penal law, but also incorporating other important components such as the use of discretion). This model is underpinned by an acknowledgement that penal law is political. It is a mechanism of state power designed to establish and maintain a particular social order. Penal law recognises that this social order is unjust and requires the suppression of those who resist its imposition. In Foucault’s (2019: 102) analysis it is ‘a centralised justice’ focused on the ‘repression of sedition’. It is penal practice that is foundational and both pre-dates theories and institutions and provides the basis for their subsequent development. Institutions were established to impose penal law and theories developed to legitimise it. This model of the penal system is still a work in progress with the full complexity of how the various parts interact still to be developed. However, to demonstrate how I think it can be a productive tool in understanding penal law I want to focus on penal reform. In particular how ideas and discourses develop, the conditions that allow these to be heard, how they are implemented within penal structures, their impact on practice and finally why, despite them invariably being unsustainable, they don’t fail but succeed.
The role of penal reform
Penal law appears to operate in very different ways across time and place. Whilst in some context (for example Myanmar today) it makes no attempt to claim impartiality or to hide its inherent violence, it has in other situations, (for example within the so-called Western democracies) sought to ‘to hide beneath the assertion that justice is independent’, allowing it to ‘function as if it were an arbitral and neutral power between the social classes’ (Foucault, 2019: 24). To achieve this legitimisation strategies like policing by consent or the portrayal of criminal justice as protecting the public from dangerous criminals hide the central purpose of penal law. Although these strategies have been remarkably successful in masking penal law’s political purpose, they have never been able to fully legitimise its operation. In particular penal law’s failure to meet the aspirations of penal theories (deterrence, reformation, public protection, etc.) developed to justify its repression and the evident failures of the institutions (police racism, police violence, miscarriages of justice, prison conditions, recidivism etc.), created to deliver its domination, has repeatedly created crises of legitimacy. To moral entrepreneurs, academics and other potential reformers these ‘failures’ are all to apparent. However, they conceive them as system malfunction and seek to develop reform proposals to correct these glitches. Much of the time their critiques and proposals are ignored. The state has no use for them. However, at times when either penal law or the wider social order face crises of legitimacy then reformers, and their ideas, have utility.
When the reality of penal practice makes it impossible to credibly defend the status-quo the problems are acknowledged, but presented as temporary, the consequence of things going wrong. The solution for the state is to deploy the reformers it previously ignored and to utilise their ideas to make changes. Although it is the so-called humanitarian aspects of these reforms that tend to be highlighted, most reform programmes, by focusing on making penal institutions ‘work’ better, incorporate repressive dimensions. To use some examples from England. Whilst in response to the 1981 Brixton uprising the state responded by expanding community policing, they also strengthened the police’s repressive public order capacity. Similarly in response to the Strangeways prison uprising in 1990, a mix of ‘humanitarian’ and ‘security’ reforms were implemented. Such reform interventions should be seen as intended to deal with the immediate crisis of legitimacy. That is not to deny that these reforms do not have an impact on penal practice and how it is experienced by those subjected to it. However, to the state, reform’s main function is to legitimise and strengthen penal law. In almost all cases it is those reforms that strengthen the repressive function of penal law that persist, whilst those which ameliorate the lived experience of penal practice are often not sustained. As George Dendrickson and Frederick Thomas (1954: 11) observed from their experience of imprisonment in the first half of the twentieth century, ‘ many of the least tolerable aspects of life in … English prisons are the result of the godly and humanitarian zeal of past reformers.’
Failure or success?
If we perceive penal reform as external to the penal system, it is easy to see it as having a history of failure. Its interventions fail, only to be rediscovered in future crisis, be implemented again and fail again. The same magic solutions have been repeatedly advocated for the past 250 years and have repeatedly failed. However, by using a model which locates reform discourses as an internal component of penal law, we can see a different picture. By widening Foucault’s penal theories to encompass other interrelated discourses we can begin to see how these operate to sustain it through legitimisation. Alongside academic (philosophical, legal, sociological, psychological, etc.), media (print, electronic, TV, film, fiction and non-fiction), and official state discourses, reform discourse contributes to the everyday common-sense understandings of what penal law is and what it exists to do. Reform discourse, whatever the motivations of individual reformers, functions to promote the potential of penal justice working. However short penal law falls in achieving its claimed functions, it is always just a few reforms short of success.
Louk Hulsman warned us that when attempting to understanding penal law we must always remember the menu is not the meal. The menu may list philosophical aspirations – justice, rehabilitation, deterrence – but the meal is the imposition of power through state inflicted pain. Penal reform seeks to explain away this pain and to legitimise it. In developing his proposal to the Frankfurt Institute for the book that was to become Punishment and Social Structure Georg Rusche (1978: 4) wrote that:
all efforts to reform the punishment of criminals are inevitably limited by the situation of the lowest socially significant proletarian class which society wants to deter from criminal acts. All reform efforts, however humanitarian and well-meaning, which attempt to go beyond this restriction are condemned to utopianism.
In developing their proposals reformers almost invariably accept that those currently subjected to penal law are its legitimate and appropriate targets. They may call for radical changes in the mechanisms of punishment, but those it is targeted at remain the same. As penal law is about state imposed pain infliction targeted at those at the bottom of society any reforms that compromise this are utopian and subject to punitive clawback. So, in this sense penal reform fails. However, reforms address the crisis of legitimacy periodically faced by penal law and thereby help sustain its repressive function aimed at the ‘the lowest socially significant proletarian class’. So, in this sense penal reform is a success.
Dendrickson, G. and Thomas, F. (1954) The Truth about Dartmoor. London: Victor Gollancz
Foucault, M. (2019) Penal Theories and Institutions: Lectures at the College de France 1971-1972 Cham: Palgrave Macmillan
Foucault, M. (2013) The Punitive Society: Lectures at the College de France 1972-1973 New York: Picador
Rusche, G. and Kirchheimer, O. (1939) Punishment and Social Structure. New York: Columbia University Press
Rusche, G. (1978) ‘Labor market and Penal Sanction – Thoughts on the Sociology of Criminal Justice’ Crime and Social Justice Vol. 10, No.3, pp. 2-8