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According to Garland (1990) Marxist analysis does not take adequate account of populist support for penal practices.
The concept of punishment is an inherently retributive practice although the goal or justification of retribution may be different from the punishment itself. The need to reform and rehabilitate offenders has been downplayed whenever punishment is imposed as a better method to impose social order and justice. The justification of punishment highlights that society needs the threat and practice of punishment otherwise social order cannot be restored or maintained and victims of criminal aggression would continue to remain victimised. Although punishments seem to act as a possible deterrent to criminal activities, even the process of punishment needs to be regulated and constraints on the use and implementation of punishment should be controlled legally to prevent abuse.
Punishment and Society
In the mid 1970s, Foucault offered a historical socioeconomic and psychodynamic explanation of punishment. He theorised that the practice of punishment such as in prisons reflect the general forces of society and the division of power enables the dominant forces to threaten, coerce, suppress, transform and destroy providing justification for the act. According to Foucault, contemporary society has humanised and justified forms of punishment abandoning savage brutality of olden times in favour of concrete and steel carceral system of the modern era (Foucault, 1977). Thus the real intentions of punishment are masked by a social system and according to most critics of Foucault, his analysis offers a psychoanalytic conceptual and normative, rather than a philosophical viewpoint of punishment. As Garland suggests Foucault was more of a social commentator and critical humanist rather than a philosopher. However, despite these criticisms, Foucault's views are strongly philosophical and have wider implications beyond any specific context of place and time.
Garland, one of Foucault's critics argues that punishment is a complex social institution affecting social relations and cultural meanings. Garland (1990) criticises social theorists like Durkheim, Marx as well as the entire spectrum of social thought preceding him to reach a new and interpretive synthesis on the nature of punishment both in theory and practice.
According to Garland crime and criminal justice have shaped the modern world especially the west in terms of distinctive social organisation and neoconservative politics. Garland explains that the new policies of welfare, security, crime and punishment in modern society are set against a background of changing race, class and gender relations and all these are fundamentally related to contemporary societies and a volatile economy that combines relaxed social controls with enhanced personal freedom. Modern society is changeable and uncontrollable and it is this uncertain nature of modern life that forces us to focus on issues of crime, control and punishment. Crime and society are interdependent and when one change, the other also changes and this dynamic relation of crime and society has forced to implement changes in public policy, legal framework and cultural conceptions of crime and criminals (Garland, 2001).
Garland exposes the complexity of punishment as a social institution and shows how punishment relates to society by using the mechanism of punishment as in prisons as the focus of a social theory of punishment. Garland examines the relationship between punishment and culture and punishment as a social institution and analyses the social implications of penality. Weber and Foucault describe human relations against a background of social forces such as modernity, bureaucracy, and rationalisation. In fact, the Weberian analysis of modern society gives a management perspective of a social world.
Bureaucratization, professionalisation and growth of technology seems to have replaced moral judgement and punishment is seen more of a social rather than a moral phenomenon. Garland argues that in striving towards a justification of the process of punishment, the rationalist explanations are easily overlooked. He highlights that values and commitments are important in the penality and cultural norms influence the correctional processes. Culture and punishment seems to be reciprocal as punishments seem to shape culture and punishment embodies social and cultural values and forms. As cultural patterns change over time, so does punishment and there is an interactive, interdependent and reciprocal relationship between the two.
Culture in turn has to be understood as shaped by humanitarianism, social polices and religion. Cultural changes as a result of social changes may be affected by changes within the criminal justice system and have an impact on the general perception of crime (Garland, 1990). The reciprocity of crime, culture and punishment is seen through the changes in penality and how the process of punishment influence a social audience or have social repercussions affecting social relations, authority and power relations in society. As stated by Foucault and reiterated by Garland, punishment helps to create society.
Garland's discussion on the sensibility of punishment highlights that although punishment can be considered as driven by social development and organisation, the use of aggression and hostility characterise penal systems, although the public do not have access to these aspects of punishment. This is how Garland emphasises that the penal institution of justice, although social by nature reflect personal aggression and is completely shaped by the sensibilities and approaches of the political and social forces.
In his book, Garland emphasises the need to understand penality from a social point of view as a social theory of punishment. According to him, this framework will help us understand and explore the depth and complexities of punishment as a social institution. Garland goes beyond Foucault as unlike Foucault who gave a new theory of punishment, Garland tends to present a synthesis of multiple social theories to give an integrated picture of punishment and social structure. This way he highlights the limitations of punishment and its sociological implications in modern society.
In trying to give punishment a social structure and character, Garland also highlighted that Marxist interpretations of punishment has never considered the populist support for penal practices.
In a document of 1853, Marx wrote for New York Tribune that '[P]unishment is nothing but a means of society to defend itself against the infraction of its vital conditions, whatever may be their character. Now, what a state of society is that, which knows of no better instrument for its own defense than the hangman, and which proclaims through the leading journal of the world its own brutality as eternal law?'
Marx's critique of punishment as a bourgeois decision making process goes beyond an explanation of punishment using human nature or essence and also goes against the Hegelian emphasis on punishment as a right of the criminal reflecting a man's free will. The Marxist explanation of punishment although based on the concept of a free man as a sole bearer of authority seems to emphasise on the injustice of a bourgeois controlled system of morality and discipline.
Marx reiterates the need to establish a socialist system without coercion and supports to an extent Hegel's view of punishment that should be seen against a man's free will. Marx further asserts that, under human conditions, punishment will really be nothing but the sentence passed by the culprit on himself. There will be no attempt to persuade him that violence from without, exerted on him by others, is violence on himself by himself. On the contrary, he will see in other men his natural saviors from the sentence which he has pronounced on himself; in other words the relation will be reversed. Marx suggests that guilt is a personal burden and society's role is to lessen this anguish. Emphasising on the freedom of man, any coercion or forcible corrective system is considered ineffective by Marxist theories. However, Marxism has been rendered impractical in modern society by some critics and Garland's emphasis on a reciprocal social and penal process is more compatible with social perceptions rather than the Marxist emphasis of personal freedom where society plays a consequential rather than a corrective role.
Garland may just have been right in suggesting that Marxism on following a Hegelian approach to punishment has overlooked populist support that attempts to justify punishment as a necessity to maintain social order. Although populism incorporates class struggle and seeks to establish and support a government by, of and for the people, Windlesham(1998) examines how populist public fears can form legal systems and implement new laws in a desperate democratic attempt to control crime. Punishment as a crime control system through a legal framework and supported by populist regimes is to a large extent opposed to Marxist sentiments of punishment as only reflecting differences of power.
Conclusion:
In this essay we discussed the different aspects of punishment from a social, political and legal perspective. Garland's views on analysing the penal process within a social context seems to be correct in highlighting the fact that contrary to Marxist views, punishment may well be a socially accepted phenomenon.
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Bibliography:
Foucault, Michel. 1977 Discipline and Punish: The Birth of the Prison. New York: Pantheon.
Garland, David. 1990 Punishment and Modern Society: A Study in Social Theory. Chicago: The University of Chicago Press.
Garland, David , 2001 The Culture of Control: Crime and Social Order in Contemporary Society. Co-published with Oxford University Press.
Karl Marx, 1853 Capital Punishment, New York Daily Tribune, February 18, 1853. http://www.marxists.org/archive/marx/works/1853/02/18.htm
Karl Marx, Selected Writings in Sociology and Social Philosophy, Translated by T. B. Bottomore. Moscow, 1956
Rusche, George and Otto Kirchheimer.1968 Punishment and Social Structure. New York: Russell and Russell.
Lord Windlesham,1998 Politics, Punishment, and Populism, New York: Oxford University Press.
Stanford Encyclopaedia http://plato.stanford.edu/
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