Frameworks of Inquiry in the Sociology of Punishment

David Garland

The British Journal of Sociology Vol 41 No 1 (Mar 1990) pp 1-15

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David Garland

Frameworks of inquiry in the sociology of punishment

This article discusses the tendency of recent work in the sociology of punishment to adopt a social control framework of analysis derived in part from the work of Foucault The limitations of this perspective are illustrated by reference to Durkheims conception of punishment which is itself discussed and criticised Thereafter the social and cultural significance of punishment is briefly out- lined drawing attention to penalitys political and social functions its deep cultural resonance and its psychic and emotional supports The essay concludes by suggesting how a more multi-dimensional framework of inquiry may help us to better understand the complexities of this social institution

1NI RODUCTION T H E S O C I O L O G Y O F PUNISHMENI

Giving a proper name to an entity can often make it seem more substantial or more unified than it actually is so perhaps my titles reference to the sociology of punishment needs to be put in perspective I take the sociology of punishment to be that body of thought which explores the relations between punishment and society its purpose being to understand legal punishment as a social phenomenon and thus trace its role in social life Seen in these terms the sociology of punishment is not a long-standing or well-developed tradition of social thought Until quite recently there was only a handful of genuinely sociological studies focusing upon punishment and of these only the work of Durkheim was able to make any serious impression upon sociological thinking The modern discipline of sociology has not chosen to use penal institutions as a focus for its researches or as a basis for its theoretical reflections and this despite the early examples of Montesquieu and de Tocqueville both of whom demonstrated the significance of punishment as a topic of social inquiry T o the extent that punishment found a place in the social

2 David Garland

sciences prior to the 1970s it was as a subject for penologists who tended to approach the matter as an administrative or technical issue rather than as a sociological one Only occasionally did the writings of thinkers such as Mead Garfinkel Sykes and Goffman remind us of the wider meanings of societys punitive measures

In the last fifteen years or so things have begun to change Studies of penal institutions now stand at the centre of a lively and expanding literature which highlights the role played by penality in the construc- tion of political order the furtherance of state control and the constitution of individuals as social subjects Historians philosophers sociologists criminologists even literary scholars have been moved to explore the realm of legal punishment and to recover the insights and illuminations which it has to offer about our social world As a consequence the area is beginning to realize some of its potential as an intellectually stimulating field of inquiry where what is at stake is not just the workings of penal policy (important as that is) but also the working of society and its social institutions

One of the key events which helped stimulate this resurgence of interest in the sociology of punishment was undoubtedly the publi- cation in the mid-1970s of Michel Foucaults Discipline and Punish On the one hand Foucaults work demonstrated to a wide audience of historians and social theorists the far-reaching sociological signifi- cance of punishment and the kinds of insights which might be gained from a close examination of its practices On the other it connected with the concerns of many sociologically-inclined criminologists who had already begun to develop a sceptical critique of modern criminal- izing processes - using interactionist or radical theories of deviance -and who found in Foucaults work a more powerful set of tools for the analysis of state control Discipline and Punish seemed to fit perfectly with the theoretical and ideological concerns of many writers who were studying the agencies of penal regulation and its assimilation gave their work a theoretical refinement and an apparent political importance which it had not had before

Given the centrality of Foucaults thought to the emergence of contemporary work in the sociology of punishment it is no surprise to find that Foucauldian conceptions and descriptions now stand at the very heart of this literature Key Foucauldian terms such as disci- pline surveillance power-knowledge and normalization are now routinely used and debated while more familiar ideas - such as the widening of the net of penal regulation or the spread of soft social control are now articulated through a Foucauldian language Since 1975the meaning of welfare sanctions the functioning of the modern prison and the significance of classification and assessment have all been reconceptualized in the literature in ways which are deeply indebted to Foucaults ideas

By and large this has been a positive influence It has raised the level

3 The sociology of punishment

of theoretical discussion and widened the range of work being done But precisely because the sociology of punishment is an under-developed tradition there is a danger that the influence of one powerful perspective can dominate thinking in a way which is intellectually constraining and ultimately counterproductive Already one can discern a tendency to subsume the analysis of punishment within a sceptical sociology of control in which the main concern is to reveal the ways in which punishments embody or enhance the regulatory power of the state and social institutions And while these texts are often interesting and valuable in themselves it seems to me that this particular way of seeing renders invisible many important aspects of the phenomenon The present paper is an attempt to point up some of the limitations of the perspective which has grown up in the wake of Foucaults work and to argue that an understanding of punishment will require a wider more flexible and more multi-dimensional framework than that suggested by Discipline and Punish

This Foucault-derived sociology of control will be the focus of my initial remarks in this paper I want to argue that to the extent that this literature deals with punishment and penal process it is sociologically one-sided and myopic In particular I will argue that a sociology of punishment is not reducible to a sociology of control and domination and that the latter approach tends to misrepresent the character of punishment and to close off many important questions that might be asked of it For the sake of simplicity I will focus my attack upon some of Foucaults arguments and refer to the Foucauldian conception of punishment though my target is not so much Discipline and Punish as the literature which it has spawned

I will be arguing that the Foucauldian conception of penal insti- tutions is unduly instrumental and purposive or to use his terms unduly strategic It seems to me that Foucaults work has given rise to an analytical framework which assumes in advance what one might term the control-oriented nature of modern punishment and is equipped to recognize only those elements which conform to this conception Aspects of modern punishment which appear non-utilitarian or dysfunctional with regard to control-values are either excluded from analysis or else are accounted for by reference to latent functions and concealed utilities - that is to objectives which no agency could ever calculate or deliberately orient itself towards In effect Foucaults work has tended to transform the sociology of punishment into a rather one-sided analytics of control and domi- nation The appeal of this approach is its critical force and its ability to link punishment to wider systems of control Its limitations lie in its inability to recognize what one might term the tragic aspects of punishment and its overstatement of punishments positive political utility

I will be using the work of Emile Durkheim to point up the limits of

4 David Garland

the Foucauldian conception and to suggest why general analyses of punishment have to explore the complex world of cultural sensibilities and meanings as well as the rational strategies of control agencies These cultural forces which Durkheim points to are strictly speaking non-rational non-instrumental and often mutually inconsistent so that any conception of rational penal strategy has to be thought of as a rationality within limits Durkheims work is invoked not because it is itself exemplary or preferable to Foucaults - far from it But for my purposes it can serve as a kind of expressive antithesis to Foucaults instrumentalist thesis Set u p in this way the trick is then to demonstrate how each of these dialectical opposites is incomplete without the other and then to develop a third conception which will combine their qualities and discard their limitations One obvious limitation that will need to be discarded is the dogmatic functionalism to which both Foucault and Durkheim in their different ways subscribe and I will have a word or two to say about this

I will suggest that modern punishment is a cultural as well as a strategic affair that it is a realm for the expression of social value and emotion as well as a process for asserting control And that for all its necessity as an institution and despite all our attempts to make it positive and useful it still involves a tragic and futile quality which derives from its contradictory cultural location and which ought to be recognized in analysis Our framework for analysing punishment ought thus to be geared towards interpreting the conflicting social values and sentiments which are expressed and evoked in punishment as well as to tracing instrumental strategies of penal control

PUNISHMENT A N D T H E POWER PERSPECIIVE

T h e publication of Foucaults Discipline and Punish has changed the way we think about punishment and penal institutions The effect of this book has been to stimulate a sudden and very welcome take-off in the sociology of punishment but it has also imposed a particular direction which should be recognized as such Discipline and Punish proposes a new way of thinking about punishment which tries to re-orient penological thought away from its conventional assumptions towards a new set of analytical terms It offers not so much a theory of punishment as a mode of theorizing about punishment It suggests rules for study methods of analysis and ways of seeing all of which add up to a definite style of thought which has been widely influential

Foucaults rules for the interpretation of punishment are set out clearly near the beginning of Discipline and Punish (see pp 23-4) as he is about to commence his investigation of modern penal practice They are sustained throughout all of the analyses which follow and in Foucaults handling of them they help produce some of the most

5 The sociology of punishment

trenchant and illuminating analyses of punishment ever written These rules of study are however perspectival as Foucault himself acknowledges They produce an interpretation from a particular viewpoint - from the point of view of power - and as Discipline and Punish says quite clearly other interpretations and other perspectives are also possible and may be equally illuminating T h e problem is that the success of Discipline and Punish has tended to make its perspective seem definitive and its controversial and unorthodox ideas have come to define a new orthodoxy We now think of punishment as power and notjust in terms of power A consequence of this may be to mistake a deliberately partial account (in both senses of partial) for a general one which cannot really stand on its own

Foucaults insistence is that punishment be interpreted in terms of power It is to be thought of as a set of powerlknowledge techniques situated in a field of political forces - as a set of mechanisms for administering the bodies of individuals and through them the body politic T h e history of punishment is to be understood as a chapter of political anatomy (Discipline and Punish p 28) as an expanding technology for gaining knowledge of and power over individuals so as to subject their bodies minds and actions to an imposed pattern of control Penal policy is in a profound sense a political strategy of control

This doesnt amount to a theory of punishment because Foucault makes it clear that the nature of penal practices as well as the strategies for their deployment are historically variable - in fact they tend to become more knowledgeable more powerful and more rational over time None the less we are told how to theorize this developing object we should regard punishment as a political tactic (p 23) focus upon its positive effects (p 23) conceive of it as a technology of power (p 23) Working within these rules Discipline and Punish presents us with a description of punishment as adminis- trative practice (p 8) a technique of improvement (p lo) a means for the control and transformation of behaviour (p 125) and ultimately as a set of disciplinary mechanisms (p 197)

Now if one stares hard at this framework and refuses to be distracted by its new terms and its hyper-critical tone the characteriz- ation of punishment that emerges is fairly straightforward and is developed around a single interpretive theme Foucault is insisting upon what one might call the Benthamite orientation of modern punishment He is characterizing penal institutions practices and discourses as so many instruments for the administration direction and ordering of individual conduct This notion of punishment stripped of its irrational features and oriented exclusively towards behaviour-control is precisely that which is set out by Jeremy Bentham in his Introduction to the Principles of Morals and Legislation But there is a twist Whereas Bentham set out his rationalistic control

6 David Garland

framework as an ideal to aim for and deplored the ritualistic non-utilitarian actualities of punishment Foucault proceeds as if Benthamism is in fact a deep description of the actual nature of modern penal institutions Benthams vision is taken to be a reflection of the very nature of things - we live in a Benthamite world - and Foucaults rules press us to study it accordingly

Now Foucault is never explicit about this suggestion that Benthams dream has become a reality though he plays with the idea by using the Panopticon image to characterize the nature of modern society But underlying this overblown figurative device there is a much more serious utilization of Benthams approach as the key to understanding punishment We are invited to approach the study of penal insti- tutions on the assumption that everything that occurs there is fundamentally oriented to the enhancement of control and the maximization of regulative power Everything from the practice of leniency to the creation of a recidivist delinquent class is to be seen as functional for control T h e possibility of non-utilitarian procedures irrational commitments o r dysfunctional elements is thus precluded in advance If such phenomena d o seem to occur they simply force us to look elsewhere for their function - to keep searching until we uncover their hidden utility for power

Foucaults analysis of the latent functions of the prison stands as a model of how the appearance of failure can be turned into success by this search for hidden utility He refuses to accept that a dysfunctional counter-productive institution - the prison - could survive for centuries so he asks what positive functions such futility could conceal Having put the question thus he produces an answer of sorts - the prison doesnt control the criminal it controls the working class by creating criminals It is he claims a functionally effective control device and so the idea of penality as control appears to be vindicated after all But in fact this answer as I have argued elsewhere is weak improbable and largely unsupported by evidence although it or something like it is necessitated by the logic of Foucaults approach It may well be that the prisons tendency to produce demoralized recidivist delinquents has some effect in persuading others to avoid lawbreaking or any contact with lawbreakers But any value this might have for the authorities must be weighed against the constant source of embarrassment criticism and expense caused by high recidivism rates and the escalating costs of imprisonment In the absence of any hard evidence that a strategy with these divide-and-rule objectives really does exist it would appear that Foucault is simply taking the (unintended) consequences of the prison to be its (intended) raison d2tre

T h e use of such weak argumentation shows the limits of Foucaults explanatory perspective even within his own account It is the point at which the power-perspective ceases to be a useful way of analysing

The sociology of punishment

punishment and becomes instead a liability T h e weakness of this argument and the fact that Foucault is impelled towards it by his own logic should stand as a warning to others of the limits of any single-minded style of sociological interpretation

PUNISHSIENI A N D T H E EXPRESSION O F SOCIAL SENIIMENI

In making these points I am not for a moment doubting the purposive instrumental nature of much of punishment nor the fact that penal institutions are in large part oriented towards a maximiz- ation of control Indeed one of the key questions for contemporary research is to ask - as Foucault has only partly done - how modern administrative rationality and bureaucracy have affected the way we punish today and to what extent questions of value have been displaced by questions of technical efficacyut if punishment is exclusively a utilitarian means of control it would indeed be difficult to account for many of its practices We would need to think of it as a means designed to gain an end which it hardly ever achieves -and one which is retained despite this constant failure Foucault faces this problem by stretching and straining the notion of utility I suggest we would be better advised to move away from this exclusively control- oriented conception of the problem T h e tendency to turn pun- ishment to account to make it perform useful tasks and achieve political ends is only one of the dynamics of the penal system There are other forces different dynamics which are not oriented towards a rational deployment of resources o r a maximization of useful effects other forces which are in a word non-utilitarian Indeed as Weber pointed out long ago the rational pursuit of utility always takes place within a context of value relatedness which is not rational or instrumental at all So instead of thinking of punishment as an instrumental institution which fails to achieve its ends o r else forcing an interpretation in which these failures are implausibly described as positive achievements it might be simply inappropriate to think of punishment exclusively within an ends-means framework

This is where Durkheim comes in Durkheims account of pun- ishment sets itself firmly against all rationalistic instrumentalist or utilitarian accounts For Durkheim to think of punishment as a calculated instrument for the rational control of conduct is to miss its essential character to mistake superficial form for true content T h e essence of punishment is not rationality or instrumental control -though these ends are superimposed upon it - the essence of punishment is irrational unthinking emotion Passion lies at the heart of punishment T h e urge to punish is an emotional reaction which flares u p at the violation of cherished social sentiments It is in Durkheims view a direct and powerful expression of the conscience

8 David Garland

collective relayed through the medium of all the individual consciences who compose it T h e punitive reaction is thus a defensive response grounded in the individuals sense of the sacred and triggered by any crime which violates these deeply held beliefs And although insti- tutional routines will modify these accesses of rage and strain to use them in a productive way the dynamic and motivating force of punishment is emotional and unreflecting an authentic act of outrage In Durkheims account the force and energy of punishment and its general direction thus spring from sentimental roots - from the psychic reactions commonly felt by individuals when collective sentiments are violated So although the modern state has a near- monopoly of the exercise of penal violence a much wider population feels itself to be involved in the process of punishment and supplies the context of social support and valorization within which state punishment takes place Thus where Foucault sees only two parties involved in punishment - the controllers and the controlled -Durkheim insists upon a crucial third element the onlookers whose sentiments are first outraged and then reassured T h e laws and institutions of punishment try to harness this emotional energy to graduate its expression and rationalize its effects But whatever the rationality of these institutions these mediating organised bodies as Durkheim calls them passion and social sentiment remain the soul of penality In other words it is the values and sentiments instrinsic to social relations -and the passions which are aroused when these are violated - which form the broad context within which legal pun- ishments operate These sentiments and passions help shape penal institutions giving them their form as well as their force

Durkheimian theory thus defines punishment as an expressive institution - it is a realm for the expression of social values and the release of psychic energy Strictly speaking it has no objective or intended goal It is not a means to an end It simply occurs in the nature of things It is a reaction sparked off by the violation of powerful sentiments - like the sparks that fly when someone disturbs an electric current T o bend this reaction into an ends-means orientation is to try to harness its energies and re-direct them Laws and institutional procedures try to d o this but they are never completely successful - they may graduate and modify the reaction but they dont change its essential nature

But having once set out this account emphasizing the expressive non-utilitarian roots of punishment Durkheim then introduces what I might call his paradox of higher utility For he proceeds to argue that punishment does after all achieve a definite end or objective But it is not the petty calculation of social controllers which makes punishment useful - these attempts rarely succeed in their control and reform ambitions Instead it is the common expression of outrage that turns out to have a spontaneously functional effect These outbursts of

9 The sociology of punishment

common sentiment - symbolized and celebrated in the rituals of punishment - produce an automatic solidarity a spontaneous re-affirmation of mutual beliefs and relationships which serve to strengthen the social bond

So punishment has a functionality in spite of itself Uncaring about utility it nevertheless achieves it Thanks to the hidden hand of the conscience collective the overall effect of punishment is to promote a healthy and cohesive solidarity But this assertion of positive function- ality is no more convincing and no less dogmatic than Foucaults version Durkheim offers a plausible psychological account of how useful effects might flow from punishing - through the reaffirmation of belief the unifying effect of a common enemy the pleasure of positive identification and so on But there is no consideration given to the negative dysfunctional effects which might equally well follow Thus it would be no less plausible to imagine that punishment might lead to the development of a destructive intolerance or to escalating levels of social violence neither of which could be seen as useful features Indeed George Herbert Meads classic account of The Psychology of Punitive Justice written towards the end of World War I suggests the massive social costs of this hostile ritual

Again I am not arguing here that there are no positive functional effects which flow from punishment Clearly there are But there is no reason to assume that all of its effects are of a positive nature or that the overall effect of punishment may be deemed to be healthy positive or functional Durkheims importance here does not lie in the dogmatism of his functional argument or in related concepts such as the conscience collective His importance is that he draws attention to the non-instrumental aspects of punishment - its emotional aspect its social origins its expression of values and culture and its effects beyond the relationship of controlled and controlling Durkheims conception of punishment is problematic as I and others have shown elsewhere but his work does have the virtue of directing us to aspects of the phenomenon which the power-perspective conceals from view

PUNISHMENI AS A SOCIAL INSIIIUIION

In setting up this discussion I suggested that Durkheim and Foucault might be seen as contraries out of which a third perspective might arise In fact it may be better to see their accounts as in some respects complementary since as we saw they are asking rather different questions about rather different aspects of a complex phenomenon The instrumentalities of penal power which Foucault describes always and necessarily take place within a framework of social values culture and mentaliti This contextual interrelationship is missed if one

David Garland

thinks of punishment purely in terms of state control as some Foucauldians do or as social expression as Durkheimians have done Particular styles of punishment reveal specific forms of power and strategies of control -but they also involve characteristic social values sensibilities conceptions ofjustice and social policy goals which can be missed if one insists on seeing punishment solely in terms of power

My suggestion is that we should accept both the control orientation of administration and the expressive manifestations of sentiment as forces which play a part in the process of punishment And instead of reducing one to the other or supposing that they automatically cohere we should set out to explore the relations and tensions between them In other words punishment should be understood as a set of cultural practices which supports a complex pattern of regula- tory expressive and significatory effects and any analytical approach should look for the pattern of cultural expression as well as the logic of social control

Whenever this kind of suggestion is made about any social phenom- enon the reflex response is to split it into two parts an instrumental part and a symbolic part the first part is distinctly recognizable because it is composed of material practices which get things done while the second is merely decorative or discursive and appears to have no substantive function This in turn implies a definite ranking of the two forms of analysis -one moves to symbolic analysis only if an instrumental rationale cannot be found I dont know if this distinction between instrumental and symbolic is ever very useful but it certainly isnt helpful as a way of dividing up punishment One can never separate out the instruments of punishment on the one hand and the symbols on the other in this sphere symbols have a clear practical effect - the signs of condemnation are central to pun- ishment while the instruments of practice have an inescapable cultural meaning

Instead of seeking to divide penality up into parts some of which do things and some of which say things we should realize that in the social world action always conveys meaning so that even the most mundane practice can be seen as rhetorical as well as practical Consequently we should conceive of the elements of punishment -be they laws discourses sanctions or institutional regimes - as being a condensation of instrumental purpose and rhetorical significance

It seems to me that punishment is what might be called a symbolically deep event that is to say an event which has a profound cultural resonance It is a matter of real seriousness involving notjust the state but also the wider community in matters of ultimate and common concern (which is not to say common agreement or consen- sus) and as such it evokes powerful sentiments and a rich symbolism In saying this I am well aware that punishment is nowadays delegated to professional agencies and that the public plays only a spectator role

1 1 The sociology of punishment

But this role is crucial none the less I am also aware that the appearance of high drama surrounds only a tiny minority of sanc- tions and that most sentences are an unsolemn and rather mundane affair But the same can be said of the everyday practice of a religious faith such as Christianity which can be a matter of hurried prayers the unsolemn saying of Grace and a routinized Sunday worship -though none of this denies the ultimate seriousness of religious matters Punishment works in this way Its charisma is routinized2 but it is no less real for that -and even the most routine sentences involve a ritual evocation of the symbols ofjustice

Punishment is a serious and symbolic issue in any society because it lies directly at the roots of social order as well as having a prominent place in the psychic formation and development of individual persons As regards the political order punishment operates as a sign of ultimate authority and is the final materialization of that authoritys force as such it is universal and indispensable Of course the forms of punishment are variable and the extent of punishment will depend upon the capacity of the authority to tolerate its challengers and violators and upon the maturity and sensibility of the wider culture But punishment as an institution has a minimal or last-resort necessity in any social order and an importance of which we are intuitively aware Similarly the processes of individual socialization are such that the punishment of transgression or the threat of such punishment plays a crucial part in the childs subject-formation Each of us comes to recognize the Law of the Father and the symbolic order through a process which always involves a punitive element and which generally leaves us with a continuing psychic investment in the issue23

This close connection between punishment and the order of things in social and individual experience helps us to understand why punishment is so rich in symbolic meaning and so deeply rooted in emotional needs and desires The question of punishment easily spills over into the wider problems of authority the nature of social membership questions of inclusion and exclusion in the social group It raises awkward problems of violence and its legitimacy It also highlights the limits of socialization and the importance of social institutions and in doing so it forces us all to take practical positions on intractable moral issues In each case these issues are capable of invoking deeply irrational responses as well as considered opinions They have an evocative effect of rousing channelling and domesticat- ing powerful emotion^^ which helps explain the aura of charisma which surrounds legal authorities -as well as the anti-charisma which attaches to the criminal It also helps explain why penality is caught up in all sorts of cultural and moral cross-currents which rob it of any singular purposiveness or direction Many critical accounts - includ-ing my own work -have argued that governments and political forces have found punishment to be a useful arena for ideological work If this

12 David Garland

is so -and if political movements have been able to use penal sanctions and symbols as a persuasive rhetoric in their bids for authority legitimation and hegemonic dominance - then it has been made possible by the fact that punishment is good for persuading with Ideological work in the realm of punishment can succeed in connect- ing with popular emotions and individual sentiments precisely be- cause punishment does have a deep resonance and a fundamental social importance People are in a sense that we have barely begun to understand mentally and emotionally involved in the business of punishing law-breakers - even when they delegate the actual task to institutions behind the scenes -and this is why they can be addressed by political ideologies which operate in the penal realm If we are to understand the ideological force of law and order policies or of the kind of capital punishment politics which featured in recent US elections then we have to come to terms with the cultural meaning of punishment and the emotional involvement of individuals in the process

All of this makes punishment incapable of being understood within a purely instrumental framework Myths and symbols and contra- dictory emotions form part of the cultural context within which penal policy is developed and upon which it relies for its support T h e forms and limits of penal control are thus styled by cultural demands as well as by rational strategy -and one should not assume that these amount to the same thing

It is precisely because penal institutions are so deeply embedded in cultural patterns that their practices never attain the instrumental rationality to which Bentham (and many modern penal adminis- trators) aspired T h e failure of modern punishment is in part the inevitable outcome of an overrationalized conception of its functions This conflict is not of course unique to punishment it is a feature to some degree of all social institutions But it is sufficiently apparent there to make penal practice a deeply problematic area for social policy - and an important challenge for social analysis

T h e aim of this essay has been to point out some of the complexities of this task and to point u p the limitations of some of the frameworks of inquiry currently being deployed Its conclusion is that the analysis of punishment - of its determinants and functions its forms and its effects - will demand a framework which is more flexible and multi-dimensional than that suggested by the work of Foucault or for that matter of Durkheim Since neither Foucault nor Durkheim set out to provide a comprehensive account of penality - Foucault used punishment to illustrate modern power Durkheim to get at the basis of solidarity - this is not an important criticism of their work and is not intended as such But for those of us who areconcerned to understand the social institutions of punishment and to understand them in all their complexity it should be an incentive to rethink punishment in a

13 The sociology of punishment

way which is more sensitive to its many dimensions and its inherent contradictions

(Date accepted May 1989)

This is a working paper f rom a book in progress on the sociology o f pun-ishment Versions of it have been de- livered to audiences at the University of Edinburgh the University of Toron to and the University ofCalifornia a n d I am grateful to the many individuals vho offered advice 01- criticisnl on these occasions

1 See E Durkheim The Division chf Labor in Society New York Free Press 1964 E Durkheim rLlorcclEdltcotio~tNew York Free Press 1973 E Durkheim Trvo Laws ofPenal Evolution translated by T Anthony J o n e s a n d Andrew Scull in Econorn~ and Soeirty 2(3) 1973 P

David Garland Faculty of Law

University of Edinburgh

Aiylumi ltarden City New York Doubleday-Anchor 196 1

3 See M Ignatieff A Juct iVracecrr of Pnin London Macmillan Press 1978 J Beattie Crirnr artd thr Courtc in Eieglccnd 1660-1800 Princeton New Jersey Princeton University Press 1986 M Foucault Dircif)linr ecnd P u n i ~ h London Allen Lane 1977 J Jacobs Stcttcr~illr Chicago University of Chicago Press 1977 D Melossi and hl Pavarini Tltr Priion anrl thr F(tctot London Macmillan Press 1981 S ltohen liiiotli of Sociccl Control Oxti)rd Polity Press 1983 D Garland Ptc~~iiItmrntccnd Wrlfecrr Al-dershot ltotver 1985 D Garland and P

Sorokin Sociccl and Culturctl D ~ t ~ n ~ n i c c Young (eds) T l ~ o Pozclrt to Puiliih Lon-vol 2 Cambridge Massachusetts Har- vard University Press 1937 ( Rusche a n d 0 Kirchheimer Puniehntrnt ctnd Sociul Structtcrr New York Russell and Russell 1964 S Ranulf lorccl Indig-n(etion ctnd Middle Cbrc Piycllology New York Schocken Books 1964 T Sellin Skuzrei uttd tllr Prnctl Ssctrm New York Elsevier 1976

2 See Baron d e Montesquieu The Spirit of thr Laroi Edinburgh Donaldson and Reib 1762 Gustave d e Beaumont and Alexis d e Tocqueville O n tltr Priliterl- t inq Systettt itt the Unitrd Stcctrc ltat--bondale Illinois Southern Illinois Uni- versity Press 1964 George Herber t hlead The Psychology of Punitive Jus- tice in Thr A~nericctn Jourrlctl of Sociology vol 23 no 5 191 8 pp 577-602 Harold Garfinkel Conditions of a Successful Degradation Ceremony in Thr American Journul of Sociology vol 61 March 1956 pp 420-4 Gresham Sykes Thr Society of Coptizles Princeton New Jersey Prince- ton University Press 1958 E ltoffman

d o n Heinemann 1983 T L Dunitn Dr~nocrctc~ Madison Uni- (end P~ctciihmpt~t versity of LVisconsin Press 1987 J Bender I~nccginittg thr Prrtitet~ticc~ lthi-cago University ofChicago Press 1987

4 For a range of views on these questions see the essays by A Bottolns T Mathiesen A Scull a n d S ltohen in Garland and Young (etls) T11r Pozcrr to Punish See also ( Shearing and P Stenning F~oni the Panopticon to Dis- neyworld T h e Development of Disci-pline in A Doob and E Greenspan (eds) Prrsf~rctirfrtin Criminal Lnul ~ u f o r a O n -tario Canatla Law Book Inc 1985

5 See S ltohen and A Scull (eds) Socictl Control and thr Stciti OxfOrd Basil Blackwell 1985 J Lowman et ul Trctrlc- carce~nrioi~Aldershot Gower 1987 (ar- land a n d Young (eds) The Pouwr to Punish R Harris a n d D Webb Wrlfurr Pouler aitrl Juzlrnile Justirr London Tavis- tock 1987

6 Michael Ignatieff has also criticized Foucaults tendency to think of

2 David Garland

sciences prior to the 1970s it was as a subject for penologists who tended to approach the matter as an administrative or technical issue rather than as a sociological one Only occasionally did the writings of thinkers such as Mead Garfinkel Sykes and Goffman remind us of the wider meanings of societys punitive measures

In the last fifteen years or so things have begun to change Studies of penal institutions now stand at the centre of a lively and expanding literature which highlights the role played by penality in the construc- tion of political order the furtherance of state control and the constitution of individuals as social subjects Historians philosophers sociologists criminologists even literary scholars have been moved to explore the realm of legal punishment and to recover the insights and illuminations which it has to offer about our social world As a consequence the area is beginning to realize some of its potential as an intellectually stimulating field of inquiry where what is at stake is not just the workings of penal policy (important as that is) but also the working of society and its social institutions

One of the key events which helped stimulate this resurgence of interest in the sociology of punishment was undoubtedly the publi- cation in the mid-1970s of Michel Foucaults Discipline and Punish On the one hand Foucaults work demonstrated to a wide audience of historians and social theorists the far-reaching sociological signifi- cance of punishment and the kinds of insights which might be gained from a close examination of its practices On the other it connected with the concerns of many sociologically-inclined criminologists who had already begun to develop a sceptical critique of modern criminal- izing processes - using interactionist or radical theories of deviance -and who found in Foucaults work a more powerful set of tools for the analysis of state control Discipline and Punish seemed to fit perfectly with the theoretical and ideological concerns of many writers who were studying the agencies of penal regulation and its assimilation gave their work a theoretical refinement and an apparent political importance which it had not had before

Given the centrality of Foucaults thought to the emergence of contemporary work in the sociology of punishment it is no surprise to find that Foucauldian conceptions and descriptions now stand at the very heart of this literature Key Foucauldian terms such as disci- pline surveillance power-knowledge and normalization are now routinely used and debated while more familiar ideas - such as the widening of the net of penal regulation or the spread of soft social control are now articulated through a Foucauldian language Since 1975the meaning of welfare sanctions the functioning of the modern prison and the significance of classification and assessment have all been reconceptualized in the literature in ways which are deeply indebted to Foucaults ideas

By and large this has been a positive influence It has raised the level

3 The sociology of punishment

of theoretical discussion and widened the range of work being done But precisely because the sociology of punishment is an under-developed tradition there is a danger that the influence of one powerful perspective can dominate thinking in a way which is intellectually constraining and ultimately counterproductive Already one can discern a tendency to subsume the analysis of punishment within a sceptical sociology of control in which the main concern is to reveal the ways in which punishments embody or enhance the regulatory power of the state and social institutions And while these texts are often interesting and valuable in themselves it seems to me that this particular way of seeing renders invisible many important aspects of the phenomenon The present paper is an attempt to point up some of the limitations of the perspective which has grown up in the wake of Foucaults work and to argue that an understanding of punishment will require a wider more flexible and more multi-dimensional framework than that suggested by Discipline and Punish

This Foucault-derived sociology of control will be the focus of my initial remarks in this paper I want to argue that to the extent that this literature deals with punishment and penal process it is sociologically one-sided and myopic In particular I will argue that a sociology of punishment is not reducible to a sociology of control and domination and that the latter approach tends to misrepresent the character of punishment and to close off many important questions that might be asked of it For the sake of simplicity I will focus my attack upon some of Foucaults arguments and refer to the Foucauldian conception of punishment though my target is not so much Discipline and Punish as the literature which it has spawned

I will be arguing that the Foucauldian conception of penal insti- tutions is unduly instrumental and purposive or to use his terms unduly strategic It seems to me that Foucaults work has given rise to an analytical framework which assumes in advance what one might term the control-oriented nature of modern punishment and is equipped to recognize only those elements which conform to this conception Aspects of modern punishment which appear non-utilitarian or dysfunctional with regard to control-values are either excluded from analysis or else are accounted for by reference to latent functions and concealed utilities - that is to objectives which no agency could ever calculate or deliberately orient itself towards In effect Foucaults work has tended to transform the sociology of punishment into a rather one-sided analytics of control and domi- nation The appeal of this approach is its critical force and its ability to link punishment to wider systems of control Its limitations lie in its inability to recognize what one might term the tragic aspects of punishment and its overstatement of punishments positive political utility

I will be using the work of Emile Durkheim to point up the limits of

4 David Garland

the Foucauldian conception and to suggest why general analyses of punishment have to explore the complex world of cultural sensibilities and meanings as well as the rational strategies of control agencies These cultural forces which Durkheim points to are strictly speaking non-rational non-instrumental and often mutually inconsistent so that any conception of rational penal strategy has to be thought of as a rationality within limits Durkheims work is invoked not because it is itself exemplary or preferable to Foucaults - far from it But for my purposes it can serve as a kind of expressive antithesis to Foucaults instrumentalist thesis Set u p in this way the trick is then to demonstrate how each of these dialectical opposites is incomplete without the other and then to develop a third conception which will combine their qualities and discard their limitations One obvious limitation that will need to be discarded is the dogmatic functionalism to which both Foucault and Durkheim in their different ways subscribe and I will have a word or two to say about this

I will suggest that modern punishment is a cultural as well as a strategic affair that it is a realm for the expression of social value and emotion as well as a process for asserting control And that for all its necessity as an institution and despite all our attempts to make it positive and useful it still involves a tragic and futile quality which derives from its contradictory cultural location and which ought to be recognized in analysis Our framework for analysing punishment ought thus to be geared towards interpreting the conflicting social values and sentiments which are expressed and evoked in punishment as well as to tracing instrumental strategies of penal control

PUNISHMENT A N D T H E POWER PERSPECIIVE

T h e publication of Foucaults Discipline and Punish has changed the way we think about punishment and penal institutions The effect of this book has been to stimulate a sudden and very welcome take-off in the sociology of punishment but it has also imposed a particular direction which should be recognized as such Discipline and Punish proposes a new way of thinking about punishment which tries to re-orient penological thought away from its conventional assumptions towards a new set of analytical terms It offers not so much a theory of punishment as a mode of theorizing about punishment It suggests rules for study methods of analysis and ways of seeing all of which add up to a definite style of thought which has been widely influential

Foucaults rules for the interpretation of punishment are set out clearly near the beginning of Discipline and Punish (see pp 23-4) as he is about to commence his investigation of modern penal practice They are sustained throughout all of the analyses which follow and in Foucaults handling of them they help produce some of the most

5 The sociology of punishment

trenchant and illuminating analyses of punishment ever written These rules of study are however perspectival as Foucault himself acknowledges They produce an interpretation from a particular viewpoint - from the point of view of power - and as Discipline and Punish says quite clearly other interpretations and other perspectives are also possible and may be equally illuminating T h e problem is that the success of Discipline and Punish has tended to make its perspective seem definitive and its controversial and unorthodox ideas have come to define a new orthodoxy We now think of punishment as power and notjust in terms of power A consequence of this may be to mistake a deliberately partial account (in both senses of partial) for a general one which cannot really stand on its own

Foucaults insistence is that punishment be interpreted in terms of power It is to be thought of as a set of powerlknowledge techniques situated in a field of political forces - as a set of mechanisms for administering the bodies of individuals and through them the body politic T h e history of punishment is to be understood as a chapter of political anatomy (Discipline and Punish p 28) as an expanding technology for gaining knowledge of and power over individuals so as to subject their bodies minds and actions to an imposed pattern of control Penal policy is in a profound sense a political strategy of control

This doesnt amount to a theory of punishment because Foucault makes it clear that the nature of penal practices as well as the strategies for their deployment are historically variable - in fact they tend to become more knowledgeable more powerful and more rational over time None the less we are told how to theorize this developing object we should regard punishment as a political tactic (p 23) focus upon its positive effects (p 23) conceive of it as a technology of power (p 23) Working within these rules Discipline and Punish presents us with a description of punishment as adminis- trative practice (p 8) a technique of improvement (p lo) a means for the control and transformation of behaviour (p 125) and ultimately as a set of disciplinary mechanisms (p 197)

Now if one stares hard at this framework and refuses to be distracted by its new terms and its hyper-critical tone the characteriz- ation of punishment that emerges is fairly straightforward and is developed around a single interpretive theme Foucault is insisting upon what one might call the Benthamite orientation of modern punishment He is characterizing penal institutions practices and discourses as so many instruments for the administration direction and ordering of individual conduct This notion of punishment stripped of its irrational features and oriented exclusively towards behaviour-control is precisely that which is set out by Jeremy Bentham in his Introduction to the Principles of Morals and Legislation But there is a twist Whereas Bentham set out his rationalistic control

6 David Garland

framework as an ideal to aim for and deplored the ritualistic non-utilitarian actualities of punishment Foucault proceeds as if Benthamism is in fact a deep description of the actual nature of modern penal institutions Benthams vision is taken to be a reflection of the very nature of things - we live in a Benthamite world - and Foucaults rules press us to study it accordingly

Now Foucault is never explicit about this suggestion that Benthams dream has become a reality though he plays with the idea by using the Panopticon image to characterize the nature of modern society But underlying this overblown figurative device there is a much more serious utilization of Benthams approach as the key to understanding punishment We are invited to approach the study of penal insti- tutions on the assumption that everything that occurs there is fundamentally oriented to the enhancement of control and the maximization of regulative power Everything from the practice of leniency to the creation of a recidivist delinquent class is to be seen as functional for control T h e possibility of non-utilitarian procedures irrational commitments o r dysfunctional elements is thus precluded in advance If such phenomena d o seem to occur they simply force us to look elsewhere for their function - to keep searching until we uncover their hidden utility for power

Foucaults analysis of the latent functions of the prison stands as a model of how the appearance of failure can be turned into success by this search for hidden utility He refuses to accept that a dysfunctional counter-productive institution - the prison - could survive for centuries so he asks what positive functions such futility could conceal Having put the question thus he produces an answer of sorts - the prison doesnt control the criminal it controls the working class by creating criminals It is he claims a functionally effective control device and so the idea of penality as control appears to be vindicated after all But in fact this answer as I have argued elsewhere is weak improbable and largely unsupported by evidence although it or something like it is necessitated by the logic of Foucaults approach It may well be that the prisons tendency to produce demoralized recidivist delinquents has some effect in persuading others to avoid lawbreaking or any contact with lawbreakers But any value this might have for the authorities must be weighed against the constant source of embarrassment criticism and expense caused by high recidivism rates and the escalating costs of imprisonment In the absence of any hard evidence that a strategy with these divide-and-rule objectives really does exist it would appear that Foucault is simply taking the (unintended) consequences of the prison to be its (intended) raison d2tre

T h e use of such weak argumentation shows the limits of Foucaults explanatory perspective even within his own account It is the point at which the power-perspective ceases to be a useful way of analysing

The sociology of punishment

punishment and becomes instead a liability T h e weakness of this argument and the fact that Foucault is impelled towards it by his own logic should stand as a warning to others of the limits of any single-minded style of sociological interpretation

PUNISHSIENI A N D T H E EXPRESSION O F SOCIAL SENIIMENI

In making these points I am not for a moment doubting the purposive instrumental nature of much of punishment nor the fact that penal institutions are in large part oriented towards a maximiz- ation of control Indeed one of the key questions for contemporary research is to ask - as Foucault has only partly done - how modern administrative rationality and bureaucracy have affected the way we punish today and to what extent questions of value have been displaced by questions of technical efficacyut if punishment is exclusively a utilitarian means of control it would indeed be difficult to account for many of its practices We would need to think of it as a means designed to gain an end which it hardly ever achieves -and one which is retained despite this constant failure Foucault faces this problem by stretching and straining the notion of utility I suggest we would be better advised to move away from this exclusively control- oriented conception of the problem T h e tendency to turn pun- ishment to account to make it perform useful tasks and achieve political ends is only one of the dynamics of the penal system There are other forces different dynamics which are not oriented towards a rational deployment of resources o r a maximization of useful effects other forces which are in a word non-utilitarian Indeed as Weber pointed out long ago the rational pursuit of utility always takes place within a context of value relatedness which is not rational or instrumental at all So instead of thinking of punishment as an instrumental institution which fails to achieve its ends o r else forcing an interpretation in which these failures are implausibly described as positive achievements it might be simply inappropriate to think of punishment exclusively within an ends-means framework

This is where Durkheim comes in Durkheims account of pun- ishment sets itself firmly against all rationalistic instrumentalist or utilitarian accounts For Durkheim to think of punishment as a calculated instrument for the rational control of conduct is to miss its essential character to mistake superficial form for true content T h e essence of punishment is not rationality or instrumental control -though these ends are superimposed upon it - the essence of punishment is irrational unthinking emotion Passion lies at the heart of punishment T h e urge to punish is an emotional reaction which flares u p at the violation of cherished social sentiments It is in Durkheims view a direct and powerful expression of the conscience

8 David Garland

collective relayed through the medium of all the individual consciences who compose it T h e punitive reaction is thus a defensive response grounded in the individuals sense of the sacred and triggered by any crime which violates these deeply held beliefs And although insti- tutional routines will modify these accesses of rage and strain to use them in a productive way the dynamic and motivating force of punishment is emotional and unreflecting an authentic act of outrage In Durkheims account the force and energy of punishment and its general direction thus spring from sentimental roots - from the psychic reactions commonly felt by individuals when collective sentiments are violated So although the modern state has a near- monopoly of the exercise of penal violence a much wider population feels itself to be involved in the process of punishment and supplies the context of social support and valorization within which state punishment takes place Thus where Foucault sees only two parties involved in punishment - the controllers and the controlled -Durkheim insists upon a crucial third element the onlookers whose sentiments are first outraged and then reassured T h e laws and institutions of punishment try to harness this emotional energy to graduate its expression and rationalize its effects But whatever the rationality of these institutions these mediating organised bodies as Durkheim calls them passion and social sentiment remain the soul of penality In other words it is the values and sentiments instrinsic to social relations -and the passions which are aroused when these are violated - which form the broad context within which legal pun- ishments operate These sentiments and passions help shape penal institutions giving them their form as well as their force

Durkheimian theory thus defines punishment as an expressive institution - it is a realm for the expression of social values and the release of psychic energy Strictly speaking it has no objective or intended goal It is not a means to an end It simply occurs in the nature of things It is a reaction sparked off by the violation of powerful sentiments - like the sparks that fly when someone disturbs an electric current T o bend this reaction into an ends-means orientation is to try to harness its energies and re-direct them Laws and institutional procedures try to d o this but they are never completely successful - they may graduate and modify the reaction but they dont change its essential nature

But having once set out this account emphasizing the expressive non-utilitarian roots of punishment Durkheim then introduces what I might call his paradox of higher utility For he proceeds to argue that punishment does after all achieve a definite end or objective But it is not the petty calculation of social controllers which makes punishment useful - these attempts rarely succeed in their control and reform ambitions Instead it is the common expression of outrage that turns out to have a spontaneously functional effect These outbursts of

9 The sociology of punishment

common sentiment - symbolized and celebrated in the rituals of punishment - produce an automatic solidarity a spontaneous re-affirmation of mutual beliefs and relationships which serve to strengthen the social bond

So punishment has a functionality in spite of itself Uncaring about utility it nevertheless achieves it Thanks to the hidden hand of the conscience collective the overall effect of punishment is to promote a healthy and cohesive solidarity But this assertion of positive function- ality is no more convincing and no less dogmatic than Foucaults version Durkheim offers a plausible psychological account of how useful effects might flow from punishing - through the reaffirmation of belief the unifying effect of a common enemy the pleasure of positive identification and so on But there is no consideration given to the negative dysfunctional effects which might equally well follow Thus it would be no less plausible to imagine that punishment might lead to the development of a destructive intolerance or to escalating levels of social violence neither of which could be seen as useful features Indeed George Herbert Meads classic account of The Psychology of Punitive Justice written towards the end of World War I suggests the massive social costs of this hostile ritual

Again I am not arguing here that there are no positive functional effects which flow from punishment Clearly there are But there is no reason to assume that all of its effects are of a positive nature or that the overall effect of punishment may be deemed to be healthy positive or functional Durkheims importance here does not lie in the dogmatism of his functional argument or in related concepts such as the conscience collective His importance is that he draws attention to the non-instrumental aspects of punishment - its emotional aspect its social origins its expression of values and culture and its effects beyond the relationship of controlled and controlling Durkheims conception of punishment is problematic as I and others have shown elsewhere but his work does have the virtue of directing us to aspects of the phenomenon which the power-perspective conceals from view

PUNISHMENI AS A SOCIAL INSIIIUIION

In setting up this discussion I suggested that Durkheim and Foucault might be seen as contraries out of which a third perspective might arise In fact it may be better to see their accounts as in some respects complementary since as we saw they are asking rather different questions about rather different aspects of a complex phenomenon The instrumentalities of penal power which Foucault describes always and necessarily take place within a framework of social values culture and mentaliti This contextual interrelationship is missed if one

David Garland

thinks of punishment purely in terms of state control as some Foucauldians do or as social expression as Durkheimians have done Particular styles of punishment reveal specific forms of power and strategies of control -but they also involve characteristic social values sensibilities conceptions ofjustice and social policy goals which can be missed if one insists on seeing punishment solely in terms of power

My suggestion is that we should accept both the control orientation of administration and the expressive manifestations of sentiment as forces which play a part in the process of punishment And instead of reducing one to the other or supposing that they automatically cohere we should set out to explore the relations and tensions between them In other words punishment should be understood as a set of cultural practices which supports a complex pattern of regula- tory expressive and significatory effects and any analytical approach should look for the pattern of cultural expression as well as the logic of social control

Whenever this kind of suggestion is made about any social phenom- enon the reflex response is to split it into two parts an instrumental part and a symbolic part the first part is distinctly recognizable because it is composed of material practices which get things done while the second is merely decorative or discursive and appears to have no substantive function This in turn implies a definite ranking of the two forms of analysis -one moves to symbolic analysis only if an instrumental rationale cannot be found I dont know if this distinction between instrumental and symbolic is ever very useful but it certainly isnt helpful as a way of dividing up punishment One can never separate out the instruments of punishment on the one hand and the symbols on the other in this sphere symbols have a clear practical effect - the signs of condemnation are central to pun- ishment while the instruments of practice have an inescapable cultural meaning

Instead of seeking to divide penality up into parts some of which do things and some of which say things we should realize that in the social world action always conveys meaning so that even the most mundane practice can be seen as rhetorical as well as practical Consequently we should conceive of the elements of punishment -be they laws discourses sanctions or institutional regimes - as being a condensation of instrumental purpose and rhetorical significance

It seems to me that punishment is what might be called a symbolically deep event that is to say an event which has a profound cultural resonance It is a matter of real seriousness involving notjust the state but also the wider community in matters of ultimate and common concern (which is not to say common agreement or consen- sus) and as such it evokes powerful sentiments and a rich symbolism In saying this I am well aware that punishment is nowadays delegated to professional agencies and that the public plays only a spectator role

1 1 The sociology of punishment

But this role is crucial none the less I am also aware that the appearance of high drama surrounds only a tiny minority of sanc- tions and that most sentences are an unsolemn and rather mundane affair But the same can be said of the everyday practice of a religious faith such as Christianity which can be a matter of hurried prayers the unsolemn saying of Grace and a routinized Sunday worship -though none of this denies the ultimate seriousness of religious matters Punishment works in this way Its charisma is routinized2 but it is no less real for that -and even the most routine sentences involve a ritual evocation of the symbols ofjustice

Punishment is a serious and symbolic issue in any society because it lies directly at the roots of social order as well as having a prominent place in the psychic formation and development of individual persons As regards the political order punishment operates as a sign of ultimate authority and is the final materialization of that authoritys force as such it is universal and indispensable Of course the forms of punishment are variable and the extent of punishment will depend upon the capacity of the authority to tolerate its challengers and violators and upon the maturity and sensibility of the wider culture But punishment as an institution has a minimal or last-resort necessity in any social order and an importance of which we are intuitively aware Similarly the processes of individual socialization are such that the punishment of transgression or the threat of such punishment plays a crucial part in the childs subject-formation Each of us comes to recognize the Law of the Father and the symbolic order through a process which always involves a punitive element and which generally leaves us with a continuing psychic investment in the issue23

This close connection between punishment and the order of things in social and individual experience helps us to understand why punishment is so rich in symbolic meaning and so deeply rooted in emotional needs and desires The question of punishment easily spills over into the wider problems of authority the nature of social membership questions of inclusion and exclusion in the social group It raises awkward problems of violence and its legitimacy It also highlights the limits of socialization and the importance of social institutions and in doing so it forces us all to take practical positions on intractable moral issues In each case these issues are capable of invoking deeply irrational responses as well as considered opinions They have an evocative effect of rousing channelling and domesticat- ing powerful emotion^^ which helps explain the aura of charisma which surrounds legal authorities -as well as the anti-charisma which attaches to the criminal It also helps explain why penality is caught up in all sorts of cultural and moral cross-currents which rob it of any singular purposiveness or direction Many critical accounts - includ-ing my own work -have argued that governments and political forces have found punishment to be a useful arena for ideological work If this

12 David Garland

is so -and if political movements have been able to use penal sanctions and symbols as a persuasive rhetoric in their bids for authority legitimation and hegemonic dominance - then it has been made possible by the fact that punishment is good for persuading with Ideological work in the realm of punishment can succeed in connect- ing with popular emotions and individual sentiments precisely be- cause punishment does have a deep resonance and a fundamental social importance People are in a sense that we have barely begun to understand mentally and emotionally involved in the business of punishing law-breakers - even when they delegate the actual task to institutions behind the scenes -and this is why they can be addressed by political ideologies which operate in the penal realm If we are to understand the ideological force of law and order policies or of the kind of capital punishment politics which featured in recent US elections then we have to come to terms with the cultural meaning of punishment and the emotional involvement of individuals in the process

All of this makes punishment incapable of being understood within a purely instrumental framework Myths and symbols and contra- dictory emotions form part of the cultural context within which penal policy is developed and upon which it relies for its support T h e forms and limits of penal control are thus styled by cultural demands as well as by rational strategy -and one should not assume that these amount to the same thing

It is precisely because penal institutions are so deeply embedded in cultural patterns that their practices never attain the instrumental rationality to which Bentham (and many modern penal adminis- trators) aspired T h e failure of modern punishment is in part the inevitable outcome of an overrationalized conception of its functions This conflict is not of course unique to punishment it is a feature to some degree of all social institutions But it is sufficiently apparent there to make penal practice a deeply problematic area for social policy - and an important challenge for social analysis

T h e aim of this essay has been to point out some of the complexities of this task and to point u p the limitations of some of the frameworks of inquiry currently being deployed Its conclusion is that the analysis of punishment - of its determinants and functions its forms and its effects - will demand a framework which is more flexible and multi-dimensional than that suggested by the work of Foucault or for that matter of Durkheim Since neither Foucault nor Durkheim set out to provide a comprehensive account of penality - Foucault used punishment to illustrate modern power Durkheim to get at the basis of solidarity - this is not an important criticism of their work and is not intended as such But for those of us who areconcerned to understand the social institutions of punishment and to understand them in all their complexity it should be an incentive to rethink punishment in a

13 The sociology of punishment

way which is more sensitive to its many dimensions and its inherent contradictions

(Date accepted May 1989)

This is a working paper f rom a book in progress on the sociology o f pun-ishment Versions of it have been de- livered to audiences at the University of Edinburgh the University of Toron to and the University ofCalifornia a n d I am grateful to the many individuals vho offered advice 01- criticisnl on these occasions

1 See E Durkheim The Division chf Labor in Society New York Free Press 1964 E Durkheim rLlorcclEdltcotio~tNew York Free Press 1973 E Durkheim Trvo Laws ofPenal Evolution translated by T Anthony J o n e s a n d Andrew Scull in Econorn~ and Soeirty 2(3) 1973 P

David Garland Faculty of Law

University of Edinburgh

Aiylumi ltarden City New York Doubleday-Anchor 196 1

3 See M Ignatieff A Juct iVracecrr of Pnin London Macmillan Press 1978 J Beattie Crirnr artd thr Courtc in Eieglccnd 1660-1800 Princeton New Jersey Princeton University Press 1986 M Foucault Dircif)linr ecnd P u n i ~ h London Allen Lane 1977 J Jacobs Stcttcr~illr Chicago University of Chicago Press 1977 D Melossi and hl Pavarini Tltr Priion anrl thr F(tctot London Macmillan Press 1981 S ltohen liiiotli of Sociccl Control Oxti)rd Polity Press 1983 D Garland Ptc~~iiItmrntccnd Wrlfecrr Al-dershot ltotver 1985 D Garland and P

Sorokin Sociccl and Culturctl D ~ t ~ n ~ n i c c Young (eds) T l ~ o Pozclrt to Puiliih Lon-vol 2 Cambridge Massachusetts Har- vard University Press 1937 ( Rusche a n d 0 Kirchheimer Puniehntrnt ctnd Sociul Structtcrr New York Russell and Russell 1964 S Ranulf lorccl Indig-n(etion ctnd Middle Cbrc Piycllology New York Schocken Books 1964 T Sellin Skuzrei uttd tllr Prnctl Ssctrm New York Elsevier 1976

2 See Baron d e Montesquieu The Spirit of thr Laroi Edinburgh Donaldson and Reib 1762 Gustave d e Beaumont and Alexis d e Tocqueville O n tltr Priliterl- t inq Systettt itt the Unitrd Stcctrc ltat--bondale Illinois Southern Illinois Uni- versity Press 1964 George Herber t hlead The Psychology of Punitive Jus- tice in Thr A~nericctn Jourrlctl of Sociology vol 23 no 5 191 8 pp 577-602 Harold Garfinkel Conditions of a Successful Degradation Ceremony in Thr American Journul of Sociology vol 61 March 1956 pp 420-4 Gresham Sykes Thr Society of Coptizles Princeton New Jersey Prince- ton University Press 1958 E ltoffman

d o n Heinemann 1983 T L Dunitn Dr~nocrctc~ Madison Uni- (end P~ctciihmpt~t versity of LVisconsin Press 1987 J Bender I~nccginittg thr Prrtitet~ticc~ lthi-cago University ofChicago Press 1987

4 For a range of views on these questions see the essays by A Bottolns T Mathiesen A Scull a n d S ltohen in Garland and Young (etls) T11r Pozcrr to Punish See also ( Shearing and P Stenning F~oni the Panopticon to Dis- neyworld T h e Development of Disci-pline in A Doob and E Greenspan (eds) Prrsf~rctirfrtin Criminal Lnul ~ u f o r a O n -tario Canatla Law Book Inc 1985

5 See S ltohen and A Scull (eds) Socictl Control and thr Stciti OxfOrd Basil Blackwell 1985 J Lowman et ul Trctrlc- carce~nrioi~Aldershot Gower 1987 (ar- land a n d Young (eds) The Pouwr to Punish R Harris a n d D Webb Wrlfurr Pouler aitrl Juzlrnile Justirr London Tavis- tock 1987

6 Michael Ignatieff has also criticized Foucaults tendency to think of

3 The sociology of punishment

of theoretical discussion and widened the range of work being done But precisely because the sociology of punishment is an under-developed tradition there is a danger that the influence of one powerful perspective can dominate thinking in a way which is intellectually constraining and ultimately counterproductive Already one can discern a tendency to subsume the analysis of punishment within a sceptical sociology of control in which the main concern is to reveal the ways in which punishments embody or enhance the regulatory power of the state and social institutions And while these texts are often interesting and valuable in themselves it seems to me that this particular way of seeing renders invisible many important aspects of the phenomenon The present paper is an attempt to point up some of the limitations of the perspective which has grown up in the wake of Foucaults work and to argue that an understanding of punishment will require a wider more flexible and more multi-dimensional framework than that suggested by Discipline and Punish

This Foucault-derived sociology of control will be the focus of my initial remarks in this paper I want to argue that to the extent that this literature deals with punishment and penal process it is sociologically one-sided and myopic In particular I will argue that a sociology of punishment is not reducible to a sociology of control and domination and that the latter approach tends to misrepresent the character of punishment and to close off many important questions that might be asked of it For the sake of simplicity I will focus my attack upon some of Foucaults arguments and refer to the Foucauldian conception of punishment though my target is not so much Discipline and Punish as the literature which it has spawned

I will be arguing that the Foucauldian conception of penal insti- tutions is unduly instrumental and purposive or to use his terms unduly strategic It seems to me that Foucaults work has given rise to an analytical framework which assumes in advance what one might term the control-oriented nature of modern punishment and is equipped to recognize only those elements which conform to this conception Aspects of modern punishment which appear non-utilitarian or dysfunctional with regard to control-values are either excluded from analysis or else are accounted for by reference to latent functions and concealed utilities - that is to objectives which no agency could ever calculate or deliberately orient itself towards In effect Foucaults work has tended to transform the sociology of punishment into a rather one-sided analytics of control and domi- nation The appeal of this approach is its critical force and its ability to link punishment to wider systems of control Its limitations lie in its inability to recognize what one might term the tragic aspects of punishment and its overstatement of punishments positive political utility

I will be using the work of Emile Durkheim to point up the limits of

4 David Garland

the Foucauldian conception and to suggest why general analyses of punishment have to explore the complex world of cultural sensibilities and meanings as well as the rational strategies of control agencies These cultural forces which Durkheim points to are strictly speaking non-rational non-instrumental and often mutually inconsistent so that any conception of rational penal strategy has to be thought of as a rationality within limits Durkheims work is invoked not because it is itself exemplary or preferable to Foucaults - far from it But for my purposes it can serve as a kind of expressive antithesis to Foucaults instrumentalist thesis Set u p in this way the trick is then to demonstrate how each of these dialectical opposites is incomplete without the other and then to develop a third conception which will combine their qualities and discard their limitations One obvious limitation that will need to be discarded is the dogmatic functionalism to which both Foucault and Durkheim in their different ways subscribe and I will have a word or two to say about this

I will suggest that modern punishment is a cultural as well as a strategic affair that it is a realm for the expression of social value and emotion as well as a process for asserting control And that for all its necessity as an institution and despite all our attempts to make it positive and useful it still involves a tragic and futile quality which derives from its contradictory cultural location and which ought to be recognized in analysis Our framework for analysing punishment ought thus to be geared towards interpreting the conflicting social values and sentiments which are expressed and evoked in punishment as well as to tracing instrumental strategies of penal control

PUNISHMENT A N D T H E POWER PERSPECIIVE

T h e publication of Foucaults Discipline and Punish has changed the way we think about punishment and penal institutions The effect of this book has been to stimulate a sudden and very welcome take-off in the sociology of punishment but it has also imposed a particular direction which should be recognized as such Discipline and Punish proposes a new way of thinking about punishment which tries to re-orient penological thought away from its conventional assumptions towards a new set of analytical terms It offers not so much a theory of punishment as a mode of theorizing about punishment It suggests rules for study methods of analysis and ways of seeing all of which add up to a definite style of thought which has been widely influential

Foucaults rules for the interpretation of punishment are set out clearly near the beginning of Discipline and Punish (see pp 23-4) as he is about to commence his investigation of modern penal practice They are sustained throughout all of the analyses which follow and in Foucaults handling of them they help produce some of the most

5 The sociology of punishment

trenchant and illuminating analyses of punishment ever written These rules of study are however perspectival as Foucault himself acknowledges They produce an interpretation from a particular viewpoint - from the point of view of power - and as Discipline and Punish says quite clearly other interpretations and other perspectives are also possible and may be equally illuminating T h e problem is that the success of Discipline and Punish has tended to make its perspective seem definitive and its controversial and unorthodox ideas have come to define a new orthodoxy We now think of punishment as power and notjust in terms of power A consequence of this may be to mistake a deliberately partial account (in both senses of partial) for a general one which cannot really stand on its own

Foucaults insistence is that punishment be interpreted in terms of power It is to be thought of as a set of powerlknowledge techniques situated in a field of political forces - as a set of mechanisms for administering the bodies of individuals and through them the body politic T h e history of punishment is to be understood as a chapter of political anatomy (Discipline and Punish p 28) as an expanding technology for gaining knowledge of and power over individuals so as to subject their bodies minds and actions to an imposed pattern of control Penal policy is in a profound sense a political strategy of control

This doesnt amount to a theory of punishment because Foucault makes it clear that the nature of penal practices as well as the strategies for their deployment are historically variable - in fact they tend to become more knowledgeable more powerful and more rational over time None the less we are told how to theorize this developing object we should regard punishment as a political tactic (p 23) focus upon its positive effects (p 23) conceive of it as a technology of power (p 23) Working within these rules Discipline and Punish presents us with a description of punishment as adminis- trative practice (p 8) a technique of improvement (p lo) a means for the control and transformation of behaviour (p 125) and ultimately as a set of disciplinary mechanisms (p 197)

Now if one stares hard at this framework and refuses to be distracted by its new terms and its hyper-critical tone the characteriz- ation of punishment that emerges is fairly straightforward and is developed around a single interpretive theme Foucault is insisting upon what one might call the Benthamite orientation of modern punishment He is characterizing penal institutions practices and discourses as so many instruments for the administration direction and ordering of individual conduct This notion of punishment stripped of its irrational features and oriented exclusively towards behaviour-control is precisely that which is set out by Jeremy Bentham in his Introduction to the Principles of Morals and Legislation But there is a twist Whereas Bentham set out his rationalistic control

6 David Garland

framework as an ideal to aim for and deplored the ritualistic non-utilitarian actualities of punishment Foucault proceeds as if Benthamism is in fact a deep description of the actual nature of modern penal institutions Benthams vision is taken to be a reflection of the very nature of things - we live in a Benthamite world - and Foucaults rules press us to study it accordingly

Now Foucault is never explicit about this suggestion that Benthams dream has become a reality though he plays with the idea by using the Panopticon image to characterize the nature of modern society But underlying this overblown figurative device there is a much more serious utilization of Benthams approach as the key to understanding punishment We are invited to approach the study of penal insti- tutions on the assumption that everything that occurs there is fundamentally oriented to the enhancement of control and the maximization of regulative power Everything from the practice of leniency to the creation of a recidivist delinquent class is to be seen as functional for control T h e possibility of non-utilitarian procedures irrational commitments o r dysfunctional elements is thus precluded in advance If such phenomena d o seem to occur they simply force us to look elsewhere for their function - to keep searching until we uncover their hidden utility for power

Foucaults analysis of the latent functions of the prison stands as a model of how the appearance of failure can be turned into success by this search for hidden utility He refuses to accept that a dysfunctional counter-productive institution - the prison - could survive for centuries so he asks what positive functions such futility could conceal Having put the question thus he produces an answer of sorts - the prison doesnt control the criminal it controls the working class by creating criminals It is he claims a functionally effective control device and so the idea of penality as control appears to be vindicated after all But in fact this answer as I have argued elsewhere is weak improbable and largely unsupported by evidence although it or something like it is necessitated by the logic of Foucaults approach It may well be that the prisons tendency to produce demoralized recidivist delinquents has some effect in persuading others to avoid lawbreaking or any contact with lawbreakers But any value this might have for the authorities must be weighed against the constant source of embarrassment criticism and expense caused by high recidivism rates and the escalating costs of imprisonment In the absence of any hard evidence that a strategy with these divide-and-rule objectives really does exist it would appear that Foucault is simply taking the (unintended) consequences of the prison to be its (intended) raison d2tre

T h e use of such weak argumentation shows the limits of Foucaults explanatory perspective even within his own account It is the point at which the power-perspective ceases to be a useful way of analysing

The sociology of punishment

punishment and becomes instead a liability T h e weakness of this argument and the fact that Foucault is impelled towards it by his own logic should stand as a warning to others of the limits of any single-minded style of sociological interpretation

PUNISHSIENI A N D T H E EXPRESSION O F SOCIAL SENIIMENI

In making these points I am not for a moment doubting the purposive instrumental nature of much of punishment nor the fact that penal institutions are in large part oriented towards a maximiz- ation of control Indeed one of the key questions for contemporary research is to ask - as Foucault has only partly done - how modern administrative rationality and bureaucracy have affected the way we punish today and to what extent questions of value have been displaced by questions of technical efficacyut if punishment is exclusively a utilitarian means of control it would indeed be difficult to account for many of its practices We would need to think of it as a means designed to gain an end which it hardly ever achieves -and one which is retained despite this constant failure Foucault faces this problem by stretching and straining the notion of utility I suggest we would be better advised to move away from this exclusively control- oriented conception of the problem T h e tendency to turn pun- ishment to account to make it perform useful tasks and achieve political ends is only one of the dynamics of the penal system There are other forces different dynamics which are not oriented towards a rational deployment of resources o r a maximization of useful effects other forces which are in a word non-utilitarian Indeed as Weber pointed out long ago the rational pursuit of utility always takes place within a context of value relatedness which is not rational or instrumental at all So instead of thinking of punishment as an instrumental institution which fails to achieve its ends o r else forcing an interpretation in which these failures are implausibly described as positive achievements it might be simply inappropriate to think of punishment exclusively within an ends-means framework

This is where Durkheim comes in Durkheims account of pun- ishment sets itself firmly against all rationalistic instrumentalist or utilitarian accounts For Durkheim to think of punishment as a calculated instrument for the rational control of conduct is to miss its essential character to mistake superficial form for true content T h e essence of punishment is not rationality or instrumental control -though these ends are superimposed upon it - the essence of punishment is irrational unthinking emotion Passion lies at the heart of punishment T h e urge to punish is an emotional reaction which flares u p at the violation of cherished social sentiments It is in Durkheims view a direct and powerful expression of the conscience

8 David Garland

collective relayed through the medium of all the individual consciences who compose it T h e punitive reaction is thus a defensive response grounded in the individuals sense of the sacred and triggered by any crime which violates these deeply held beliefs And although insti- tutional routines will modify these accesses of rage and strain to use them in a productive way the dynamic and motivating force of punishment is emotional and unreflecting an authentic act of outrage In Durkheims account the force and energy of punishment and its general direction thus spring from sentimental roots - from the psychic reactions commonly felt by individuals when collective sentiments are violated So although the modern state has a near- monopoly of the exercise of penal violence a much wider population feels itself to be involved in the process of punishment and supplies the context of social support and valorization within which state punishment takes place Thus where Foucault sees only two parties involved in punishment - the controllers and the controlled -Durkheim insists upon a crucial third element the onlookers whose sentiments are first outraged and then reassured T h e laws and institutions of punishment try to harness this emotional energy to graduate its expression and rationalize its effects But whatever the rationality of these institutions these mediating organised bodies as Durkheim calls them passion and social sentiment remain the soul of penality In other words it is the values and sentiments instrinsic to social relations -and the passions which are aroused when these are violated - which form the broad context within which legal pun- ishments operate These sentiments and passions help shape penal institutions giving them their form as well as their force

Durkheimian theory thus defines punishment as an expressive institution - it is a realm for the expression of social values and the release of psychic energy Strictly speaking it has no objective or intended goal It is not a means to an end It simply occurs in the nature of things It is a reaction sparked off by the violation of powerful sentiments - like the sparks that fly when someone disturbs an electric current T o bend this reaction into an ends-means orientation is to try to harness its energies and re-direct them Laws and institutional procedures try to d o this but they are never completely successful - they may graduate and modify the reaction but they dont change its essential nature

But having once set out this account emphasizing the expressive non-utilitarian roots of punishment Durkheim then introduces what I might call his paradox of higher utility For he proceeds to argue that punishment does after all achieve a definite end or objective But it is not the petty calculation of social controllers which makes punishment useful - these attempts rarely succeed in their control and reform ambitions Instead it is the common expression of outrage that turns out to have a spontaneously functional effect These outbursts of

9 The sociology of punishment

common sentiment - symbolized and celebrated in the rituals of punishment - produce an automatic solidarity a spontaneous re-affirmation of mutual beliefs and relationships which serve to strengthen the social bond

So punishment has a functionality in spite of itself Uncaring about utility it nevertheless achieves it Thanks to the hidden hand of the conscience collective the overall effect of punishment is to promote a healthy and cohesive solidarity But this assertion of positive function- ality is no more convincing and no less dogmatic than Foucaults version Durkheim offers a plausible psychological account of how useful effects might flow from punishing - through the reaffirmation of belief the unifying effect of a common enemy the pleasure of positive identification and so on But there is no consideration given to the negative dysfunctional effects which might equally well follow Thus it would be no less plausible to imagine that punishment might lead to the development of a destructive intolerance or to escalating levels of social violence neither of which could be seen as useful features Indeed George Herbert Meads classic account of The Psychology of Punitive Justice written towards the end of World War I suggests the massive social costs of this hostile ritual

Again I am not arguing here that there are no positive functional effects which flow from punishment Clearly there are But there is no reason to assume that all of its effects are of a positive nature or that the overall effect of punishment may be deemed to be healthy positive or functional Durkheims importance here does not lie in the dogmatism of his functional argument or in related concepts such as the conscience collective His importance is that he draws attention to the non-instrumental aspects of punishment - its emotional aspect its social origins its expression of values and culture and its effects beyond the relationship of controlled and controlling Durkheims conception of punishment is problematic as I and others have shown elsewhere but his work does have the virtue of directing us to aspects of the phenomenon which the power-perspective conceals from view

PUNISHMENI AS A SOCIAL INSIIIUIION

In setting up this discussion I suggested that Durkheim and Foucault might be seen as contraries out of which a third perspective might arise In fact it may be better to see their accounts as in some respects complementary since as we saw they are asking rather different questions about rather different aspects of a complex phenomenon The instrumentalities of penal power which Foucault describes always and necessarily take place within a framework of social values culture and mentaliti This contextual interrelationship is missed if one

David Garland

thinks of punishment purely in terms of state control as some Foucauldians do or as social expression as Durkheimians have done Particular styles of punishment reveal specific forms of power and strategies of control -but they also involve characteristic social values sensibilities conceptions ofjustice and social policy goals which can be missed if one insists on seeing punishment solely in terms of power

My suggestion is that we should accept both the control orientation of administration and the expressive manifestations of sentiment as forces which play a part in the process of punishment And instead of reducing one to the other or supposing that they automatically cohere we should set out to explore the relations and tensions between them In other words punishment should be understood as a set of cultural practices which supports a complex pattern of regula- tory expressive and significatory effects and any analytical approach should look for the pattern of cultural expression as well as the logic of social control

Whenever this kind of suggestion is made about any social phenom- enon the reflex response is to split it into two parts an instrumental part and a symbolic part the first part is distinctly recognizable because it is composed of material practices which get things done while the second is merely decorative or discursive and appears to have no substantive function This in turn implies a definite ranking of the two forms of analysis -one moves to symbolic analysis only if an instrumental rationale cannot be found I dont know if this distinction between instrumental and symbolic is ever very useful but it certainly isnt helpful as a way of dividing up punishment One can never separate out the instruments of punishment on the one hand and the symbols on the other in this sphere symbols have a clear practical effect - the signs of condemnation are central to pun- ishment while the instruments of practice have an inescapable cultural meaning

Instead of seeking to divide penality up into parts some of which do things and some of which say things we should realize that in the social world action always conveys meaning so that even the most mundane practice can be seen as rhetorical as well as practical Consequently we should conceive of the elements of punishment -be they laws discourses sanctions or institutional regimes - as being a condensation of instrumental purpose and rhetorical significance

It seems to me that punishment is what might be called a symbolically deep event that is to say an event which has a profound cultural resonance It is a matter of real seriousness involving notjust the state but also the wider community in matters of ultimate and common concern (which is not to say common agreement or consen- sus) and as such it evokes powerful sentiments and a rich symbolism In saying this I am well aware that punishment is nowadays delegated to professional agencies and that the public plays only a spectator role

1 1 The sociology of punishment

But this role is crucial none the less I am also aware that the appearance of high drama surrounds only a tiny minority of sanc- tions and that most sentences are an unsolemn and rather mundane affair But the same can be said of the everyday practice of a religious faith such as Christianity which can be a matter of hurried prayers the unsolemn saying of Grace and a routinized Sunday worship -though none of this denies the ultimate seriousness of religious matters Punishment works in this way Its charisma is routinized2 but it is no less real for that -and even the most routine sentences involve a ritual evocation of the symbols ofjustice

Punishment is a serious and symbolic issue in any society because it lies directly at the roots of social order as well as having a prominent place in the psychic formation and development of individual persons As regards the political order punishment operates as a sign of ultimate authority and is the final materialization of that authoritys force as such it is universal and indispensable Of course the forms of punishment are variable and the extent of punishment will depend upon the capacity of the authority to tolerate its challengers and violators and upon the maturity and sensibility of the wider culture But punishment as an institution has a minimal or last-resort necessity in any social order and an importance of which we are intuitively aware Similarly the processes of individual socialization are such that the punishment of transgression or the threat of such punishment plays a crucial part in the childs subject-formation Each of us comes to recognize the Law of the Father and the symbolic order through a process which always involves a punitive element and which generally leaves us with a continuing psychic investment in the issue23

This close connection between punishment and the order of things in social and individual experience helps us to understand why punishment is so rich in symbolic meaning and so deeply rooted in emotional needs and desires The question of punishment easily spills over into the wider problems of authority the nature of social membership questions of inclusion and exclusion in the social group It raises awkward problems of violence and its legitimacy It also highlights the limits of socialization and the importance of social institutions and in doing so it forces us all to take practical positions on intractable moral issues In each case these issues are capable of invoking deeply irrational responses as well as considered opinions They have an evocative effect of rousing channelling and domesticat- ing powerful emotion^^ which helps explain the aura of charisma which surrounds legal authorities -as well as the anti-charisma which attaches to the criminal It also helps explain why penality is caught up in all sorts of cultural and moral cross-currents which rob it of any singular purposiveness or direction Many critical accounts - includ-ing my own work -have argued that governments and political forces have found punishment to be a useful arena for ideological work If this

12 David Garland

is so -and if political movements have been able to use penal sanctions and symbols as a persuasive rhetoric in their bids for authority legitimation and hegemonic dominance - then it has been made possible by the fact that punishment is good for persuading with Ideological work in the realm of punishment can succeed in connect- ing with popular emotions and individual sentiments precisely be- cause punishment does have a deep resonance and a fundamental social importance People are in a sense that we have barely begun to understand mentally and emotionally involved in the business of punishing law-breakers - even when they delegate the actual task to institutions behind the scenes -and this is why they can be addressed by political ideologies which operate in the penal realm If we are to understand the ideological force of law and order policies or of the kind of capital punishment politics which featured in recent US elections then we have to come to terms with the cultural meaning of punishment and the emotional involvement of individuals in the process

All of this makes punishment incapable of being understood within a purely instrumental framework Myths and symbols and contra- dictory emotions form part of the cultural context within which penal policy is developed and upon which it relies for its support T h e forms and limits of penal control are thus styled by cultural demands as well as by rational strategy -and one should not assume that these amount to the same thing

It is precisely because penal institutions are so deeply embedded in cultural patterns that their practices never attain the instrumental rationality to which Bentham (and many modern penal adminis- trators) aspired T h e failure of modern punishment is in part the inevitable outcome of an overrationalized conception of its functions This conflict is not of course unique to punishment it is a feature to some degree of all social institutions But it is sufficiently apparent there to make penal practice a deeply problematic area for social policy - and an important challenge for social analysis

T h e aim of this essay has been to point out some of the complexities of this task and to point u p the limitations of some of the frameworks of inquiry currently being deployed Its conclusion is that the analysis of punishment - of its determinants and functions its forms and its effects - will demand a framework which is more flexible and multi-dimensional than that suggested by the work of Foucault or for that matter of Durkheim Since neither Foucault nor Durkheim set out to provide a comprehensive account of penality - Foucault used punishment to illustrate modern power Durkheim to get at the basis of solidarity - this is not an important criticism of their work and is not intended as such But for those of us who areconcerned to understand the social institutions of punishment and to understand them in all their complexity it should be an incentive to rethink punishment in a

13 The sociology of punishment

way which is more sensitive to its many dimensions and its inherent contradictions

(Date accepted May 1989)

This is a working paper f rom a book in progress on the sociology o f pun-ishment Versions of it have been de- livered to audiences at the University of Edinburgh the University of Toron to and the University ofCalifornia a n d I am grateful to the many individuals vho offered advice 01- criticisnl on these occasions

1 See E Durkheim The Division chf Labor in Society New York Free Press 1964 E Durkheim rLlorcclEdltcotio~tNew York Free Press 1973 E Durkheim Trvo Laws ofPenal Evolution translated by T Anthony J o n e s a n d Andrew Scull in Econorn~ and Soeirty 2(3) 1973 P

David Garland Faculty of Law

University of Edinburgh

Aiylumi ltarden City New York Doubleday-Anchor 196 1

3 See M Ignatieff A Juct iVracecrr of Pnin London Macmillan Press 1978 J Beattie Crirnr artd thr Courtc in Eieglccnd 1660-1800 Princeton New Jersey Princeton University Press 1986 M Foucault Dircif)linr ecnd P u n i ~ h London Allen Lane 1977 J Jacobs Stcttcr~illr Chicago University of Chicago Press 1977 D Melossi and hl Pavarini Tltr Priion anrl thr F(tctot London Macmillan Press 1981 S ltohen liiiotli of Sociccl Control Oxti)rd Polity Press 1983 D Garland Ptc~~iiItmrntccnd Wrlfecrr Al-dershot ltotver 1985 D Garland and P

Sorokin Sociccl and Culturctl D ~ t ~ n ~ n i c c Young (eds) T l ~ o Pozclrt to Puiliih Lon-vol 2 Cambridge Massachusetts Har- vard University Press 1937 ( Rusche a n d 0 Kirchheimer Puniehntrnt ctnd Sociul Structtcrr New York Russell and Russell 1964 S Ranulf lorccl Indig-n(etion ctnd Middle Cbrc Piycllology New York Schocken Books 1964 T Sellin Skuzrei uttd tllr Prnctl Ssctrm New York Elsevier 1976

2 See Baron d e Montesquieu The Spirit of thr Laroi Edinburgh Donaldson and Reib 1762 Gustave d e Beaumont and Alexis d e Tocqueville O n tltr Priliterl- t inq Systettt itt the Unitrd Stcctrc ltat--bondale Illinois Southern Illinois Uni- versity Press 1964 George Herber t hlead The Psychology of Punitive Jus- tice in Thr A~nericctn Jourrlctl of Sociology vol 23 no 5 191 8 pp 577-602 Harold Garfinkel Conditions of a Successful Degradation Ceremony in Thr American Journul of Sociology vol 61 March 1956 pp 420-4 Gresham Sykes Thr Society of Coptizles Princeton New Jersey Prince- ton University Press 1958 E ltoffman

d o n Heinemann 1983 T L Dunitn Dr~nocrctc~ Madison Uni- (end P~ctciihmpt~t versity of LVisconsin Press 1987 J Bender I~nccginittg thr Prrtitet~ticc~ lthi-cago University ofChicago Press 1987

4 For a range of views on these questions see the essays by A Bottolns T Mathiesen A Scull a n d S ltohen in Garland and Young (etls) T11r Pozcrr to Punish See also ( Shearing and P Stenning F~oni the Panopticon to Dis- neyworld T h e Development of Disci-pline in A Doob and E Greenspan (eds) Prrsf~rctirfrtin Criminal Lnul ~ u f o r a O n -tario Canatla Law Book Inc 1985

5 See S ltohen and A Scull (eds) Socictl Control and thr Stciti OxfOrd Basil Blackwell 1985 J Lowman et ul Trctrlc- carce~nrioi~Aldershot Gower 1987 (ar- land a n d Young (eds) The Pouwr to Punish R Harris a n d D Webb Wrlfurr Pouler aitrl Juzlrnile Justirr London Tavis- tock 1987

6 Michael Ignatieff has also criticized Foucaults tendency to think of

4 David Garland

the Foucauldian conception and to suggest why general analyses of punishment have to explore the complex world of cultural sensibilities and meanings as well as the rational strategies of control agencies These cultural forces which Durkheim points to are strictly speaking non-rational non-instrumental and often mutually inconsistent so that any conception of rational penal strategy has to be thought of as a rationality within limits Durkheims work is invoked not because it is itself exemplary or preferable to Foucaults - far from it But for my purposes it can serve as a kind of expressive antithesis to Foucaults instrumentalist thesis Set u p in this way the trick is then to demonstrate how each of these dialectical opposites is incomplete without the other and then to develop a third conception which will combine their qualities and discard their limitations One obvious limitation that will need to be discarded is the dogmatic functionalism to which both Foucault and Durkheim in their different ways subscribe and I will have a word or two to say about this

I will suggest that modern punishment is a cultural as well as a strategic affair that it is a realm for the expression of social value and emotion as well as a process for asserting control And that for all its necessity as an institution and despite all our attempts to make it positive and useful it still involves a tragic and futile quality which derives from its contradictory cultural location and which ought to be recognized in analysis Our framework for analysing punishment ought thus to be geared towards interpreting the conflicting social values and sentiments which are expressed and evoked in punishment as well as to tracing instrumental strategies of penal control

PUNISHMENT A N D T H E POWER PERSPECIIVE

T h e publication of Foucaults Discipline and Punish has changed the way we think about punishment and penal institutions The effect of this book has been to stimulate a sudden and very welcome take-off in the sociology of punishment but it has also imposed a particular direction which should be recognized as such Discipline and Punish proposes a new way of thinking about punishment which tries to re-orient penological thought away from its conventional assumptions towards a new set of analytical terms It offers not so much a theory of punishment as a mode of theorizing about punishment It suggests rules for study methods of analysis and ways of seeing all of which add up to a definite style of thought which has been widely influential

Foucaults rules for the interpretation of punishment are set out clearly near the beginning of Discipline and Punish (see pp 23-4) as he is about to commence his investigation of modern penal practice They are sustained throughout all of the analyses which follow and in Foucaults handling of them they help produce some of the most

5 The sociology of punishment

trenchant and illuminating analyses of punishment ever written These rules of study are however perspectival as Foucault himself acknowledges They produce an interpretation from a particular viewpoint - from the point of view of power - and as Discipline and Punish says quite clearly other interpretations and other perspectives are also possible and may be equally illuminating T h e problem is that the success of Discipline and Punish has tended to make its perspective seem definitive and its controversial and unorthodox ideas have come to define a new orthodoxy We now think of punishment as power and notjust in terms of power A consequence of this may be to mistake a deliberately partial account (in both senses of partial) for a general one which cannot really stand on its own

Foucaults insistence is that punishment be interpreted in terms of power It is to be thought of as a set of powerlknowledge techniques situated in a field of political forces - as a set of mechanisms for administering the bodies of individuals and through them the body politic T h e history of punishment is to be understood as a chapter of political anatomy (Discipline and Punish p 28) as an expanding technology for gaining knowledge of and power over individuals so as to subject their bodies minds and actions to an imposed pattern of control Penal policy is in a profound sense a political strategy of control

This doesnt amount to a theory of punishment because Foucault makes it clear that the nature of penal practices as well as the strategies for their deployment are historically variable - in fact they tend to become more knowledgeable more powerful and more rational over time None the less we are told how to theorize this developing object we should regard punishment as a political tactic (p 23) focus upon its positive effects (p 23) conceive of it as a technology of power (p 23) Working within these rules Discipline and Punish presents us with a description of punishment as adminis- trative practice (p 8) a technique of improvement (p lo) a means for the control and transformation of behaviour (p 125) and ultimately as a set of disciplinary mechanisms (p 197)

Now if one stares hard at this framework and refuses to be distracted by its new terms and its hyper-critical tone the characteriz- ation of punishment that emerges is fairly straightforward and is developed around a single interpretive theme Foucault is insisting upon what one might call the Benthamite orientation of modern punishment He is characterizing penal institutions practices and discourses as so many instruments for the administration direction and ordering of individual conduct This notion of punishment stripped of its irrational features and oriented exclusively towards behaviour-control is precisely that which is set out by Jeremy Bentham in his Introduction to the Principles of Morals and Legislation But there is a twist Whereas Bentham set out his rationalistic control

6 David Garland

framework as an ideal to aim for and deplored the ritualistic non-utilitarian actualities of punishment Foucault proceeds as if Benthamism is in fact a deep description of the actual nature of modern penal institutions Benthams vision is taken to be a reflection of the very nature of things - we live in a Benthamite world - and Foucaults rules press us to study it accordingly

Now Foucault is never explicit about this suggestion that Benthams dream has become a reality though he plays with the idea by using the Panopticon image to characterize the nature of modern society But underlying this overblown figurative device there is a much more serious utilization of Benthams approach as the key to understanding punishment We are invited to approach the study of penal insti- tutions on the assumption that everything that occurs there is fundamentally oriented to the enhancement of control and the maximization of regulative power Everything from the practice of leniency to the creation of a recidivist delinquent class is to be seen as functional for control T h e possibility of non-utilitarian procedures irrational commitments o r dysfunctional elements is thus precluded in advance If such phenomena d o seem to occur they simply force us to look elsewhere for their function - to keep searching until we uncover their hidden utility for power

Foucaults analysis of the latent functions of the prison stands as a model of how the appearance of failure can be turned into success by this search for hidden utility He refuses to accept that a dysfunctional counter-productive institution - the prison - could survive for centuries so he asks what positive functions such futility could conceal Having put the question thus he produces an answer of sorts - the prison doesnt control the criminal it controls the working class by creating criminals It is he claims a functionally effective control device and so the idea of penality as control appears to be vindicated after all But in fact this answer as I have argued elsewhere is weak improbable and largely unsupported by evidence although it or something like it is necessitated by the logic of Foucaults approach It may well be that the prisons tendency to produce demoralized recidivist delinquents has some effect in persuading others to avoid lawbreaking or any contact with lawbreakers But any value this might have for the authorities must be weighed against the constant source of embarrassment criticism and expense caused by high recidivism rates and the escalating costs of imprisonment In the absence of any hard evidence that a strategy with these divide-and-rule objectives really does exist it would appear that Foucault is simply taking the (unintended) consequences of the prison to be its (intended) raison d2tre

T h e use of such weak argumentation shows the limits of Foucaults explanatory perspective even within his own account It is the point at which the power-perspective ceases to be a useful way of analysing

The sociology of punishment

punishment and becomes instead a liability T h e weakness of this argument and the fact that Foucault is impelled towards it by his own logic should stand as a warning to others of the limits of any single-minded style of sociological interpretation

PUNISHSIENI A N D T H E EXPRESSION O F SOCIAL SENIIMENI

In making these points I am not for a moment doubting the purposive instrumental nature of much of punishment nor the fact that penal institutions are in large part oriented towards a maximiz- ation of control Indeed one of the key questions for contemporary research is to ask - as Foucault has only partly done - how modern administrative rationality and bureaucracy have affected the way we punish today and to what extent questions of value have been displaced by questions of technical efficacyut if punishment is exclusively a utilitarian means of control it would indeed be difficult to account for many of its practices We would need to think of it as a means designed to gain an end which it hardly ever achieves -and one which is retained despite this constant failure Foucault faces this problem by stretching and straining the notion of utility I suggest we would be better advised to move away from this exclusively control- oriented conception of the problem T h e tendency to turn pun- ishment to account to make it perform useful tasks and achieve political ends is only one of the dynamics of the penal system There are other forces different dynamics which are not oriented towards a rational deployment of resources o r a maximization of useful effects other forces which are in a word non-utilitarian Indeed as Weber pointed out long ago the rational pursuit of utility always takes place within a context of value relatedness which is not rational or instrumental at all So instead of thinking of punishment as an instrumental institution which fails to achieve its ends o r else forcing an interpretation in which these failures are implausibly described as positive achievements it might be simply inappropriate to think of punishment exclusively within an ends-means framework

This is where Durkheim comes in Durkheims account of pun- ishment sets itself firmly against all rationalistic instrumentalist or utilitarian accounts For Durkheim to think of punishment as a calculated instrument for the rational control of conduct is to miss its essential character to mistake superficial form for true content T h e essence of punishment is not rationality or instrumental control -though these ends are superimposed upon it - the essence of punishment is irrational unthinking emotion Passion lies at the heart of punishment T h e urge to punish is an emotional reaction which flares u p at the violation of cherished social sentiments It is in Durkheims view a direct and powerful expression of the conscience

8 David Garland

collective relayed through the medium of all the individual consciences who compose it T h e punitive reaction is thus a defensive response grounded in the individuals sense of the sacred and triggered by any crime which violates these deeply held beliefs And although insti- tutional routines will modify these accesses of rage and strain to use them in a productive way the dynamic and motivating force of punishment is emotional and unreflecting an authentic act of outrage In Durkheims account the force and energy of punishment and its general direction thus spring from sentimental roots - from the psychic reactions commonly felt by individuals when collective sentiments are violated So although the modern state has a near- monopoly of the exercise of penal violence a much wider population feels itself to be involved in the process of punishment and supplies the context of social support and valorization within which state punishment takes place Thus where Foucault sees only two parties involved in punishment - the controllers and the controlled -Durkheim insists upon a crucial third element the onlookers whose sentiments are first outraged and then reassured T h e laws and institutions of punishment try to harness this emotional energy to graduate its expression and rationalize its effects But whatever the rationality of these institutions these mediating organised bodies as Durkheim calls them passion and social sentiment remain the soul of penality In other words it is the values and sentiments instrinsic to social relations -and the passions which are aroused when these are violated - which form the broad context within which legal pun- ishments operate These sentiments and passions help shape penal institutions giving them their form as well as their force

Durkheimian theory thus defines punishment as an expressive institution - it is a realm for the expression of social values and the release of psychic energy Strictly speaking it has no objective or intended goal It is not a means to an end It simply occurs in the nature of things It is a reaction sparked off by the violation of powerful sentiments - like the sparks that fly when someone disturbs an electric current T o bend this reaction into an ends-means orientation is to try to harness its energies and re-direct them Laws and institutional procedures try to d o this but they are never completely successful - they may graduate and modify the reaction but they dont change its essential nature

But having once set out this account emphasizing the expressive non-utilitarian roots of punishment Durkheim then introduces what I might call his paradox of higher utility For he proceeds to argue that punishment does after all achieve a definite end or objective But it is not the petty calculation of social controllers which makes punishment useful - these attempts rarely succeed in their control and reform ambitions Instead it is the common expression of outrage that turns out to have a spontaneously functional effect These outbursts of

9 The sociology of punishment

common sentiment - symbolized and celebrated in the rituals of punishment - produce an automatic solidarity a spontaneous re-affirmation of mutual beliefs and relationships which serve to strengthen the social bond

So punishment has a functionality in spite of itself Uncaring about utility it nevertheless achieves it Thanks to the hidden hand of the conscience collective the overall effect of punishment is to promote a healthy and cohesive solidarity But this assertion of positive function- ality is no more convincing and no less dogmatic than Foucaults version Durkheim offers a plausible psychological account of how useful effects might flow from punishing - through the reaffirmation of belief the unifying effect of a common enemy the pleasure of positive identification and so on But there is no consideration given to the negative dysfunctional effects which might equally well follow Thus it would be no less plausible to imagine that punishment might lead to the development of a destructive intolerance or to escalating levels of social violence neither of which could be seen as useful features Indeed George Herbert Meads classic account of The Psychology of Punitive Justice written towards the end of World War I suggests the massive social costs of this hostile ritual

Again I am not arguing here that there are no positive functional effects which flow from punishment Clearly there are But there is no reason to assume that all of its effects are of a positive nature or that the overall effect of punishment may be deemed to be healthy positive or functional Durkheims importance here does not lie in the dogmatism of his functional argument or in related concepts such as the conscience collective His importance is that he draws attention to the non-instrumental aspects of punishment - its emotional aspect its social origins its expression of values and culture and its effects beyond the relationship of controlled and controlling Durkheims conception of punishment is problematic as I and others have shown elsewhere but his work does have the virtue of directing us to aspects of the phenomenon which the power-perspective conceals from view

PUNISHMENI AS A SOCIAL INSIIIUIION

In setting up this discussion I suggested that Durkheim and Foucault might be seen as contraries out of which a third perspective might arise In fact it may be better to see their accounts as in some respects complementary since as we saw they are asking rather different questions about rather different aspects of a complex phenomenon The instrumentalities of penal power which Foucault describes always and necessarily take place within a framework of social values culture and mentaliti This contextual interrelationship is missed if one

David Garland

thinks of punishment purely in terms of state control as some Foucauldians do or as social expression as Durkheimians have done Particular styles of punishment reveal specific forms of power and strategies of control -but they also involve characteristic social values sensibilities conceptions ofjustice and social policy goals which can be missed if one insists on seeing punishment solely in terms of power

My suggestion is that we should accept both the control orientation of administration and the expressive manifestations of sentiment as forces which play a part in the process of punishment And instead of reducing one to the other or supposing that they automatically cohere we should set out to explore the relations and tensions between them In other words punishment should be understood as a set of cultural practices which supports a complex pattern of regula- tory expressive and significatory effects and any analytical approach should look for the pattern of cultural expression as well as the logic of social control

Whenever this kind of suggestion is made about any social phenom- enon the reflex response is to split it into two parts an instrumental part and a symbolic part the first part is distinctly recognizable because it is composed of material practices which get things done while the second is merely decorative or discursive and appears to have no substantive function This in turn implies a definite ranking of the two forms of analysis -one moves to symbolic analysis only if an instrumental rationale cannot be found I dont know if this distinction between instrumental and symbolic is ever very useful but it certainly isnt helpful as a way of dividing up punishment One can never separate out the instruments of punishment on the one hand and the symbols on the other in this sphere symbols have a clear practical effect - the signs of condemnation are central to pun- ishment while the instruments of practice have an inescapable cultural meaning

Instead of seeking to divide penality up into parts some of which do things and some of which say things we should realize that in the social world action always conveys meaning so that even the most mundane practice can be seen as rhetorical as well as practical Consequently we should conceive of the elements of punishment -be they laws discourses sanctions or institutional regimes - as being a condensation of instrumental purpose and rhetorical significance

It seems to me that punishment is what might be called a symbolically deep event that is to say an event which has a profound cultural resonance It is a matter of real seriousness involving notjust the state but also the wider community in matters of ultimate and common concern (which is not to say common agreement or consen- sus) and as such it evokes powerful sentiments and a rich symbolism In saying this I am well aware that punishment is nowadays delegated to professional agencies and that the public plays only a spectator role

1 1 The sociology of punishment

But this role is crucial none the less I am also aware that the appearance of high drama surrounds only a tiny minority of sanc- tions and that most sentences are an unsolemn and rather mundane affair But the same can be said of the everyday practice of a religious faith such as Christianity which can be a matter of hurried prayers the unsolemn saying of Grace and a routinized Sunday worship -though none of this denies the ultimate seriousness of religious matters Punishment works in this way Its charisma is routinized2 but it is no less real for that -and even the most routine sentences involve a ritual evocation of the symbols ofjustice

Punishment is a serious and symbolic issue in any society because it lies directly at the roots of social order as well as having a prominent place in the psychic formation and development of individual persons As regards the political order punishment operates as a sign of ultimate authority and is the final materialization of that authoritys force as such it is universal and indispensable Of course the forms of punishment are variable and the extent of punishment will depend upon the capacity of the authority to tolerate its challengers and violators and upon the maturity and sensibility of the wider culture But punishment as an institution has a minimal or last-resort necessity in any social order and an importance of which we are intuitively aware Similarly the processes of individual socialization are such that the punishment of transgression or the threat of such punishment plays a crucial part in the childs subject-formation Each of us comes to recognize the Law of the Father and the symbolic order through a process which always involves a punitive element and which generally leaves us with a continuing psychic investment in the issue23

This close connection between punishment and the order of things in social and individual experience helps us to understand why punishment is so rich in symbolic meaning and so deeply rooted in emotional needs and desires The question of punishment easily spills over into the wider problems of authority the nature of social membership questions of inclusion and exclusion in the social group It raises awkward problems of violence and its legitimacy It also highlights the limits of socialization and the importance of social institutions and in doing so it forces us all to take practical positions on intractable moral issues In each case these issues are capable of invoking deeply irrational responses as well as considered opinions They have an evocative effect of rousing channelling and domesticat- ing powerful emotion^^ which helps explain the aura of charisma which surrounds legal authorities -as well as the anti-charisma which attaches to the criminal It also helps explain why penality is caught up in all sorts of cultural and moral cross-currents which rob it of any singular purposiveness or direction Many critical accounts - includ-ing my own work -have argued that governments and political forces have found punishment to be a useful arena for ideological work If this

12 David Garland

is so -and if political movements have been able to use penal sanctions and symbols as a persuasive rhetoric in their bids for authority legitimation and hegemonic dominance - then it has been made possible by the fact that punishment is good for persuading with Ideological work in the realm of punishment can succeed in connect- ing with popular emotions and individual sentiments precisely be- cause punishment does have a deep resonance and a fundamental social importance People are in a sense that we have barely begun to understand mentally and emotionally involved in the business of punishing law-breakers - even when they delegate the actual task to institutions behind the scenes -and this is why they can be addressed by political ideologies which operate in the penal realm If we are to understand the ideological force of law and order policies or of the kind of capital punishment politics which featured in recent US elections then we have to come to terms with the cultural meaning of punishment and the emotional involvement of individuals in the process

All of this makes punishment incapable of being understood within a purely instrumental framework Myths and symbols and contra- dictory emotions form part of the cultural context within which penal policy is developed and upon which it relies for its support T h e forms and limits of penal control are thus styled by cultural demands as well as by rational strategy -and one should not assume that these amount to the same thing

It is precisely because penal institutions are so deeply embedded in cultural patterns that their practices never attain the instrumental rationality to which Bentham (and many modern penal adminis- trators) aspired T h e failure of modern punishment is in part the inevitable outcome of an overrationalized conception of its functions This conflict is not of course unique to punishment it is a feature to some degree of all social institutions But it is sufficiently apparent there to make penal practice a deeply problematic area for social policy - and an important challenge for social analysis

T h e aim of this essay has been to point out some of the complexities of this task and to point u p the limitations of some of the frameworks of inquiry currently being deployed Its conclusion is that the analysis of punishment - of its determinants and functions its forms and its effects - will demand a framework which is more flexible and multi-dimensional than that suggested by the work of Foucault or for that matter of Durkheim Since neither Foucault nor Durkheim set out to provide a comprehensive account of penality - Foucault used punishment to illustrate modern power Durkheim to get at the basis of solidarity - this is not an important criticism of their work and is not intended as such But for those of us who areconcerned to understand the social institutions of punishment and to understand them in all their complexity it should be an incentive to rethink punishment in a

13 The sociology of punishment

way which is more sensitive to its many dimensions and its inherent contradictions

(Date accepted May 1989)

This is a working paper f rom a book in progress on the sociology o f pun-ishment Versions of it have been de- livered to audiences at the University of Edinburgh the University of Toron to and the University ofCalifornia a n d I am grateful to the many individuals vho offered advice 01- criticisnl on these occasions

1 See E Durkheim The Division chf Labor in Society New York Free Press 1964 E Durkheim rLlorcclEdltcotio~tNew York Free Press 1973 E Durkheim Trvo Laws ofPenal Evolution translated by T Anthony J o n e s a n d Andrew Scull in Econorn~ and Soeirty 2(3) 1973 P

David Garland Faculty of Law

University of Edinburgh

Aiylumi ltarden City New York Doubleday-Anchor 196 1

3 See M Ignatieff A Juct iVracecrr of Pnin London Macmillan Press 1978 J Beattie Crirnr artd thr Courtc in Eieglccnd 1660-1800 Princeton New Jersey Princeton University Press 1986 M Foucault Dircif)linr ecnd P u n i ~ h London Allen Lane 1977 J Jacobs Stcttcr~illr Chicago University of Chicago Press 1977 D Melossi and hl Pavarini Tltr Priion anrl thr F(tctot London Macmillan Press 1981 S ltohen liiiotli of Sociccl Control Oxti)rd Polity Press 1983 D Garland Ptc~~iiItmrntccnd Wrlfecrr Al-dershot ltotver 1985 D Garland and P

Sorokin Sociccl and Culturctl D ~ t ~ n ~ n i c c Young (eds) T l ~ o Pozclrt to Puiliih Lon-vol 2 Cambridge Massachusetts Har- vard University Press 1937 ( Rusche a n d 0 Kirchheimer Puniehntrnt ctnd Sociul Structtcrr New York Russell and Russell 1964 S Ranulf lorccl Indig-n(etion ctnd Middle Cbrc Piycllology New York Schocken Books 1964 T Sellin Skuzrei uttd tllr Prnctl Ssctrm New York Elsevier 1976

2 See Baron d e Montesquieu The Spirit of thr Laroi Edinburgh Donaldson and Reib 1762 Gustave d e Beaumont and Alexis d e Tocqueville O n tltr Priliterl- t inq Systettt itt the Unitrd Stcctrc ltat--bondale Illinois Southern Illinois Uni- versity Press 1964 George Herber t hlead The Psychology of Punitive Jus- tice in Thr A~nericctn Jourrlctl of Sociology vol 23 no 5 191 8 pp 577-602 Harold Garfinkel Conditions of a Successful Degradation Ceremony in Thr American Journul of Sociology vol 61 March 1956 pp 420-4 Gresham Sykes Thr Society of Coptizles Princeton New Jersey Prince- ton University Press 1958 E ltoffman

d o n Heinemann 1983 T L Dunitn Dr~nocrctc~ Madison Uni- (end P~ctciihmpt~t versity of LVisconsin Press 1987 J Bender I~nccginittg thr Prrtitet~ticc~ lthi-cago University ofChicago Press 1987

4 For a range of views on these questions see the essays by A Bottolns T Mathiesen A Scull a n d S ltohen in Garland and Young (etls) T11r Pozcrr to Punish See also ( Shearing and P Stenning F~oni the Panopticon to Dis- neyworld T h e Development of Disci-pline in A Doob and E Greenspan (eds) Prrsf~rctirfrtin Criminal Lnul ~ u f o r a O n -tario Canatla Law Book Inc 1985

5 See S ltohen and A Scull (eds) Socictl Control and thr Stciti OxfOrd Basil Blackwell 1985 J Lowman et ul Trctrlc- carce~nrioi~Aldershot Gower 1987 (ar- land a n d Young (eds) The Pouwr to Punish R Harris a n d D Webb Wrlfurr Pouler aitrl Juzlrnile Justirr London Tavis- tock 1987

6 Michael Ignatieff has also criticized Foucaults tendency to think of

5 The sociology of punishment

trenchant and illuminating analyses of punishment ever written These rules of study are however perspectival as Foucault himself acknowledges They produce an interpretation from a particular viewpoint - from the point of view of power - and as Discipline and Punish says quite clearly other interpretations and other perspectives are also possible and may be equally illuminating T h e problem is that the success of Discipline and Punish has tended to make its perspective seem definitive and its controversial and unorthodox ideas have come to define a new orthodoxy We now think of punishment as power and notjust in terms of power A consequence of this may be to mistake a deliberately partial account (in both senses of partial) for a general one which cannot really stand on its own

Foucaults insistence is that punishment be interpreted in terms of power It is to be thought of as a set of powerlknowledge techniques situated in a field of political forces - as a set of mechanisms for administering the bodies of individuals and through them the body politic T h e history of punishment is to be understood as a chapter of political anatomy (Discipline and Punish p 28) as an expanding technology for gaining knowledge of and power over individuals so as to subject their bodies minds and actions to an imposed pattern of control Penal policy is in a profound sense a political strategy of control

This doesnt amount to a theory of punishment because Foucault makes it clear that the nature of penal practices as well as the strategies for their deployment are historically variable - in fact they tend to become more knowledgeable more powerful and more rational over time None the less we are told how to theorize this developing object we should regard punishment as a political tactic (p 23) focus upon its positive effects (p 23) conceive of it as a technology of power (p 23) Working within these rules Discipline and Punish presents us with a description of punishment as adminis- trative practice (p 8) a technique of improvement (p lo) a means for the control and transformation of behaviour (p 125) and ultimately as a set of disciplinary mechanisms (p 197)

Now if one stares hard at this framework and refuses to be distracted by its new terms and its hyper-critical tone the characteriz- ation of punishment that emerges is fairly straightforward and is developed around a single interpretive theme Foucault is insisting upon what one might call the Benthamite orientation of modern punishment He is characterizing penal institutions practices and discourses as so many instruments for the administration direction and ordering of individual conduct This notion of punishment stripped of its irrational features and oriented exclusively towards behaviour-control is precisely that which is set out by Jeremy Bentham in his Introduction to the Principles of Morals and Legislation But there is a twist Whereas Bentham set out his rationalistic control

6 David Garland

framework as an ideal to aim for and deplored the ritualistic non-utilitarian actualities of punishment Foucault proceeds as if Benthamism is in fact a deep description of the actual nature of modern penal institutions Benthams vision is taken to be a reflection of the very nature of things - we live in a Benthamite world - and Foucaults rules press us to study it accordingly

Now Foucault is never explicit about this suggestion that Benthams dream has become a reality though he plays with the idea by using the Panopticon image to characterize the nature of modern society But underlying this overblown figurative device there is a much more serious utilization of Benthams approach as the key to understanding punishment We are invited to approach the study of penal insti- tutions on the assumption that everything that occurs there is fundamentally oriented to the enhancement of control and the maximization of regulative power Everything from the practice of leniency to the creation of a recidivist delinquent class is to be seen as functional for control T h e possibility of non-utilitarian procedures irrational commitments o r dysfunctional elements is thus precluded in advance If such phenomena d o seem to occur they simply force us to look elsewhere for their function - to keep searching until we uncover their hidden utility for power

Foucaults analysis of the latent functions of the prison stands as a model of how the appearance of failure can be turned into success by this search for hidden utility He refuses to accept that a dysfunctional counter-productive institution - the prison - could survive for centuries so he asks what positive functions such futility could conceal Having put the question thus he produces an answer of sorts - the prison doesnt control the criminal it controls the working class by creating criminals It is he claims a functionally effective control device and so the idea of penality as control appears to be vindicated after all But in fact this answer as I have argued elsewhere is weak improbable and largely unsupported by evidence although it or something like it is necessitated by the logic of Foucaults approach It may well be that the prisons tendency to produce demoralized recidivist delinquents has some effect in persuading others to avoid lawbreaking or any contact with lawbreakers But any value this might have for the authorities must be weighed against the constant source of embarrassment criticism and expense caused by high recidivism rates and the escalating costs of imprisonment In the absence of any hard evidence that a strategy with these divide-and-rule objectives really does exist it would appear that Foucault is simply taking the (unintended) consequences of the prison to be its (intended) raison d2tre

T h e use of such weak argumentation shows the limits of Foucaults explanatory perspective even within his own account It is the point at which the power-perspective ceases to be a useful way of analysing

The sociology of punishment

punishment and becomes instead a liability T h e weakness of this argument and the fact that Foucault is impelled towards it by his own logic should stand as a warning to others of the limits of any single-minded style of sociological interpretation

PUNISHSIENI A N D T H E EXPRESSION O F SOCIAL SENIIMENI

In making these points I am not for a moment doubting the purposive instrumental nature of much of punishment nor the fact that penal institutions are in large part oriented towards a maximiz- ation of control Indeed one of the key questions for contemporary research is to ask - as Foucault has only partly done - how modern administrative rationality and bureaucracy have affected the way we punish today and to what extent questions of value have been displaced by questions of technical efficacyut if punishment is exclusively a utilitarian means of control it would indeed be difficult to account for many of its practices We would need to think of it as a means designed to gain an end which it hardly ever achieves -and one which is retained despite this constant failure Foucault faces this problem by stretching and straining the notion of utility I suggest we would be better advised to move away from this exclusively control- oriented conception of the problem T h e tendency to turn pun- ishment to account to make it perform useful tasks and achieve political ends is only one of the dynamics of the penal system There are other forces different dynamics which are not oriented towards a rational deployment of resources o r a maximization of useful effects other forces which are in a word non-utilitarian Indeed as Weber pointed out long ago the rational pursuit of utility always takes place within a context of value relatedness which is not rational or instrumental at all So instead of thinking of punishment as an instrumental institution which fails to achieve its ends o r else forcing an interpretation in which these failures are implausibly described as positive achievements it might be simply inappropriate to think of punishment exclusively within an ends-means framework

This is where Durkheim comes in Durkheims account of pun- ishment sets itself firmly against all rationalistic instrumentalist or utilitarian accounts For Durkheim to think of punishment as a calculated instrument for the rational control of conduct is to miss its essential character to mistake superficial form for true content T h e essence of punishment is not rationality or instrumental control -though these ends are superimposed upon it - the essence of punishment is irrational unthinking emotion Passion lies at the heart of punishment T h e urge to punish is an emotional reaction which flares u p at the violation of cherished social sentiments It is in Durkheims view a direct and powerful expression of the conscience

8 David Garland

collective relayed through the medium of all the individual consciences who compose it T h e punitive reaction is thus a defensive response grounded in the individuals sense of the sacred and triggered by any crime which violates these deeply held beliefs And although insti- tutional routines will modify these accesses of rage and strain to use them in a productive way the dynamic and motivating force of punishment is emotional and unreflecting an authentic act of outrage In Durkheims account the force and energy of punishment and its general direction thus spring from sentimental roots - from the psychic reactions commonly felt by individuals when collective sentiments are violated So although the modern state has a near- monopoly of the exercise of penal violence a much wider population feels itself to be involved in the process of punishment and supplies the context of social support and valorization within which state punishment takes place Thus where Foucault sees only two parties involved in punishment - the controllers and the controlled -Durkheim insists upon a crucial third element the onlookers whose sentiments are first outraged and then reassured T h e laws and institutions of punishment try to harness this emotional energy to graduate its expression and rationalize its effects But whatever the rationality of these institutions these mediating organised bodies as Durkheim calls them passion and social sentiment remain the soul of penality In other words it is the values and sentiments instrinsic to social relations -and the passions which are aroused when these are violated - which form the broad context within which legal pun- ishments operate These sentiments and passions help shape penal institutions giving them their form as well as their force

Durkheimian theory thus defines punishment as an expressive institution - it is a realm for the expression of social values and the release of psychic energy Strictly speaking it has no objective or intended goal It is not a means to an end It simply occurs in the nature of things It is a reaction sparked off by the violation of powerful sentiments - like the sparks that fly when someone disturbs an electric current T o bend this reaction into an ends-means orientation is to try to harness its energies and re-direct them Laws and institutional procedures try to d o this but they are never completely successful - they may graduate and modify the reaction but they dont change its essential nature

But having once set out this account emphasizing the expressive non-utilitarian roots of punishment Durkheim then introduces what I might call his paradox of higher utility For he proceeds to argue that punishment does after all achieve a definite end or objective But it is not the petty calculation of social controllers which makes punishment useful - these attempts rarely succeed in their control and reform ambitions Instead it is the common expression of outrage that turns out to have a spontaneously functional effect These outbursts of

9 The sociology of punishment

common sentiment - symbolized and celebrated in the rituals of punishment - produce an automatic solidarity a spontaneous re-affirmation of mutual beliefs and relationships which serve to strengthen the social bond

So punishment has a functionality in spite of itself Uncaring about utility it nevertheless achieves it Thanks to the hidden hand of the conscience collective the overall effect of punishment is to promote a healthy and cohesive solidarity But this assertion of positive function- ality is no more convincing and no less dogmatic than Foucaults version Durkheim offers a plausible psychological account of how useful effects might flow from punishing - through the reaffirmation of belief the unifying effect of a common enemy the pleasure of positive identification and so on But there is no consideration given to the negative dysfunctional effects which might equally well follow Thus it would be no less plausible to imagine that punishment might lead to the development of a destructive intolerance or to escalating levels of social violence neither of which could be seen as useful features Indeed George Herbert Meads classic account of The Psychology of Punitive Justice written towards the end of World War I suggests the massive social costs of this hostile ritual

Again I am not arguing here that there are no positive functional effects which flow from punishment Clearly there are But there is no reason to assume that all of its effects are of a positive nature or that the overall effect of punishment may be deemed to be healthy positive or functional Durkheims importance here does not lie in the dogmatism of his functional argument or in related concepts such as the conscience collective His importance is that he draws attention to the non-instrumental aspects of punishment - its emotional aspect its social origins its expression of values and culture and its effects beyond the relationship of controlled and controlling Durkheims conception of punishment is problematic as I and others have shown elsewhere but his work does have the virtue of directing us to aspects of the phenomenon which the power-perspective conceals from view

PUNISHMENI AS A SOCIAL INSIIIUIION

In setting up this discussion I suggested that Durkheim and Foucault might be seen as contraries out of which a third perspective might arise In fact it may be better to see their accounts as in some respects complementary since as we saw they are asking rather different questions about rather different aspects of a complex phenomenon The instrumentalities of penal power which Foucault describes always and necessarily take place within a framework of social values culture and mentaliti This contextual interrelationship is missed if one

David Garland

thinks of punishment purely in terms of state control as some Foucauldians do or as social expression as Durkheimians have done Particular styles of punishment reveal specific forms of power and strategies of control -but they also involve characteristic social values sensibilities conceptions ofjustice and social policy goals which can be missed if one insists on seeing punishment solely in terms of power

My suggestion is that we should accept both the control orientation of administration and the expressive manifestations of sentiment as forces which play a part in the process of punishment And instead of reducing one to the other or supposing that they automatically cohere we should set out to explore the relations and tensions between them In other words punishment should be understood as a set of cultural practices which supports a complex pattern of regula- tory expressive and significatory effects and any analytical approach should look for the pattern of cultural expression as well as the logic of social control

Whenever this kind of suggestion is made about any social phenom- enon the reflex response is to split it into two parts an instrumental part and a symbolic part the first part is distinctly recognizable because it is composed of material practices which get things done while the second is merely decorative or discursive and appears to have no substantive function This in turn implies a definite ranking of the two forms of analysis -one moves to symbolic analysis only if an instrumental rationale cannot be found I dont know if this distinction between instrumental and symbolic is ever very useful but it certainly isnt helpful as a way of dividing up punishment One can never separate out the instruments of punishment on the one hand and the symbols on the other in this sphere symbols have a clear practical effect - the signs of condemnation are central to pun- ishment while the instruments of practice have an inescapable cultural meaning

Instead of seeking to divide penality up into parts some of which do things and some of which say things we should realize that in the social world action always conveys meaning so that even the most mundane practice can be seen as rhetorical as well as practical Consequently we should conceive of the elements of punishment -be they laws discourses sanctions or institutional regimes - as being a condensation of instrumental purpose and rhetorical significance

It seems to me that punishment is what might be called a symbolically deep event that is to say an event which has a profound cultural resonance It is a matter of real seriousness involving notjust the state but also the wider community in matters of ultimate and common concern (which is not to say common agreement or consen- sus) and as such it evokes powerful sentiments and a rich symbolism In saying this I am well aware that punishment is nowadays delegated to professional agencies and that the public plays only a spectator role

1 1 The sociology of punishment

But this role is crucial none the less I am also aware that the appearance of high drama surrounds only a tiny minority of sanc- tions and that most sentences are an unsolemn and rather mundane affair But the same can be said of the everyday practice of a religious faith such as Christianity which can be a matter of hurried prayers the unsolemn saying of Grace and a routinized Sunday worship -though none of this denies the ultimate seriousness of religious matters Punishment works in this way Its charisma is routinized2 but it is no less real for that -and even the most routine sentences involve a ritual evocation of the symbols ofjustice

Punishment is a serious and symbolic issue in any society because it lies directly at the roots of social order as well as having a prominent place in the psychic formation and development of individual persons As regards the political order punishment operates as a sign of ultimate authority and is the final materialization of that authoritys force as such it is universal and indispensable Of course the forms of punishment are variable and the extent of punishment will depend upon the capacity of the authority to tolerate its challengers and violators and upon the maturity and sensibility of the wider culture But punishment as an institution has a minimal or last-resort necessity in any social order and an importance of which we are intuitively aware Similarly the processes of individual socialization are such that the punishment of transgression or the threat of such punishment plays a crucial part in the childs subject-formation Each of us comes to recognize the Law of the Father and the symbolic order through a process which always involves a punitive element and which generally leaves us with a continuing psychic investment in the issue23

This close connection between punishment and the order of things in social and individual experience helps us to understand why punishment is so rich in symbolic meaning and so deeply rooted in emotional needs and desires The question of punishment easily spills over into the wider problems of authority the nature of social membership questions of inclusion and exclusion in the social group It raises awkward problems of violence and its legitimacy It also highlights the limits of socialization and the importance of social institutions and in doing so it forces us all to take practical positions on intractable moral issues In each case these issues are capable of invoking deeply irrational responses as well as considered opinions They have an evocative effect of rousing channelling and domesticat- ing powerful emotion^^ which helps explain the aura of charisma which surrounds legal authorities -as well as the anti-charisma which attaches to the criminal It also helps explain why penality is caught up in all sorts of cultural and moral cross-currents which rob it of any singular purposiveness or direction Many critical accounts - includ-ing my own work -have argued that governments and political forces have found punishment to be a useful arena for ideological work If this

12 David Garland

is so -and if political movements have been able to use penal sanctions and symbols as a persuasive rhetoric in their bids for authority legitimation and hegemonic dominance - then it has been made possible by the fact that punishment is good for persuading with Ideological work in the realm of punishment can succeed in connect- ing with popular emotions and individual sentiments precisely be- cause punishment does have a deep resonance and a fundamental social importance People are in a sense that we have barely begun to understand mentally and emotionally involved in the business of punishing law-breakers - even when they delegate the actual task to institutions behind the scenes -and this is why they can be addressed by political ideologies which operate in the penal realm If we are to understand the ideological force of law and order policies or of the kind of capital punishment politics which featured in recent US elections then we have to come to terms with the cultural meaning of punishment and the emotional involvement of individuals in the process

All of this makes punishment incapable of being understood within a purely instrumental framework Myths and symbols and contra- dictory emotions form part of the cultural context within which penal policy is developed and upon which it relies for its support T h e forms and limits of penal control are thus styled by cultural demands as well as by rational strategy -and one should not assume that these amount to the same thing

It is precisely because penal institutions are so deeply embedded in cultural patterns that their practices never attain the instrumental rationality to which Bentham (and many modern penal adminis- trators) aspired T h e failure of modern punishment is in part the inevitable outcome of an overrationalized conception of its functions This conflict is not of course unique to punishment it is a feature to some degree of all social institutions But it is sufficiently apparent there to make penal practice a deeply problematic area for social policy - and an important challenge for social analysis

T h e aim of this essay has been to point out some of the complexities of this task and to point u p the limitations of some of the frameworks of inquiry currently being deployed Its conclusion is that the analysis of punishment - of its determinants and functions its forms and its effects - will demand a framework which is more flexible and multi-dimensional than that suggested by the work of Foucault or for that matter of Durkheim Since neither Foucault nor Durkheim set out to provide a comprehensive account of penality - Foucault used punishment to illustrate modern power Durkheim to get at the basis of solidarity - this is not an important criticism of their work and is not intended as such But for those of us who areconcerned to understand the social institutions of punishment and to understand them in all their complexity it should be an incentive to rethink punishment in a

13 The sociology of punishment

way which is more sensitive to its many dimensions and its inherent contradictions

(Date accepted May 1989)

This is a working paper f rom a book in progress on the sociology o f pun-ishment Versions of it have been de- livered to audiences at the University of Edinburgh the University of Toron to and the University ofCalifornia a n d I am grateful to the many individuals vho offered advice 01- criticisnl on these occasions

1 See E Durkheim The Division chf Labor in Society New York Free Press 1964 E Durkheim rLlorcclEdltcotio~tNew York Free Press 1973 E Durkheim Trvo Laws ofPenal Evolution translated by T Anthony J o n e s a n d Andrew Scull in Econorn~ and Soeirty 2(3) 1973 P

David Garland Faculty of Law

University of Edinburgh

Aiylumi ltarden City New York Doubleday-Anchor 196 1

3 See M Ignatieff A Juct iVracecrr of Pnin London Macmillan Press 1978 J Beattie Crirnr artd thr Courtc in Eieglccnd 1660-1800 Princeton New Jersey Princeton University Press 1986 M Foucault Dircif)linr ecnd P u n i ~ h London Allen Lane 1977 J Jacobs Stcttcr~illr Chicago University of Chicago Press 1977 D Melossi and hl Pavarini Tltr Priion anrl thr F(tctot London Macmillan Press 1981 S ltohen liiiotli of Sociccl Control Oxti)rd Polity Press 1983 D Garland Ptc~~iiItmrntccnd Wrlfecrr Al-dershot ltotver 1985 D Garland and P

Sorokin Sociccl and Culturctl D ~ t ~ n ~ n i c c Young (eds) T l ~ o Pozclrt to Puiliih Lon-vol 2 Cambridge Massachusetts Har- vard University Press 1937 ( Rusche a n d 0 Kirchheimer Puniehntrnt ctnd Sociul Structtcrr New York Russell and Russell 1964 S Ranulf lorccl Indig-n(etion ctnd Middle Cbrc Piycllology New York Schocken Books 1964 T Sellin Skuzrei uttd tllr Prnctl Ssctrm New York Elsevier 1976

2 See Baron d e Montesquieu The Spirit of thr Laroi Edinburgh Donaldson and Reib 1762 Gustave d e Beaumont and Alexis d e Tocqueville O n tltr Priliterl- t inq Systettt itt the Unitrd Stcctrc ltat--bondale Illinois Southern Illinois Uni- versity Press 1964 George Herber t hlead The Psychology of Punitive Jus- tice in Thr A~nericctn Jourrlctl of Sociology vol 23 no 5 191 8 pp 577-602 Harold Garfinkel Conditions of a Successful Degradation Ceremony in Thr American Journul of Sociology vol 61 March 1956 pp 420-4 Gresham Sykes Thr Society of Coptizles Princeton New Jersey Prince- ton University Press 1958 E ltoffman

d o n Heinemann 1983 T L Dunitn Dr~nocrctc~ Madison Uni- (end P~ctciihmpt~t versity of LVisconsin Press 1987 J Bender I~nccginittg thr Prrtitet~ticc~ lthi-cago University ofChicago Press 1987

4 For a range of views on these questions see the essays by A Bottolns T Mathiesen A Scull a n d S ltohen in Garland and Young (etls) T11r Pozcrr to Punish See also ( Shearing and P Stenning F~oni the Panopticon to Dis- neyworld T h e Development of Disci-pline in A Doob and E Greenspan (eds) Prrsf~rctirfrtin Criminal Lnul ~ u f o r a O n -tario Canatla Law Book Inc 1985

5 See S ltohen and A Scull (eds) Socictl Control and thr Stciti OxfOrd Basil Blackwell 1985 J Lowman et ul Trctrlc- carce~nrioi~Aldershot Gower 1987 (ar- land a n d Young (eds) The Pouwr to Punish R Harris a n d D Webb Wrlfurr Pouler aitrl Juzlrnile Justirr London Tavis- tock 1987

6 Michael Ignatieff has also criticized Foucaults tendency to think of

6 David Garland

framework as an ideal to aim for and deplored the ritualistic non-utilitarian actualities of punishment Foucault proceeds as if Benthamism is in fact a deep description of the actual nature of modern penal institutions Benthams vision is taken to be a reflection of the very nature of things - we live in a Benthamite world - and Foucaults rules press us to study it accordingly

Now Foucault is never explicit about this suggestion that Benthams dream has become a reality though he plays with the idea by using the Panopticon image to characterize the nature of modern society But underlying this overblown figurative device there is a much more serious utilization of Benthams approach as the key to understanding punishment We are invited to approach the study of penal insti- tutions on the assumption that everything that occurs there is fundamentally oriented to the enhancement of control and the maximization of regulative power Everything from the practice of leniency to the creation of a recidivist delinquent class is to be seen as functional for control T h e possibility of non-utilitarian procedures irrational commitments o r dysfunctional elements is thus precluded in advance If such phenomena d o seem to occur they simply force us to look elsewhere for their function - to keep searching until we uncover their hidden utility for power

Foucaults analysis of the latent functions of the prison stands as a model of how the appearance of failure can be turned into success by this search for hidden utility He refuses to accept that a dysfunctional counter-productive institution - the prison - could survive for centuries so he asks what positive functions such futility could conceal Having put the question thus he produces an answer of sorts - the prison doesnt control the criminal it controls the working class by creating criminals It is he claims a functionally effective control device and so the idea of penality as control appears to be vindicated after all But in fact this answer as I have argued elsewhere is weak improbable and largely unsupported by evidence although it or something like it is necessitated by the logic of Foucaults approach It may well be that the prisons tendency to produce demoralized recidivist delinquents has some effect in persuading others to avoid lawbreaking or any contact with lawbreakers But any value this might have for the authorities must be weighed against the constant source of embarrassment criticism and expense caused by high recidivism rates and the escalating costs of imprisonment In the absence of any hard evidence that a strategy with these divide-and-rule objectives really does exist it would appear that Foucault is simply taking the (unintended) consequences of the prison to be its (intended) raison d2tre

T h e use of such weak argumentation shows the limits of Foucaults explanatory perspective even within his own account It is the point at which the power-perspective ceases to be a useful way of analysing

The sociology of punishment

punishment and becomes instead a liability T h e weakness of this argument and the fact that Foucault is impelled towards it by his own logic should stand as a warning to others of the limits of any single-minded style of sociological interpretation

PUNISHSIENI A N D T H E EXPRESSION O F SOCIAL SENIIMENI

In making these points I am not for a moment doubting the purposive instrumental nature of much of punishment nor the fact that penal institutions are in large part oriented towards a maximiz- ation of control Indeed one of the key questions for contemporary research is to ask - as Foucault has only partly done - how modern administrative rationality and bureaucracy have affected the way we punish today and to what extent questions of value have been displaced by questions of technical efficacyut if punishment is exclusively a utilitarian means of control it would indeed be difficult to account for many of its practices We would need to think of it as a means designed to gain an end which it hardly ever achieves -and one which is retained despite this constant failure Foucault faces this problem by stretching and straining the notion of utility I suggest we would be better advised to move away from this exclusively control- oriented conception of the problem T h e tendency to turn pun- ishment to account to make it perform useful tasks and achieve political ends is only one of the dynamics of the penal system There are other forces different dynamics which are not oriented towards a rational deployment of resources o r a maximization of useful effects other forces which are in a word non-utilitarian Indeed as Weber pointed out long ago the rational pursuit of utility always takes place within a context of value relatedness which is not rational or instrumental at all So instead of thinking of punishment as an instrumental institution which fails to achieve its ends o r else forcing an interpretation in which these failures are implausibly described as positive achievements it might be simply inappropriate to think of punishment exclusively within an ends-means framework

This is where Durkheim comes in Durkheims account of pun- ishment sets itself firmly against all rationalistic instrumentalist or utilitarian accounts For Durkheim to think of punishment as a calculated instrument for the rational control of conduct is to miss its essential character to mistake superficial form for true content T h e essence of punishment is not rationality or instrumental control -though these ends are superimposed upon it - the essence of punishment is irrational unthinking emotion Passion lies at the heart of punishment T h e urge to punish is an emotional reaction which flares u p at the violation of cherished social sentiments It is in Durkheims view a direct and powerful expression of the conscience

8 David Garland

collective relayed through the medium of all the individual consciences who compose it T h e punitive reaction is thus a defensive response grounded in the individuals sense of the sacred and triggered by any crime which violates these deeply held beliefs And although insti- tutional routines will modify these accesses of rage and strain to use them in a productive way the dynamic and motivating force of punishment is emotional and unreflecting an authentic act of outrage In Durkheims account the force and energy of punishment and its general direction thus spring from sentimental roots - from the psychic reactions commonly felt by individuals when collective sentiments are violated So although the modern state has a near- monopoly of the exercise of penal violence a much wider population feels itself to be involved in the process of punishment and supplies the context of social support and valorization within which state punishment takes place Thus where Foucault sees only two parties involved in punishment - the controllers and the controlled -Durkheim insists upon a crucial third element the onlookers whose sentiments are first outraged and then reassured T h e laws and institutions of punishment try to harness this emotional energy to graduate its expression and rationalize its effects But whatever the rationality of these institutions these mediating organised bodies as Durkheim calls them passion and social sentiment remain the soul of penality In other words it is the values and sentiments instrinsic to social relations -and the passions which are aroused when these are violated - which form the broad context within which legal pun- ishments operate These sentiments and passions help shape penal institutions giving them their form as well as their force

Durkheimian theory thus defines punishment as an expressive institution - it is a realm for the expression of social values and the release of psychic energy Strictly speaking it has no objective or intended goal It is not a means to an end It simply occurs in the nature of things It is a reaction sparked off by the violation of powerful sentiments - like the sparks that fly when someone disturbs an electric current T o bend this reaction into an ends-means orientation is to try to harness its energies and re-direct them Laws and institutional procedures try to d o this but they are never completely successful - they may graduate and modify the reaction but they dont change its essential nature

But having once set out this account emphasizing the expressive non-utilitarian roots of punishment Durkheim then introduces what I might call his paradox of higher utility For he proceeds to argue that punishment does after all achieve a definite end or objective But it is not the petty calculation of social controllers which makes punishment useful - these attempts rarely succeed in their control and reform ambitions Instead it is the common expression of outrage that turns out to have a spontaneously functional effect These outbursts of

9 The sociology of punishment

common sentiment - symbolized and celebrated in the rituals of punishment - produce an automatic solidarity a spontaneous re-affirmation of mutual beliefs and relationships which serve to strengthen the social bond

So punishment has a functionality in spite of itself Uncaring about utility it nevertheless achieves it Thanks to the hidden hand of the conscience collective the overall effect of punishment is to promote a healthy and cohesive solidarity But this assertion of positive function- ality is no more convincing and no less dogmatic than Foucaults version Durkheim offers a plausible psychological account of how useful effects might flow from punishing - through the reaffirmation of belief the unifying effect of a common enemy the pleasure of positive identification and so on But there is no consideration given to the negative dysfunctional effects which might equally well follow Thus it would be no less plausible to imagine that punishment might lead to the development of a destructive intolerance or to escalating levels of social violence neither of which could be seen as useful features Indeed George Herbert Meads classic account of The Psychology of Punitive Justice written towards the end of World War I suggests the massive social costs of this hostile ritual

Again I am not arguing here that there are no positive functional effects which flow from punishment Clearly there are But there is no reason to assume that all of its effects are of a positive nature or that the overall effect of punishment may be deemed to be healthy positive or functional Durkheims importance here does not lie in the dogmatism of his functional argument or in related concepts such as the conscience collective His importance is that he draws attention to the non-instrumental aspects of punishment - its emotional aspect its social origins its expression of values and culture and its effects beyond the relationship of controlled and controlling Durkheims conception of punishment is problematic as I and others have shown elsewhere but his work does have the virtue of directing us to aspects of the phenomenon which the power-perspective conceals from view

PUNISHMENI AS A SOCIAL INSIIIUIION

In setting up this discussion I suggested that Durkheim and Foucault might be seen as contraries out of which a third perspective might arise In fact it may be better to see their accounts as in some respects complementary since as we saw they are asking rather different questions about rather different aspects of a complex phenomenon The instrumentalities of penal power which Foucault describes always and necessarily take place within a framework of social values culture and mentaliti This contextual interrelationship is missed if one

David Garland

thinks of punishment purely in terms of state control as some Foucauldians do or as social expression as Durkheimians have done Particular styles of punishment reveal specific forms of power and strategies of control -but they also involve characteristic social values sensibilities conceptions ofjustice and social policy goals which can be missed if one insists on seeing punishment solely in terms of power

My suggestion is that we should accept both the control orientation of administration and the expressive manifestations of sentiment as forces which play a part in the process of punishment And instead of reducing one to the other or supposing that they automatically cohere we should set out to explore the relations and tensions between them In other words punishment should be understood as a set of cultural practices which supports a complex pattern of regula- tory expressive and significatory effects and any analytical approach should look for the pattern of cultural expression as well as the logic of social control

Whenever this kind of suggestion is made about any social phenom- enon the reflex response is to split it into two parts an instrumental part and a symbolic part the first part is distinctly recognizable because it is composed of material practices which get things done while the second is merely decorative or discursive and appears to have no substantive function This in turn implies a definite ranking of the two forms of analysis -one moves to symbolic analysis only if an instrumental rationale cannot be found I dont know if this distinction between instrumental and symbolic is ever very useful but it certainly isnt helpful as a way of dividing up punishment One can never separate out the instruments of punishment on the one hand and the symbols on the other in this sphere symbols have a clear practical effect - the signs of condemnation are central to pun- ishment while the instruments of practice have an inescapable cultural meaning

Instead of seeking to divide penality up into parts some of which do things and some of which say things we should realize that in the social world action always conveys meaning so that even the most mundane practice can be seen as rhetorical as well as practical Consequently we should conceive of the elements of punishment -be they laws discourses sanctions or institutional regimes - as being a condensation of instrumental purpose and rhetorical significance

It seems to me that punishment is what might be called a symbolically deep event that is to say an event which has a profound cultural resonance It is a matter of real seriousness involving notjust the state but also the wider community in matters of ultimate and common concern (which is not to say common agreement or consen- sus) and as such it evokes powerful sentiments and a rich symbolism In saying this I am well aware that punishment is nowadays delegated to professional agencies and that the public plays only a spectator role

1 1 The sociology of punishment

But this role is crucial none the less I am also aware that the appearance of high drama surrounds only a tiny minority of sanc- tions and that most sentences are an unsolemn and rather mundane affair But the same can be said of the everyday practice of a religious faith such as Christianity which can be a matter of hurried prayers the unsolemn saying of Grace and a routinized Sunday worship -though none of this denies the ultimate seriousness of religious matters Punishment works in this way Its charisma is routinized2 but it is no less real for that -and even the most routine sentences involve a ritual evocation of the symbols ofjustice

Punishment is a serious and symbolic issue in any society because it lies directly at the roots of social order as well as having a prominent place in the psychic formation and development of individual persons As regards the political order punishment operates as a sign of ultimate authority and is the final materialization of that authoritys force as such it is universal and indispensable Of course the forms of punishment are variable and the extent of punishment will depend upon the capacity of the authority to tolerate its challengers and violators and upon the maturity and sensibility of the wider culture But punishment as an institution has a minimal or last-resort necessity in any social order and an importance of which we are intuitively aware Similarly the processes of individual socialization are such that the punishment of transgression or the threat of such punishment plays a crucial part in the childs subject-formation Each of us comes to recognize the Law of the Father and the symbolic order through a process which always involves a punitive element and which generally leaves us with a continuing psychic investment in the issue23

This close connection between punishment and the order of things in social and individual experience helps us to understand why punishment is so rich in symbolic meaning and so deeply rooted in emotional needs and desires The question of punishment easily spills over into the wider problems of authority the nature of social membership questions of inclusion and exclusion in the social group It raises awkward problems of violence and its legitimacy It also highlights the limits of socialization and the importance of social institutions and in doing so it forces us all to take practical positions on intractable moral issues In each case these issues are capable of invoking deeply irrational responses as well as considered opinions They have an evocative effect of rousing channelling and domesticat- ing powerful emotion^^ which helps explain the aura of charisma which surrounds legal authorities -as well as the anti-charisma which attaches to the criminal It also helps explain why penality is caught up in all sorts of cultural and moral cross-currents which rob it of any singular purposiveness or direction Many critical accounts - includ-ing my own work -have argued that governments and political forces have found punishment to be a useful arena for ideological work If this

12 David Garland

is so -and if political movements have been able to use penal sanctions and symbols as a persuasive rhetoric in their bids for authority legitimation and hegemonic dominance - then it has been made possible by the fact that punishment is good for persuading with Ideological work in the realm of punishment can succeed in connect- ing with popular emotions and individual sentiments precisely be- cause punishment does have a deep resonance and a fundamental social importance People are in a sense that we have barely begun to understand mentally and emotionally involved in the business of punishing law-breakers - even when they delegate the actual task to institutions behind the scenes -and this is why they can be addressed by political ideologies which operate in the penal realm If we are to understand the ideological force of law and order policies or of the kind of capital punishment politics which featured in recent US elections then we have to come to terms with the cultural meaning of punishment and the emotional involvement of individuals in the process

All of this makes punishment incapable of being understood within a purely instrumental framework Myths and symbols and contra- dictory emotions form part of the cultural context within which penal policy is developed and upon which it relies for its support T h e forms and limits of penal control are thus styled by cultural demands as well as by rational strategy -and one should not assume that these amount to the same thing

It is precisely because penal institutions are so deeply embedded in cultural patterns that their practices never attain the instrumental rationality to which Bentham (and many modern penal adminis- trators) aspired T h e failure of modern punishment is in part the inevitable outcome of an overrationalized conception of its functions This conflict is not of course unique to punishment it is a feature to some degree of all social institutions But it is sufficiently apparent there to make penal practice a deeply problematic area for social policy - and an important challenge for social analysis

T h e aim of this essay has been to point out some of the complexities of this task and to point u p the limitations of some of the frameworks of inquiry currently being deployed Its conclusion is that the analysis of punishment - of its determinants and functions its forms and its effects - will demand a framework which is more flexible and multi-dimensional than that suggested by the work of Foucault or for that matter of Durkheim Since neither Foucault nor Durkheim set out to provide a comprehensive account of penality - Foucault used punishment to illustrate modern power Durkheim to get at the basis of solidarity - this is not an important criticism of their work and is not intended as such But for those of us who areconcerned to understand the social institutions of punishment and to understand them in all their complexity it should be an incentive to rethink punishment in a

13 The sociology of punishment

way which is more sensitive to its many dimensions and its inherent contradictions

(Date accepted May 1989)

This is a working paper f rom a book in progress on the sociology o f pun-ishment Versions of it have been de- livered to audiences at the University of Edinburgh the University of Toron to and the University ofCalifornia a n d I am grateful to the many individuals vho offered advice 01- criticisnl on these occasions

1 See E Durkheim The Division chf Labor in Society New York Free Press 1964 E Durkheim rLlorcclEdltcotio~tNew York Free Press 1973 E Durkheim Trvo Laws ofPenal Evolution translated by T Anthony J o n e s a n d Andrew Scull in Econorn~ and Soeirty 2(3) 1973 P

David Garland Faculty of Law

University of Edinburgh

Aiylumi ltarden City New York Doubleday-Anchor 196 1

3 See M Ignatieff A Juct iVracecrr of Pnin London Macmillan Press 1978 J Beattie Crirnr artd thr Courtc in Eieglccnd 1660-1800 Princeton New Jersey Princeton University Press 1986 M Foucault Dircif)linr ecnd P u n i ~ h London Allen Lane 1977 J Jacobs Stcttcr~illr Chicago University of Chicago Press 1977 D Melossi and hl Pavarini Tltr Priion anrl thr F(tctot London Macmillan Press 1981 S ltohen liiiotli of Sociccl Control Oxti)rd Polity Press 1983 D Garland Ptc~~iiItmrntccnd Wrlfecrr Al-dershot ltotver 1985 D Garland and P

Sorokin Sociccl and Culturctl D ~ t ~ n ~ n i c c Young (eds) T l ~ o Pozclrt to Puiliih Lon-vol 2 Cambridge Massachusetts Har- vard University Press 1937 ( Rusche a n d 0 Kirchheimer Puniehntrnt ctnd Sociul Structtcrr New York Russell and Russell 1964 S Ranulf lorccl Indig-n(etion ctnd Middle Cbrc Piycllology New York Schocken Books 1964 T Sellin Skuzrei uttd tllr Prnctl Ssctrm New York Elsevier 1976

2 See Baron d e Montesquieu The Spirit of thr Laroi Edinburgh Donaldson and Reib 1762 Gustave d e Beaumont and Alexis d e Tocqueville O n tltr Priliterl- t inq Systettt itt the Unitrd Stcctrc ltat--bondale Illinois Southern Illinois Uni- versity Press 1964 George Herber t hlead The Psychology of Punitive Jus- tice in Thr A~nericctn Jourrlctl of Sociology vol 23 no 5 191 8 pp 577-602 Harold Garfinkel Conditions of a Successful Degradation Ceremony in Thr American Journul of Sociology vol 61 March 1956 pp 420-4 Gresham Sykes Thr Society of Coptizles Princeton New Jersey Prince- ton University Press 1958 E ltoffman

d o n Heinemann 1983 T L Dunitn Dr~nocrctc~ Madison Uni- (end P~ctciihmpt~t versity of LVisconsin Press 1987 J Bender I~nccginittg thr Prrtitet~ticc~ lthi-cago University ofChicago Press 1987

4 For a range of views on these questions see the essays by A Bottolns T Mathiesen A Scull a n d S ltohen in Garland and Young (etls) T11r Pozcrr to Punish See also ( Shearing and P Stenning F~oni the Panopticon to Dis- neyworld T h e Development of Disci-pline in A Doob and E Greenspan (eds) Prrsf~rctirfrtin Criminal Lnul ~ u f o r a O n -tario Canatla Law Book Inc 1985

5 See S ltohen and A Scull (eds) Socictl Control and thr Stciti OxfOrd Basil Blackwell 1985 J Lowman et ul Trctrlc- carce~nrioi~Aldershot Gower 1987 (ar- land a n d Young (eds) The Pouwr to Punish R Harris a n d D Webb Wrlfurr Pouler aitrl Juzlrnile Justirr London Tavis- tock 1987

6 Michael Ignatieff has also criticized Foucaults tendency to think of

The sociology of punishment

punishment and becomes instead a liability T h e weakness of this argument and the fact that Foucault is impelled towards it by his own logic should stand as a warning to others of the limits of any single-minded style of sociological interpretation

PUNISHSIENI A N D T H E EXPRESSION O F SOCIAL SENIIMENI

In making these points I am not for a moment doubting the purposive instrumental nature of much of punishment nor the fact that penal institutions are in large part oriented towards a maximiz- ation of control Indeed one of the key questions for contemporary research is to ask - as Foucault has only partly done - how modern administrative rationality and bureaucracy have affected the way we punish today and to what extent questions of value have been displaced by questions of technical efficacyut if punishment is exclusively a utilitarian means of control it would indeed be difficult to account for many of its practices We would need to think of it as a means designed to gain an end which it hardly ever achieves -and one which is retained despite this constant failure Foucault faces this problem by stretching and straining the notion of utility I suggest we would be better advised to move away from this exclusively control- oriented conception of the problem T h e tendency to turn pun- ishment to account to make it perform useful tasks and achieve political ends is only one of the dynamics of the penal system There are other forces different dynamics which are not oriented towards a rational deployment of resources o r a maximization of useful effects other forces which are in a word non-utilitarian Indeed as Weber pointed out long ago the rational pursuit of utility always takes place within a context of value relatedness which is not rational or instrumental at all So instead of thinking of punishment as an instrumental institution which fails to achieve its ends o r else forcing an interpretation in which these failures are implausibly described as positive achievements it might be simply inappropriate to think of punishment exclusively within an ends-means framework

This is where Durkheim comes in Durkheims account of pun- ishment sets itself firmly against all rationalistic instrumentalist or utilitarian accounts For Durkheim to think of punishment as a calculated instrument for the rational control of conduct is to miss its essential character to mistake superficial form for true content T h e essence of punishment is not rationality or instrumental control -though these ends are superimposed upon it - the essence of punishment is irrational unthinking emotion Passion lies at the heart of punishment T h e urge to punish is an emotional reaction which flares u p at the violation of cherished social sentiments It is in Durkheims view a direct and powerful expression of the conscience

8 David Garland

collective relayed through the medium of all the individual consciences who compose it T h e punitive reaction is thus a defensive response grounded in the individuals sense of the sacred and triggered by any crime which violates these deeply held beliefs And although insti- tutional routines will modify these accesses of rage and strain to use them in a productive way the dynamic and motivating force of punishment is emotional and unreflecting an authentic act of outrage In Durkheims account the force and energy of punishment and its general direction thus spring from sentimental roots - from the psychic reactions commonly felt by individuals when collective sentiments are violated So although the modern state has a near- monopoly of the exercise of penal violence a much wider population feels itself to be involved in the process of punishment and supplies the context of social support and valorization within which state punishment takes place Thus where Foucault sees only two parties involved in punishment - the controllers and the controlled -Durkheim insists upon a crucial third element the onlookers whose sentiments are first outraged and then reassured T h e laws and institutions of punishment try to harness this emotional energy to graduate its expression and rationalize its effects But whatever the rationality of these institutions these mediating organised bodies as Durkheim calls them passion and social sentiment remain the soul of penality In other words it is the values and sentiments instrinsic to social relations -and the passions which are aroused when these are violated - which form the broad context within which legal pun- ishments operate These sentiments and passions help shape penal institutions giving them their form as well as their force

Durkheimian theory thus defines punishment as an expressive institution - it is a realm for the expression of social values and the release of psychic energy Strictly speaking it has no objective or intended goal It is not a means to an end It simply occurs in the nature of things It is a reaction sparked off by the violation of powerful sentiments - like the sparks that fly when someone disturbs an electric current T o bend this reaction into an ends-means orientation is to try to harness its energies and re-direct them Laws and institutional procedures try to d o this but they are never completely successful - they may graduate and modify the reaction but they dont change its essential nature

But having once set out this account emphasizing the expressive non-utilitarian roots of punishment Durkheim then introduces what I might call his paradox of higher utility For he proceeds to argue that punishment does after all achieve a definite end or objective But it is not the petty calculation of social controllers which makes punishment useful - these attempts rarely succeed in their control and reform ambitions Instead it is the common expression of outrage that turns out to have a spontaneously functional effect These outbursts of

9 The sociology of punishment

common sentiment - symbolized and celebrated in the rituals of punishment - produce an automatic solidarity a spontaneous re-affirmation of mutual beliefs and relationships which serve to strengthen the social bond

So punishment has a functionality in spite of itself Uncaring about utility it nevertheless achieves it Thanks to the hidden hand of the conscience collective the overall effect of punishment is to promote a healthy and cohesive solidarity But this assertion of positive function- ality is no more convincing and no less dogmatic than Foucaults version Durkheim offers a plausible psychological account of how useful effects might flow from punishing - through the reaffirmation of belief the unifying effect of a common enemy the pleasure of positive identification and so on But there is no consideration given to the negative dysfunctional effects which might equally well follow Thus it would be no less plausible to imagine that punishment might lead to the development of a destructive intolerance or to escalating levels of social violence neither of which could be seen as useful features Indeed George Herbert Meads classic account of The Psychology of Punitive Justice written towards the end of World War I suggests the massive social costs of this hostile ritual

Again I am not arguing here that there are no positive functional effects which flow from punishment Clearly there are But there is no reason to assume that all of its effects are of a positive nature or that the overall effect of punishment may be deemed to be healthy positive or functional Durkheims importance here does not lie in the dogmatism of his functional argument or in related concepts such as the conscience collective His importance is that he draws attention to the non-instrumental aspects of punishment - its emotional aspect its social origins its expression of values and culture and its effects beyond the relationship of controlled and controlling Durkheims conception of punishment is problematic as I and others have shown elsewhere but his work does have the virtue of directing us to aspects of the phenomenon which the power-perspective conceals from view

PUNISHMENI AS A SOCIAL INSIIIUIION

In setting up this discussion I suggested that Durkheim and Foucault might be seen as contraries out of which a third perspective might arise In fact it may be better to see their accounts as in some respects complementary since as we saw they are asking rather different questions about rather different aspects of a complex phenomenon The instrumentalities of penal power which Foucault describes always and necessarily take place within a framework of social values culture and mentaliti This contextual interrelationship is missed if one

David Garland

thinks of punishment purely in terms of state control as some Foucauldians do or as social expression as Durkheimians have done Particular styles of punishment reveal specific forms of power and strategies of control -but they also involve characteristic social values sensibilities conceptions ofjustice and social policy goals which can be missed if one insists on seeing punishment solely in terms of power

My suggestion is that we should accept both the control orientation of administration and the expressive manifestations of sentiment as forces which play a part in the process of punishment And instead of reducing one to the other or supposing that they automatically cohere we should set out to explore the relations and tensions between them In other words punishment should be understood as a set of cultural practices which supports a complex pattern of regula- tory expressive and significatory effects and any analytical approach should look for the pattern of cultural expression as well as the logic of social control

Whenever this kind of suggestion is made about any social phenom- enon the reflex response is to split it into two parts an instrumental part and a symbolic part the first part is distinctly recognizable because it is composed of material practices which get things done while the second is merely decorative or discursive and appears to have no substantive function This in turn implies a definite ranking of the two forms of analysis -one moves to symbolic analysis only if an instrumental rationale cannot be found I dont know if this distinction between instrumental and symbolic is ever very useful but it certainly isnt helpful as a way of dividing up punishment One can never separate out the instruments of punishment on the one hand and the symbols on the other in this sphere symbols have a clear practical effect - the signs of condemnation are central to pun- ishment while the instruments of practice have an inescapable cultural meaning

Instead of seeking to divide penality up into parts some of which do things and some of which say things we should realize that in the social world action always conveys meaning so that even the most mundane practice can be seen as rhetorical as well as practical Consequently we should conceive of the elements of punishment -be they laws discourses sanctions or institutional regimes - as being a condensation of instrumental purpose and rhetorical significance

It seems to me that punishment is what might be called a symbolically deep event that is to say an event which has a profound cultural resonance It is a matter of real seriousness involving notjust the state but also the wider community in matters of ultimate and common concern (which is not to say common agreement or consen- sus) and as such it evokes powerful sentiments and a rich symbolism In saying this I am well aware that punishment is nowadays delegated to professional agencies and that the public plays only a spectator role

1 1 The sociology of punishment

But this role is crucial none the less I am also aware that the appearance of high drama surrounds only a tiny minority of sanc- tions and that most sentences are an unsolemn and rather mundane affair But the same can be said of the everyday practice of a religious faith such as Christianity which can be a matter of hurried prayers the unsolemn saying of Grace and a routinized Sunday worship -though none of this denies the ultimate seriousness of religious matters Punishment works in this way Its charisma is routinized2 but it is no less real for that -and even the most routine sentences involve a ritual evocation of the symbols ofjustice

Punishment is a serious and symbolic issue in any society because it lies directly at the roots of social order as well as having a prominent place in the psychic formation and development of individual persons As regards the political order punishment operates as a sign of ultimate authority and is the final materialization of that authoritys force as such it is universal and indispensable Of course the forms of punishment are variable and the extent of punishment will depend upon the capacity of the authority to tolerate its challengers and violators and upon the maturity and sensibility of the wider culture But punishment as an institution has a minimal or last-resort necessity in any social order and an importance of which we are intuitively aware Similarly the processes of individual socialization are such that the punishment of transgression or the threat of such punishment plays a crucial part in the childs subject-formation Each of us comes to recognize the Law of the Father and the symbolic order through a process which always involves a punitive element and which generally leaves us with a continuing psychic investment in the issue23

This close connection between punishment and the order of things in social and individual experience helps us to understand why punishment is so rich in symbolic meaning and so deeply rooted in emotional needs and desires The question of punishment easily spills over into the wider problems of authority the nature of social membership questions of inclusion and exclusion in the social group It raises awkward problems of violence and its legitimacy It also highlights the limits of socialization and the importance of social institutions and in doing so it forces us all to take practical positions on intractable moral issues In each case these issues are capable of invoking deeply irrational responses as well as considered opinions They have an evocative effect of rousing channelling and domesticat- ing powerful emotion^^ which helps explain the aura of charisma which surrounds legal authorities -as well as the anti-charisma which attaches to the criminal It also helps explain why penality is caught up in all sorts of cultural and moral cross-currents which rob it of any singular purposiveness or direction Many critical accounts - includ-ing my own work -have argued that governments and political forces have found punishment to be a useful arena for ideological work If this

12 David Garland

is so -and if political movements have been able to use penal sanctions and symbols as a persuasive rhetoric in their bids for authority legitimation and hegemonic dominance - then it has been made possible by the fact that punishment is good for persuading with Ideological work in the realm of punishment can succeed in connect- ing with popular emotions and individual sentiments precisely be- cause punishment does have a deep resonance and a fundamental social importance People are in a sense that we have barely begun to understand mentally and emotionally involved in the business of punishing law-breakers - even when they delegate the actual task to institutions behind the scenes -and this is why they can be addressed by political ideologies which operate in the penal realm If we are to understand the ideological force of law and order policies or of the kind of capital punishment politics which featured in recent US elections then we have to come to terms with the cultural meaning of punishment and the emotional involvement of individuals in the process

All of this makes punishment incapable of being understood within a purely instrumental framework Myths and symbols and contra- dictory emotions form part of the cultural context within which penal policy is developed and upon which it relies for its support T h e forms and limits of penal control are thus styled by cultural demands as well as by rational strategy -and one should not assume that these amount to the same thing

It is precisely because penal institutions are so deeply embedded in cultural patterns that their practices never attain the instrumental rationality to which Bentham (and many modern penal adminis- trators) aspired T h e failure of modern punishment is in part the inevitable outcome of an overrationalized conception of its functions This conflict is not of course unique to punishment it is a feature to some degree of all social institutions But it is sufficiently apparent there to make penal practice a deeply problematic area for social policy - and an important challenge for social analysis

T h e aim of this essay has been to point out some of the complexities of this task and to point u p the limitations of some of the frameworks of inquiry currently being deployed Its conclusion is that the analysis of punishment - of its determinants and functions its forms and its effects - will demand a framework which is more flexible and multi-dimensional than that suggested by the work of Foucault or for that matter of Durkheim Since neither Foucault nor Durkheim set out to provide a comprehensive account of penality - Foucault used punishment to illustrate modern power Durkheim to get at the basis of solidarity - this is not an important criticism of their work and is not intended as such But for those of us who areconcerned to understand the social institutions of punishment and to understand them in all their complexity it should be an incentive to rethink punishment in a

13 The sociology of punishment

way which is more sensitive to its many dimensions and its inherent contradictions

(Date accepted May 1989)

This is a working paper f rom a book in progress on the sociology o f pun-ishment Versions of it have been de- livered to audiences at the University of Edinburgh the University of Toron to and the University ofCalifornia a n d I am grateful to the many individuals vho offered advice 01- criticisnl on these occasions

1 See E Durkheim The Division chf Labor in Society New York Free Press 1964 E Durkheim rLlorcclEdltcotio~tNew York Free Press 1973 E Durkheim Trvo Laws ofPenal Evolution translated by T Anthony J o n e s a n d Andrew Scull in Econorn~ and Soeirty 2(3) 1973 P

David Garland Faculty of Law

University of Edinburgh

Aiylumi ltarden City New York Doubleday-Anchor 196 1

3 See M Ignatieff A Juct iVracecrr of Pnin London Macmillan Press 1978 J Beattie Crirnr artd thr Courtc in Eieglccnd 1660-1800 Princeton New Jersey Princeton University Press 1986 M Foucault Dircif)linr ecnd P u n i ~ h London Allen Lane 1977 J Jacobs Stcttcr~illr Chicago University of Chicago Press 1977 D Melossi and hl Pavarini Tltr Priion anrl thr F(tctot London Macmillan Press 1981 S ltohen liiiotli of Sociccl Control Oxti)rd Polity Press 1983 D Garland Ptc~~iiItmrntccnd Wrlfecrr Al-dershot ltotver 1985 D Garland and P

Sorokin Sociccl and Culturctl D ~ t ~ n ~ n i c c Young (eds) T l ~ o Pozclrt to Puiliih Lon-vol 2 Cambridge Massachusetts Har- vard University Press 1937 ( Rusche a n d 0 Kirchheimer Puniehntrnt ctnd Sociul Structtcrr New York Russell and Russell 1964 S Ranulf lorccl Indig-n(etion ctnd Middle Cbrc Piycllology New York Schocken Books 1964 T Sellin Skuzrei uttd tllr Prnctl Ssctrm New York Elsevier 1976

2 See Baron d e Montesquieu The Spirit of thr Laroi Edinburgh Donaldson and Reib 1762 Gustave d e Beaumont and Alexis d e Tocqueville O n tltr Priliterl- t inq Systettt itt the Unitrd Stcctrc ltat--bondale Illinois Southern Illinois Uni- versity Press 1964 George Herber t hlead The Psychology of Punitive Jus- tice in Thr A~nericctn Jourrlctl of Sociology vol 23 no 5 191 8 pp 577-602 Harold Garfinkel Conditions of a Successful Degradation Ceremony in Thr American Journul of Sociology vol 61 March 1956 pp 420-4 Gresham Sykes Thr Society of Coptizles Princeton New Jersey Prince- ton University Press 1958 E ltoffman

d o n Heinemann 1983 T L Dunitn Dr~nocrctc~ Madison Uni- (end P~ctciihmpt~t versity of LVisconsin Press 1987 J Bender I~nccginittg thr Prrtitet~ticc~ lthi-cago University ofChicago Press 1987

4 For a range of views on these questions see the essays by A Bottolns T Mathiesen A Scull a n d S ltohen in Garland and Young (etls) T11r Pozcrr to Punish See also ( Shearing and P Stenning F~oni the Panopticon to Dis- neyworld T h e Development of Disci-pline in A Doob and E Greenspan (eds) Prrsf~rctirfrtin Criminal Lnul ~ u f o r a O n -tario Canatla Law Book Inc 1985

5 See S ltohen and A Scull (eds) Socictl Control and thr Stciti OxfOrd Basil Blackwell 1985 J Lowman et ul Trctrlc- carce~nrioi~Aldershot Gower 1987 (ar- land a n d Young (eds) The Pouwr to Punish R Harris a n d D Webb Wrlfurr Pouler aitrl Juzlrnile Justirr London Tavis- tock 1987

6 Michael Ignatieff has also criticized Foucaults tendency to think of

8 David Garland

collective relayed through the medium of all the individual consciences who compose it T h e punitive reaction is thus a defensive response grounded in the individuals sense of the sacred and triggered by any crime which violates these deeply held beliefs And although insti- tutional routines will modify these accesses of rage and strain to use them in a productive way the dynamic and motivating force of punishment is emotional and unreflecting an authentic act of outrage In Durkheims account the force and energy of punishment and its general direction thus spring from sentimental roots - from the psychic reactions commonly felt by individuals when collective sentiments are violated So although the modern state has a near- monopoly of the exercise of penal violence a much wider population feels itself to be involved in the process of punishment and supplies the context of social support and valorization within which state punishment takes place Thus where Foucault sees only two parties involved in punishment - the controllers and the controlled -Durkheim insists upon a crucial third element the onlookers whose sentiments are first outraged and then reassured T h e laws and institutions of punishment try to harness this emotional energy to graduate its expression and rationalize its effects But whatever the rationality of these institutions these mediating organised bodies as Durkheim calls them passion and social sentiment remain the soul of penality In other words it is the values and sentiments instrinsic to social relations -and the passions which are aroused when these are violated - which form the broad context within which legal pun- ishments operate These sentiments and passions help shape penal institutions giving them their form as well as their force

Durkheimian theory thus defines punishment as an expressive institution - it is a realm for the expression of social values and the release of psychic energy Strictly speaking it has no objective or intended goal It is not a means to an end It simply occurs in the nature of things It is a reaction sparked off by the violation of powerful sentiments - like the sparks that fly when someone disturbs an electric current T o bend this reaction into an ends-means orientation is to try to harness its energies and re-direct them Laws and institutional procedures try to d o this but they are never completely successful - they may graduate and modify the reaction but they dont change its essential nature

But having once set out this account emphasizing the expressive non-utilitarian roots of punishment Durkheim then introduces what I might call his paradox of higher utility For he proceeds to argue that punishment does after all achieve a definite end or objective But it is not the petty calculation of social controllers which makes punishment useful - these attempts rarely succeed in their control and reform ambitions Instead it is the common expression of outrage that turns out to have a spontaneously functional effect These outbursts of

9 The sociology of punishment

common sentiment - symbolized and celebrated in the rituals of punishment - produce an automatic solidarity a spontaneous re-affirmation of mutual beliefs and relationships which serve to strengthen the social bond

So punishment has a functionality in spite of itself Uncaring about utility it nevertheless achieves it Thanks to the hidden hand of the conscience collective the overall effect of punishment is to promote a healthy and cohesive solidarity But this assertion of positive function- ality is no more convincing and no less dogmatic than Foucaults version Durkheim offers a plausible psychological account of how useful effects might flow from punishing - through the reaffirmation of belief the unifying effect of a common enemy the pleasure of positive identification and so on But there is no consideration given to the negative dysfunctional effects which might equally well follow Thus it would be no less plausible to imagine that punishment might lead to the development of a destructive intolerance or to escalating levels of social violence neither of which could be seen as useful features Indeed George Herbert Meads classic account of The Psychology of Punitive Justice written towards the end of World War I suggests the massive social costs of this hostile ritual

Again I am not arguing here that there are no positive functional effects which flow from punishment Clearly there are But there is no reason to assume that all of its effects are of a positive nature or that the overall effect of punishment may be deemed to be healthy positive or functional Durkheims importance here does not lie in the dogmatism of his functional argument or in related concepts such as the conscience collective His importance is that he draws attention to the non-instrumental aspects of punishment - its emotional aspect its social origins its expression of values and culture and its effects beyond the relationship of controlled and controlling Durkheims conception of punishment is problematic as I and others have shown elsewhere but his work does have the virtue of directing us to aspects of the phenomenon which the power-perspective conceals from view

PUNISHMENI AS A SOCIAL INSIIIUIION

In setting up this discussion I suggested that Durkheim and Foucault might be seen as contraries out of which a third perspective might arise In fact it may be better to see their accounts as in some respects complementary since as we saw they are asking rather different questions about rather different aspects of a complex phenomenon The instrumentalities of penal power which Foucault describes always and necessarily take place within a framework of social values culture and mentaliti This contextual interrelationship is missed if one

David Garland

thinks of punishment purely in terms of state control as some Foucauldians do or as social expression as Durkheimians have done Particular styles of punishment reveal specific forms of power and strategies of control -but they also involve characteristic social values sensibilities conceptions ofjustice and social policy goals which can be missed if one insists on seeing punishment solely in terms of power

My suggestion is that we should accept both the control orientation of administration and the expressive manifestations of sentiment as forces which play a part in the process of punishment And instead of reducing one to the other or supposing that they automatically cohere we should set out to explore the relations and tensions between them In other words punishment should be understood as a set of cultural practices which supports a complex pattern of regula- tory expressive and significatory effects and any analytical approach should look for the pattern of cultural expression as well as the logic of social control

Whenever this kind of suggestion is made about any social phenom- enon the reflex response is to split it into two parts an instrumental part and a symbolic part the first part is distinctly recognizable because it is composed of material practices which get things done while the second is merely decorative or discursive and appears to have no substantive function This in turn implies a definite ranking of the two forms of analysis -one moves to symbolic analysis only if an instrumental rationale cannot be found I dont know if this distinction between instrumental and symbolic is ever very useful but it certainly isnt helpful as a way of dividing up punishment One can never separate out the instruments of punishment on the one hand and the symbols on the other in this sphere symbols have a clear practical effect - the signs of condemnation are central to pun- ishment while the instruments of practice have an inescapable cultural meaning

Instead of seeking to divide penality up into parts some of which do things and some of which say things we should realize that in the social world action always conveys meaning so that even the most mundane practice can be seen as rhetorical as well as practical Consequently we should conceive of the elements of punishment -be they laws discourses sanctions or institutional regimes - as being a condensation of instrumental purpose and rhetorical significance

It seems to me that punishment is what might be called a symbolically deep event that is to say an event which has a profound cultural resonance It is a matter of real seriousness involving notjust the state but also the wider community in matters of ultimate and common concern (which is not to say common agreement or consen- sus) and as such it evokes powerful sentiments and a rich symbolism In saying this I am well aware that punishment is nowadays delegated to professional agencies and that the public plays only a spectator role

1 1 The sociology of punishment

But this role is crucial none the less I am also aware that the appearance of high drama surrounds only a tiny minority of sanc- tions and that most sentences are an unsolemn and rather mundane affair But the same can be said of the everyday practice of a religious faith such as Christianity which can be a matter of hurried prayers the unsolemn saying of Grace and a routinized Sunday worship -though none of this denies the ultimate seriousness of religious matters Punishment works in this way Its charisma is routinized2 but it is no less real for that -and even the most routine sentences involve a ritual evocation of the symbols ofjustice

Punishment is a serious and symbolic issue in any society because it lies directly at the roots of social order as well as having a prominent place in the psychic formation and development of individual persons As regards the political order punishment operates as a sign of ultimate authority and is the final materialization of that authoritys force as such it is universal and indispensable Of course the forms of punishment are variable and the extent of punishment will depend upon the capacity of the authority to tolerate its challengers and violators and upon the maturity and sensibility of the wider culture But punishment as an institution has a minimal or last-resort necessity in any social order and an importance of which we are intuitively aware Similarly the processes of individual socialization are such that the punishment of transgression or the threat of such punishment plays a crucial part in the childs subject-formation Each of us comes to recognize the Law of the Father and the symbolic order through a process which always involves a punitive element and which generally leaves us with a continuing psychic investment in the issue23

This close connection between punishment and the order of things in social and individual experience helps us to understand why punishment is so rich in symbolic meaning and so deeply rooted in emotional needs and desires The question of punishment easily spills over into the wider problems of authority the nature of social membership questions of inclusion and exclusion in the social group It raises awkward problems of violence and its legitimacy It also highlights the limits of socialization and the importance of social institutions and in doing so it forces us all to take practical positions on intractable moral issues In each case these issues are capable of invoking deeply irrational responses as well as considered opinions They have an evocative effect of rousing channelling and domesticat- ing powerful emotion^^ which helps explain the aura of charisma which surrounds legal authorities -as well as the anti-charisma which attaches to the criminal It also helps explain why penality is caught up in all sorts of cultural and moral cross-currents which rob it of any singular purposiveness or direction Many critical accounts - includ-ing my own work -have argued that governments and political forces have found punishment to be a useful arena for ideological work If this

12 David Garland

is so -and if political movements have been able to use penal sanctions and symbols as a persuasive rhetoric in their bids for authority legitimation and hegemonic dominance - then it has been made possible by the fact that punishment is good for persuading with Ideological work in the realm of punishment can succeed in connect- ing with popular emotions and individual sentiments precisely be- cause punishment does have a deep resonance and a fundamental social importance People are in a sense that we have barely begun to understand mentally and emotionally involved in the business of punishing law-breakers - even when they delegate the actual task to institutions behind the scenes -and this is why they can be addressed by political ideologies which operate in the penal realm If we are to understand the ideological force of law and order policies or of the kind of capital punishment politics which featured in recent US elections then we have to come to terms with the cultural meaning of punishment and the emotional involvement of individuals in the process

All of this makes punishment incapable of being understood within a purely instrumental framework Myths and symbols and contra- dictory emotions form part of the cultural context within which penal policy is developed and upon which it relies for its support T h e forms and limits of penal control are thus styled by cultural demands as well as by rational strategy -and one should not assume that these amount to the same thing

It is precisely because penal institutions are so deeply embedded in cultural patterns that their practices never attain the instrumental rationality to which Bentham (and many modern penal adminis- trators) aspired T h e failure of modern punishment is in part the inevitable outcome of an overrationalized conception of its functions This conflict is not of course unique to punishment it is a feature to some degree of all social institutions But it is sufficiently apparent there to make penal practice a deeply problematic area for social policy - and an important challenge for social analysis

T h e aim of this essay has been to point out some of the complexities of this task and to point u p the limitations of some of the frameworks of inquiry currently being deployed Its conclusion is that the analysis of punishment - of its determinants and functions its forms and its effects - will demand a framework which is more flexible and multi-dimensional than that suggested by the work of Foucault or for that matter of Durkheim Since neither Foucault nor Durkheim set out to provide a comprehensive account of penality - Foucault used punishment to illustrate modern power Durkheim to get at the basis of solidarity - this is not an important criticism of their work and is not intended as such But for those of us who areconcerned to understand the social institutions of punishment and to understand them in all their complexity it should be an incentive to rethink punishment in a

13 The sociology of punishment

way which is more sensitive to its many dimensions and its inherent contradictions

(Date accepted May 1989)

This is a working paper f rom a book in progress on the sociology o f pun-ishment Versions of it have been de- livered to audiences at the University of Edinburgh the University of Toron to and the University ofCalifornia a n d I am grateful to the many individuals vho offered advice 01- criticisnl on these occasions

1 See E Durkheim The Division chf Labor in Society New York Free Press 1964 E Durkheim rLlorcclEdltcotio~tNew York Free Press 1973 E Durkheim Trvo Laws ofPenal Evolution translated by T Anthony J o n e s a n d Andrew Scull in Econorn~ and Soeirty 2(3) 1973 P

David Garland Faculty of Law

University of Edinburgh

Aiylumi ltarden City New York Doubleday-Anchor 196 1

3 See M Ignatieff A Juct iVracecrr of Pnin London Macmillan Press 1978 J Beattie Crirnr artd thr Courtc in Eieglccnd 1660-1800 Princeton New Jersey Princeton University Press 1986 M Foucault Dircif)linr ecnd P u n i ~ h London Allen Lane 1977 J Jacobs Stcttcr~illr Chicago University of Chicago Press 1977 D Melossi and hl Pavarini Tltr Priion anrl thr F(tctot London Macmillan Press 1981 S ltohen liiiotli of Sociccl Control Oxti)rd Polity Press 1983 D Garland Ptc~~iiItmrntccnd Wrlfecrr Al-dershot ltotver 1985 D Garland and P

Sorokin Sociccl and Culturctl D ~ t ~ n ~ n i c c Young (eds) T l ~ o Pozclrt to Puiliih Lon-vol 2 Cambridge Massachusetts Har- vard University Press 1937 ( Rusche a n d 0 Kirchheimer Puniehntrnt ctnd Sociul Structtcrr New York Russell and Russell 1964 S Ranulf lorccl Indig-n(etion ctnd Middle Cbrc Piycllology New York Schocken Books 1964 T Sellin Skuzrei uttd tllr Prnctl Ssctrm New York Elsevier 1976

2 See Baron d e Montesquieu The Spirit of thr Laroi Edinburgh Donaldson and Reib 1762 Gustave d e Beaumont and Alexis d e Tocqueville O n tltr Priliterl- t inq Systettt itt the Unitrd Stcctrc ltat--bondale Illinois Southern Illinois Uni- versity Press 1964 George Herber t hlead The Psychology of Punitive Jus- tice in Thr A~nericctn Jourrlctl of Sociology vol 23 no 5 191 8 pp 577-602 Harold Garfinkel Conditions of a Successful Degradation Ceremony in Thr American Journul of Sociology vol 61 March 1956 pp 420-4 Gresham Sykes Thr Society of Coptizles Princeton New Jersey Prince- ton University Press 1958 E ltoffman

d o n Heinemann 1983 T L Dunitn Dr~nocrctc~ Madison Uni- (end P~ctciihmpt~t versity of LVisconsin Press 1987 J Bender I~nccginittg thr Prrtitet~ticc~ lthi-cago University ofChicago Press 1987

4 For a range of views on these questions see the essays by A Bottolns T Mathiesen A Scull a n d S ltohen in Garland and Young (etls) T11r Pozcrr to Punish See also ( Shearing and P Stenning F~oni the Panopticon to Dis- neyworld T h e Development of Disci-pline in A Doob and E Greenspan (eds) Prrsf~rctirfrtin Criminal Lnul ~ u f o r a O n -tario Canatla Law Book Inc 1985

5 See S ltohen and A Scull (eds) Socictl Control and thr Stciti OxfOrd Basil Blackwell 1985 J Lowman et ul Trctrlc- carce~nrioi~Aldershot Gower 1987 (ar- land a n d Young (eds) The Pouwr to Punish R Harris a n d D Webb Wrlfurr Pouler aitrl Juzlrnile Justirr London Tavis- tock 1987

6 Michael Ignatieff has also criticized Foucaults tendency to think of

9 The sociology of punishment

common sentiment - symbolized and celebrated in the rituals of punishment - produce an automatic solidarity a spontaneous re-affirmation of mutual beliefs and relationships which serve to strengthen the social bond

So punishment has a functionality in spite of itself Uncaring about utility it nevertheless achieves it Thanks to the hidden hand of the conscience collective the overall effect of punishment is to promote a healthy and cohesive solidarity But this assertion of positive function- ality is no more convincing and no less dogmatic than Foucaults version Durkheim offers a plausible psychological account of how useful effects might flow from punishing - through the reaffirmation of belief the unifying effect of a common enemy the pleasure of positive identification and so on But there is no consideration given to the negative dysfunctional effects which might equally well follow Thus it would be no less plausible to imagine that punishment might lead to the development of a destructive intolerance or to escalating levels of social violence neither of which could be seen as useful features Indeed George Herbert Meads classic account of The Psychology of Punitive Justice written towards the end of World War I suggests the massive social costs of this hostile ritual

Again I am not arguing here that there are no positive functional effects which flow from punishment Clearly there are But there is no reason to assume that all of its effects are of a positive nature or that the overall effect of punishment may be deemed to be healthy positive or functional Durkheims importance here does not lie in the dogmatism of his functional argument or in related concepts such as the conscience collective His importance is that he draws attention to the non-instrumental aspects of punishment - its emotional aspect its social origins its expression of values and culture and its effects beyond the relationship of controlled and controlling Durkheims conception of punishment is problematic as I and others have shown elsewhere but his work does have the virtue of directing us to aspects of the phenomenon which the power-perspective conceals from view

PUNISHMENI AS A SOCIAL INSIIIUIION

In setting up this discussion I suggested that Durkheim and Foucault might be seen as contraries out of which a third perspective might arise In fact it may be better to see their accounts as in some respects complementary since as we saw they are asking rather different questions about rather different aspects of a complex phenomenon The instrumentalities of penal power which Foucault describes always and necessarily take place within a framework of social values culture and mentaliti This contextual interrelationship is missed if one

David Garland

thinks of punishment purely in terms of state control as some Foucauldians do or as social expression as Durkheimians have done Particular styles of punishment reveal specific forms of power and strategies of control -but they also involve characteristic social values sensibilities conceptions ofjustice and social policy goals which can be missed if one insists on seeing punishment solely in terms of power

My suggestion is that we should accept both the control orientation of administration and the expressive manifestations of sentiment as forces which play a part in the process of punishment And instead of reducing one to the other or supposing that they automatically cohere we should set out to explore the relations and tensions between them In other words punishment should be understood as a set of cultural practices which supports a complex pattern of regula- tory expressive and significatory effects and any analytical approach should look for the pattern of cultural expression as well as the logic of social control

Whenever this kind of suggestion is made about any social phenom- enon the reflex response is to split it into two parts an instrumental part and a symbolic part the first part is distinctly recognizable because it is composed of material practices which get things done while the second is merely decorative or discursive and appears to have no substantive function This in turn implies a definite ranking of the two forms of analysis -one moves to symbolic analysis only if an instrumental rationale cannot be found I dont know if this distinction between instrumental and symbolic is ever very useful but it certainly isnt helpful as a way of dividing up punishment One can never separate out the instruments of punishment on the one hand and the symbols on the other in this sphere symbols have a clear practical effect - the signs of condemnation are central to pun- ishment while the instruments of practice have an inescapable cultural meaning

Instead of seeking to divide penality up into parts some of which do things and some of which say things we should realize that in the social world action always conveys meaning so that even the most mundane practice can be seen as rhetorical as well as practical Consequently we should conceive of the elements of punishment -be they laws discourses sanctions or institutional regimes - as being a condensation of instrumental purpose and rhetorical significance

It seems to me that punishment is what might be called a symbolically deep event that is to say an event which has a profound cultural resonance It is a matter of real seriousness involving notjust the state but also the wider community in matters of ultimate and common concern (which is not to say common agreement or consen- sus) and as such it evokes powerful sentiments and a rich symbolism In saying this I am well aware that punishment is nowadays delegated to professional agencies and that the public plays only a spectator role

1 1 The sociology of punishment

But this role is crucial none the less I am also aware that the appearance of high drama surrounds only a tiny minority of sanc- tions and that most sentences are an unsolemn and rather mundane affair But the same can be said of the everyday practice of a religious faith such as Christianity which can be a matter of hurried prayers the unsolemn saying of Grace and a routinized Sunday worship -though none of this denies the ultimate seriousness of religious matters Punishment works in this way Its charisma is routinized2 but it is no less real for that -and even the most routine sentences involve a ritual evocation of the symbols ofjustice

Punishment is a serious and symbolic issue in any society because it lies directly at the roots of social order as well as having a prominent place in the psychic formation and development of individual persons As regards the political order punishment operates as a sign of ultimate authority and is the final materialization of that authoritys force as such it is universal and indispensable Of course the forms of punishment are variable and the extent of punishment will depend upon the capacity of the authority to tolerate its challengers and violators and upon the maturity and sensibility of the wider culture But punishment as an institution has a minimal or last-resort necessity in any social order and an importance of which we are intuitively aware Similarly the processes of individual socialization are such that the punishment of transgression or the threat of such punishment plays a crucial part in the childs subject-formation Each of us comes to recognize the Law of the Father and the symbolic order through a process which always involves a punitive element and which generally leaves us with a continuing psychic investment in the issue23

This close connection between punishment and the order of things in social and individual experience helps us to understand why punishment is so rich in symbolic meaning and so deeply rooted in emotional needs and desires The question of punishment easily spills over into the wider problems of authority the nature of social membership questions of inclusion and exclusion in the social group It raises awkward problems of violence and its legitimacy It also highlights the limits of socialization and the importance of social institutions and in doing so it forces us all to take practical positions on intractable moral issues In each case these issues are capable of invoking deeply irrational responses as well as considered opinions They have an evocative effect of rousing channelling and domesticat- ing powerful emotion^^ which helps explain the aura of charisma which surrounds legal authorities -as well as the anti-charisma which attaches to the criminal It also helps explain why penality is caught up in all sorts of cultural and moral cross-currents which rob it of any singular purposiveness or direction Many critical accounts - includ-ing my own work -have argued that governments and political forces have found punishment to be a useful arena for ideological work If this

12 David Garland

is so -and if political movements have been able to use penal sanctions and symbols as a persuasive rhetoric in their bids for authority legitimation and hegemonic dominance - then it has been made possible by the fact that punishment is good for persuading with Ideological work in the realm of punishment can succeed in connect- ing with popular emotions and individual sentiments precisely be- cause punishment does have a deep resonance and a fundamental social importance People are in a sense that we have barely begun to understand mentally and emotionally involved in the business of punishing law-breakers - even when they delegate the actual task to institutions behind the scenes -and this is why they can be addressed by political ideologies which operate in the penal realm If we are to understand the ideological force of law and order policies or of the kind of capital punishment politics which featured in recent US elections then we have to come to terms with the cultural meaning of punishment and the emotional involvement of individuals in the process

All of this makes punishment incapable of being understood within a purely instrumental framework Myths and symbols and contra- dictory emotions form part of the cultural context within which penal policy is developed and upon which it relies for its support T h e forms and limits of penal control are thus styled by cultural demands as well as by rational strategy -and one should not assume that these amount to the same thing

It is precisely because penal institutions are so deeply embedded in cultural patterns that their practices never attain the instrumental rationality to which Bentham (and many modern penal adminis- trators) aspired T h e failure of modern punishment is in part the inevitable outcome of an overrationalized conception of its functions This conflict is not of course unique to punishment it is a feature to some degree of all social institutions But it is sufficiently apparent there to make penal practice a deeply problematic area for social policy - and an important challenge for social analysis

T h e aim of this essay has been to point out some of the complexities of this task and to point u p the limitations of some of the frameworks of inquiry currently being deployed Its conclusion is that the analysis of punishment - of its determinants and functions its forms and its effects - will demand a framework which is more flexible and multi-dimensional than that suggested by the work of Foucault or for that matter of Durkheim Since neither Foucault nor Durkheim set out to provide a comprehensive account of penality - Foucault used punishment to illustrate modern power Durkheim to get at the basis of solidarity - this is not an important criticism of their work and is not intended as such But for those of us who areconcerned to understand the social institutions of punishment and to understand them in all their complexity it should be an incentive to rethink punishment in a

13 The sociology of punishment

way which is more sensitive to its many dimensions and its inherent contradictions

(Date accepted May 1989)

This is a working paper f rom a book in progress on the sociology o f pun-ishment Versions of it have been de- livered to audiences at the University of Edinburgh the University of Toron to and the University ofCalifornia a n d I am grateful to the many individuals vho offered advice 01- criticisnl on these occasions

1 See E Durkheim The Division chf Labor in Society New York Free Press 1964 E Durkheim rLlorcclEdltcotio~tNew York Free Press 1973 E Durkheim Trvo Laws ofPenal Evolution translated by T Anthony J o n e s a n d Andrew Scull in Econorn~ and Soeirty 2(3) 1973 P

David Garland Faculty of Law

University of Edinburgh

Aiylumi ltarden City New York Doubleday-Anchor 196 1

3 See M Ignatieff A Juct iVracecrr of Pnin London Macmillan Press 1978 J Beattie Crirnr artd thr Courtc in Eieglccnd 1660-1800 Princeton New Jersey Princeton University Press 1986 M Foucault Dircif)linr ecnd P u n i ~ h London Allen Lane 1977 J Jacobs Stcttcr~illr Chicago University of Chicago Press 1977 D Melossi and hl Pavarini Tltr Priion anrl thr F(tctot London Macmillan Press 1981 S ltohen liiiotli of Sociccl Control Oxti)rd Polity Press 1983 D Garland Ptc~~iiItmrntccnd Wrlfecrr Al-dershot ltotver 1985 D Garland and P

Sorokin Sociccl and Culturctl D ~ t ~ n ~ n i c c Young (eds) T l ~ o Pozclrt to Puiliih Lon-vol 2 Cambridge Massachusetts Har- vard University Press 1937 ( Rusche a n d 0 Kirchheimer Puniehntrnt ctnd Sociul Structtcrr New York Russell and Russell 1964 S Ranulf lorccl Indig-n(etion ctnd Middle Cbrc Piycllology New York Schocken Books 1964 T Sellin Skuzrei uttd tllr Prnctl Ssctrm New York Elsevier 1976

2 See Baron d e Montesquieu The Spirit of thr Laroi Edinburgh Donaldson and Reib 1762 Gustave d e Beaumont and Alexis d e Tocqueville O n tltr Priliterl- t inq Systettt itt the Unitrd Stcctrc ltat--bondale Illinois Southern Illinois Uni- versity Press 1964 George Herber t hlead The Psychology of Punitive Jus- tice in Thr A~nericctn Jourrlctl of Sociology vol 23 no 5 191 8 pp 577-602 Harold Garfinkel Conditions of a Successful Degradation Ceremony in Thr American Journul of Sociology vol 61 March 1956 pp 420-4 Gresham Sykes Thr Society of Coptizles Princeton New Jersey Prince- ton University Press 1958 E ltoffman

d o n Heinemann 1983 T L Dunitn Dr~nocrctc~ Madison Uni- (end P~ctciihmpt~t versity of LVisconsin Press 1987 J Bender I~nccginittg thr Prrtitet~ticc~ lthi-cago University ofChicago Press 1987

4 For a range of views on these questions see the essays by A Bottolns T Mathiesen A Scull a n d S ltohen in Garland and Young (etls) T11r Pozcrr to Punish See also ( Shearing and P Stenning F~oni the Panopticon to Dis- neyworld T h e Development of Disci-pline in A Doob and E Greenspan (eds) Prrsf~rctirfrtin Criminal Lnul ~ u f o r a O n -tario Canatla Law Book Inc 1985

5 See S ltohen and A Scull (eds) Socictl Control and thr Stciti OxfOrd Basil Blackwell 1985 J Lowman et ul Trctrlc- carce~nrioi~Aldershot Gower 1987 (ar- land a n d Young (eds) The Pouwr to Punish R Harris a n d D Webb Wrlfurr Pouler aitrl Juzlrnile Justirr London Tavis- tock 1987

6 Michael Ignatieff has also criticized Foucaults tendency to think of

David Garland

thinks of punishment purely in terms of state control as some Foucauldians do or as social expression as Durkheimians have done Particular styles of punishment reveal specific forms of power and strategies of control -but they also involve characteristic social values sensibilities conceptions ofjustice and social policy goals which can be missed if one insists on seeing punishment solely in terms of power

My suggestion is that we should accept both the control orientation of administration and the expressive manifestations of sentiment as forces which play a part in the process of punishment And instead of reducing one to the other or supposing that they automatically cohere we should set out to explore the relations and tensions between them In other words punishment should be understood as a set of cultural practices which supports a complex pattern of regula- tory expressive and significatory effects and any analytical approach should look for the pattern of cultural expression as well as the logic of social control

Whenever this kind of suggestion is made about any social phenom- enon the reflex response is to split it into two parts an instrumental part and a symbolic part the first part is distinctly recognizable because it is composed of material practices which get things done while the second is merely decorative or discursive and appears to have no substantive function This in turn implies a definite ranking of the two forms of analysis -one moves to symbolic analysis only if an instrumental rationale cannot be found I dont know if this distinction between instrumental and symbolic is ever very useful but it certainly isnt helpful as a way of dividing up punishment One can never separate out the instruments of punishment on the one hand and the symbols on the other in this sphere symbols have a clear practical effect - the signs of condemnation are central to pun- ishment while the instruments of practice have an inescapable cultural meaning

Instead of seeking to divide penality up into parts some of which do things and some of which say things we should realize that in the social world action always conveys meaning so that even the most mundane practice can be seen as rhetorical as well as practical Consequently we should conceive of the elements of punishment -be they laws discourses sanctions or institutional regimes - as being a condensation of instrumental purpose and rhetorical significance

It seems to me that punishment is what might be called a symbolically deep event that is to say an event which has a profound cultural resonance It is a matter of real seriousness involving notjust the state but also the wider community in matters of ultimate and common concern (which is not to say common agreement or consen- sus) and as such it evokes powerful sentiments and a rich symbolism In saying this I am well aware that punishment is nowadays delegated to professional agencies and that the public plays only a spectator role

1 1 The sociology of punishment

But this role is crucial none the less I am also aware that the appearance of high drama surrounds only a tiny minority of sanc- tions and that most sentences are an unsolemn and rather mundane affair But the same can be said of the everyday practice of a religious faith such as Christianity which can be a matter of hurried prayers the unsolemn saying of Grace and a routinized Sunday worship -though none of this denies the ultimate seriousness of religious matters Punishment works in this way Its charisma is routinized2 but it is no less real for that -and even the most routine sentences involve a ritual evocation of the symbols ofjustice

Punishment is a serious and symbolic issue in any society because it lies directly at the roots of social order as well as having a prominent place in the psychic formation and development of individual persons As regards the political order punishment operates as a sign of ultimate authority and is the final materialization of that authoritys force as such it is universal and indispensable Of course the forms of punishment are variable and the extent of punishment will depend upon the capacity of the authority to tolerate its challengers and violators and upon the maturity and sensibility of the wider culture But punishment as an institution has a minimal or last-resort necessity in any social order and an importance of which we are intuitively aware Similarly the processes of individual socialization are such that the punishment of transgression or the threat of such punishment plays a crucial part in the childs subject-formation Each of us comes to recognize the Law of the Father and the symbolic order through a process which always involves a punitive element and which generally leaves us with a continuing psychic investment in the issue23

This close connection between punishment and the order of things in social and individual experience helps us to understand why punishment is so rich in symbolic meaning and so deeply rooted in emotional needs and desires The question of punishment easily spills over into the wider problems of authority the nature of social membership questions of inclusion and exclusion in the social group It raises awkward problems of violence and its legitimacy It also highlights the limits of socialization and the importance of social institutions and in doing so it forces us all to take practical positions on intractable moral issues In each case these issues are capable of invoking deeply irrational responses as well as considered opinions They have an evocative effect of rousing channelling and domesticat- ing powerful emotion^^ which helps explain the aura of charisma which surrounds legal authorities -as well as the anti-charisma which attaches to the criminal It also helps explain why penality is caught up in all sorts of cultural and moral cross-currents which rob it of any singular purposiveness or direction Many critical accounts - includ-ing my own work -have argued that governments and political forces have found punishment to be a useful arena for ideological work If this

12 David Garland

is so -and if political movements have been able to use penal sanctions and symbols as a persuasive rhetoric in their bids for authority legitimation and hegemonic dominance - then it has been made possible by the fact that punishment is good for persuading with Ideological work in the realm of punishment can succeed in connect- ing with popular emotions and individual sentiments precisely be- cause punishment does have a deep resonance and a fundamental social importance People are in a sense that we have barely begun to understand mentally and emotionally involved in the business of punishing law-breakers - even when they delegate the actual task to institutions behind the scenes -and this is why they can be addressed by political ideologies which operate in the penal realm If we are to understand the ideological force of law and order policies or of the kind of capital punishment politics which featured in recent US elections then we have to come to terms with the cultural meaning of punishment and the emotional involvement of individuals in the process

All of this makes punishment incapable of being understood within a purely instrumental framework Myths and symbols and contra- dictory emotions form part of the cultural context within which penal policy is developed and upon which it relies for its support T h e forms and limits of penal control are thus styled by cultural demands as well as by rational strategy -and one should not assume that these amount to the same thing

It is precisely because penal institutions are so deeply embedded in cultural patterns that their practices never attain the instrumental rationality to which Bentham (and many modern penal adminis- trators) aspired T h e failure of modern punishment is in part the inevitable outcome of an overrationalized conception of its functions This conflict is not of course unique to punishment it is a feature to some degree of all social institutions But it is sufficiently apparent there to make penal practice a deeply problematic area for social policy - and an important challenge for social analysis

T h e aim of this essay has been to point out some of the complexities of this task and to point u p the limitations of some of the frameworks of inquiry currently being deployed Its conclusion is that the analysis of punishment - of its determinants and functions its forms and its effects - will demand a framework which is more flexible and multi-dimensional than that suggested by the work of Foucault or for that matter of Durkheim Since neither Foucault nor Durkheim set out to provide a comprehensive account of penality - Foucault used punishment to illustrate modern power Durkheim to get at the basis of solidarity - this is not an important criticism of their work and is not intended as such But for those of us who areconcerned to understand the social institutions of punishment and to understand them in all their complexity it should be an incentive to rethink punishment in a

13 The sociology of punishment

way which is more sensitive to its many dimensions and its inherent contradictions

(Date accepted May 1989)

This is a working paper f rom a book in progress on the sociology o f pun-ishment Versions of it have been de- livered to audiences at the University of Edinburgh the University of Toron to and the University ofCalifornia a n d I am grateful to the many individuals vho offered advice 01- criticisnl on these occasions

1 See E Durkheim The Division chf Labor in Society New York Free Press 1964 E Durkheim rLlorcclEdltcotio~tNew York Free Press 1973 E Durkheim Trvo Laws ofPenal Evolution translated by T Anthony J o n e s a n d Andrew Scull in Econorn~ and Soeirty 2(3) 1973 P

David Garland Faculty of Law

University of Edinburgh

Aiylumi ltarden City New York Doubleday-Anchor 196 1

3 See M Ignatieff A Juct iVracecrr of Pnin London Macmillan Press 1978 J Beattie Crirnr artd thr Courtc in Eieglccnd 1660-1800 Princeton New Jersey Princeton University Press 1986 M Foucault Dircif)linr ecnd P u n i ~ h London Allen Lane 1977 J Jacobs Stcttcr~illr Chicago University of Chicago Press 1977 D Melossi and hl Pavarini Tltr Priion anrl thr F(tctot London Macmillan Press 1981 S ltohen liiiotli of Sociccl Control Oxti)rd Polity Press 1983 D Garland Ptc~~iiItmrntccnd Wrlfecrr Al-dershot ltotver 1985 D Garland and P

Sorokin Sociccl and Culturctl D ~ t ~ n ~ n i c c Young (eds) T l ~ o Pozclrt to Puiliih Lon-vol 2 Cambridge Massachusetts Har- vard University Press 1937 ( Rusche a n d 0 Kirchheimer Puniehntrnt ctnd Sociul Structtcrr New York Russell and Russell 1964 S Ranulf lorccl Indig-n(etion ctnd Middle Cbrc Piycllology New York Schocken Books 1964 T Sellin Skuzrei uttd tllr Prnctl Ssctrm New York Elsevier 1976

2 See Baron d e Montesquieu The Spirit of thr Laroi Edinburgh Donaldson and Reib 1762 Gustave d e Beaumont and Alexis d e Tocqueville O n tltr Priliterl- t inq Systettt itt the Unitrd Stcctrc ltat--bondale Illinois Southern Illinois Uni- versity Press 1964 George Herber t hlead The Psychology of Punitive Jus- tice in Thr A~nericctn Jourrlctl of Sociology vol 23 no 5 191 8 pp 577-602 Harold Garfinkel Conditions of a Successful Degradation Ceremony in Thr American Journul of Sociology vol 61 March 1956 pp 420-4 Gresham Sykes Thr Society of Coptizles Princeton New Jersey Prince- ton University Press 1958 E ltoffman

d o n Heinemann 1983 T L Dunitn Dr~nocrctc~ Madison Uni- (end P~ctciihmpt~t versity of LVisconsin Press 1987 J Bender I~nccginittg thr Prrtitet~ticc~ lthi-cago University ofChicago Press 1987

4 For a range of views on these questions see the essays by A Bottolns T Mathiesen A Scull a n d S ltohen in Garland and Young (etls) T11r Pozcrr to Punish See also ( Shearing and P Stenning F~oni the Panopticon to Dis- neyworld T h e Development of Disci-pline in A Doob and E Greenspan (eds) Prrsf~rctirfrtin Criminal Lnul ~ u f o r a O n -tario Canatla Law Book Inc 1985

5 See S ltohen and A Scull (eds) Socictl Control and thr Stciti OxfOrd Basil Blackwell 1985 J Lowman et ul Trctrlc- carce~nrioi~Aldershot Gower 1987 (ar- land a n d Young (eds) The Pouwr to Punish R Harris a n d D Webb Wrlfurr Pouler aitrl Juzlrnile Justirr London Tavis- tock 1987

6 Michael Ignatieff has also criticized Foucaults tendency to think of

1 1 The sociology of punishment

But this role is crucial none the less I am also aware that the appearance of high drama surrounds only a tiny minority of sanc- tions and that most sentences are an unsolemn and rather mundane affair But the same can be said of the everyday practice of a religious faith such as Christianity which can be a matter of hurried prayers the unsolemn saying of Grace and a routinized Sunday worship -though none of this denies the ultimate seriousness of religious matters Punishment works in this way Its charisma is routinized2 but it is no less real for that -and even the most routine sentences involve a ritual evocation of the symbols ofjustice

Punishment is a serious and symbolic issue in any society because it lies directly at the roots of social order as well as having a prominent place in the psychic formation and development of individual persons As regards the political order punishment operates as a sign of ultimate authority and is the final materialization of that authoritys force as such it is universal and indispensable Of course the forms of punishment are variable and the extent of punishment will depend upon the capacity of the authority to tolerate its challengers and violators and upon the maturity and sensibility of the wider culture But punishment as an institution has a minimal or last-resort necessity in any social order and an importance of which we are intuitively aware Similarly the processes of individual socialization are such that the punishment of transgression or the threat of such punishment plays a crucial part in the childs subject-formation Each of us comes to recognize the Law of the Father and the symbolic order through a process which always involves a punitive element and which generally leaves us with a continuing psychic investment in the issue23

This close connection between punishment and the order of things in social and individual experience helps us to understand why punishment is so rich in symbolic meaning and so deeply rooted in emotional needs and desires The question of punishment easily spills over into the wider problems of authority the nature of social membership questions of inclusion and exclusion in the social group It raises awkward problems of violence and its legitimacy It also highlights the limits of socialization and the importance of social institutions and in doing so it forces us all to take practical positions on intractable moral issues In each case these issues are capable of invoking deeply irrational responses as well as considered opinions They have an evocative effect of rousing channelling and domesticat- ing powerful emotion^^ which helps explain the aura of charisma which surrounds legal authorities -as well as the anti-charisma which attaches to the criminal It also helps explain why penality is caught up in all sorts of cultural and moral cross-currents which rob it of any singular purposiveness or direction Many critical accounts - includ-ing my own work -have argued that governments and political forces have found punishment to be a useful arena for ideological work If this

12 David Garland

is so -and if political movements have been able to use penal sanctions and symbols as a persuasive rhetoric in their bids for authority legitimation and hegemonic dominance - then it has been made possible by the fact that punishment is good for persuading with Ideological work in the realm of punishment can succeed in connect- ing with popular emotions and individual sentiments precisely be- cause punishment does have a deep resonance and a fundamental social importance People are in a sense that we have barely begun to understand mentally and emotionally involved in the business of punishing law-breakers - even when they delegate the actual task to institutions behind the scenes -and this is why they can be addressed by political ideologies which operate in the penal realm If we are to understand the ideological force of law and order policies or of the kind of capital punishment politics which featured in recent US elections then we have to come to terms with the cultural meaning of punishment and the emotional involvement of individuals in the process

All of this makes punishment incapable of being understood within a purely instrumental framework Myths and symbols and contra- dictory emotions form part of the cultural context within which penal policy is developed and upon which it relies for its support T h e forms and limits of penal control are thus styled by cultural demands as well as by rational strategy -and one should not assume that these amount to the same thing

It is precisely because penal institutions are so deeply embedded in cultural patterns that their practices never attain the instrumental rationality to which Bentham (and many modern penal adminis- trators) aspired T h e failure of modern punishment is in part the inevitable outcome of an overrationalized conception of its functions This conflict is not of course unique to punishment it is a feature to some degree of all social institutions But it is sufficiently apparent there to make penal practice a deeply problematic area for social policy - and an important challenge for social analysis

T h e aim of this essay has been to point out some of the complexities of this task and to point u p the limitations of some of the frameworks of inquiry currently being deployed Its conclusion is that the analysis of punishment - of its determinants and functions its forms and its effects - will demand a framework which is more flexible and multi-dimensional than that suggested by the work of Foucault or for that matter of Durkheim Since neither Foucault nor Durkheim set out to provide a comprehensive account of penality - Foucault used punishment to illustrate modern power Durkheim to get at the basis of solidarity - this is not an important criticism of their work and is not intended as such But for those of us who areconcerned to understand the social institutions of punishment and to understand them in all their complexity it should be an incentive to rethink punishment in a

13 The sociology of punishment

way which is more sensitive to its many dimensions and its inherent contradictions

(Date accepted May 1989)

This is a working paper f rom a book in progress on the sociology o f pun-ishment Versions of it have been de- livered to audiences at the University of Edinburgh the University of Toron to and the University ofCalifornia a n d I am grateful to the many individuals vho offered advice 01- criticisnl on these occasions

1 See E Durkheim The Division chf Labor in Society New York Free Press 1964 E Durkheim rLlorcclEdltcotio~tNew York Free Press 1973 E Durkheim Trvo Laws ofPenal Evolution translated by T Anthony J o n e s a n d Andrew Scull in Econorn~ and Soeirty 2(3) 1973 P

David Garland Faculty of Law

University of Edinburgh

Aiylumi ltarden City New York Doubleday-Anchor 196 1

3 See M Ignatieff A Juct iVracecrr of Pnin London Macmillan Press 1978 J Beattie Crirnr artd thr Courtc in Eieglccnd 1660-1800 Princeton New Jersey Princeton University Press 1986 M Foucault Dircif)linr ecnd P u n i ~ h London Allen Lane 1977 J Jacobs Stcttcr~illr Chicago University of Chicago Press 1977 D Melossi and hl Pavarini Tltr Priion anrl thr F(tctot London Macmillan Press 1981 S ltohen liiiotli of Sociccl Control Oxti)rd Polity Press 1983 D Garland Ptc~~iiItmrntccnd Wrlfecrr Al-dershot ltotver 1985 D Garland and P

Sorokin Sociccl and Culturctl D ~ t ~ n ~ n i c c Young (eds) T l ~ o Pozclrt to Puiliih Lon-vol 2 Cambridge Massachusetts Har- vard University Press 1937 ( Rusche a n d 0 Kirchheimer Puniehntrnt ctnd Sociul Structtcrr New York Russell and Russell 1964 S Ranulf lorccl Indig-n(etion ctnd Middle Cbrc Piycllology New York Schocken Books 1964 T Sellin Skuzrei uttd tllr Prnctl Ssctrm New York Elsevier 1976

2 See Baron d e Montesquieu The Spirit of thr Laroi Edinburgh Donaldson and Reib 1762 Gustave d e Beaumont and Alexis d e Tocqueville O n tltr Priliterl- t inq Systettt itt the Unitrd Stcctrc ltat--bondale Illinois Southern Illinois Uni- versity Press 1964 George Herber t hlead The Psychology of Punitive Jus- tice in Thr A~nericctn Jourrlctl of Sociology vol 23 no 5 191 8 pp 577-602 Harold Garfinkel Conditions of a Successful Degradation Ceremony in Thr American Journul of Sociology vol 61 March 1956 pp 420-4 Gresham Sykes Thr Society of Coptizles Princeton New Jersey Prince- ton University Press 1958 E ltoffman

d o n Heinemann 1983 T L Dunitn Dr~nocrctc~ Madison Uni- (end P~ctciihmpt~t versity of LVisconsin Press 1987 J Bender I~nccginittg thr Prrtitet~ticc~ lthi-cago University ofChicago Press 1987

4 For a range of views on these questions see the essays by A Bottolns T Mathiesen A Scull a n d S ltohen in Garland and Young (etls) T11r Pozcrr to Punish See also ( Shearing and P Stenning F~oni the Panopticon to Dis- neyworld T h e Development of Disci-pline in A Doob and E Greenspan (eds) Prrsf~rctirfrtin Criminal Lnul ~ u f o r a O n -tario Canatla Law Book Inc 1985

5 See S ltohen and A Scull (eds) Socictl Control and thr Stciti OxfOrd Basil Blackwell 1985 J Lowman et ul Trctrlc- carce~nrioi~Aldershot Gower 1987 (ar- land a n d Young (eds) The Pouwr to Punish R Harris a n d D Webb Wrlfurr Pouler aitrl Juzlrnile Justirr London Tavis- tock 1987

6 Michael Ignatieff has also criticized Foucaults tendency to think of

12 David Garland

is so -and if political movements have been able to use penal sanctions and symbols as a persuasive rhetoric in their bids for authority legitimation and hegemonic dominance - then it has been made possible by the fact that punishment is good for persuading with Ideological work in the realm of punishment can succeed in connect- ing with popular emotions and individual sentiments precisely be- cause punishment does have a deep resonance and a fundamental social importance People are in a sense that we have barely begun to understand mentally and emotionally involved in the business of punishing law-breakers - even when they delegate the actual task to institutions behind the scenes -and this is why they can be addressed by political ideologies which operate in the penal realm If we are to understand the ideological force of law and order policies or of the kind of capital punishment politics which featured in recent US elections then we have to come to terms with the cultural meaning of punishment and the emotional involvement of individuals in the process

All of this makes punishment incapable of being understood within a purely instrumental framework Myths and symbols and contra- dictory emotions form part of the cultural context within which penal policy is developed and upon which it relies for its support T h e forms and limits of penal control are thus styled by cultural demands as well as by rational strategy -and one should not assume that these amount to the same thing

It is precisely because penal institutions are so deeply embedded in cultural patterns that their practices never attain the instrumental rationality to which Bentham (and many modern penal adminis- trators) aspired T h e failure of modern punishment is in part the inevitable outcome of an overrationalized conception of its functions This conflict is not of course unique to punishment it is a feature to some degree of all social institutions But it is sufficiently apparent there to make penal practice a deeply problematic area for social policy - and an important challenge for social analysis

T h e aim of this essay has been to point out some of the complexities of this task and to point u p the limitations of some of the frameworks of inquiry currently being deployed Its conclusion is that the analysis of punishment - of its determinants and functions its forms and its effects - will demand a framework which is more flexible and multi-dimensional than that suggested by the work of Foucault or for that matter of Durkheim Since neither Foucault nor Durkheim set out to provide a comprehensive account of penality - Foucault used punishment to illustrate modern power Durkheim to get at the basis of solidarity - this is not an important criticism of their work and is not intended as such But for those of us who areconcerned to understand the social institutions of punishment and to understand them in all their complexity it should be an incentive to rethink punishment in a

13 The sociology of punishment

way which is more sensitive to its many dimensions and its inherent contradictions

(Date accepted May 1989)

This is a working paper f rom a book in progress on the sociology o f pun-ishment Versions of it have been de- livered to audiences at the University of Edinburgh the University of Toron to and the University ofCalifornia a n d I am grateful to the many individuals vho offered advice 01- criticisnl on these occasions

1 See E Durkheim The Division chf Labor in Society New York Free Press 1964 E Durkheim rLlorcclEdltcotio~tNew York Free Press 1973 E Durkheim Trvo Laws ofPenal Evolution translated by T Anthony J o n e s a n d Andrew Scull in Econorn~ and Soeirty 2(3) 1973 P

David Garland Faculty of Law

University of Edinburgh

Aiylumi ltarden City New York Doubleday-Anchor 196 1

3 See M Ignatieff A Juct iVracecrr of Pnin London Macmillan Press 1978 J Beattie Crirnr artd thr Courtc in Eieglccnd 1660-1800 Princeton New Jersey Princeton University Press 1986 M Foucault Dircif)linr ecnd P u n i ~ h London Allen Lane 1977 J Jacobs Stcttcr~illr Chicago University of Chicago Press 1977 D Melossi and hl Pavarini Tltr Priion anrl thr F(tctot London Macmillan Press 1981 S ltohen liiiotli of Sociccl Control Oxti)rd Polity Press 1983 D Garland Ptc~~iiItmrntccnd Wrlfecrr Al-dershot ltotver 1985 D Garland and P

Sorokin Sociccl and Culturctl D ~ t ~ n ~ n i c c Young (eds) T l ~ o Pozclrt to Puiliih Lon-vol 2 Cambridge Massachusetts Har- vard University Press 1937 ( Rusche a n d 0 Kirchheimer Puniehntrnt ctnd Sociul Structtcrr New York Russell and Russell 1964 S Ranulf lorccl Indig-n(etion ctnd Middle Cbrc Piycllology New York Schocken Books 1964 T Sellin Skuzrei uttd tllr Prnctl Ssctrm New York Elsevier 1976

2 See Baron d e Montesquieu The Spirit of thr Laroi Edinburgh Donaldson and Reib 1762 Gustave d e Beaumont and Alexis d e Tocqueville O n tltr Priliterl- t inq Systettt itt the Unitrd Stcctrc ltat--bondale Illinois Southern Illinois Uni- versity Press 1964 George Herber t hlead The Psychology of Punitive Jus- tice in Thr A~nericctn Jourrlctl of Sociology vol 23 no 5 191 8 pp 577-602 Harold Garfinkel Conditions of a Successful Degradation Ceremony in Thr American Journul of Sociology vol 61 March 1956 pp 420-4 Gresham Sykes Thr Society of Coptizles Princeton New Jersey Prince- ton University Press 1958 E ltoffman

d o n Heinemann 1983 T L Dunitn Dr~nocrctc~ Madison Uni- (end P~ctciihmpt~t versity of LVisconsin Press 1987 J Bender I~nccginittg thr Prrtitet~ticc~ lthi-cago University ofChicago Press 1987

4 For a range of views on these questions see the essays by A Bottolns T Mathiesen A Scull a n d S ltohen in Garland and Young (etls) T11r Pozcrr to Punish See also ( Shearing and P Stenning F~oni the Panopticon to Dis- neyworld T h e Development of Disci-pline in A Doob and E Greenspan (eds) Prrsf~rctirfrtin Criminal Lnul ~ u f o r a O n -tario Canatla Law Book Inc 1985

5 See S ltohen and A Scull (eds) Socictl Control and thr Stciti OxfOrd Basil Blackwell 1985 J Lowman et ul Trctrlc- carce~nrioi~Aldershot Gower 1987 (ar- land a n d Young (eds) The Pouwr to Punish R Harris a n d D Webb Wrlfurr Pouler aitrl Juzlrnile Justirr London Tavis- tock 1987

6 Michael Ignatieff has also criticized Foucaults tendency to think of

13 The sociology of punishment

way which is more sensitive to its many dimensions and its inherent contradictions

(Date accepted May 1989)

This is a working paper f rom a book in progress on the sociology o f pun-ishment Versions of it have been de- livered to audiences at the University of Edinburgh the University of Toron to and the University ofCalifornia a n d I am grateful to the many individuals vho offered advice 01- criticisnl on these occasions

1 See E Durkheim The Division chf Labor in Society New York Free Press 1964 E Durkheim rLlorcclEdltcotio~tNew York Free Press 1973 E Durkheim Trvo Laws ofPenal Evolution translated by T Anthony J o n e s a n d Andrew Scull in Econorn~ and Soeirty 2(3) 1973 P

David Garland Faculty of Law

University of Edinburgh

Aiylumi ltarden City New York Doubleday-Anchor 196 1

3 See M Ignatieff A Juct iVracecrr of Pnin London Macmillan Press 1978 J Beattie Crirnr artd thr Courtc in Eieglccnd 1660-1800 Princeton New Jersey Princeton University Press 1986 M Foucault Dircif)linr ecnd P u n i ~ h London Allen Lane 1977 J Jacobs Stcttcr~illr Chicago University of Chicago Press 1977 D Melossi and hl Pavarini Tltr Priion anrl thr F(tctot London Macmillan Press 1981 S ltohen liiiotli of Sociccl Control Oxti)rd Polity Press 1983 D Garland Ptc~~iiItmrntccnd Wrlfecrr Al-dershot ltotver 1985 D Garland and P

Sorokin Sociccl and Culturctl D ~ t ~ n ~ n i c c Young (eds) T l ~ o Pozclrt to Puiliih Lon-vol 2 Cambridge Massachusetts Har- vard University Press 1937 ( Rusche a n d 0 Kirchheimer Puniehntrnt ctnd Sociul Structtcrr New York Russell and Russell 1964 S Ranulf lorccl Indig-n(etion ctnd Middle Cbrc Piycllology New York Schocken Books 1964 T Sellin Skuzrei uttd tllr Prnctl Ssctrm New York Elsevier 1976

2 See Baron d e Montesquieu The Spirit of thr Laroi Edinburgh Donaldson and Reib 1762 Gustave d e Beaumont and Alexis d e Tocqueville O n tltr Priliterl- t inq Systettt itt the Unitrd Stcctrc ltat--bondale Illinois Southern Illinois Uni- versity Press 1964 George Herber t hlead The Psychology of Punitive Jus- tice in Thr A~nericctn Jourrlctl of Sociology vol 23 no 5 191 8 pp 577-602 Harold Garfinkel Conditions of a Successful Degradation Ceremony in Thr American Journul of Sociology vol 61 March 1956 pp 420-4 Gresham Sykes Thr Society of Coptizles Princeton New Jersey Prince- ton University Press 1958 E ltoffman

d o n Heinemann 1983 T L Dunitn Dr~nocrctc~ Madison Uni- (end P~ctciihmpt~t versity of LVisconsin Press 1987 J Bender I~nccginittg thr Prrtitet~ticc~ lthi-cago University ofChicago Press 1987

4 For a range of views on these questions see the essays by A Bottolns T Mathiesen A Scull a n d S ltohen in Garland and Young (etls) T11r Pozcrr to Punish See also ( Shearing and P Stenning F~oni the Panopticon to Dis- neyworld T h e Development of Disci-pline in A Doob and E Greenspan (eds) Prrsf~rctirfrtin Criminal Lnul ~ u f o r a O n -tario Canatla Law Book Inc 1985

5 See S ltohen and A Scull (eds) Socictl Control and thr Stciti OxfOrd Basil Blackwell 1985 J Lowman et ul Trctrlc- carce~nrioi~Aldershot Gower 1987 (ar- land a n d Young (eds) The Pouwr to Punish R Harris a n d D Webb Wrlfurr Pouler aitrl Juzlrnile Justirr London Tavis- tock 1987

6 Michael Ignatieff has also criticized Foucaults tendency to think of

penality exclusively in terms of power -see M Ignatieff State Civil Society a n d Total Institutions in S (ohen and A Scull (eds) Social Control und the State

7 For a detailed analysis of Disczpline and Punish see D Garland Foucaults Discipline and Punirh An Exposition and Critique in The American Bar Foundation Research Journul no 4 1986 pp 847-80

8 Jeremy Bentham An Introduction to the Princip1er of Morals and Legirlution edited by J H Burns a n d H L A Har t London University of London T h e Athlone Press 1970 Concire view of the e11dr of purtithrnent the immediate princi- pal end of punishment is to control action This action is ei ther that of the offender o r of others that of the offender it controls by its influence ei ther on his will in which case it is said to operate in the way of reformutiono r on his physical power in which case it is said to operate by disablement that of others it can influence no otherwise than by its influence over their wills in which case it is said to operate by way of exumple (p 158) I t need hardly be added that this comparison between Bentham a n d Fou- cault is not intended to convey anything more than the immediate point de-veloped here The i r two bodies o f work a re not exactly commensurate

9 In an interview with Foucault Michelle Perrot put the following point In o ther words coming back to the Panopticon Bentham doesnt merely formulate the project of a utopian society he also describes a society that actually exists to which Foucault replies He describes in the utopian form of a general system particular mechanisms which really exist in The Eye of Power reprinted in lt Gordon (ed) Power1 Knowledge New York Pantheon Books 1980

10 Foucaults rules of study seem to refer only to modern punishment In respect of the eighteenth-century penal system he identifies a number of dysfunc- tional elements which helped bring about the decline of that regime

1 1 See D Garland Foucaults Disci-pline and Punish An Exposition and Critique in The American Bar Founrlution Research Journal no 4 1986 pp 847-80

David Garland

12 Examples of this might be the tendency of penal institutions to operate in matter of fact rather than morally- charged ways the tendency of modern penal discourse to adopt a language purged of moral content the related tendency of much twentieth-century criminology to demoralise punishment by distancing penal measures from moral judgments and so on Some such de- velopments a r e discussed in Jacobs State-ville 1977 in A E Bottoms Neglected Features of ltontemporary Penal Sys-tems in Garland and Young (eds) The Power to Punith 1983 and in P Young Punishment Money and Legal Order University of Edinburgh PhD disser-tation 1988

13 E Durkheim The Diuirion of Labor p 90

14 O n e of the weaknesses of Durkheims account is that h e appears to suggest that the sentiments which form the colltcience collective a r e somehow pri- mary a n d that penal institutions some- how faithfully adapt to them Against this his critics have pointed to the constructive effect of ideology and institutional prac- tice upon individual a n d social attitudes and have suggested a much less direct relationship between public feeling a n d penal practice In fact Durkheims theory is ra ther ambivalent at this point because although it insists on seeing punishment as a n expression of the conrcience collectizle it nevertheless ac-knowledges the legislative role of the state in establishing penal law a n d it also argues that rituals help maintain social sentiments rather than simply express them For a critique of Durkheims position o n this issue see D Garland Durkheims Theory of Pun- ishment A Critique in Garland and Young (eds) The Power to Punith

15 O n e could say that these reactions a r e purposeful in so much as they aim to release energy but this misses the auto- matic unthinking nature of the event which Durkheim seeks to convey All events can be given a purpose in these terms

16 Punishment is what lt S Peirce would term an indexical symbol I t is a trace of the thing it expresses

The sociology of punishment

17 ( H Mead The Psychology of Punitive Justice The American Journal of Sociology trol 23 no 5 1918 pp 577-602

18 See D Garland Durkheims Theory of Punishment A Critique in Garland and Young (eds) The Power to Punich S Spitzer Punishment and Social Organisation A Study of Durkheims Theory of Penal Evolution in Law and Society Review vol 9 no 4 1975

19 On this see ( Geertz hegara The Theatre State Princeton New Jersey Princeton University Press 3 980 pp 1 3 5 4

20 See D Sperber Rethinking Symbol- ivm Cambridge Cambridge University Press

21 For a discussion of routinized charisma see E Shilss essays Charisma and on Charisma Order and Status reprinted in E Shils The Conctitution of Society Chicago University of Chicago Press 1982

22 On the question of sensibilities and their social and historical construction see N Elias The Civiliving Process Vol 1 The Hictoq of Mannerc and Vol 2 State Formation and Civilisation Oxford Basil Blackwell 1983 and Rom Harr6 (ed) The Social Construction of Emotion Oxford Basil Blackwell 1986 For a discussion of sensibilities and the development of punishment see P Spierenburg The Spectacle of Suffering Cambridge Cam- bridge University Press 1984 and D Garland The Punitive Mentality Its Socio-Historical Development and De-cline in Contemporaq Cricev vo1 10 1986 pp 305-20

23 The depth psychology of pun-ishment and of punitive attitudes appears to be relatively unexplored despite its obvious importance

24 V Turner The Ritual Procets Ithaca Cornell University Press 1977 pp 42-3

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Frameworks of Inquiry in the Sociology of PunishmentDavid GarlandThe British Journal of Sociology Vol 41 No 1 (Mar 1990) pp 1-15Stable URL

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Notes

2 The Psychology of Punitive JusticeGeorge H MeadThe American Journal of Sociology Vol 23 No 5 (Mar 1918) pp 577-602Stable URL

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2 Conditions of Successful Degradation CeremoniesHarold GarfinkelThe American Journal of Sociology Vol 61 No 5 (Mar 1956) pp 420-424Stable URL

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7 Review Foucaults Discipline and Punish--An Exposition and CritiqueReviewed Work(s)

Discipline and Punish The Birth of the Prison by Michel Foucault Alan SheridanDavid GarlandAmerican Bar Foundation Research Journal Vol 11 No 4 (Autumn 1986) pp 847-880Stable URL

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11 Review Foucaults Discipline and Punish--An Exposition and CritiqueReviewed Work(s)

Discipline and Punish The Birth of the Prison by Michel Foucault Alan SheridanDavid GarlandAmerican Bar Foundation Research Journal Vol 11 No 4 (Autumn 1986) pp 847-880Stable URL

httplinksjstororgsicisici=0361-94862819862329113A43C8473AF22APEA3E20CO3B2-5

17 The Psychology of Punitive JusticeGeorge H MeadThe American Journal of Sociology Vol 23 No 5 (Mar 1918) pp 577-602Stable URL

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