Moving Beyond Being Punitive

by | 8 Jan 2021

St. Quentin State Prison, CA

This text was presented in a seminar on ‘Beyond the Punitive Society’ on 7th January 2021, as part of the seminar series ‘Abolition Democracy 13/13’, co-hosted by the Columbia Center for Contemporary Critical Thought at Columbia University and the Centre for Research in Post-Kantian European Philosophy at the University of Warwick.

My reflections here will focus on one aspect of the punitive society that I believe needs to be particularly emphasised and investigated – especially today. The punitive society is not simply the society that punishes; it is a society that is punitive. Being punitive is about more than simply delivering punishment; it is about reproducing punitive logics that are, or have become, inherent to social order and therefore to the ways in which society is imagined and experienced by its members – which in turn inevitably has an important emotional and affective dimension that carries significant consequences to people’s sense of identity and belonging. It is my contention that to think and move beyond the punitive society, we must first confront, in a deep and serious engagement, what being punitive means.

I want to just briefly raise what I consider some of the most significant insights from these lectures, which I believe are still critically relevant today. The first is how the predominance and pervasiveness of penality, its acceptability and sense of validity are a puzzle; there is nothing obvious or ‘rational’ to it. Prison doesn’t ‘work’ and has never ‘worked’; at least, not in the ways in which it has been deemed to work, or the purposes which are used to justify it. Instead, prison’s function, as highlighted by Foucault, lies rather in its production of delinquency, of criminality. This productive quality is, as Foucault suggested, ‘a not insignificant component in the exercise of power on bodies, an element of that physics of power that gave rise to the psychology of the subject’.[1]

What must be highlighted is that this production of criminality contributes not only to the psychology of the punishable subject, but also – and primarily – to that of the punitive subject.[2] This, more than anything, allows us to reflect on the important symbolic and affective dimension of punishment – why, despite its failures, its violence, its ugliness, punishment is regarded as justified, as something that societies should seek – and something that we need.[3] In a longstanding collaborative work with Anastasia Chamberlen, a colleague from Warwick, we have been investigating how the urge to punish is a constitutive aspect of modern identity, and how it relates to the ambivalences that lie within modern – especially liberal – social orders and imaginaries.

Penality doesn’t merely reproduce a specific social order and its correlated dynamics of power; it enables them by making them appear not only necessary, but also morally righteous and socially beneficial. The sense of utility given to punishment and its many institutions shouldn’t simply be dismissed as a mask to conceal its true function; rather, it should be seen as one of the main elements, if not the main element of this function. Here, we should consider another of Foucault’s pivotal insights in The Punitive Society: how the specific form of modern punishment, confinement, has been historically linked, even before its full penal incorporation, to the management of disorder. We should however realise how this relationship is multifaceted, and how its real power lies in its essentially ambivalent character: punishment both affirms disorder – by promoting images of criminality and dangerousness and providing a medium for their material reproduction, essentially generating criminality as something inherent to modern society, which needs to be permanently managed – and negates this disorder – or rather displaces it, by symbolically asserting that such disorder does not originate from society’s structural inequalities and power imbalances, but rather from the actions and behaviour of dangerous criminals.

In so doing, punitive logics not only maintain and reinforce a specific social order, but they also reassure it by symbolically purifying it from its own disorder by means of the scapegoating ritual of punitiveness. Through this symbolic work, punishing appears as something not only necessary, but something useful – desirable; even when the failures of punishment come to the fore, punitive logics suggest that the solution is never beyond punishment, but only to punish better, or to punish more.[4] This reassuring function of punitiveness is something that fulfils an important affective need inherent to punitive societies, which imbues punitive practices and institutions with significant allure. It is also a significant drive underpinning the proliferation of punitive logics well beyond the penal realm, into areas such as migration, education, healthcare and welfare.[5] To move beyond the punitive society, then, we must first go back to Foucault’s initial question and face head-on the puzzle of punishment. Moreover, in doing so, we need to be prepared to ask uncomfortable questions about what the problem of punishment means to our societies and us.

Henrique Carvalho is Associate Professor of Law at the School of Law, University of Warwick, and author of The Preventative Turn in Criminal Law (OUP, 2017)

[1] Foucault, The Punitive Society, 262.

[2] Carvalho H, Chamberlen A, Lewis R (2020) Punitiveness beyond Criminal Justice: Punishable and Punitive Subjects in an Era of Prevention, Anti-Migration and Austerity. The British Journal of Criminology, 60(2): 265-284.

[3] Carvalho H, Chamberlen A (2018) Why punishment pleases: Punitive feelings in a world of hostile solidarity. Punishment & Society, 20(2): 217-234

[4] See M. Foucault (1979) Discipline and Punish (London: Penguin); see also Chamberlen A, Carvalho H (2019) The Thrill of the Chase: Punishment, Hostility and the Prison Crisis. Social & Legal Studies, 28(1): 100-117.

[5] For a detailed discussion of this phenomenon, see Carvalho, Chamberlen and Lewis, ‘Punitiveness Beyond Criminal Justice’ above.

1 Comment

  1. Thank you for this interesting article. I am always puzzled when people say ‘prison doesn’t work’, because prison has so many purposes. It doesn’t work to rehabilitate, and it fails to deter. This doesn’t mean that it does not work. You have only to switch on the television today to hear the longing in the voices of so many commentators, and some victims of a cruel regime imposed in the USA for the past 4 years, who are yearning with every fibre of their being to see Donald Trump charged, convicted, and YES, punished with a term of imprisonment. Would he be rehabilitated? No way! Would that deter the next dysfunctional well-funded would-be dictator from trying for power and lying to get there? No it would not. But would prison work? What do you think? I think a five year sentence for sedition and inciting violence imposed on DJ Trump and served in a federal facility would, on many many levels, work.


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