Eslabón © Carlos Martiel
From The Philosopher, vol. 112, no. 1 ("Punishment").
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The philosophy of punishment finds itself at a crossroads. On the one hand, it remains a very prolific and popular field of study, with countless works being regularly produced and revisited. On the other hand, most of the philosophical scholarship in this area seems to be largely detached from the concrete issues and complex problems facing contemporary criminal justice (including issues of overcrowding, underfunding, violence, racialised and classed discrimination, among many others). While the classic debates concerning retributive and consequentialist justifications of punishment continue to flourish, and new theoretical formulations of ideal practices and understandings of punishment continue to multiply, few of them bother to engage with the wide chasm between these normative conceptions and the actuality of the context and practice of punishment. Most of the time, the philosophy of punishment appears to speak only to itself and imagines punishment as an abstract rather than concrete social phenomenon.
To some extent, this tendency towards abstraction is understandable, and rather expected, of a highly sophisticated academic field; however, although understandable, this tendency should not be seen as unproblematic, as there is something very important which ends up being lost when philosophers can comfortably avoid considering the practical relevance of their work. This is particularly so when the work in question concerns such a pervasive, dominant, and violent social, legal, and political institution. Not only can such philosophy appear neglectful, but also in focusing so predominantly on ideal theorisations of punishment, it also risks contributing to the hegemony of punitive discourses and practices. While it is safe to say that many contemporary practices and developments in criminal justice would fall outside the scope of even the most permissive normative theory, there is an issue in the fact that the philosophy of punishment rarely directly challenges these circumstances. As a result, the main message that comes out of this field is that punishment is something right – even if the main ways in which it is being done are predominantly wrong. Given how much attention and impetus is given to punishment in our contemporary social imagination, uncritical idealisations may end up adding to the allure of conditions that are far from ideal.
The philosophy of punishment ought to be more grounded, critical, more problem-oriented, and more public – more attuned to the concrete social realities of the institutions of criminal justice
To avoid these pitfalls, the philosophy of punishment ought to be more grounded, critical, more problem-oriented, and more public – more attuned to the concrete social realities of the institutions of criminal justice. In this sense, it is useful to employ Mary Midgley’s idea of philosophy as ‘plumbing’ (as recently discussed in Ellie Robson’s essay, “Mary Midgley on Water and Thought: Is Public Philosophy like Plumbing?”). According to Midgley, the role of the philosopher is to ensure that the concepts that we use to make sense of the world, to articulate ideas and practices, allow our thinking to flow without problems. This is difficult because concepts, ‘like the pipes below our houses’, are usually concealed and they can be quite hard to repair; also, repairing them may require us to do substantial damage to the structures housing them, which may be unusable until the problem is fixed. This elegant idea (regardless of the ‘undignified’ character that is often, if erroneously, attributed to plumbing) is, in many ways, similar to Locke’s conception of philosophy as ‘under-labouring’, but it adds the important dimension of it being continuous work. It is not enough to simply ‘clear the ground’ for structures to be built; sometimes, philosophy needs to go there and tear everything apart to find out what is clogging the pipes.
There is little doubt that there is significant blockage in the ways we understand and think about punishment. We are painfully aware that there is something very wrong with it: prisons, the most notorious form of punishment, are generally overcrowded, underfunded, violent places which seem to contribute to the perpetuation of crime rather than allay it; the criminal justice system is in disrepute, with serious incidents of miscarriages of justice, severe backlogs and delays in processing cases, and similar issues around underfunding, particularly with regards to legal aid. At the same time, most criminal cases never go to trial, instead taking questionable routes like ‘plea bargaining’ which significantly undermine ideas of fairness and due process; and, perhaps most concerningly, punishment is deployed in deeply discriminatory ways, disproportionately affecting deprived, racialised, gendered and marginalised populations, while those in the social elites continue to enjoy relative degrees of impunity. And yet, we – especially ‘we’ in liberal democratic societies – continue to indulge in the idea that punishment can be a solution to social issues, and a necessary, even desirable, pathway to justice. From this perspective, the justification of punishment is indeed a problem – not in the sense that we don’t know how it ought to be justified, but rather in the sense that we continue to insist on justifying it despite overwhelming evidence to the contrary.
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The Puzzle of Punishment
We can perhaps summarise the philosophical problem of contemporary punishment outlined above as: it doesn’t work, and yet we need it. How do we make sense of our over-reliance on punitive responses when it is increasingly clear that such responses are unable to make good on any of punishment’s promises? In our recent book, Questioning Punishment (2024), we explore a series of pathways to addressing this question. Perhaps above all, we try to make as strong a case as possible for the need to take this question seriously, as it is seldom, if ever, recognised as a concrete theoretical issue. Instead, the problem of punishment is usually taken to be a reflection of problems with punishment: with its implementation, with its scope, with its method, and so on. But punishment is rarely seen as a problem in itself, as a wrong-headed approach to dealing with injustice.
We can perhaps summarise the philosophical problem of contemporary punishment outlined above as: it doesn’t work, and yet we need it.
Perhaps the main reason why we can’t see punishment itself as problematic is because we all seem to assume we know what it is. The idea of punishment is hegemonic, in the sense that it is ingrained in the ways we understand the social world and its related notions of order, and in the sense that it is deeply embedded in our common sense, almost as a natural facet of human existence. The fundamentals of punishment are rarely ever questioned; instead, punishment is taken as a given, and this ‘givenness’ is usually the starting point of any discussion about it. Given that we have punishment, what do we do with it? How do we make it fair, humane, limited, efficient, and so on? But if, as it appears, the problem of punishment runs deep – into nearly every aspect of its definition, its functioning, and structure – then perhaps a proper survey is warranted, one that digs into its foundations to expose and re-examine its conceptual plumbing.
One of the main difficulties in such an exploration is that, below the surface, the conceptual framework of punishment is much more complex than it initially appears. For starters, there is substantial conceptual confusion in the very idea of punishment. While it is safe to assume that, when we speak about punishment, we are referring to state punishment – the official, institutionalised set of practices and procedures tied to criminal justice, which refer to sanctions imposed on individuals following a criminal conviction – this conception nevertheless conflates many assumptions about what is being done, how, and why.
A simple way of illustrating this is by looking at the myriad ways in which punishment can be justified and rationalised: it can be a matter of giving the convicted what they deserve; a way to deter them from committing (further) crime; a way to deter people in broader society from committing crime; a way to send a moral message to reinforce public morals; a way to incapacitate dangerous criminals; a way to rehabilitate the offender; a form of ‘social defence’; and so on. Punishment can feel both very personal and very detached; it can be both a way to respect the individual who is punished and a way to stigmatise them; it can be about the victim, about the offender, about the authority of the state, and about society more broadly. Some of these different perspectives may fit together to some extent, but others are very difficult to reconcile, and yet they all coexist within the contemporary imaginary of punishment. For instance, all the different justifications given to the punishment of offenders are generally seen as valid, and they are often conjoined in sentencing rationales, even though some of them – like incapacitation and rehabilitation – are inherently contradictory.
Such complexity can also be found in the concept’s genealogy. On the one hand, punitive laws and practices have existed throughout history; some of the earliest documented texts and traditions, such as the unwritten Roman laws which were eventually enshrined in the Twelve Tables or the Code of Hammurabi, include the prescription of punishments for specific crimes. Moreover, punishment also appears as a very intuitive moral and educational practice, almost like an instinctive way of showing others that what they are doing is wrong or prohibited. On the other hand, we cannot ignore how contemporary punishment has a specific history, which is intimately tied to the idea of modernity, the civilising process, and the modern state. Modern state punishment was institutionalised, so the story goes, to remedy the excesses of pre-modern punitive practices, to replace arbitrariness with fairness, and violence with justice. The institution of punishment is thus presented from the outset as a project of reform, and as part of a trajectory of progress. Of course, this is a rather narrow and limited understanding of the history of punishment that both presents a neat image of its contours which is far from the actual messiness of its real development, and neglects important aspects of this history, such as the links between modern punishment and colonial and imperial processes.
We cannot ignore how contemporary punishment has a specific history, which is intimately tied to the idea of modernity, the civilising process, and the modern state.
Nevertheless, it is undeniable that this modernising narrative still exerts considerable influence over our punitive imagination, which sees punishment as inherently civilising, a just and ordering force. This leads to another dimension of our common sense around punishment: not only do we assume that we know what it is and what it does, we also assume that whatever its problems, punishment is ultimately something good – something valuable, important, even necessary. That is why, when faced with its contradictions, its limitations and its violence, our primary answer is to seek to rescue it, to improve it – as Foucault would say, ‘not to punish less, but to punish better’. This reliance on punishment, this desire to punish suggests something deeper anchoring the cultural belief that punishment works, or that it can work, even when it doesn’t. This something deeper, we suggest, is an emotional attachment to the utility of punishment – basically, we need it to work.
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The Need for Punishment
Why is it that we need punishment to work? In the first instance, we might presume that it is because we need punishment to fulfil its purposes: we need it to reduce crime, to preserve order, to rehabilitate, and so on. Upon closer scrutiny, however, this cannot really be the case, since we already saw that there is significant evidence that punishment does not deliver on its promises. To help address this conundrum, consider David Hume’s insight in his essay, “Why Utility Pleases”, that we pursue utility in things because the idea of utility is pleasing to us. In line with Hume’s analysis, perhaps the reason we want punishment to work is because the idea that punishment works is pleasing; in other words, we need to believe that punishment works.
But, again, why do we need this belief? What does the utility of punishment give us that we cannot get elsewhere? Émile Durkheim famously argued that the main role of punishment in society is not to address crime, but to reinforce the bonds of social solidarity. By ritualistically enacting a condemnatory response to violations of shared moral values, the material and symbolic apparatus of punishment brings us together and reaffirms our status as citizens of an ordered, peaceful, and just community. In reinforcing this social imaginary, the rituals of punishment are meant to provide us with a sense of solidarity, which societies need in order to function, and which imbues individuals who are included in this ritual with a sense of identity and belonging.
Taking Durkheim’s idea further, George Herbert Mead’s seminal piece, “The Psychology of Punitive Justice”, alerts us to the fact that the solidarity produced by punishment is inherently linked to aggression. Punishment brings ‘us’ together by setting ‘us’ against ‘them’: against those labelled as criminals. The ‘we’ of punishment thus refers primarily to those who can identify with the image of society promoted by it; that is, those who can present themselves as law-abiding citizens. Those who can’t include themselves in this image are instead directly excluded from it by punishment’s normative message: that if you are not part of the just community, you are a threat against it, and can be rightfully condemned and subjected to hard treatment. Punishment is thus an aggressive practice of boundary-maintenance, generating solidarity through hostility.
There are important reasons why this hostile solidarity can be alluring, especially now. First, in addition to reinforcing a collective sense of belonging, this form of solidarity also provides a channel for feelings of frustration and anxiety, by directing them towards criminal others. Because this symbolic apparatus is deeply embedded in our social imaginary – as we said, punishment is a hegemonic social institution – this means of solidarity production is also readily available, while other means are usually more difficult and slower to access. This might explain why there is ample research in the social sciences which suggests that we tend to be more punitive in conditions of social fragmentation and insecurity: punitive practices and discourses provide us with an emotional ‘quick fix’ when other sources of solidarity are lacking. Hostile solidarity is readily available because it is largely artificial; it provides a simplistic, black-and-white representation of complex social problems. But, in downplaying – when not outright repressing – the deeper roots of our feelings of insecurity and alienation, the solidarity engendered through punishment, pleasing while it may be in its simplicity, is largely fleeting, if not outright illusory. While it may give the sensation of solidarity, it mostly lacks the concrete conditions to preserve this experience and to make it last much beyond its momentary outburst. Hence, the more we depend on punishment to bring us together, the more we seek and reproduce its effects, leading to a vicious cycle of hostility that runs the risk of colonising more and more areas of social life. What may start as a punitive impulse in criminal justice spreads to hostile practices and logics in immigration, welfare, education, health, politics and so on.
The more we depend on punishment to bring us together, the more we seek and reproduce its effects, leading to a vicious cycle of hostility that runs the risk of colonising more and more areas of social life.
The main blockage in the flow of thought around punishment may thus be this displacement regarding what punishment really is about, which is inherent to its conceptual framework. Punishment is framed, justified, and deployed as a ‘them’ problem: the issue is criminal behaviour, criminal outcomes, and criminal others. However, punishment ultimately is about ‘us’: about how we feel, what we need, and about the societies in which we live and to which we contribute. Punishment is a form of scapegoating: it takes social insecurity and our related negative feelings and channels them towards others, and in so doing it fabricates a (hostile, artificial, transitory) sense of atonement and justice.
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The Problem of Justice
Punishment is thus a significant problem in contemporary societies, one with which we cannot easily do away. For even if we want to say that what punishment does is mostly artificial, it nevertheless speaks to concrete emotional and material needs. Our contemporary reliance on punishment reflects a real lack of alternative resources for pursuing other, more wholesome forms of belonging, solidarity, and justice. The selfish, possessive, individualistic, deeply inegalitarian character of social relations in most contemporary liberal democratic societies constitutes a significant hindrance to more inclusive practices and social imaginaries, which is magnified when compounded with conditions of crisis, scarcity, war, and environmental catastrophe. Under such circumstances, the hostile solidarity of punishment is as much painkiller as it is a kind of placebo.
Our contemporary reliance on punishment reflects a real lack of alternative resources for pursuing other, more wholesome forms of belonging, solidarity, and justice.
Punishment promotes an image of community and order that actively discourages us from pursuing alternatives. By shifting the blame to criminal others, punishment sells us the promise that we already live in a good, just society, and therefore all we need to feel better is to deal with those dangerous people who are identified as the source of injustice. This is a powerful promise, since ultimately what we want is not only to belong, but to belong to a good society. From this perspective, the starting point to challenge the allure of punitive logics is to come to terms with the fact that we do not live in a good society. And, further, that we are part of this bad society, and are therefore responsible for it. It is not enough to shift the blame from the marginalised, racialised populations, who are over-criminalised, policed and punished, to corporations, politicians, and elites; if the problem is ‘us’, then we need to accept that we all share responsibility for justice.
This ‘call to be just’, as Iris Marion Young would say, comes with a heavy burden, one which requires us to shatter deeply held illusions and to question our own sense of identity seriously and comprehensively. We need, furthermore, to seriously question our social reliance on processes of othering and, in doing so, question also our own conceptions of and feelings towards others. Punishment avoids – and, so, questioning it raises – important questions about justice, responsibility, freedom, and so on. And, yes, solidarity. Fortunately, at the same time as contemporary societies experience a potentially unprecedented period of hostile politics, policies, and relations both domestic and international, we also see several renewed collective efforts to reimagine ourselves and our lives in common (see, e.g. grassroots initiatives around transformative, non-punitive justice, campaigns and protests against racialised and gendered discrimination and state violence, etc). Hopefully, we can continue to build on these efforts to renew and develop a public philosophy – and practice – of justice.
Henrique Carvalho is Reader in Law and co-Director of the Criminal Justice Centre at the University of Warwick. He is the author of The Preventive Turn in Criminal Law (2017) and (with Anastasia Chamberlen) Questioning Punishment (2024). His research interests include cultural theory, social theory, criminal law and justice, and the philosophy and sociology of punishment. Twitter: @HRDCCarvalho
Anastasia Chamberlen is Associate Professor in Sociology and co-Director of the Centre for the Study of Women and Gender at the University of Warwick. She is the author of the book Embodying Punishment (2018) and (with Henrique Carvalho) Questioning Punishment (2024). Her research interests include feminist theory, the sociology of prisons and punishment, embodiment, arts and aesthetics. Twitter: @a_chamberlen
From The Philosopher, vol. 112, no. 1 ("Punishment").
If you enjoyed reading this, please consider becoming a patron or making a small donation.
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