The Will to Punish by Fassin Didier;Kutz Christopher;

Author:Fassin, Didier;Kutz, Christopher;
Language: eng
Format: epub
Publisher: Oxford University Press, Incorporated
Published: 2018-06-15T00:00:00+00:00

Chapter 3: Who Gets Punished?

Whereas the definition and justification of punishment have fascinated philosophers and jurists, generating substantial literature and rich discussions, its distribution has not received the same attention. Probably the question was hardly one for them since, from their viewpoint, the act of punishing was supposed to be fair, meaning that all offenders—and offenders only—were to be punished on similar principles: a just justice, in sum, which did not call for more theoretical developments.1 The question: Who gets punished? fell to sociologists and criminologists for its scholarly aspects, and to human rights activists and lawyers for its applied dimension. It is as if the spectacular disparities observed across socioeconomic categories or ethnoracial groups did not make relevant objects for philosophy and law or simply revealed actual differences in the commission of crime. Moreover as both disciplines developed their analyses on the basis of specific situations, whether imagined or real, their casuistry-like reasoning made it difficult to identify systematic differences, which need to be apprehended at a collective level and measured via statistics.

Exceptions to this general observation regarding the relative lack of interest of philosophers and jurists for the unequal distribution of punishment should certainly be mentioned, particularly within the tradition of legal realism and, more recently, critical legal studies. However, the most remarkable but also most atypical of these exceptions is Foucault’s work, notably his lectures at the Collège de France on “the punitive society,” in which he dedicates a significant part of his reflection to what he calls the “civil war,” an unusually dramatic formulation to refer to the eighteenth- and nineteenth-century penal system.2 This war is a “social war,” he writes, a “war of rich against poor,” in which the criminal becomes a “social enemy” whose punishment is justified by the fact that he is “someone who wages war on society.” Inasmuch as “social laws are made by people for whom they are not intended and applied to those who did not make them,” offenses can be differentiated between “popular illegalisms,” mostly consisting in depredation, which should be repressed, and “bourgeois illegalisms,” principally frauds, which should be spared; the former are seen as an obstacle to the expansion of industrial capitalism, whereas the latter are regarded as its facilitator. Considered from this perspective, the question: Who gets punished? therefore implies another one: What gets punished?, with the latter legitimizing in some way the former. In answering these two interrogations, I will analyze first how the penal system produces a dual differentiation of the offenses and the offenders, and then how this social process is erased, ignored, or disavowed.

The relation between crime and punishment is more equivocal than we commonly presume. Reversing the expected sequence, Durkheim defines crime as “any act which, regardless of degree, provokes against the perpetrator the characteristic reaction known as punishment.”3 And he famously continues, “We must not say that an act offends the common consciousness because it is criminal, but that it is criminal because it offends the common consciousness. We do not condemn it because it is a crime, but it is a crime because we condemn it.

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