The Will to Punish, edited by Christopher Kutz, is the culmination of Didier Fassin’s remarks at the annual Tanner Lecture on Human Values at UC Berkeley in 2016 as well as critical responses from other three scholars. An anthropologist and sociologist by training, Fassin incorporated ethnographical, philosophical and genealogical approaches to account for the reality of punishment as well as its implications through critical lenses. By answering three questions pertaining to a thorough empirical investigation of punishment, “What is punishment?”, “Why does one punish?”, and “Who gets punished?”, through his research on the United States and France, Fassin offers a normative case where punishment deserves deeper examination.
Working against the standard definitions on punishment which often implicitly justifies its legality and morality from legal theorists like H. L. A. Hart, Fassin insists that one must understand punishment also and more importantly as a pervasive method of inflicting pain on individuals, often collectively and randomly, who did not commit legal offenses, by those inside (and sometimes outside of) the penal system. In light of Nietzsche’s insights, Fassin is able to delineate the historical evolution of modern punishment in the West featuring physical correction and moral education that reflects the remnants of Christianity, which is preceded by material reparation that does not necessarily indicate individual liability. Such arguments from Fassin propel one to be more realistic regarding punishment, recognizing the fissures between the facts and the idealized definition, which paves way for his assessment of justifications for punishment.
Fassin identifies two streams of philosophical rationales behind punishment: utilitarianism and retributivism. The first school believes that punishment of criminals will result in greater social good by incapacitating the harmful, rehabilitating them for society, and deterring offenses. The second, inspired by Kant, claims that any wrongdoing must be repaid by punishment for the crime’s own sake. The two accounts clash with each other; however, they suffer from the same ill since they depart from how those who are imposing the punishment actually think. Through meticulous examinations of three cases involving the police, the court, and the prison, Fassin is not only able to evacuate case-specific reasonings but also the prevalence of irrational factors including people’s unspeakable pleasure in watching others suffer. This “contemporary form of pornography” (Fassin, 85) exhibits the cruelty connected with practices of punishment.
However, such sufferings do not distribute evenly in society. According to Fassin, punishment is heavily skewed in severity toward the financially and ethno-racially disadvantaged. The legal system ignores and even exacerbates social inequality by highlighting the structural precarity of living in troubled neighborhoods and circumstantial disparities that target specific groups intentionally and disproportionately through the principles of the liability of the offender and the individualization of the sanction. By turning a blind eye to how social structures shape the possibilities of being subjected to punishment for distinct demographics, the society at large contributes to the existing biases through its penal apparatus by creating the self-fulfilling prophecy of criminality and “otherness” that eventually justifies social exclusion and inequality.
Fassin’s critical and social-scientific engagement of punishment in grounded instances serves as a necessary antidote to the overly abstract and legalist discourse in evaluating the nature and ramifications of punishment in contemporary Western societies. His cross-national research, based on a much more expansive understanding of punishment, also complements Michelle Alexander’s pathbreaking study, The New Jim Crow, which focuses on the mass incarceration of racial minorities in America. (Alexander, 4) By challenging the legitimacy, utility, severity, and fairness of punishment as it is actually carried out on-site, Fassin forces his readers to ponder the difficult questions of why punish, how to punish and how to punish.
Indeed, one may regard Fassin’s work as the contemporary Discipline and Punish, citing its illuminating observations on how the penal system of the West serves as a politico-economic machine that incrementally marginalizes the marginalized. It is in this vein that the friendly critiques from Bruce Western and Rebecca McLennan set out to push Fassin into exploring into more depth the problems of, respectively, how violence, poverty, and values relate to punishment, and how should gender and slavery be placed in this project. A less sympathetic voice came from David Garland, whom I share some agreement with and shall now turn to.
By adopting a strict legal definition of punishment, Garland believes Fassin has made the fundamental mistake of confounding certain actions of lawless state violence as well as excess of use of force with lawful punishment. (Fassin, 162) For Garland, blurring the boundaries between legal, appropriate punishment and illegal, inappropriate punishment fails to recognize the potency of the former and the true mistakes of the latter. I concur with Garland’s analysis in the sense that Fassin has been unclear regarding his fundamental attitude to the establishment and institution of punishment itself: if he intends to question the ultimate legitimacy of punishment, which is reflected in his challenge against the mainstream philosophical justifications of punitive retribution, then the theoretically prudent approach to do this must include a viable alternative; if he believes a legalistic interpretation of punishment is overall solid yet needs refinement, then he should be specific about what is it that he takes problem with.
Demonstrating that the injustices of social inequality make it harder for legal justice to prevail is one (largely successful) thing, claiming that legal punishment contributes next to nothing to justice is another. Fassin identifies a “pluralist” approach that combines both utilitarian and retributivist justifications to account for punishment, which appeals to the moral intuition of most people. (Fassin, 71-72) For me, the duet of potential utilities and satisfaction of retribution is persuasive enough to retain punishment. Of course, people who in fact execute the orders of punishment do not reason in these terms, and they pour in emotions in their actions. Yet politicians and lawyers do not always think in the language of public good and justice, either, and this does not delegitimize their offices; and having emotions in punishment merely means that we should channel them properly, not giving up the practice altogether.
Fassin has demonstrated how punishment serves as a political instrument of disproportionately attacking and depriving the poor. That the legal system cannot be fully understood unless its political motives and ramifications are taken into consideration has been unraveled by Judith Shklar in her renowned Legalism. (Shklar, 143-151) This is also why it is extremely important to analyze punishment in the context of democracy, which Fassin has failed to do. Legislations on crimes are reflections of public attitudes and priorities toward the threats against safety, and it is in contradiction to the principle of democratic rule if the severity and forms of punishment do not correspond with how the public conceives different crimes and different groups of people. The mission, therefore, lies in winning the hearts and minds of the public by campaigning the social-scientific findings regarding unfair treatment and implicit prejudices in order to influence legislative processes, leading to more egalitarian and humane punishment with more strict-to-law enforcement.
Contemplating on the innate will to punish is a philosophical issue; understanding how punishment looks like in reality is a sociological endeavor; changing practices of punishment to better deliver justice is a political one. Didier Fassin has provided us with ample evidence and ideas on the first two questions; the remaining one is left for us to deal with.
1. Fassin, Didier. The Will to Punish, C. Kutz, ed. Oxford: Oxford University Press, 2018.
2. Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press, 2010.
3. Foucault, Michael. Discipline and Punish: The Birth of the Prison, A. Sheridan, trans. New York: Vintage, 2012.
4. Shklar, Judith N. Legalism: Law, Morals, and Political Trials. Cambridge: Harvard University Press, 1986.