Punishment through the Looking Glass

A review of Didier Fassin’s Tanner Lectures, ‘The Will to Punish’

by Sara Leon Spesny

The full audio of the lecture is available through the Tanner Lecture Series website.

tanner-lecture-pic-2Didier Fassin presented the 2016 Tanner Lectures at University of California, Berkeley. Entitled ‘The Will to Punish,’ the lecture event took place over three consecutive afternoons in April, with the initial presentation followed by participant’s comments and a short reply. Fassin structured the lecture in three sections:

1. What is punishment?

2. Why punish and whom?

3. A discussion.

This is a new field of inquiry for Didier Fassin, even though he draws on the vast ethnographic work he has done[1]—specifically among the police, prisons, justice systems—and on some of his own theoretical frameworks, such as his take on moral economies (Fassin 2009). Fassin does not rely exclusively on ethnography; he also incorporates genealogy for a historically situated analysis of the present. This parallel use of ethnography and genealogy has characterized Fassin’s anthropological approach (Fassin and Rechtman 2009; Fassin 2011; Fassin et al. 2013). The latter, he specifies, is “a way of apprehending the social world, with a propensity for astonishment.” This implies a consideration of “facts or attitudes not as a necessity, but as a product of a certain configuration, which, had it been different, would have generated a different reality.” These two approaches are useful: on the one hand, genealogy, which facilitates astonishment, denaturalizes and enhances critique allowing us to question what we take for granted. On the other hand, ethnography explores the implications of certain configurations of the world and questions what appears as self-evident. Though there is a clear Foucauldian influence in Fassin’s approach, he also traces his formulation of genealogy and critique to Nietzsche.

Didier Fassin opened the lecture with a cross-societal perspective of punishment, comparing non-western and western cases. He reflected on a scene described by Malinowski: a young Trobriand man commits suicide after the serious infraction of a local law—the endogamy taboo. Fassin then described a very different scene, taken from an article in the New Yorker, about a young man who was arrested in the Bronx for allegedly stealing a backpack. The young man was never convicted, but was nevertheless incarcerated for three years while awaiting trial. The ordeal ended with his suicide not long after his release from prison (Gonnerman 2014).[2]

The two cases differ significantly in terms of time, context, and space, but both result in a suicide. These two stories, Fassin explained, question what punishment (commonly) means in its relation to crime. They challenge two main ideas: that punishment is retribution or infliction of pain on an offender for a legal or moral offense; and that, from a legal and moral basis, punishment must be legitimate and adequate in relation and proportion to the crime. For Fassin, classic orientations of punishment from legal theorists and philosophers[3] are usually normative, whether utilitarian, retributivist, or both. But these two stories do not quite fit within the classic understanding of crime and punishment. On the contrary, they broaden and shift what these frameworks establish: In the Trobriand case, for instance, there is a crime but no punishment (since it is chosen rather than imposed). When a taboo in broken (implying a rule is transgressed), individuals involved will commonly turn to magic to reestablish order instead of imposing a punishment. In the second example, it appears that there was a punishment, but there was no crime. The incarceration of a the young man from New York is more a “conjuncture of legal mechanisms and economic constraints than a formal punishment.”

These two cases have a “heuristic, rather than systematic, comparative function” for Fassin, as he draws some conclusions that advance his four-part proposal to dismantle the common-sense classical definition of punishment: First, that a crime does not inevitably imply punishment, even for the worst offenses; there can be alternative responses. Second, punishment does not necessarily imply a previous crime; it can proceed from other logics, such as socioeconomic. Third, a major crime can lead to a minor punishment, and a minor crime can lead to a major punishment, refuting the principle of adequacy and thus delegitimizing the principle of retribution. Fourth, the actual punishment of an apparent crime may substantially exceed its delimitations. For instance, beyond the formal laws within prison facilities, there are invisible punishments that are also inflicted. Within this perspective, the relation between crime and punishment does not clearly reflect the image that common sense and normative theory project.

Fassin’s argument pushes past what he calls “the banal relativist affirmation that punishment takes different forms in different societies.” Instead, he questions the link between the moral necessity to punish a crime, and the imperative that a crime must be punished. The Trobrianders seem to tolerate the application of rules and violations but prefer gossip, ritual, and magic instead of verdict, retribution, and penalty. They opt for distraction and accommodation to morally regulate deviance and crime. In contrast, the application of law and punishment in the United States seems to be exercised at any cost. The contemporary penal system unequally distributes punishment, targeting some crimes more consistently over others and thus disproportionately penalizing the poor more than the wealthy.

Fassin’s argument is that punishment’s current association with the infliction of pain has not always been essential. The etymology of the word “punishment” points towards a shift from debt, reparation, and expiation in the ancient Latin and Greek (semantically related to exchange) towards the notion of justice, and later of pain (suffering as the ultimate way to redeem one’s sins in Christianity), where the moral connotation gained explicit force. In sum, the moral economy of debt was progressively replaced by a moral economy of suffering. Here, Christianity has played an important role in shaping the meaning of punishment, both in the physical imprint, as torment, and the moral imprint, as expiation.

What is considered an offense determines the distribution of punishment. This implies a strong link between who is punished and what is punished. Recalling Durkheim, Fassin explains that the act of crime depends on social conventions. He illustrates this point with the unequal distribution of incarceration rates, which relates to broader social inequalities. A moral hierarchy thus also reveals a social hierarchy. The current moral economy of punishment contains three elements that serve to sustain an unequal distribution of retribution: The recognition of the victim, the realization of responsibility (which exonerates society for its accountability), and the emphasis of suffering as punishment. Another exemplary case of the unequal distribution of punishment relates to policing as a form of punishment. Policing is a form of punishment informally carried out in certain populations, mainly low-income classes and populations of racial, ethnic or religious minorities. This punishment is often an accumulation of discriminating policies and actions.

The three respondents, Bruce Western (Professor of Sociology, Harvard University), Rebecca McLennan (Associate Professor of History, University of California at Berkeley), and David Garland (Professor of Sociology, New York University) added some interesting thoughts to Fassin’s ideas. Bruce Western suggested that the criminalization of poverty deserved more elaboration, highlighting the dehumanization of the poor and the powerless.

Rebecca McLennan contributed insightful commentary on the gendered dimension of punishment and a methodological break in Fassin’s lecture—a “strange paradox”—between his ethnographic and genealogical approaches. She concluded,

“If we want to trace back this history—at least in the United States—of the actual punishment of the actual people, we would have to recover the history of the infliction of pain within the single most important disciplinary institution of the 18th and 19th century: the plantation.”

And finally, David Garland suggested that Fassin places these multiple “zones of illegality” on the table of discussion. The margins of extrajudicial forms of power are shifted towards the very center of this understanding of punishment. Garland also offered some alternative interpretations of the two scenes that Fassin analyzed relating them to these zones of illegality.

In the lectures, Didier Fassin engages with the world of punishment, deconstructing the normative presumptions of a moral link between crime and punishment. What he refers to as “anthropological astonishment” serves to generate a theoretical approach based on ethnographic fieldwork, deepen by genealogical analysis. How, though, can this theoretical project lead us to new and different understandings of law, punishment, and crime? Based on the lecture and the comments from invited scholars, we should expect future work to deliver robust answers to this question.

Notes

[1] In this short review, I will not describe the fieldwork scenes Fassin presented, which were richly narrated in the Lecture and are available through the audio link.

[2] The complete New Yorker article is available at: http://www.newyorker.com/magazine/2014/10/06/before-the-law

[3] Fassin mentions briefly some of the most recognized legal theorists and philosophers: spawning from Cesare Beccaria, John Rawls, to Jeremy Bentham, Immanuel Kant to James Wilson and others.

References

Fassin, Didier. 2009. “Les Économies Morales Revisitées.” Annales. Histoire, Sciences Sociales 6/2009 (64e année): 1237–66.

———. 2011. La Force de L’ordre : Une Anthropologie de La Police Des Quartiers. Seuil.

Fassin, Didier, Yasmine Bouagga, Isabelle Coutant, Fabrice Fernandez, Nicolas Fischer, Carolina Kobelinsky, Chowra Makaremi, Sarah Mazouz, and Sébastien Roux. 2013. Juger, réprimer, accompagner essai sur la morale de l’Etat. Paris: Ed. du Seuil.

Fassin, Didier, and Richard Rechtman. 2009. The Empire of Trauma: An Inquiry into the Condition of Victimhood. Princeton, NJ: Princeton University Press.

Gonnerman, Jennifer. 2014. “Before the Law.” The New Yorker, October 6.

*****

A bit more about:

The Tanner Lectures

The Tanner Lectures are a series of lectures given by outstanding scholars on subjects related to human values. Founded in 1978 by scholar and philanthropist Obert Clark Tanner, the Tanner Lectures are hosted annually by Cambridge, Harvard, Michigan, Oxford, Princeton, Stanford, Utah, Yale, and University of California at Berkeley. Lecturers reflect on the entire rage of values attached to the human condition.

The Lecturer

Didier Fassin is the James D. Wolfensohn Professor (Institute of Advanced Study, Princeton) and Director of Studies (École de Hautes Études en Sciences Sociales, Paris). Prof. Fassin is an anthropologist, sociologist and physician. He has conducted fieldwork in several continents, including France, South Africa, Senegal and Ecuador. His work has focused on medical anthropology, critiques of humanitarianism, and how questions of ethics and morality intersect with state institutions, such as the police and the prison. Among his latest books Prison Worlds: An Ethnography of the Carceral Condition (forthcoming) At the Heart of the State. The Moral World of Institutions (2015), Enforcing Order: An Ethnography of Urban Policing (2013), Humanitarian Reason. A Moral History of the Present (2011).

The Commentators

Bruce Western is the Guggenheim Professor of Criminal Justice Policy, and Professor of Sociology, Harvard University. He is the author of Between Class and Market: Postwar Unionization in the Capitalist Democracies (1997) and Punishment and Inequality in America (2006).

Rebecca McLennan is Associate Professor in the Department of History at the University of California, Berkeley. She is the author of Becoming America: A History for the 21st Century with David Henkin (2014) and The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776-1941 (2008).

David Garland is Professor of Sociology at New York University. He is the author of The Culture of Control: Crime and Social Order in Contemporary Society (2001); and Peculiar Institution: America’s Death Penalty in an Age of Abolition (2010).

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