DURKHEIMS THEORY OF PUNISHMENT (The Social Solidarity theory)

IntroductionDurkheim believes Punishment is more of a moral process than a legal one. A society has certain
shared morality and values, which when breached, attract punishment. The moral base on which
a society is based doesnt usually allow rooms for changes. A crime (a change) when committed,
threatens to challenge the shared morality of the society. Example- Shared morality of a society
says that no person shall be deprived of his right to life. Person X commits a murder and
threatens the shared morality. He is considered deserving for a punishment.
Working of the theory
Durkheim believes that the criminal law of the society is nothing but an embodiment of the
shared morality and normative values of the society. Let us call these values and morals
Collective Conscience.
Crimes that violate this Collective Conscience provoke the moral outrage and a passionate
social desire for vengeance.
These passions find expressions in the legal system of the society, which although become
institutionalized and legislated in the form of laws, deep down they remain a tool for channeling
collective moral sentiment of the society.
The advantages of such a system (where peoples emotional outbursts are recognized in the legal
framework), Durkheim argues, are two A much wider population feels itself to be involved in the process of punishment.
Despite the process being rational and institutionalized, it stems from peoples
raw
responses to crimes.
Punishment therefore is not a legal tool as its main aim is not to control crime but to allow for the
society to have a say in punishing their offenders. It is an expressive mechanism which expects
people to release their sentimental outrage in the form of reactions to social crimes.
Here is where lies Punishments true functioning- By allowing the society to punish those
violating its Conscience Collective, the Penal Institutions demonstrate the Material Force of the
basic social values and restore confidence in the moral order of the society.
So in a nutshell, Punishment is designed more for the onlookers and laymen whose morals have
been violated rather than the offender.
Punishment reassures the society that its values are intact and any attack on it would be severely
dealt with. Such a reassurance reaffirms the social solidarity and breaths confidence into the

Conscience Collective of the society. So basically, Punishment converts a threat to the

Conscience Collective into a triumph of Social order. Therefore, instead of damaging the
cohesiveness of the society, a crime sets in motion triggers a circuit which channels the energy of
outraged sentiments into a social ritual of moral reaffirmation.
Durkheim further argues that this theory is as appropriate to Modern Penology as it is to Ancient
Penology, as its only the forms which have undergone changes, not the functions. Public
beheading has been replaced by lesser violent punishments like rehabilitation, corrections, only
because of the Conscience Collective becoming more considerate of human lives and being less
dominated by absolutist and religious values.

Limitations:
1. Punishment has other branches of expressions like physical restrictions, monetary
penalties, supervisory measures- which Durkheim carelessly missed out on. When
confronted, he argues they are instruments of behavioral regulations and fall below the
horizon of moral phenomena.
2. He fails to recognize some major factors that influence Penal institutions- Economic
considerations, political ideologies, technical developments, professional interests etc.
3. The Conscience Collective concept is problematic as in a pluralistic society it is next to
impossible to achieve a totality of beliefs and sentiments common to the average man.
Usually this Conscience Collective reflects the political aims of the dominant class rather
than the public.
4. Durkheims casual assumption that the society as a whole decides the punishments is
subject to scrutiny. Entering the practical arena, it is observed that it is the legislative
elites and political babus who are responsible for enactment and implementations of the
laws.
5. The callousness with which Durkheim sets out to assume that Punishment promotes
social solidarity deserves to be criticized. Sometimes, punishment divides society on lines
such as religion, region and political ideologies.
CONCLUSION- The theory shifts our focus from the mundane administrative color of penal
institutions to the emotive and sentimental aspects of it. Although the collective conscience is
mildly flawed, it opens up important dimensions of punishment that are not otherwise apparent.
Punishment is an indicator of how powerful the authority is. If Punishment is being frequently
used, it almost means the authority is weak and vulnerable, while if its sparingly used it implies
a strongly established authority. Instead of relying on a utilitarian mechanism of crime control,
punishment as seen by the Durkheims lens, becomes an emotionally driven process.

MARXS THEORY OF PUNISHMENT (The Labor and Polito-economical theory)

Introduction- Marxian theory proposed an arrangement which sought to suggest a co-relation
between the Penal System and Class dominance prevalent in a typical Marxian set up. To be able
to even start understanding this theory, one needs to flashback to the era of Capitalists and
workers- the only two noticeable group of people present in the Marxian society. There are two
groups of Marxian theory that are the centre of focus namely1. Rushe and Kirchheimer
2. Pashukannis.
Rushe and Kirchheimers theory (Punishment and Labor market)
These two Marxians were of the belief that Penal institutions operated with a view to regulate
and influence the labor market i.e the workers groups of the society.
In their book Punishment and Social Structure (1968), they head out to explain how the penal
patterns were dependent upon the basic social relations (which were nothing other than the
modes of production- remember were talking about Marxian society here).
According to them, punishments sole objective wasnt restricted to crime control. It was more of
a labor control.
Illustration 1stThe labor of convicted criminals was seen as a valuable resource and accordingly When labor was in abundant supply, the authorities could choose to be reckless with
human lives and punishments like capital punishments could be prescribed.
When the demand of labor exceeded its supply, the authorities were less ready to
dispense with the valuable labor that their captives represented. It is here that concepts
like Galley Slavery, Transportation, Correction Homes- less violent forms of punishment,
came into the picture.
Illustration 2ndJust like an employee, if given the choice to get transferred to either a country afflicted with
poverty, or a country laden with racism, terrorism, internal disturbance and political disturbance,
would reasonably choose the former, the working class was manipulated to believe theyre better
off working where they are.
This is called the Less Eligibility trick.

The penal institutions were intentionally made inhuman to live in with miserable living
conditions, horrible diets for prisoners and lesser work pay, which made the outside living
condition of the workers seem gloriously satisfactory.
They were misguided to believe that their current working and living conditions are if not
blissful, then at least tolerable. At least so when compared to the lives they could be living inside
the prisons if they committed a crime.
Pashukannis Theory (Polito-economical dominance theory)
Pashukannis constructed his theory around the idea that certain values like
-Legal awareness
-Obedience to law
-Free will and;
-Social responsibility
are supposed to be present in individuals by birth.
A criminal in a legal court is expected to be bearing all of the said attributes while the actualities
differ. For an average worker to posses the listed characteristics was next to impossible in a
scenario where they had to struggle for bare minimums.
Hence the justice system was centered around bourgeois ideals and idealistic values.
Punishment in such a set-up was a transaction (coughCAPITALISMcough)- where the offender
pays exactly what hes taken/wronged. Basically, punishment is seen as a trade, a contract which
is silently agreed upon while he commits the crime. By being punished, hes believed to have
paid his debts.
Such a concept stemmed out of capitalistic attitude and its prevalence and importance in deciding
the penal measures.

LIMITATIONS:
1. Rushe and Kirchheimer over-estimate the influence of economic factors in their analysis
of penal institutions. Economic concerns could in turn be influenced by factors likeprofessional interests, institutional dynamics, religion and the like- something both the
Marxian miss out.
2. It is insufficient to directly link Economic interests and penal outcomes directly
without entering the practical scene. The middlemen were many. The personel who
implemented the laws were in more than one instance remote from the economic sphere
of the society. The criticism doesnt say there wasnt any relation, it only suggests there
was more than just a cause and effect mechanism working in between.
3. The criminal law of the society was not only feared but also desired and more
importantly welcomed as a means to control violence, prevent crimes and restore
harmony in the society. The Marxians neglected the common man who harbored aims for
order in the society and obeyed the law without being forced to do so by fear of
sanctions. It grossly assumed everyone to be a criminal while the real picture was
different.
CONCLUSION- If one bears in mind these criticisms and scales down Marxims claims
so that economic pressures and ruling class interests are viewed influential on, AND NOT
WHOLLY DETERMINATIVE OF, penal policy, it seems clear that this kind of
perspective can illuminate certain features of modern punishment. It can, for instance, go
some way towards explaining contemporary penal phenomena such as importance of
work in prisons, the continuance of the Less Eligibility trick and the frequency of
monetary penalties in most penal systems.

FOUCAULTS THEORY OF PUNISHMENT (The Power-Knowledge theory)

IntroductionUnlike Marxs and Durkheims theories, Foucault takes us directly into the internal working of
the Penal Institutions, focusing on their mode of operation.
Some of the major actors of his act are-Surveillance
-Inspection
-Discipline
-Knowledge
His book Discipline and Punish is primarily about how the primitive practices of penology (like
public violence e.g beheading/stoning for offenders) transformed into a well organized prison
system.
TheoryWhile in the former styles of punishment, the concern was to punish the body, the system
Foucault suggests relies on correct the soul. Avenge the crime is now replaced by Transform
the criminal. Hate the sin, not the sinner.
The character of justice starts expecting a reformation of sorts. Punishment is introduced to fresh
forms of Correction. The focus of the judgment shifts from the offense towards the assessment
of the individual.
The definition of power starts giving way to amendments which believe in detailed knowledge,
routine intervention and gentle correction.
Basically the idea is to regulate thoroughly, rather than to repress temporarily, to improve the
criminal rather than to destroy it.

Foucaults Working Model of Penal Institutions-

1. Foucaults prison deploys a distinctive form of power which is DISCIPLINARY in

nature. Discipline for Foucault, is the art of mastering the human body first and then the
human soul, thereby rendering both obedient and useful.
Example- Paying attention to just one part of the body rather than the entire body and
focusing on their coordination. Exercises performed individually and then coupled with
the body enhance the body discipline.
Such exercises are accompanied by regular supervision.

2. The process of dealing with deviance and disobedience was called Normalization. It
involved assessing the individuals performance with respect to a desired standard of
conduct.
This was done with the help of surveillance arrangements, case records and examination
procedures. This provided them with a very important tool for controlling the individual,
a tool often considered almost equivalent to power- Knowledge. Knowledge meant the
psychological analysis of the individual, a detailed account of his past crimes and a
thorough assessment of his personal reasons for getting into the world of crime. The
sanctions prescribed were exercises and training since the aim is to improve the criminal
and not to take revenge from him. The sanctions, Foucault expected, would make the
individual more self-controlled and responsible.
The tool of knowledge coupled with the implementation of it by exercise of power
developed into an effective weapon against crime called Power-Knowledge. It relied on
collection of knowledge and using power to implement it to correct criminals.
3. To facilitate his principles of Inspection, Discipline and Surveillance, he adopted Jeremy
Benthams Prison which was popularly known as the Panopticon.

The Panopticon was a prison house which was divided into individual prison cells
housing criminals scattered around its perimeter. The eye in the diagram represents the
centre of power personifying surveillance which ensured the prisoners were under
constant penal regulation. Such a system made sure that the prisoners were subjected to
constant knowledge and power of the authorities in the centre.
With time, this pertinent surveillance induced self-control and discipline in the criminals
occupying the cells, knowing they had someone watching them the day out. Being
vulnerable and exposed slowly but surely drove the inmates into practices of behavior
expected of them.
Power no longer needed to unleash its sanctions, the criminals took it upon themselves to
toe the line and reform themselves.

Therefore, the key principles of Foucaults Discipline can be summarized as belowI.

II.
III.

The investigation of the criminal behind the crime.

Attaining knowledge on the basis of such investigation.
Using this knowledge to exercise power over the criminal. (Power-Knowledge)

IV.
V.
VI.

Applying Discipline, Surveillance and Inspection on the criminal who is now an

inmate.
Regulation of his behavior.
Achieving Correction.

Noteworthy- Foucaults prison is present in all walks of the society. We may not see it in
its rigid form but upon reflecting on the consequences we might be able to realize it. The
penal procedures of Observe, Assess, and Cure are nothing alien to institutions other
than the penal ones. If you think hard, nothing different is prevalent in families, work
places and schools. Theres an offender, an authority, power-knowledge and the attempts
at correction. Deviance is met with sanctions- oft times self-disciplinary in nature.
Getting laid off from your office, being grounded for a week by your parents because of
getting caught drinking, and serving detentions due to breaking the decorum of the class,
are indicators of how Foucault has unintentionally but intelligently stumbled upon an
uniform standard which has been silently lurking throughout the skin of our society.
CRITICISMS:
1. In focusing on only Knowledge and Power, Foucault ignores factors like political
scenario, moral values, and sensibilities etc. that equally shape up the penal policies.
2. His concept of Modern Punishment is disciplinary in nature. It seeks to regulate and
reform the offender but penal measures like Capital Punishment and
Fines/Fees/Penalties do not fit in the description.
3. For this theory to succeed the individuals must also be willing to transform
themselves. A centralized prison system isnt all that a theory requires to correct an
offender. The said offender must be ready to receive the corrections and act so as to
better himself. That is not the case once you step into the practical field.
4. The theory advocates against Retribution one of the important hallmarks of a
healthy legal system. Retribution in justice means the offender must pay back for the
wrong hes committed. It neednt be the same as he takes away from the victim, but
the punishment meted out to him must be in proportion to his crime. The theory fails
is thus too rehabilitative in nature, ignoring other aspects of justice.