10. Critical Criminology
Foucault, Marx and Power
Another key figure in critical criminology is Michel Foucault. While not a Marxist, the influence of Marx is evident in his work. As discussed above, for Marx, power is always connected to economic power and how it manifests at the level of the state. Marx’s contemporaries focus on how bloody legislation and state repression to uphold capitalist relations of production/capitalist social structures. Foucault reconsidered how power works, and he has been called a post-structuralist. He argued that simply focusing on power as equal to the law creates a kind of “sterilizing political consequence” (1990, p. 79). Instead, he views power via language and how we think and know about things, or in other words, how power works between people, not on people.
What makes Foucault’s work important is that he extends or broadens the analysis of power away from economic re/oppression into thinking about power existing flowing/circulating between people and groups/institutions. A student of Althusser, Foucault rejected the idea that people were duped into submission by ideology, arguing instead that people actively engaged with power on a daily basis. For Foucault, power operates like a network of relations that we are all a part of. This encompasses more than economic power, and includes power in the form of language and action. He argued that thinking about power this way encourages us to understand power similar to a building block in how things get made, composed or constituted. As critical criminologists, if what we are interested in is investigating power relations, turning to Foucault helps broaden our scope of analysis.
Phases of Foucauldian Thought
Foucault’s arguments changed over time. Although it is difficult to periodise or categorise Foucault’s work, some have argued that there are three movements or phases to Foucault’s thinking. The first is called the archaeological phase, the second is the genealogical phase, and the third is the phase of ethics.
In the archaeological phase, Foucault (1972) is interested in the emergence of discourses and how these are translated into techniques or methods of power. In this case, power is not thought of as repressive but is based in knowledge and takes the form of charts, maps, diagrams and tables that make human activity understandable.. A discourse is the general domain of all statements and classifications about some topic or issue, such as the discourse of child development (e.g., benchmarks of biological, emotional, and psychological changes occurring in young people as they grow) or discourse of victimhood (e.g., the condition of being hurt, damaged or made to suffer) (Gorkoff, 2011). Grounded in this way of thinking, rather than seeing law simply as a bloody mechanism or a mechanism of force, Foucault understands law as a discourse or a mechanism for categorising and classifying people, and he uses developments in the human and natural sciences to do this.
Discourse is like a system of categories captured in language that creates the way we perceive reality. Foucault said discourse is both an instrument and an effect of power. In the study of criminology, discourse is important. Discourses that come from and are used by courts, tribunals, commissions of inquiry, and the law itself operate as a machine for trying to produce truth out of complexity and for trying to categorise human beings in particular ways. Discourse therefore becomes a transfer point of relations of power between groups (such as prisoners, advocates, and politicians) and how a social issue/occurrence gets framed or thought about as a problem.
For instance, the criminal is a key discursive category. Public discourses about the criminal as immoral, violent, troubled, abnormal, and to be feared or avoided appear commonsense. These discourses become entwined with discourses of law, punishment, and justice. Foucault would encourage us to examine these descriptors and their relations, and how they create particular realities. This language extends beyond the criminal justice system and we can examine how the criminal is amplified and reinforced in crime literature and television/movies that feed on the fascination with the sensationalistic imagery of criminal life. We can focus on how these notions of criminality inscribe meaning and play a central role in historical and contemporary social and cultural life (see 12 Cultural Criminology), as well as the role these discourses play as mediators of social debates and crises (Atack, 2001).
Many other categories and classifications are important for Foucault as well. In this archaeological phase of his work, Foucault is trying to locate or dig up where these classifications and categories we take for granted today emerged.
In the second phase of Foucault’s work, which we can call genealogy, Foucault (1975) is interested in not only techniques of classification, but how these types of classifications or discourses turn into different mechanisms of discipline and normalisation. For instance, he examines how techniques of discipline and normalisation that developed in the criminal justice system developed and operated in parallel ways in other institutions such as in education, factories, hospitals,and asylums. He details the historical development of timetables that organise one’s day and discipline one’s activity. In prisons, prisoners are subjected to a timetable that structures their day,requiring them to rise, eat, work, and sleep at certain times. This disciplinary timetable was used in numerous social institutions that developed around the same time. Schools used timetables to organise the day and discipline students into routines. Factories used timetables to order shifts and ensure the discipline of workers. Foucault argues that all these places tend to resemble one another to the extent that they deploy similar techniques of discipline and normalisation. Foucault uses the term the carceral to articulate the multiple networks of diverse elements and the power of normalisation that extends into the entire social body, how these things are tethered to one another, and how they reinforce one another over time.
In his key genealogical work, Discipline and Punish (1975), Foucault focuses on a detailed history of how punishment changes from the body of the condemned (hanging, beheading) to the soul of the convicted (therapy, reflection, confinement, etc.). In the primary punishing institution, prison, the soul of the convicted is no longer tortured in public, but instead is subjected to hierarchical observation, normalising judgements, and practices of discipline. These practices and techniques of punishment eventually become normalised. These techniques of disciplinary power are not about the use of the bloody power of the state on the individual, but how things such as a daily schedule, self-control over posture and bodily functions, and the use of surveillance become the mechanisms people find themselves exposed to, and how institutions, programs, and polices are created. This approach is nuanced enough to understand how domination operates and develops in different ways in various social settings. For Foucault, power and domination are not limited to the state. There are power relations operating that do not simply stem from law or from the state apparatus, but are actually located in individual relationships (e.g., guard/prisoner; lawyer/accused) though they may reinforce them at some points in time. The terms and processes Foucault advances allow for critical criminologists to locate power relations and domination in a multitude of sites and further, in a genealogical way.
The third phase of Foucault’s work is often referred to as the phase of ethics, where Foucault (1990) turns from an interest in the genealogy of disciplinary institutions to self-control or self-discipline and ultimately to how individuals engage in “care of the self” or makes themselves up as people or what he called an “ethical self.” In The History of Sexuality, Volume One, and elsewhere, Foucault (1982) shifts from studying technologies of institutions to technologies of the self. In his book, he examines how sex is spoken about and how it is known, then how individuals who engage in sexuality form themselves as sexual beings based on this knowledge. This includes understanding how we conduct ourselves as people. It is focused on how we make ourselves good students, good workers, good athletes, good partners, etc. In other words. Foucault was interested in how people governed themselves in a free society, how we make ourselves into members of society, and how we control our own behaviour.
Foucault is careful to note that self-governance does not happen in a vacuum. It may happen in relation to those forms of knowledge (discourses) Foucault uncovered in his archaeological work, or in relation to the discourses Foucault investigated in his genealogical work. This raises a number of interesting questions such as how we make ourselves into subjects of law (juridical subjects) including being, or not being, a law-abiding citizen. He thought that although we seemingly have the freedom to control our own actions (e.g., freely obey the law), Foucault outlined that these choices are not truly free, and that we are “governed from a distance” by the discourses and knowledge that we experience.
Foucault’s work allows us to think about power as an intersection between a knowledge about something, and techniques of organising the behaviour of others and/or ourselves. He gives this the term governmentality, which is the analysis of who can govern and who is governed but also the means by which our own and others activities are shaped (Foucault, 1990, 2005, 2011). In his final lectures, Foucault offers this concept as a tool for looking at the intersection of these different phases of his work. The goal is to examine how a governmental rationality or some kind of classificatory system intersects with the way a whole population starts to govern itself or make itself intelligible.
Again, these are simply our musings about Foucault’s work. Not everyone will agree with this distilling of Foucault’s whole corpus into these movements of thought and there have been some interesting adaptations and debates. For example, Alan Hunt (1992), an important Marxist figure in legal studies and criminology, suggested that by broadening the scope of what power means, and at times offering multiple fluid definitions of power, Foucault expels law from his analysis. Remember, according to Foucault, equating power with law and the state creates a sterilising political consequence meaning that it stops any other way of thinking about law except as oppressive. However, Hunt suggests it might be equally sterilising to argue that power is so fluid that it is found everywhere, including in one’s own governance of their thoughts and bodily practices. Hunt (2004) has further developed this into the conceptual framework of law as governance, bringing Foucault and Marx together, in some ways. His work on governing consumption brought together how law (around food, clothing, etc.) and self-regulation (deciding what to eat and how to dress) work together to construct dominant and normative moral positions.
Foucault remains incredibly important for a critical criminologist because he allows for a more open analysis of power and domination, that is not reducible to the state apparatus, law or capital. Some Marxists, including Alan Hunt (2004), found it appealing, and fruitful to work with Foucault and Marx together, seeing as how they complement one another. Foucault’s work has led to a whole area of study referred to as governmentality studies. Scholars such as Mariana Valverde (2010), Nicholas Rose (1993), and David Garland (2001) have identified themselves as governmentality scholars and contributed much to critical criminology in this vein. David Garland’s work on cultures of control could be construed as a type of governmentality studies. We discuss his work below.
Garland, Governmentality and the Culture of Control
David Garland picked up on Foucault’s concept of governmentality and his method of genealogy or history of the present to write several articles (1997) and a book (2001) analysing how crime is problematised and controlled by examining the structure of the crime control apparatus that has emerged out of cultural, social, and economic shifts in society. Garland linked Foucault’s idea of the self-governing subject and how power creates people, to a history of crime control policies (both governmental rationalities and technologies of crime control) in the United States and Britain between 1970 and 2000.
He was particularly interested in how the penal welfare state that was designed to assess, diagnose, and treat offenders changed into a third sector of crime control characterised by the rise of prevention and security apparatuses. He details how the system moved from a system of punishment and rehabilitative justice (where those convicted of crimes received treatment for what caused their offending) to one of safety and risk management (the management of spaces and people who were risky). He details the rise of victims’ rights movements and interest groups such as women’s groups calling on the criminal justice system to address rape and domestic violence and neighbourhood groups asking for more police presence or safety programs in their community.
Garland details how this creates a new culture of crime control focused on three things: first, the transformation of penal welfarism/rehabilitative punishment; second, a criminology of control; and third, one that uses economic styles of reasoning (risk) over social reasoning.
In the transformation of penal welfarism, Garland outlines how rehabilitation gets redefined away from the offender’s needs to the safety of the victim and protection of society. For instance, whereas an offender who may have committed a crime because they suffered from addiction would be given community treatment under penal welfarism, if that prisoner rates as high risk on a risk assessment tool, they could be incarcerated where they could be more easily managed.
This transformation affects how prisoners are treated in prisons, where they are tracked, monitored, and controlled based on the risk they are said to pose to society at large. This process often includes the use of tools and knowledge such as abstract risk categories, which Garland suggests are ways to “govern offenders from a distance” and engage them in their own self-responsibilisation. This is accompanied by a change in normative criminology to study the criminology of everyday life and the criminology of the other, which is based on the desire for expressive justice, zero tolerance and individual safety. Such interventions are assessed based on cost-benefit analyses and techniques of managerialism in which the point of crime control is to manage risk.
Garland details how these changes occur as political, cultural and economic structures take on a neo-liberal form, similar to the way Gordon (2005) talked about changes in policing we discussed earlier in this chapter. These changes result in different forms of governmental power (e.g., new types of punishment) how we govern our own conduct and the conduct of others, and how we make ourselves up within these new sets of social relations. For the criminal justice system, he argues that new culture of crime control changes the way we think about people who break the law; we begin to see them not as people who need rehabilitation, but as others that pose risk and as delinquents to be feared, controlled, and responsibilised. This changes the way we think about crime and the criminogenic situation as one to be managed using law and order practices, securitising places and spaces using more aggressive individualised surveillance practices. We can see examples of this in the many security or CCTV cameras in the spaces and places we go such as shopping malls, parking lots, and schools. Garland argues that this new culture of control does not help communities become safe spaces but instead makes us afraid of those around us.
These three elements of control become entwined in a way that cannot be reduced to a single formula. Instead, they constitute a field of power relations that draws attention to the impact of new knowledges and technologies upon the power relations between governmental actors as well as between the rulers and the ruled (Garland, 1997, p. 188).
Foucault gave critical criminologists concepts that expand the ways we think about law, control, and power. By engaging the subject, he outlines the ways in which knowledge itself becomes a form of power by which laws get created and maintained, how people interact with discourses to regulate their own conduct and the conduct of others, and how this translates into systems of carceral control. Foucault’s concepts have been taken up in a variety of ways in critical criminology, and he remains a key figure in these discussions.
set of theoretical ideas that examines language, text and culture and how these establish social spaces/creates our reality, as opposed to structuralism’s contention that the social is a patterned, rigid, and material set of structures.
the general domain of all statements and classifications about something/anything, like the discourse of child development or discourse of victimhood, and a system of categories that structures the way we perceive reality.
the multiple networks of diverse techniques and the power of normalization to regulate human behaviour that we see in prison as it extends into the entire social body.
the set of practices (rationalities, techniques, knowledges) via which people are (self) governed but also the means by which someone else’s activities are shaped.
government programs that focus on helping criminal offenders to stop offending by providing treatment or to provide for the welfare of prisoners.