The concept of “punishment” is old and has gradually acquired a certain disciplinary autonomy. What is in question is the rationalization of punitive action – often questioned by authors such as Friedrich Nietzsche, Walter Benjamin, Paul Ricœur – thus limiting the field of research to the more specifically legal one that emerges around the notion of punishment. .
Punishment in a broad sense (mythical-religious, pedagogical) as well as punishment in a stricter sense, highlight the logic of justified violence. It is then the link between justice and law that is highlighted. Benjamin challenged the identification of the right to justice: according to him, the law hides behind the appearance of the violence which preserves it that which founds it. Derrida also emphasizes the need to distinguish between these two concepts: law, as what can be deconstructed, and justice, as the experience of the impossible (we can refer to his text Force de loi). Exploring the notion of punishment prompts us to survey this space between law and justice and to ask ourselves: what address to the other is formulated in the act of punishing? But also, what does it mean to judge? What does it mean to decide in court? These questions can be formulated both with reference to laws and case law, but also, more generally, by questioning the singularity of the individual faced with the generality of the legal system.
Taking into account such perspectives, one can notice that the long process of rationalization of punitive actions coincides with:
First of all, the will to legitimize the hiatus separating a just punishment from a legal sentence took several forms. Theories proposing a legal ratio of punishment can be grouped into three broad categories (Brooks 2012): (i) retributive or absolute theories (traditionally going back to Kant and Hegel); (ii) utilitarian or relativistic theories (traditionally going back to the legal school of the Enlightenment); (iii) mixed theories. Recent Anglo-American debates plead for a modification of the classic foundations of condemnation and the development of ‘normative justifications’ – moral (Murphy; Tadros) or political (Caruso; Kelly) – questioning more particularly the concept of responsibility. Second, the gradual transition from “big punishments” to “small disciplines”, including criticism of the death penalty (Beccaria, Derrida). The abandonment of the implementation of exemplary sentences in favor of confinement, and the dynamics linked to it, also marks the development of biopolitical reflection and its study of the latent links between punishment and power (Foucault). In this context, the broad concept of ‘preventive detention’ plays an important role. A period of detention can take place before any legal judgment (pretrial detention) as well as after the official end of the period of detention imposed by the judgment (for reasons of public security); finally, parallel systems of civil internment can be provided for during the diagnosis of psychic disorders (Ashworth, Zedner). However, should these typologies of detention and internment be considered from the concept of punishment or within another reflexive framework?
In parallel with these questions, the penitentiary system is still today at the heart of lively debates (International Observatory of Prisons; Surprenant). Such debates, highlighting the endangerment of the fundamental rights of detainees, include:
- Prison overcrowding, against which the decriminalization of certain acts is proposed (deflationary ratio).
- The complex relationship between incarceration, mental health, and, more generally, the right of prisoners to have access to healthcare (issue exacerbated by the pandemic).
- The alarming number of suicides and cases of self-harm point to the apparent failure of the ambitions of recovery, rehabilitation and social reintegration.
- The issue of prison violence, including cases of prisoner abuse.
- The binary structure of the prison system, which does not take into account the complexity of gender identities.
- The oxymoron constituted by an expression such as prison parenthood and especially the case of maternity in prison.
- Insufficient attention paid to prisoners and to the specificity of their needs.
- The issues related to the detention of minors and the challenges of a prison education system.
- The sensitive subject of emotional and sexual deprivation in prison.
- These issues, and many others, highlight the need to think about punitive practices with the help of care, feminist studies, critical race theories, queer studies and disability studies, as well as in dialogue with fields such as architecture, pedagogy, media studies…
New technologies have also entered into the debate, particularly concerning ‘predictive justice’, close to the idea of ’legal calculability’ (Lebreton-Derrien). If predictive justice is particularly called upon in cases of civil legal challenge, it is also possible to wonder about the implications linked to the use of algorithms within the framework of the criminal legal decision-making process (CEPEJ; Vermeulen, Persak, Recchia ), more particularly by taking into account the use of computers to measure an individual’s risk of recidivism in order to adapt the length of the sentence or to consider alternative measures to incarceration. The link between technology and criminal law is also topical in taking into account the involvement of artificial intelligence in certain crimes (for example the involvement of an autonomous vehicle in a road accident, an error in medical diagnosis by an AI).
We can also point out that the use of criminal law to accompany civil sanctions has met with numerous criticisms which have, among other things, led to the abolition of the death penalty (Davis; Ricordeau; Coyle, Scott) and the emergence of a new paradigm since the 90s: “restorative justice” (Miller; Zehr; Mannozzi, Lodigiani; Gavrielides). The emphasis is on a ‘restorative’ rather than punitive approach, with the aim of involving victims and perpetrators in a process of reconciliation and recognition. This approach has proven prolific in both theory and practice. With the concept of punishment other notions emerge. Linked to crime and injustice, we can note its legal counterpart, grace; or moral, forgiveness which has been the subject of philosophical considerations (Hegel; Arendt; Jankélévitch; Derrida; Ricœur).
The concept of impunity can also be invoked: what does it mean not to punish an act? This may refer to the conscious choice not to prosecute the perpetrators of this act or to the lack of legal qualification. Environmental justice highlights such issues by also highlighting the notion of responsibility. Current debates concerning the acquisition of legal personality by ecosystems raise questions about the role that the sentence will play in the disputes that will emerge (Nash; Stone; Youatt; de Toledo). The notion of impunity also emerges with regard to crimes against humanity (Pouligny, Chesterman, Schnabel), which see their reparation process often delegated to international criminal tribunals. One can thus ask, because of the limits of ‘classical’ justice, to what extent alternative forms of combating impunity (such as Truth and Reconciliation Commissions) contribute to the reconstruction of coherent communities? Impunity is also central to historic injustices with current repercussions, such as colonial looting. The recognition of past misdeeds allows the emergence of a new legal and social grammar, but what will be the place of punishment in order to avoid impunity? Is the concept of ‘reparation’ always adequate in such cases, or should other perspectives (Bessone, Cottias; Táíwò), such as “transitional justice” (Teitel), be considered?
Another field of questions also emerges: how do aesthetic productions help us to better understand the concept of pain? Literary and artistic productions have been spaces for reflection (Dostoyevsky; Kafka), denunciation (Hugo; Camus) but also for representation of the legal and prison world. Art (the work of Ernest Pignon-Ernest, for example) has demonstrated its extraordinary ability to represent prisons as places haunted by a certain history, often repressed by the collective, thus imposing a double penalty on the condemned: incarceration and promise to be forgotten.
This conference is open to contributors from all disciplines. The aim of this symposium is to create a dialogue between different approaches (historical, philosophical, legal, socio-political, etc.) within interdisciplinary exchanges.
Terms of submission:
Paper proposals consist of an abstract in French or English and should not exceed 500 words. They must be accompanied by a title, biography (150 words), name and email address of the author. Submissions from researchers from underrepresented groups are particularly encouraged.
Abstracts should be submitted no later than March 31, 2023 to the following address: [email protected]. Participants will be informed of the decision by May 15, 2023 at the latest.
Please note that each presentation should last 20 minutes (followed by a time for discussion) and that the symposium will be held in English and French, depending on the speakers.
The symposium will be held in Paris from October 5 to 7, 2023.
For more information on SAFI, you can consult the site: https://safi-network.org/
If you have any questions, please contact Alix Stephan: [email protected]; or Chiara Magni: [email protected]