Analysis of Michel Foucault's Punishment Theory in Criminal Justice

This essay examines Michel Foucault's theory of punishment, focusing on his critique of traditional methods and his vision for a more humane criminal justice system. Foucault argued against the focus on the criminal's body, advocating for a shift towards reforming the soul and reducing crime rates through imprisonment and surveillance. The essay discusses Foucault's key principles, including punishment as a social and political function, and analyzes his influence on modern penology, particularly in Western countries and Australia. It explores the shift from public execution to trial and sentencing, the introduction of psychological and medical considerations, and the emphasis on understanding the offender's motives. While acknowledging criticisms of Foucault's work, the essay emphasizes his lasting impact on criminal justice, highlighting his role in shaping imprisonment theory and the evolution of punishment practices.

Running head: PRISON, PUNISHMENT AND CRIMINAL JUSTICE
Punishment theory of Michel Foucault
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1PRISON, PUNISHMENT AND CRIMINAL JUSTICE
Michel Foucault was a social theorist who has developed the theory of modern
prison system and concentrated on the provision of prison and surveillance (Foucault 2013).
He had differentiated the provision of early punishment theories and modern theories and was
of the view that the object of punishment should not be the body of the criminals but to
reduce the rate of crime. He had made a strong objection regarding the use of pillory in case
of public execution and opined that people should not lead their life with the fear of
punishment. In his view, imprisonment is a better option and it gives a chance to the prisoners
to correct their guilt and improve their standard. The concept of Foucault has made a great
change in the modern criminal justice system and a revolutionary change has been observed
in the Western countries regarding criminal judgment and modern penology (Dillon and Neal
2015).
Foucault has played an important role in the development of codes and the grave
nature of public conviction has changed into trial and sentences. According to his view,
penalty should address the soul and not the body of the criminals (O'Malley 2016). The
mentality of the judges was also changed and it has been observed that a tendency to
supervise the acts of the criminals introduced where an effective role has been played by
psychiatrist and doctors.
In the era of public execution, all the criminals are getting punished irrespective of
their nature of crime and motives. In the words of Foucault, criminal judgment should be
based on nature and instinct of the offenders and scientific knowledge should be applied
during the delivery of judgment. Certain rights have been conferred on the criminals and the
psychiatrists should have to complete the medico-legal treatment of the criminals.
The concept of Foucault is based on four principles such as:
(i) Punishment should be regarded as social function;

2PRISON, PUNISHMENT AND CRIMINAL JUSTICE
(ii) Punishment may often be treated as political tactics,
(iii) Relation in between penal law and human science,
(iv) Certain changes in the penal techniques and power relation.
It has been pointed out by Foucault that the body of the criminals should not get
punished and changes are required regarding the concept of punishment (Frevert 2016). It has
been pointed out by him that in Eighteenth century, the fear of the kings were gave birth to
certain kinds of classes who were called as “comrades” and a chance of riot had been
developed against the almighty character of the king. The middle class people had started to
criticize the vicious action of the king and the concept of “bourgeoisie” had been cropped up.
The almighty character of the king had weakened the authority of the jurists and the social
status of the legal officers was at risk.
According to Foucault, the boy of the criminals should be treated as the subject of
micro-physics and can be considered as an ingredient of the genealogy. The genealogical
character of the soul has been supported by David Garland and he had concentrated on the
sociology of punishment. Foucault was of the view that the whole concept of modern
genealogy is based on soul. He wants to change the way of punishment and offers to bring
certain discipline by concentrating over the soul. According to him, soul of the offender leads
certain opportunities such as the reason of the crime, motive of the criminal and way of
investigation. The psychology of the criminals can be considered and possibility to supervise
their action can be arisen. Shifting of bodily punishment to soul will change the fierce image
of punishment and the concept of discipline can be injected in the punishment process.
The concept of Foucault has certain effects on the contemporary practice of
punishment and played an important role in the criminal justice system of Australia and other

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western nation. Punishment can be defined as an approach towards the responds of the
criminal justice system to the law breaker. It has been opined by Foucault that criminals
should be adjudged on the basis of the nature of crime they have committed and capital
punishment or bodily punishment is not appropriate in all cases. He has introduced the idea of
imprisonment. The rights of the criminals regarding the psychological aspects help him to
improve the incarceration system and bring a radical change in the criminal justice system.
In Australia, the concept of imprisonment has been changed with the notion of
Foucault. In its early history, the imprisonment system of Australia was alternative to death
penalty. There was no concept regarding the rights of the criminals or no steps had ever been
taken for bring a change in the mentality of the criminals. Common form of punishment was
flogging. After the concept of Foucault, the concept of imprisonment has begun to change
and certain steps have been taken to ensure the bodily protection to the criminals. The book
of Foucault named “Discipline and Punish” had created a serious impact on the Australian
criminal justice system and rehabilitation process has been started in the prisons with an
intention to provide social security to the criminals.
It has been observed that Foucault has able to make a change in the criminal justice
system. However, his theory has been criticised by a number of scholar. According to
Richard Rorty, the genealogical concept is negative in nature and it fails to establish new
theory on modern penology (Rorty 2017). Nancy Fraser argues that the methods of Foucault
are unable to change any assertive substitutes (Fraser 2014). Hans Wehler had denied the
significant character of Foucault’s theory and treated his theory as vague concept (Snyder
2013). Noam Chomsky criticised Foucault’s theory on social constructions (Everaert et al.
2015). However, in spite of all these critiques, the significant of Foucault in case of modern
criminal justice cannot be denied and he is treated as one of the reputed pioneers of
imprisonment theory.

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Reference:
Dillon, M. and Neal, A. eds., 2015. Foucault on politics, security and war. Springer.
Everaert, M.B., Huybregts, M.A., Chomsky, N., Berwick, R.C. and Bolhuis, J.J., 2015.
Structures, not strings: linguistics as part of the cognitive sciences. Trends in cognitive
sciences, 19(12), pp.729-743.
Foucault, M., 2013. Politics, philosophy, culture: Interviews and other writings, 1977-1984.
Routledge.
Fraser, N., 2014. Justice interruptus: Critical reflections on the" postsocialist" condition.
Routledge.
Frevert, U., 2016. Empathy in the Theater of Horror, or Civilizing the Human Heart.
In Empathy and its Limits (pp. 79-99). Palgrave Macmillan, London.
O'Malley, P., 2016. Neoliberalism, Crime and Criminal Justice.
Rorty, R., 2017. Justice as a larger loyalty. Pragmatism and Justice, p.21.
Snyder, J., 2013. Myths of empire: Domestic politics and international ambition. Cornell
University Press.