Foucault, prison, and human rights: A dialectic of theory and criminal justice reform
| Date | 01 May 2022 |
| Published date | 01 May 2022 |
| DOI | 10.1177/13624806211015968 |
| Subject Matter | Articles |
https://doi.org/10.1177/13624806211015968
Theoretical Criminology
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13624806211015968
journals.sagepub.com/home/tcr
Foucault, prison, and human
rights: A dialectic of theory
and criminal justice reform
Mugambi Jouet
McGill Faculty of Law, Canada
Abstract
Michel Foucault’s advocacy toward penal reform in France differed from his theories.
Although Foucault is associated with the prison abolition movement, he also proposed
more humane prisons. The article reframes Foucauldian theory through a dialectic with
the theories of Marc Ancel, a prominent figure in the emergence of liberal sentencing
norms in France. Ancel and Foucault were contemporaries whose legacies are
intertwined. Ancel defended more benevolent prisons where experts would rehabilitate
offenders. This evokes exactly what Discipline and Punish cast as an insidious strategy of
social control. In reality, Foucault and Ancel converged in intriguing ways. The dialectic
offers another perspective on Foucault, whose theories have fostered skepticism about
the possibility of progress. While mass incarceration’s rise in the United States may
evoke a Foucauldian dystopia, the relative development of human rights and dignity
in European punishment reflects aspirations that Foucault embraced as an activist
concerned about fatalistic interpretations of his theories.
Keywords
comparative criminology, comparative law, criminal justice, criminal law, death penalty,
Foucault, human rights, penal reform, prison, punishment
Introduction
When Michel Foucault published Discipline and Punish in 1975, he offered a penetrat-
ing reassessment of criminal justice’s historical evolution. Rejecting the notion of pro-
gress since the Enlightenment, the French philosopher depicted the emergence of modern
Corresponding author:
Mugambi Jouet, McGill Faculty of Law, 3674 Peel Street, Montreal, H3A 1W9, Canada.
Email: mugambi.jouet@mcgill.ca
1015968TCR0010.1177/13624806211015968Theoretical CriminologyJouet
research-article2021
Article
2022, Vol. 26(2) 202–223
prisons and rehabilitation systems as insidious means of repressive social control. The
vulnerable classes were now purportedly incarcerated for their own good. Reforming
prisons was a futile, two-century-long endeavor. Foucault’s theories have had a huge
impact on criminal justice scholarship in the English-speaking world, particularly in the
United States (Garland, 1990: 131; Harcourt, 2020: passim; Whitman, 2003: 5). It is
therefore striking that scholarship has neglected key debates over Foucauldian theory in
France and Foucault’s own activism toward prison reform, which could stand in sharp
contrast with his theories.
This article examines interviews where Foucault expressed belief in the capacity of
prisons to treat people humanely, whereas Discipline and Punish never proposes reforms
for the problems it describes. As David Garland (1990: 173) notes, “it is written as if its
author were ‘outside’ of power and outside of society as well”. Others have depicted
Foucault as a nihilist (Maier-Katkin, 2003). Be that as it may, Foucault was not a philoso-
pher confined to an ivory tower, as he also was an activist involved in diverse initiatives
to assist prisoners (Harcourt, 2013, 2020; Miller, 1993). A peaceful protest outside a
prison even led Foucault to be arrested and struck by a hostile policeman (Foucault,
1971b). While French liberals criticized Foucault in his lifetime for promoting an “anti-
reformist” activism (Thibaud, 1979: 4–5), we will see that his proposals encompassed
pragmatic reforms for more humane prisons.
To better understand Foucault, this article contrasts his perspective with that of Marc
Ancel, an influential French scholar who argued that prisons have the capacity to reha-
bilitate and humanize prisoners. Foucault (1926–1984) and Ancel (1902–1990) were
contemporaries. Ancel is often identified with the development of progressive or liberal
values in modern French criminal justice (Badinter, 1990; Lazerges, 2005). Ancel’s
scholarship was well respected internationally, too (Hood, 1974; Sellin, 1966), as illus-
trated by overlooked citations to his work in key death-penalty cases before the US
Supreme Court (Amsterdam, 1972; Ancel, 1962a, 1962b; Goldberg, 1963). Ancel’s
penal philosophy reflected a conception of individuality and liberal democracy rooted in
the Enlightenment.
Ancel is sometimes pitted against Foucault (Dreyfus, 2010), whose theories Ancel
(1981) tended to disagree with. Ancel’s writings were translated into several languages,
thereby representing his influence beyond France. His most prominent work is a book
adapted into English as Social Defence: A Modern Approach to Criminal Problems,
although its French subtitle is more revealing of Ancel’s humanistic outlook: La Défense
sociale nouvelle: Un mouvement de politique criminelle humaniste.1 At first glance,
Ancel’s defense of more humane prisons that would use experts to evaluate and treat
offenders was precisely what Foucault denounced in Discipline and Punish. In reality,
we will document how Foucault’s activism drew him closer to the likes of Ancel.
Our back-and-forth between Ancel and Foucault follows a dialectic framework: the-
sis–antithesis–synthesis.2 The thesis is Ancel’s theory on the humanization of criminal
punishment since the Enlightenment, including gradual reforms toward modern princi-
ples of rehabilitation and human rights. The antithesis is Foucault’s theory of the prison
as a means of insidious social control rationalized by humanism and rehabilitation. The
synthesis is the mutual convergence of Ancel and Foucault toward one another. Indeed,
both lines of thought are partly reconcilable. As an activist Foucault advocated for
203
Jouet
To continue reading
Request your trial