From Modern to Postmodern Penality?

AuthorMajid Yar,Sue Penna
DOI10.1177/13624806030074004
Published date01 November 2003
Date01 November 2003
Subject MatterJournal Article
/tmp/tmp-17PA9VT4Z2U2aC/input

Theoretical Criminology
© 2003 SAGE Publications
London, Thousand Oaks
and New Delhi.
1362–4806(200311)7:4
Vol. 7(4): 469–482; 036928
From modern to postmodern
penality?
A response to Hallsworth
S U E P E N N A A N D M A J I D YA R
Lancaster University, UK
Abstract
This article responds to a recent article by Hallsworth (2000), which
claims that contemporary changes in penal practice indicate the
rise of a postmodern penality. We identify three issues raised by
Hallsworth’s argument, encompassing methodological, empirical
and conceptual questions. We argue that his approach exhibits
some methodological problems, as well as a conceptual conflation
between ‘postmodernity’ as a social formation and ‘postmodernism’
as an anti-foundational epistemology for social inquiry. Given the
problems identified here, we suggest that a convincing case for a
‘postmodern penality’ has not yet been made.
Key Words
modernism • modernity • penality • postmodernism
• postmodernity
Introduction
In a recent article, Hallsworth (2002) seeks to defend the claim that
contemporary changes in penal practice indicate the rise of a postmodern
penality. Against theorists such as Garland, Lucken and O’Malley,
Hallsworth proposes that the modern–postmodern distinction is both a
legitimate and valuable framework within which to locate recent develop-
ments in penal practice. This contribution locates Hallsworth within a
long-standing debate over how to understand contemporary social change:
469

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Theoretical Criminology 7(4)
are we modern? or are we postmodern? are we both, or are we neither?
This debate ranges across several disciplines and raises several questions
concerning the use of empirical data and the epistemological basis of its
interpretation. In this article, we argue that Hallsworth has several ques-
tions yet to answer before he can sustain claims for a postmodern penality
and for the modern–postmodern distinction as the most useful analytical
framework for analysing changes in penal practice. Indeed, the juxtaposi-
tion of these claims itself raises an important problem for Hallsworth’s
analysis. Here, we identify three issues raised by Hallworth’s argument,
encompassing methodological, empirical and conceptual questions that we
deal with in turn. However, we do not wish to imply that the issues we raise
suggest Hallsworth’s analysis is without interest or represents a particularly
flawed example of the ‘shift to postmodernism’ position. Rather, we wish
to draw attention to a set of problems that bedevil such explanations across
a number of disciplines. In what follows, we unpackage these problems
through a critical discussion of Hallsworth’s article, but if our critique has
purchase then it ought to be transferable to similar accounts across a
number of substantive sites.
In the first section of the article we discuss methodological issues related
to the use of ideal-typical models, in this case the model of modern penal
systems developed by Hallsworth. We argue that Hallsworth’s account
displays a crucial slippage between the phenomena about which he is
supposedly making generalizations (modern penal systems) and representa-
tions
of those phenomena (rhetorical discourses about penal practice). We
suggest that this is an error all too frequent among those engaging in
postmodern social analysis, where ‘text’ is conflated with the extant socio-
material realities of actual practices. The second section deals with a
problematic use of empirical data to support the case for a postmodern
penality. Hallsworth charts certain trends in penal practice, many of which
are significant in the USA, so that the USA appears to be in the vanguard
of postmodern penality. However, we can identify at least four western
societies in which these trends are not occurring. We note that modes of
capitalist social development vary considerably, so that interpreting such
trends requires engagement with counter-factual evidence in order for the
analysis to carry explanatory weight. At the same time, the evidence for a
postmodern penality requires the imposition of a unity upon penal prac-
tices, which they do not in practice demonstrate. A further difficulty arises
in that the concept of the postmodern appears so vague as to leave us
wondering what, exactly, is post about penal trends. In the third and final
section we raise the question of a problematic slippage in Hallsworth’s
article between a sociological analysis of ‘postmodernity’ as an object to be
investigated, and a postmodern sociology. As Turner (1990), among others,
has pointed out, a sociological approach to postmodernity locates the
object of study within wider economic, political and cultural shifts,
whereas a postmodern sociology deconstructs the foundational assump-
tions of modernist thought. By resting his case for a postmodern penality

Penna & Yar—From modern to postmodern penality?
471
on supposed empirical trends in practice, Hallsworth appears to be engag-
ing in the former. However, drawing on Bataille to develop the analytical
case places him in the latter category. This leaves the argument in the
unsustainable position of using an anti-foundational epistemology to sup-
port a foundational ontology. In the conclusion we note that the various
problems we raise bedevil many ‘post’ theories, and point to alternative
interpretations which locate changing penal practices within the continuity
of capitalist commodification. Overall, we suggest that the various ques-
tions we raise would need to be addressed in order to establish a plausible
case for a postmodern penality.
Methodological questions: reading off social reality
from talk and text

The first problem relates to what might be viewed as a problematic
application of Weber’s ‘ideal-type’ methodology. Hallsworth proceeds in a
logical manner, first defining ‘penal modernity’ by means of developing ‘an
ideal-typical model classifying the underlying principles around which they
[i.e. modern penal systems] are organized’ (p. 149). Four underlying
principles of ‘penal modernity’ are identified, namely: the amelioration of
pain delivery; equivalence in the allocation of penal sanctions; the organiza-
tion of penal regimes according to ‘productive expenditure’; and statutory
due process as the basis of judicial judgement. Taken together, these four
principles are said to differentiate modern penality from its pre-modern
precursor (pp. 149–51). Drawing upon Georges Bataille, Hallsworth lo-
cates these four principles as symptomatic of a transition from a pre-
modern ‘general economy’ of excess to a modern ‘restricted economy’ of
rational and balanced exchange. Having identified these key features (along
with their underlying logic in the material and symbolic economy), their
relative marginalization or partial supercession by other principles is
charted, thereby establishing the case for an emerging ‘postmodern
penality’.
However, it must be recalled that the purpose of the ideal type is to
furnish a pure or logical abstraction of a particular phenomenon (Weber’s
familiar targets include ‘rational action’ and ‘bureaucracy’). It seems to us
that here there is a crucial slippage, such that the phenomenon about which
generalizations are being made is other than it at first appears. Hallsworth
purports ‘to interpret the features of modern penal systems . . . the prin-
ciples around which they are organized’ (p. 149, emphasis added). How-
ever, he immediately shifts the object of analysis (the phenomenon being
subjected to typification) by instead examining the ‘self-image’ of penal
modernity. That is to say, the ‘underlying principles’ identified are not
generalizations about penal practices (the principles of social action), but
the representations and rhetorical tropes with which modern philosophers,
sociologists and visionaries built up an imaginary of a modern penality.

472
Theoretical Criminology 7(4)
Hallsworth himself refers not only to ‘self-image’, but also to ‘utopias’ and
‘reveries’ (p. 152). The mapping of ‘penal modernity’ with which we are
presented amounts to an account of the...

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