Penal welfarism ‘gone global’? Comparing international criminal justice to The Culture of Control
| Author | Kjersti Lohne |
| DOI | 10.1177/1462474520928114 |
| Published date | 01 January 2021 |
| Date | 01 January 2021 |
| Subject Matter | Articles |
Punishment & Society
Penal welfarism ‘gone
2021, Vol. 23(1) 3–23
! The Author(s) 2020
global’? Comparing
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DOI: 10.1177/1462474520928114
justice to The Culture
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of Control
Kjersti Lohne
University of Oslo, Norway
Abstract
With the consolidation of a cosmopolitan field of international criminal justice, penality
has ‘gone global’. In spite of the abundance of doctrinal legal analysis, human rights
studies, and transitional justice studies, there are few analytic attempts to engage with
the working assumptions, cultural commitments, and dominant mentalities that give
shape to international criminal justice as a penal field. Based on ethnographic observa-
tions, interviews with key actors, and critical reading of international criminal justice
scholarship, this article compares the cosmopolitan penality of international criminal
justice to that of late modern, domestic, penality. Using David Garland’s The Culture of
Control as an analytic yardstick, it argues that international criminal justice both resem-
bles and departs from ‘the national’. For example, whilst the cosmopolitan penality
relies upon retributive justifications, it makes no appeal to harsh penal sanctions; nor is
it concerned with the rehabilitation of prisoners. Rather, it is an expressive and human-
itarian form of justice where the victim takes central stage – as the embodiment of a
suffering humanity. Moreover, there is a remarkable faith in the transformative effects of
international criminal justice, resembling a form of penal welfarism ‘gone global’. As
national capacity building and penal development has become intrinsic to the project of
international criminal justice, the article shows how the global dimension of the power
to punish is based on a moralization of politics.
Corresponding author:
Kjersti Lohne, Department of Criminology and Sociology of Law, University of Oslo, St. Olavs Plass 5, Oslo
0316, Norway.
Email: kjersti.lohne@jus.uio.no
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Punishment & Society 23(1)
Keywords
cosmopolitan penality, David Garland, international crimes, international criminal jus-
tice, late-modern penality, penal welfarism
Introduction
Within punishment and society scholarship, David Garland’s (2001) The Culture of
Control has become a contemporary classic. By offering an extensive diagnosis of
late-modern penality, the book is amongst the foremost contributions to a theo-
retically informed criminology of changing patterns of crime control in late-
modern western societies (see also Christie, 2000; Feeley and Simon, 1992;
O’Malley, 1999; Pratt, 2000; Simon, 2000). Against the background of penal wel-
farism – the penological project of ‘civilisation’ and ‘rationalisation’ that informed
directions in crime policy in the 1960s and 1970s – Garland identifies late-modern
penality as marked by a rise of ‘punitiveness’ and a return to retributive rational-
ities. A more differentiated set of actors in crime control is moreover seen to
indicate a trend towards a disentangling penal state and of penal power more
generally.
Garland’s analysis has been subject to a plethora of critique. Generally, these
engaged readers take issue with either the theoretical scale or empirical scope of his
work, such as Matthews (2002), who miss both large-scale theory as well as empir-
ical nuance, and Feeley (2003: 114), who notes that ‘the level of generality is at
times frustrating’. The analytical juxtaposition of the US with the UK, and of these
states as reflective of late-modern societies more broadly has been criticized for
their position as being both exceptionally punitive in comparison with other west-
ern democracies, and for the implicit ethnocentric claim to ‘stand for’ criminolog-
ical theory – both within and beyond the western hemisphere (see Aas, 2012).
Should one wish to add something to the critical inventory, one might point out
that Garland’s analysis is deeply rooted within a nation-state outlook on crime,
punishment, and society. Indeed, the critique against The Culture of Control largely
parallel the ‘number of troubling blind spots’ (Bosworth, 2012: 125; Crewe, 2015)
in punishment and society scholarship generally, which only attributes to the sig-
nificance of the book’s analysis and the engaged scholarship within punishment
and society (for a response to critics, see Garland, 2004).
This article does not engage with the empirical ontology of The Culture of
Control. Since its publication, there has also been an impressive increase in pun-
ishment and society scholarship, including comparative analysis, and, not the least,
increased specificity. However, The Culture of Control offers large-scale analysis of
shifting penal arrangements, which makes Garland’s empirical project particularly
useful as a point of departure for an analytical one, namely to gauge the field of
criminal justice ‘gone global’ – that is, the normative and material system of inter-
national criminal justice established to prosecute and punish individuals for core
Lohne
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international crimes: war crimes, crimes against humanity, genocide, and the crime
of aggression. Despite substantial criminological engagement with international
criminal justice in recent decades (e.g. Smeulers and Haveman, 2008), there is a
lack of critical attention to this field by punishment and society scholars (but see
Lohne 2000a; Savelsberg, 2018). Moreover, and apart from significant critical
international law scholarship (Heller et al., 2020), as a scholarly field, international
criminal justice is saturated with legal activists as well as doctrinal and policy-
based analysis where scant attention is given to the working assumptions, cultural
commitments, and dominant mentalities that give shape to the field.
The aim of the article is to continue the critical concern with practices and
discourses of crime and punishment from the national to the global. By applying
The Culture of Control as a comparative yardstick, it asks, simply, how do the field
of international criminal justice resemble or depart from Garland’s diagnosis of
late-modern penality?1 Building on the author’s study of human rights NGOs in
international criminal justice (Lohne, 2019) and continued academic research and
engagement with the field, it finds that international criminal justice both echoes
the national, and departs from it. For example, whilst international criminal justice
relies upon retributive and expressive undertones, it makes no appeal to harsh
penal sanctions. Moreover, compared to Garland’s analysis of the national terrain
of crime control and policy, there is a remarkable faith in the utilitarian and
transformative effects of international criminal justice. Rather than being ‘hard’
justice, it is put forward as a form of social and humanitarian justice dressed in
cosmopolitan clothing – a project of civilization and development; in short, a form
of penal welfarism ‘gone global’.
The field of international criminal justice as an object of study
In spite of the criminological truism that the power to punish remain in the nation
state (Zedner, 2016), the recent decade has seen an incremental engagement with
how issues of crime and punishment are becoming increasingly ‘international’,
‘transnational’, and ‘global’ (Bosworth et al., 2018). As part of this, the growing
institutionalization of international criminal courts and laws have attracted the
attention of criminologists and sociologists to the field (Christensen, 2015). On
issues ranging from international sentencing (Hola´ et al., 2012), perpetrator studies
(Anderson, 2017; Houge, 2015; Smeulers et al., 2019), and victims’ needs in
response to mass violence (McEvoy and McConnachie, 2012), a ‘supranational
criminology’ (Smeulers and Haveman, 2008) – with overlapping links to transi-
tional justice studies, genocide studies, and international criminal justice scholar-
ship generally – has consolidated within criminology.
Less criminological attention however, is given to how international criminal
justice represents a developing ‘cosmopolitan penality’ (Lohne, 2019) – a penal
field transgressing the national in its normative and material aspirations, and
where ‘the global’, rather than the nation-state, is constituted as a site of crime,
punishment, and justice (see also McMillan, 2016). The Preamble to the
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Punishment & Society 23(1)
International Criminal Court (ICC) declares to recognize crimes that ‘threaten the
peace, security and well-being of the world’, and are ‘determined to put an end to
impunity for the perpetrators of such crimes and thus to contribute to the preven-
tion of such crimes’, the crimes being genocide, crimes against humanity, and war
crimes.2 Besides the permanent ICC, nine international(ized) criminal courts have
been operational on an ad hoc basis to deal with specific situations, such as the UN
tribunals for the former Yugoslavia and Rwanda (for an empirical overview see
Smeulers et al., 2013).
Viewing the institutionalization of a cosmopolitan penality in its ‘structured
totality’ (Garland, 2004: 169), the ‘field’ of international criminal justice comprises
its expanding legal framework in international and domestic jurisdictions alike, but
also the plethora of actors and stakeholders involved in pulling and pushing inter-
national criminal justice in various directions (Megret, 2016), such as academics,
diplomats, practitioners, and NGO activists. Apart from an emerging sociology of
international criminal justice (Christensen,...
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