Pitfalls of the Reformative Theory: Foucault’s Analysis of Panopticism

  • Saloni Khaitan
  • Show Author Details
  • Saloni Khaitan

    student at Jindal Global Law School

Abstract

The different kinds of theories of punishment have been hugely debated over time. We shifted from the deterrent theory to the reformative theory due to its threat posed to the power of the sovereign. The theory aimed to achieve a fundamental shift from bodily harm to the transformation, discipline, and control of the mind and body of the criminal to be a better fit in society. The deterrent theory soon got based on Bentham's idea of the panopticon, which is still followed today. However, Micheal Focualt analysed Bentham's idea of the panopticon and stated how we live in a society that is being evolved into the same panopticon structure. How we are leading lives where we are under constant surveillance and the pressure to conform to the 'norm.' He points out how even the sighest digression from what is structured to be 'normal' by the society puts us into the limelight and, for most parts into trouble. However, a deeper understanding of Foucault's analysis reveals how our judicial system's incompetence wasn't our problem, but our social structure and society is what brings us down in an attempt to safeguard the government's authority and power and produce 'obedient' citizens. Numerous contemporary examples from different corners of the world exposing the various methods adopted by the society and the governments in light of Foucault's analysis of the panopticon, which if not paid heed to soon may threaten to destroy our entire foundation of the society along with the power and authority of the sovereign or the government becoming uncertain have been further elaborated to get a better understanding of the topic.

Type

Article

Information

International Journal of Law Managment and Humanities,
Volume 4, Issue 2, Page 1105 - 1112

DOI: http://doi.one/10.1732/IJLMH.26286

Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

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Copyright © IJLMH 2021

The theories of punishment we use today have evolved from different theories over a period of time. The kind of punishment which would be best suited is still highly debated because of the moral superiority we have been embedded with today; however, most people are accepting of the reformative theory, a theory built on the ‘hate the sin and not the sinner’ principle which focusses on the criminal rather than crime and seeks to bring about a change in the attitude of the offender to rehabilitate him/her as a law-abiding member of society.[1] Foucault believed that the primary reason behind any kind of punishment in the pre-American and French revolution periods was to preserve the power structure in society and maintain social order other than actually preventing crime or want of justice.[2] The deterrent theory was slowly done away with. One of the biggest reasons that practice was slowly eroded over time was that a popular criminal would gather the public’s sympathy, which would then threaten the powerful sovereign/king. According to Foucault, this process of a public spectacle is transformed into one that is conducted solely behind closed doors of a prison execution room for several reasons. First, the medieval forms of punishment, which included ‘gory’ acts of tearing away flesh from a live person, chopping off fingers, etc. was done to deter future crime (to serve as an example) and also to ensure that structures of legal and political (sovereign) power were maintained.[3] However, over time, a new epoch in criminology came into existence- the birth of the modern prison system or panopticism- a fundamental shift from bodily harm to the transformation, discipline, and control of the mind and body of the criminal to be a better fit in society. Bentham’s idea of panopticism operated on a three-prong system- surveillance, normalisation, and examination; constant surveillance of the prisoners and strict schedules to adhere to, which even included times for washroom breaks ensured that the prisoners were on their best behaviour at all times.[4]

This theory, when heard, seems to be ideal as it advocates that prisonisation shouldn’t be to isolate and eliminate offenders from society or to torture them but to bring about a change in their mental outlook through effective measures during the term of their sentence. It is against all forms of corporal punishment. However, the doubts that one may have while adopting this system don’t question our justice system’s competency, but our social structure and society are what bring us down. It is our society and modern government practices that need reformation because they look down upon the criminal, stripping them of the chance to be a changed person, whereas the government uses this technique of power to further its own interest and produce obedient citizens.

Foucault claims that our societal structure is panopticon in nature where we live in a massive social prison or a panopticon inside another panopticon in which we are trapped as law-abiding, ideal citizens.[5] He believes that the sovereign government exercises control through a system of strict surveillance to retain power.[6] He talks about bio-power, an act of exerting power over another individual that is independent of judicial power.[7] His thesis on the exercise of power here is part of his larger body of work which talks about how power is diffused and fragmented.[8] Foucault argues that all of us exercise power over one another while simultaneously also being transformed into docile bodies on whom power is also exercised.[9] There is a paradox in the way power is exercised, according to Foucault. This presents a very different idea of ‘power’ as a concept because, until Foucault, most philosophers believed that power is centralized in one person/body of persons/authority. He explains this thesis by giving us the example of a standard V classroom tattletale where the student has complained for a couple of reasons- (1) The student was exercising the power of surveillance over the other classmates; (2) the students have learned/internalized what it means to be an ‘ideal’ student’ even when the teacher is not around – there is a ‘norm’ related to what this means and therefore how students ‘ought’ to behave (‘normalization’); and (3) the student who complained examined another’s conduct against this norm to see if there was an ab’norm’ality in the behaviour (not conforming to the ‘norm’) – concluded that the behaviour was not ‘normal’ and therefore complained.[10] This shows us how the idea that power is centralised in one person is a naïve understanding of the operation of biopower but how power actually functions in a way that creates obedient or docile human beings who, instead of trying to question what normal/abnormal is only learning to follow the ‘norms’ taught to them and reproduce that norm through the power they exercise.[11] The tattletale in our story was not just exercising power but was also a docile and obedient being. Therefore, the modern prison system does more than to merely ‘lock’ people up and deprive them of their liberties. Instead, it focuses on reforming the convicted person’s mind and very existence – and this is not necessarily always a ‘good’ thing.

The reformative theory faces strong opposition on these grounds. Think about how gender-related norms get reproduced and upheld by both men and women. Ekta Kapoor’s soap operas paint the ‘perfect’ daughter-in-law in a particular light. And this is in contrast to the ‘villain’ or the ‘vamp’ on the show – the abnormal/unethical/immoral/ possibly drinks and wears short skirts etc. The ‘norm’ here is clearly what a woman ‘ought’ to aspire to be – the good or perfect daughter-in-law who wears saris and bindis, respects elders, dutiful, wakes up at dawn, and handles all the domestic work with a smile on her face, has a bottomless pit of empathy/care/lover/maternal behaviour/femininity, always looks presentable. When this character attempts to reform the ‘villain’ by ensuring she wakes up at dawn, learns to cook, respect elders, listens to her partner, etc. Foucault would remind us that patriarchal power in this example is being exercised by the ‘good’ daughter-in-law over the other character. Therefore, the good daughter-in-law is not merely following patriarchal archetypes of what she ‘ought’ to do, she is also attempting to ‘tame’ the other character into the same mould, and in doing so, she is again exercising patriarchal power while being oppressed by it at all times.

Another example from India is the criminalisation of homosexuality until the Supreme Court read down Section 377 of the IPC – homosexuality was an ‘abnormal’ behaviour according to Macaulay (who drafted the IPC) and the colonial lawmakers. The concept of homosexuality being ‘abnormal,’ ‘unethical,’ ‘immoral,’ or ‘against the course of nature’ was reproduced and upheld by both men and women, dictated with a lot of rules, rules where one can’t talk about it, or has to feel guilty or ashamed afterward for having done it. This is in contrast to the person who either discovered his sexuality or gathered the courage to accept/talk/ act on it. People in power repressed people’s thoughts and behaviours on sexuality throughout the 17th and 18th centuries. To begin with, people never considered that homosexuality might be an option available as they were taught that the norm is to marry the opposite gender and have children and a family. People never questioned what normal or abnormal is but simply stuck to the general rules and beliefs, in fact, they never thought that natural qualities individual to one’s own sexuality may exist or even categorising themselves as homosexual or heterosexual because it would be cultural sin, politically wrong or even economically bad as they were constantly being supervised by the others in the same system who will rat him out if not reprimand him or by the authoritative power. Here Foucault will remind us about how the ‘cultural’ or ‘political’ power is being exercised by the ‘normal’ heterosexual over the other person who chose to explore his sexuality.

For Foucault, this cultural/political power works in the same way as a prison. The idea of the panopticon is to have prisoners under constant supervision and surveillance of the jailor or warden. The mere knowledge that they are being watched is sufficient.[12] It isn’t even necessary for the jailor to actually be at their position in the central tower to watch the prisoners – the aim is to reform the mind of the prisoner to actually believe that they are under watch at all times and therefore must behave. In the homosexuality context, the LGBTQI+ community is aware that they are being watched by everyone in society, including each other. The ‘normal’ heterosexual individual doesn’t even need someone to observe his/her acts, thoughts, or behaviour because they already have been confined into behaving as a ‘normal’ and ‘obedient’ heterosexual member of the society or has the aspiration to be one.  Foucault advocated the existence of a concept called ‘governmentality,’ which he referred to in the increasing homogenization and organisation of the society in modern-times- through huge bureaucratic machinery that evolves endless ways of classifying people.[13] According to him, governmentality operated through normalisation through which every individual is made to conform to the dominant norm.[14]

Therefore, the reformative theory of punishment, which seeks to reform the criminal to become a valuable member of society, is not without problems. The state exercises its power over us in various forms, and reforming the mind through education and prison systems are a couple of examples. If we think about the prisoner – their every moment runs on a schedule – there is no space or time for thought or commission of another crime or misbehaviour. Similarly, what we have is the state telling people how to behave and other people telling each other how to behave – what good and acceptable behaviour are. A perfect example of this is the Chinese ‘re-education’ camps for the Uighur community, which is clearly an attempt of cultural evasion for the Uighur Muslims.[15] The Uighurs are a small community of people who don’t fit into what the Chinese government thinks of as ‘Chinese’ culture, i.e., not the ‘normal’ Han Chinese culture- many Uighurs have been captured and forcefully sent to re-education camps to acquire ‘Chinese’ values. [16]

The Chinese government has tried to shoot documentaries and showcase on news channel how it provided stable employment and housing to the Uighur minority, but what it was doing was distancing them from religiously extreme views and educating them.[17] There has been evidence of it being a prison leaked through satellite images and official documents asking employees to “prevent escapes,” and a real-life account of a woman who had to spend two years there.[18] Therefore, reformative theories can be a site for structural violence by targeting a particular population because they don’t conform to the norm.

Another similar situation in India may be seen with the detention camps all over the country, especially in Assam. With the introduction of the Citizenship Amendment Bill(2019) that left millions of Muslims out of Assam’s National Register of Citizens (NRC), approximately 19 lakh people have left off the final list the controversy of them being sent to detention camps broke out. The practice of sending Foreign Immigrants to detention camps is not new to India as the constitution through Section 3(2)(c) of The Foreigners Act, 1946[19] and Article 258(1)[20] gives the center and the state government respectively to set up and transfer them to detention camps. The existence of such camps was known to people earlier as well, but then Prime Minister Narendra Modi made a statement directly refusing the presence of such camps at a rally in Delhi on 22nd December 2019.[21] However, after scrutiny by the opposition, they admitted the existence of six such camps in Assam.

The fact that the people in power have machinery giving them provisions to detain people they think are not following the law is not the only thing in question here. The fact that the majority of the detainees are non-Hindu, Muslim especially makes us wonder if this is a plan devised to make India a Hindu state. The purpose of these detention camps was primarily to give people identified as illegal immigrants a place with decent provisions to stay and contact their embassy until arrangements to deport them back to their own country have been made. However, these camps’ existence inside prison premises has been protested as illegal immigrants are not criminals. Further, after the NRC, people like Ramani Biswas and her husband, whose parents and siblings are Indian citizens, have been put in these camps as they ignored notices from Foreign Tribunals.[22] Even though they have the option to challenge this in the high court, or even if they are illegal immigrants, the fact that they are being made to live with and like criminals is not acceptable. The inhumane conditions like keeping 100 people in a room with a capacity of 40 people[23] have all been brought to light and are now being questioned. This abuse of power by the government fits right into Foucault’s analysis of our society. The slightest deviation from the normal or the slightest hint of ignoring or disapproval of government policies leads to penalisation. Even in a place like a detention camp that exists to “restrict the movements of foreign nationals staying illegally so that they are physically available at all times for expeditious repatriation,” the government makes it a prison-like system.

However, since coming into the light of these facts, the government has also taken better initiatives. The Union Ministry has been asking states to set up proper detention centers with modern facilities that fulfill their actual purpose instead of making citizens question our justice system’s competency.

Foucault talks about how the panopticon structure can be used beyond prisons and be applied to hospitals, schools, mental asylum, and even a panopticon society. A society in which the government tracks each and every movement, and we behave according to a set norm. The Chinese government also surveils the Uighur residential area very extensively, where the slightest act of “going out the front door instead of the back one” may also be seen as a deviation from the norm. This practice has made the residents of that area very aware of their acts where they know that the slightest digression from the ‘norm’ would lead them into trouble.

An example of this on a larger scale when Edward Snowden revealed that the US, UK, Australian, New Zealand, and Canadian governments were monitoring citizens’ phone calls and emails, and even forcing internet service providers to hand over personal information – why were they gathering all that data? Is there any reason to believe that all those people might be criminals? Six British journalists are currently suing the Metropolitan Police Force because they found they were on the Met’s ‘Domestic Extremism Watchlist.’ These are political journalists: they take photos of political protests, a perfectly respectable job, but they found that their movements, their phone numbers, their addresses, even their clothing, and medical records had all been noted on a police computer somewhere. Why? Foucault would say that all that surveillance serves the ulterior purpose of expanding power. Allowing it to see further into the prisoners’ cells and regulate what it finds there. That last one, stop and search, might also serve the purpose of reminding you that the tower is there. In the UK, less than half of all stop and searches end in an arrest, and one is much more likely to get stopped and searched if you’re a black or minority ethnic person – that is explained if the purpose of stop and search is more about reminding you that the police are watching and less to do with actually catching criminals.

All these examples existing very much in our current society points out how Foucault’s analysis of the panopticon is becoming true day by day. If proper action is not taken timely, it may hinder our society’s entire foundation as people are becoming more and more aware and beginning to protest. This may even rise up to threaten the government’s power if proper laws and scrutiny into allegations are not acted upon immediately.

*****

Bibliography

Constitution and Acts:

  1. The Foreigners Act, 1946, 3(2)(c), Acts of Parliament, 1946 (India)
  2. INDIA CONST. art. 258(1)

Books:

  1. V. Paranjape, Criminology and Penology, 207 (12th Ed.Central Law Agency)
  2. Michel Foucault, Discipline and punish: the birth of the prison 195–230 (2nd Vintage Books ed. 1995).
  3. NIVEDITA MENON, POWER in POLITICAL THEORY: AN INTRODUCTION 155-157 (Rajeev Bhagava et al. eds., 2008)

Podcasts:

  1. Stephen West, Philosophize This!: Episode#121…Michael Foucault pt.1, APPLE PODCASTS (Aug. 14, 2018) ‎Philosophize This!: Episode #121 … Michel Foucault pt. 1 on Apple Podcasts (Last visited 4th December 2020)
  2. ‎Stephen West, Philosophize This!: Episode#123…Michael Foucault pt.3- Power, APPLE PODCASTS (Sep. 23, 2018) Philosophize This!: Episode #123 … Michel Foucault pt. 3 – Power on Apple Podcasts (Last Visited 4th December 2020

Youtube:

  1. LastWeekTonight, China & Uighurs: Last Week Tonight with John Oliver (HBO), YOUTUBE (Jul. 26, 2020) China & Uighurs: Last Week Tonight with John Oliver (HBO) – YouTube
  2. Then&Now, Foucault: Biopower, Governmentality, And The Subject. YouTube (Sept. 23, 2020), https://www.youtube.com/watch?v=AXyr4Zasdkg

Newspaper article:

  1. Kaushik Deka, (February 10, 2020) UPDATED, The truth about Assam’s detention centers, India Today, https://www.indiatoday.in/india-today-insight/story/the-truth-about-assam-s-detention-centres-1644836-2020-02-10 (last visited Dec 16, 2020).

News:

  1. Are detention centers linked to NRC? India Today, https://www.indiatoday.in/pr ogramme/news-today/video/are-detention-centres-linked-to-nrc-1631788-2019-12-26 (last visited Dec 16, 2020).

*****

FOOTNOTES

[1] N.V. Paranjape, Criminology and Penology, 207 (12th Ed.Central Law Agency)

[2]Michel Foucault, Discipline and punish: the birth of the prison 195–230 (2nd Vintage Books ed ed. 1995).

[3] Id.

[4] Id.

[5] Stephen West, Philosophize This!: Episode#121…Michael Foucault pt.1, APPLE PODCASTS (Aug. 14, 2018) ‎Philosophize This!: Episode #121 … Michel Foucault pt. 1 on Apple Podcasts (Last visited 4th December 2020)

[6] Id.

[7] Then&Now, Foucault: Biopower, Governmentality, And The Subject. YouTube (Sept. 23, 2020), (Last accessed- Sept. 23, 2020, 1:02 PM) https://www.youtube.com/watch?v=AXyr4Zasdkg

[8] Id.

[9]  Steven, supra note  5

[10] Id.

[11] ‎Stephen West, Philosophize This!: Episode#123…Michael Foucault pt.3- Power, APPLE PODCASTS (Sep. 23, 2018) Philosophize This!: Episode #123 … Michel Foucault pt. 3 – Power on Apple Podcasts (Last Visited 4th December 2020

[12] Steven, supra note  5

[13] NIVEDITA MENON, POWER in POLITICAL THEORY: AN INTRODUCTION 155-157 (Rajeev Bhagava et al. eds., 2008)

[14] Id.

[15] LastWeekTonight, China & Uighurs: Last Week Tonight with John Oliver (HBO), YOUTUBE (Jul. 26, 2020) China & Uighurs: Last Week Tonight with John Oliver (HBO) – YouTube

[16] Id.

[17] Id.

[18] Id.

[19] The Foreigners Act, 1946,  § 3(2)(c), Acts of Parliament, 1946 (India)

[20] INDIA CONST. art. 258(1)

[21] Kaushik Deka, (February 10, 2020) UPDATED:, The truth about Assam’s detention centres, India Today, https://www.indiatoday.in/india-today-insight/story/the-truth-about-assam-s-detention-centres-1644836-2020-02-10 (last visited Dec 16, 2020).

[22] Id.

[23] Are detention centres linked to NRC?, India Today, https://www.indiatoday.in/programme/news-today/video/are-detention-centres-linked-to-nrc-1631788-2019-12-26 (last visited Dec 16, 2020).