Sociology of Law and Punishment. Illustrate your essay with specific examples.

“Discuss and evaluate the possibility that Elias’ ‘civilizing process’ influenced the development of less brutal practices of punishment in western societies”
Over the course of recent decades, it has become increasingly apparent that modern penal systems, notably in western societies have undergone a process of ‘civilisation’ previously unseen. Punishments have gradually moved away from physical violence and instead the penal spectrum involves a growing recourse of emotive and ostentatious punishments of various kinds. This points to a more critical view that there is a possibility of Elias’ ‘civilising process’ influence being paramount to the development of less brutal practices of punishment in Western societies today (Elias, 1982). This is an opinion that academics increasingly find credible. One feature that is evident, as previously stated is that the penal spectrum involves a growing recourse of emotive and ostentatious punishments of varying kinds. However, one must not forget that such a move should be set against an enhanced continuity, and at the same time of a long-established trend towards bureaucratic rationalism (Pratt, 2000). This theme will be considered critically throughout this paper. However in order to address the issues firstly it is necessary to outline and evaluate Elias’s perspective.
Norbert Elias argues that civilisation transforms the human habitus so that violence in all forms is gradually subjected to greater and more sophisticated forms of management and control. Elias does not argue that ‘Decivilisation’ cannot occur instead defining ‘decivilisation’ as an increase in violence and a breakdown in the stability and consistency of social relations (Elias, 1969). A principal criticism of Elias is that he fails to explore the extent to which attempts to bring about civilisation, have revolved around essentially violent policies and practices, instead simply viewing them as a product of historical transition. (Van Krieken, 1997)
Elias states that the process of civilisation is marked by a distinct decrease in the amount of overt physical violence and an increase in the use of psychological control. Elias believes that this change is the result of and increased interdependency. As citizens depend more and more on each other for their own welfare, due to increased job specialisation, they have been forced to become more restrained (Elias, 1969). Elias believes that interdependence arose as a result of two principal factors. Firstly the emergence of a central authority is seen as vital to Elias, as he states that the fall of feudalism, passing the monopoly off violence onto the state led to violence being more predictable and a less continuous threat creating pacified social spaces which would in modernity develop into cities (Elias, 1969). Secondly the state with its monopoly on power acquires the role of providing a survival function protecting. It is this survival function that aids the creation of interdependencies, as it allows for increased job specialisation and social bonds to form. Violence increasingly becomes seen as redundant as functional democratisation takes place and the balance of power evens out between social groups due to a web of interdependence (Elias, 1982).
As violence would only work as a method of control when there is an obvious disparity in the level of power between groups, an alternative method needed to be found in order to regulate behaviour (Vaughan, 2000). This method assumed the form of the refinement of manners. There is therefore an inversion of the process of illustrating social power. Whereas previously power was exercised through the control of others, now power is illustrated through the control of oneself and becomes increasingly aware of others (Vaughan, 2000). Elias states that the development of manners is directly linked to the states increasing monopoly of violence over the feudal lords. In order to provide distinction from the masses, the nobility no longer could turn to violence as this was now the prerogative of the king and therefore use etiquette to show their higher status (Vaughan, 2000).
Elias believes that civilising is the result society becomingly increasingly interdependent and being subjected to more inculcated behaviour restraints. Consequently society has become increasingly sympathetic which Elias argues explains the increase in physically orientated punishments (Garland, 1991). Elias does however acknowledge that there is a limit to the amount of sympathy dispensed within penal practice due to the public desire to make offenders suffer. This aspect is one of the principal contentions within Elias’ theory is that it is problematic reconciling the desire for revenge, with the distribution of sympathy (Garland, 1991). Perhaps concordance can be found in the belief that mankind has undergone a process of rationalisation.
Consequently behaviour has become more predictable, emotions less spontaneous and rash behaviour less likely. Public displays of such behaviour have bee seen to become taboo, for example sex now occupies the private sphere. Whilst such behaviour was designed to distinguish the bourgeois from the lower classes, the web on interdependence meant that contact between the classes could not be avoided and manners spread throughout the culture (Elias, 1982). The bourgeois were therefore forced to develop ever more refined behaviour to distinguish themselves. Elias states that when ascending groups perceive themselves as being of a higher status, they enunciate their code of behaviour so to increase the differences between themselves and the established classes (Elias, 1969). In relation to penal measures, this is an example of how punishment can be seen to be reproduced as a cultural phenomenon. Through their opposition to execution the middle classes are able to demonstrate that they possess the desired control over their emotions. Elias does not state that violence disappears as social phenomena, instead he states that violence be it containing or issuing, passes to the state. People are increasingly less comfortable with the prospect of death, and therefore confine it to the private sector when the state brings about its occurrence (Garland, 1991).
Elias has faced a number of criticisms. Consequently in order to appreciate the validity of Elias’ argument it is necessary to review the literature surrounding the process of civilisation. Rusche and Kircheimer in their seminal 1968 work argue that penal reformers were motivated by factors other than humanitarian concerns Concurring with Elias in that job specialisation drove penal reform forward, Rusche and Kirchheimer take a Marxist approach to penal reform seeing the civilisation as linked directly to the state of the labour market. Their argument presents a theory that executions and extradition, proved inefficient in modernity due the increased specialisation (Chiricos & Delone, 1992). Prison, according the Rusche and Kirchheimer the prison developed as a method as exploiting previously inefficient labour and rehabilitating the workforce. However was almost instantaneously made obsolete by the population surge which occurred in the mid nineteenth century. The prison was therefore retained as a penal measure, but the function altered with labour being used rather than to aid economic development, but instead in order to deter potential offenders via the labours lack of purpose (Vaughan, 2000). It is also suggested that the principal goal of incarceration, that of rehabilitation, was abandoned in favour of deterrence and retribution. Solitary confinement is cited as the evidence of the purpose shift, given that solitary confinement does little to boost rehabilitation, given the isolation from society involved. Rusche and Kircheheimer argue that instead economic and retributive aims are disguised behind a veil of morality (Chiricos & Delone, 1992). Rusche and Kirchheimer seemingly support Elias, albeit from a Marxist perspective. It is the Marxist perspective they take which has been most heavily criticised as it is seen as over simplistic, with other motivations simply seen as a façade to disguise the underlying economic motivations. Due to this alternative explanations are required, such as those provided by Michael Ignatieff.
Michael Ignatieff opposes Rusche and Kirchheimer instead stating that there are general social reasons for the introduction of the prison not just economic pressures. Ignatieff states that the prison arose as a reaction to a perceived breakdown in social control (Ignatieff, 2002). The nineteenth century became increasingly concerned with a decline in morality and Ignatieff states that the prison was developed as an extension of institutes such as the workhouse to increase social control. Ignatieff however cannot explain why the prison was adopted as the method of social control when critics such as Vaughan state death would likely have served as well to rebuild social bonds (Vaughan, 2000). Consequently Ignatieff can only cite humanitarian reason for the change. Ignatieff also takes a structuralist approach to examining the phenomena, being dismissive of Elias’ argument. Ignatieff’s weaknesses appear to be remedied by Elias’ argument, therefore adding increased validity to the ‘civilisation process’.
Michel Foucault also adopts a structuralist approach to the adoption of prison as the principal form of punishment in western societies. Foucault believes prison represents a more efficient distribution of power, inserting the states power deeper into society as its symbolic value emphasises the states monopoly on coercion (Foucault, 1991). Whereas previously power would be illustrated through the dismemberment of the body, via the prison both the body and the mind are disciplined by incarceration. In his work Discipline and Punishment, Foucault graphically describes the execution of Robert- Francois Damiens who attempted to assassinate Louis XV describing it as a form of monarchical punishment, which through a demonstration of power, represses the populace (Foucault, 1991). Foucault argues that modernity bought with it the use of “disciplinary punishment” which uses professionals to determine the length of inmates stay. Foucault argues that physical power has been replaced by frameworks of knowledge and power, which penetrates deeper into society and is more effective at social control. Foucault’s argument is more sophisticated as it explains the phenomena to a more sophisticated level that Rusche and Kirchheimer who simply use economic motives and Ignatieff who relies on humanitarian causes. The principal weakness with Foucault however is that he cannot explain what triggered a change to using the prison, other than it provided more efficient control. Foucault cannot provide any background to this realisation whereas Elias outlines a process of change. While Foucault can be seen to have weaknesses, his argument does bring to the fore issues relating to the political landscape, something Garland examines in more depth.
Garland adopts a more pragmatic approach to the subject of the punishment. Garland states that politics and punishment are so intrinsically tied together that penal measures are often adjusted regardless of their effectiveness so to secure various groups position, for example to reinforce their political ideology. Changes are also implemented by political agents as there is a desire to be seen by the public to be being proactive in the fight against crime (Garland, 1991). Garland’s argument fails to explain this rise of the prison as punishment in the prison is actually hidden as a spectacle, compared to the very public hangings which attracted large audiences. Garland’s theory is useful in assessing government policy implementation; however it does to explain the process by which general social change occurs (Garland, 1991). Elias argument however fulfils this aim, so allowing a credible explanation for the ‘civilising of punishment’. The next section of this essay will review Elias’ approach to sociology critiquing its application.
As illustrated by the literature review, Elias offers a particular paradigm for sociological thought which opposes both the structural-functionalist and methodological-individualist tendencies in sociology. The concept that he developed hoped to severe and expose many of the central dilemmas in sociology, especially the opponents of action and structure, individualism and society. Elias’ ‘Civilising Process’ is contentious, and overlooked with suspicion. Elias deviates from the more fashionable trends in sociology to dig deep into retrospection and seek the unknown. His writing has been a source of ideas and has appealed the senses of those who crave for the unknown. Commentators have veered between two theological pointers; an uncompromising acceptance or ungenerous rejection. His work frequently is a contradiction between supposedly admiring ‘followers’ and critics. To appreciate Elias, one needs to steer a path between the lines.
There are five prominent principles underlying Elias’s approach to sociology. Firstly, although societies are made up of individuals, they indulge in voluntary and intentional action, which according to Elias is unintended, unplanned and independent of society as a whole (Elias, 1982). Sociologists often find this hard to comprehend. In hindsight, Elias is quite justified in his interpretation of this law on human behaviour. When a person commits a crime, circumstances can lead him or her to act beyond an intended path, leading to a deviation of the planned action. This situation when analysed, suggests that though the crime was intentional, the resultant action was unintentional. The war in Iraq is no different. When the combined united forces of America, UK, Italy, Australia, and Japan occupied its territory, a lot of human life was lost. Though the action by the forces were intentional, lose of innocent lives was unintended. Individual actions therefore can be seen as intrinsically linked to social development (Lampard, 1998). Secondly, human beings are complex creatures who can relate and be understood in their interdependence with one another. This phenomenon often termed as, ‘figurations’ identifies an individual as autonomous body possessing an independent image in society., Elias on the other hand argues that though each of us are unique in our own way, this uniqueness exists only in our make-believe relations with others. Sociogenesis, as Elias referred this to as, is linked to psychogenesis; a process of psychological development and transformation, the changes in personality structures or habitus which accompany or underline social changes. Thirdly, human social life should be understood in terms of relation rather than state. Interpreted, one may be boisterous of his or her status or personal power. Relation is identified as that binding force, which brings two or more individuals together. State by itself, has no value, relation is the strongest state humans can be in. This point is particularly relevant to the development of manners and the desire to obtain social status (Lampard, 1998). The Fourth point suggests that societies can survive, only if they can understand the importance of long-term processes of development and change, rather than being static or in similar condition. Elias spoke in this regard in, ‘retreat of sociologists into the present’. Elias believed that his point of view was something that sociologists couldn’t bypass in order to understand current social relations and structures. The civilising process can be seen as society’s natural need to develop and reform to ensure the maintenance of equilibrium (Elais, 1969). Finally, sociological thoughts move between a position of social and emotional involvement on the one hand, to one of detachment on the other. In contrast to natural science, the fact that sociologists study other interdependent human beings, means that they are a part of their own scientific study, and cannot avoid a measure of involvement in their own research and theorising. Socio-scientific knowledge develops within the society it belongs to, and is not independent, but at the same time, this can become a barrier to further understanding, especially one which can resolve or transcend any of the persistent problems characterising human beings in relation with one another (Elias, 1982). The most obvious problem Elias saw was violence. He felt it was important for social scientists to try to transcend this emotive conceptualisation of humanity from self destructing, and seize a way to safeguard humanity from current ideologies and mythologies (Elias, 1982). He referred sociologists as engaged in the destruction of myths. Due to his unique approach to sociology, the sociology of punishment Elias outlines, offers a framework for analysing penal institutions that can give a fuller and more realistic account than: Punishment-as-crime-control approach of penological studies or Punishment-as-moral-problem approach of the philosophical model (Lampard, 1998).
Nils Christie, in Crime Control as Industry, suggests that the spiralling prison populations, particularly in the United States, represent a move towards gulags western style, in much the same way that Zygmunt Bauman saw modernity itself as creating the possibility for the Holocaust (Bauman, 1976). For Christie the current ‘gulagisation’ of the West is not an aberration of modern society, but something that occurs naturally within it as mimicked in Elias’ civilising process (Christie, 1995)). Pratt’s alternatively suggests that man may be moving into an area of penal control that takes one beyond the gulag (Pratt, 2001). The gulag it says may not be a sufficient modality of punishment to absorb the punitive sentiments of modern societies as Elias describes in his note that citizen’s desire revenge. What we find is the supplementation of modern penal sanctions by new forms of legal and extra legal punishments (Pratt, 2001). For Christie, there is hope, that at some point, good sense of the ordinary people will prevail and counter the trends that the forces of modernity made possible. It is argued that there is no goodness to human values and public sentiment: unleashing them may only add to the spiral of penal control. Elias’ work can therefore be seen to have influenced multiple sociologists’ opinions. Elias’s approach can also be expanded to encompass not only penal issues, but those of social violence; for example wars
Sociological perspectives view punishment as a complex social taboo, shaped by an ensemble of social and historical forces having a range of effects that reach well beyond the population of offenders. Marxism depicts punishment as a state apparatus that plays an ideological and political role in ruling class domination. The work of Norbert Elias points to the importance of cultural sensibilities and the “civilizing process” in the shaping of modern penal measures. Elements of these interpretive traditions can be brought together to produce a multidimensional account of punishment’s social forms, functions, and significance that can, in turn, help promote more realistic and appropriate objectives for penal policy and a fuller framework for its normative evaluation (Garland, 1991). Elias’ approach however can be seen also in relation to war. While wars might be fought in the name of free society, their intrusion into human rights is such that, irrespective of the outcome, society suffers. The Second World War was a major struggle for humanity, as man himself, launched savage attacks on countries without provocation. The Japanese were defeated, and so too were the Germans. However, the damage had been done. Millions of soldiers lost their lives, their families, and friends in what can be termed a fight for justice, a struggle for democracy. The victory of the secular states gave rise to The United Nations, and the proclamation of the Universal Declaration of Human Rights. This International system, aided, and part of the Cold War, helped introduce the system of conflict management. Power continued to play the dominant role, closely linked to resource availability and legitimacy. Elias’ civilising process can be seen as influential in this process due to its intrinsic link to bureaucratic rationalisation. (Albrow & Anheier, 2006)
This paper has sought to demonstrate that Elias, whilst not without challenge has presented an argument that holds up under scrutiny. Elias’ civilising process has formed a foundation from which other sociologist’s hve been able to expand. Punishment has certainly civilised and this can be seen as a result of humanitarian concerns along with structural issues that have developed in tandem with society. Elias’ theory appears able to b applied to multiple situations which encompass issues of social violence. It has been shown that the major strength of Elias is the approach he took to sociology that while contentious, allowed the unique insights seen in the civilising process.