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Theoretical Problematization of Penal Innovation: The Case of Community Service in Belgium

Jean-François Cauchie et Dan Kaminski
Cet article est une traduction de :
Éléments pour une sociologie du changement pénal en Occident. Eclairage des concepts de rationalité pénale moderne et d’innovation pénale

Résumés

Les changements qui se produisent dans le système de droit criminel et la manière de les analyser sont au cœur de cette contribution. Pour le dire simplement, nous formulons un certain nombre de reproches à deux interprétations théoriques de ces changements (deux interprétations que nous appellerons respectivement « réformiste » et « critique »). Dans la continuité de ces reproches, nous aimerions alors poser les bases d’une sociologie de l’innovation pénale qui entend simultanément contester l’interprétation « réformiste » et enrichir l’interprétation « critique ».

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Notes de la rédaction

Translated by Helen Arnold. We would like to thank Maritza Felices and Jean Sauvageau for their constructive comments on the final version of this article.

Texte intégral

  • 1  Usually criminologists prefer terms like Criminal Justice System or Criminal Law. But in this pape (...)
  • 2  The authors drew much of their inspiration from the work of Prof. Alvaro P. Pires of the Universit (...)
  • 3 We are of course well aware that the critical and reformist readings of penal change are not too fa (...)
  • 4  See for example, in a similar ethical perspective, O’Malley, 2006.  

1This paper is essentially concerned with current changes in the Criminal Law System1 and the analysis thereof.2 To put it simply, we are not totally satisfied with two theoretical interpretations of these changes (reformist and critical interpretations)3, and would like to set the premises of a sociology of penal innovation which may both compete with the reformist interpretation of “penal advances” and foster a deeper critical reading of them4.

  • 5  In Belgium, we use this expression: Peine de travail autonome. Theoretically, the work is the sole (...)
  • 6  The April 17, 2002 Act introduces the work as punishment: “la peine de travail autonome en matière (...)
  • 7  These developments may be found in Cauchie, 2003.

2Our empirical basis will be Belgian community service. It was introduced in 1994 in the form of a probationary court orderat the prosecution and sentencing stages, then legally redefined in 2002 as “work as punishment5(hereafter WP).6 Rather than giving a lengthy, detailed description of the changes introduced in the status and implementation of community service,7 we prefer, for the purposes of this theoretically oriented paper, we prefer to focus on the crucial element of that trend, which is the change of status by which a court order, required for probation,became a WP.

  • 8  Pires uses the term dominant conceptual framework to suggest that it is not the only system of ide (...)
  • 9  Pires (2006a) actually talks about penal rationality in the sense that it is mainly based on the i (...)

3We first describe the various forms taken consecutively by community service (1) and discuss the issues raised by assessments of the latest version (2), after which we examine reformist and critical interpretation of the change of status (3). We then show how unsatisfactory these two interpretations are, from both an ethical and a scholarly standpoint, so as to lay the bases of a sociology of penal innovation (4), grounded in these dissatisfactions and on the identification of the underlying concept of modern penal rationality. Pires (1998) uses this concept to designate the presence and development, in the Western world, of a system of ideas attending the sedimentation of the Criminal Law System as a sub-system of Law System. This system of ideas, mostly focusing on the foundations and objectives of sanctions, is purported to be composed of scholarly knowledge and claims to be the dominant conceptual framework of the Western Criminal Law System.8 The ideas and theories he views as articulated in a “system” revolve primarily around the following features: the advocacy of a hostile, abstract, negative and atomistic vision of the protection of society and of the assertion of norms.9

Hostile because deviants are represented as enemies of the group as a whole and because there is the intention to establish a sort of necessary, perhaps even ontological equivalence, between the value of the offended good and the affliction to be produced in the deviant. Abstract because the harm (concrete) caused by the sentence is acknowledged, but construed as causing an immaterial moral good (“restoring justice through suffering”, “reinforcing the morality of honest people” and so on) or again, an invisible, future practical good (deterrence). Negative because these theories exclude any other sanction aimed at reasserting lawfulness through positive action (compensation or other) and specify that only the concrete, immediate harm caused to the deviant can produce some well-being for the group or reassert the value of the norm. Last, it is atomistic because the sentence—in the best hypothesis—has not to concern itself with the concrete social ties between individuals, except in a quite secondary, accessory way. (Pires et al, 2001: 198)

  • 10  Examples include the difficulty encountered by modern Criminal Law in compellingly validating the (...)

4Penal rationality, thus grounded, is posited as playing a important role in the evolution of modern Criminal Law in the Western world. It is claimed to be a major epistemological or cognitive obstacle to the resolution of many of the difficulties that that Criminal Law System is unable to overcome.10 On the basis of this conceptualization, we will then proceed to give an “innovative” interpretation of the particular penal changes under study (5).

1. Gradual Integration of Community Service in Belgian Criminal Law System

5The recent changes in the Criminal Law System seem less to involve deflation or disappearance than a triple process of reform, adjunction and investment. Reform is the explicit name officially assigned by the Criminal Law System to the transformations (of variable scope) operated by it, or to the scheduling of such transformations. Adjunction consists of increasing complexity through locally grafting additional tools, often termed alternatives, supposed to improve penal action by deviating its flows or modifying its philosophy. Investment is intended as the qualitatively renewed mobilization of tools whose name or form have been a part of the Criminal Law System for a long time.

  • 11  The term sanction is intended simply in the sense of a legal remedy. This notion is interesting in (...)

6Among the novelties which may be examined so as to highlight the different possible interpretations, doing work for the benefit of the community seems to be a good example. The idea is for an offender to do something useful to the community in accordance with a penal decision. In Western countries, this type of service has recently become an accepted and acceptable sanction11 (at least to some extent and for some profiles). Community work, like probation, is often portrayed as a sort of intermediate between some responses which judges and “public opinion” view as inadequate, on the one hand, and prison, on the other hand. It is relatively infrequently used, but most probably partakes of penal net-widening, and is an answer simultaneously to budgetary constraints, to the feeling that petty delinquency goes unpunished, to the feeling of insecurity expressed by public opinion, to prison overcrowding, and again, to the need to respect people’s dignity and human rights (Cormier, 2002; Jaccoud, 2003; Mary, 1997).

7If we are to locate community service within the typology of processes mentioned above, we would identify it as an adjunction and as an investment. As an adjunction since it usually seems – in  discourse at least – to be an alternative to heavier sentences, an alternative which would notonly make for the efficient management of low-risk offenders, but which would also be backed by a less belligerent, afflictive philosophy than the one behind recourse to prison. As an investment because community service, and the Belgian version in particular, had two different legal destinies, following a period of informal experimentation.

1.1. A Condition for Suspension of the Enforcement of Another Sanction

8Before it became a court order (in 1994), and later punishment (2002) consecrated by Belgian law, community service existed in various forms, each of which at least partially involved the goal of direct or symbolic reparation. In the mid-20th century it was presented as a test of better conduct for World War II collaborationists, consisting of atonement by working for the good of the nation in view of their subsequent release on parole (Mary, 1998). Like other forms of compensation and reparation, community service did not await institutionalization by the Criminal Law System to be used by inventive judges and structured by various actors (probation workers, parole officers, members of the community). Reparation and sanctions intended to embody that philosophy are not always “taken seriously” however (Dreyfus, Rabinov, 1984) by the dominant rationality of the modern western Criminal Law System (see below).

9Nonetheless, Belgian community service first gained legal recognition soon thereafter, in the form of court orders. Two bills were passed in 1994 recommending the accomplishment of work in the public interest (hereafter WPI); one listed it among the conditions for probation, the other (the procedure of which will not be discussed here) made it mandatory for victim-offender mediation. WPI consists of an activity performed willingly and free of charge by the offender during his free time (that is, outside of his educational or occupational activities). This activity is defined, following investigation of his social situation, in accordance with the person’s physical and intellectual capabilities. It must be work for a public service, a non-profit organization or a social, scientific or cultural foundation. The work done must remain secondary and not disrupt the labor market. Social guidance is given at the same time.

1.2. Work as Punishment (WP)

10Community service soon received a second recognition, and no small one: it was draped in new attire with the April 17, 2002 Act which set up community service as a WP in correctional and police court cases and rescinded the regime described above. The work was henceforth the main object of the sentence and not accessory to the suspension or stay of execution of a prison sentence.

11The elements which affect – positively or negatively – the credibility of this new “full-fledged sentence” status are presented below. Some nuances are immediately evident. For instance, a prison term or a fine, pronounced by the judge along with the main sentence, serve as subsidiary sentences in case of non-performance of the work. Also, we note that the maximum number of hours to be served has been increased from 240 to 300 and the delay for performing it lengthened from 6 to 12 months. Interestingly, the supervisory personnel (probation officers, municipal workers and specialized centers) remains the same as those prescribed for the previous WPI.

12The WP is theoretically more open than the arrangement offered by the 1994 Act. In particular, it may be applied when sentencing offenders with a criminal record. However, this extension may be somewhat deceptive, for three overlapping reasons. Firstly, “since the WP is merely an option open to the judge, who is to assess whether that type of sentence is suitable, one easily imagines that a long criminal record would more than probably be a dissuasive argument against it, especially if that record is full of other WP, and even more so in the minds of judges who would continue to view that sentence/punishment as a favor” (Jacobs, Dantinne, 2002: 856). Next, one may be skeptical of the application of a WP to somewhat serious offenses, since the original proposal already described WP as “a constructive, economical alternative to short prison terms”. Last, a list of exceptions given as legal exclusions seem to represent “the corollary of the removal of the criteria of past offending” (Jacobs, Dantinne, 2002: 857).

13Again, on the chapter of the “credibility” of WP, one may wonder how to interpret the possibility for the defendant to be represented at court by his attorney, and the elimination of the compulsory nature of the social investigation prior to sentencing (Dantinne, Van Doosselaere, 2000: 1042; Wattier, 2000: 11). Don’t those two procedural characteristics contribute to giving that sentence a limited role to begin with? Last, as to the quality of enforcement, one unavoidably wonders about the legislators’ decision to do away with two obligations which previously affected decisions considerably: one was to have the work performed in a location that does not demand excessive travel of the offender, while the other is to take the latter’s physical and intellectual capabilities into consideration.

2. Community service: A Vector for Changes in the Criminal Law System?

14Independently of its legal status, work as a penal sanction may receive several very different interpretations. From the standpoint (which is ours) of an ethic defending more social justice, solidarity and democracy, the idea of imposing work carries both promises, threats and illusions.

15There are many promises:

1. Will the “new” sanction introduce a less belligerent, less stigmatizing semantic of sentencing?

2. Will it introduce a psychosocial dimension, more respectful of the viewpoint and life experience of offenders themselves?

3. Will it constitute a non-negligible resource for challenging the absurdity, waste of time and social damage characteristic of most prison experiences?

4. Will the blend of professional competencies required by its enforcement bring the usual actors in the Criminal Law System (judges, probation officers) into contact with other services and actors which only occasionally cooperate with the Criminal Law System? Will this mixing make the Criminal Law System more open to its environment?

5. Last, will the new sanction help to make some cracks in a number of assumptions as to the rationality of modern Criminal Laws Systems, making them more vulnerable?

16But work as a penal sanction is also heavy with threats and illusions:

1. The new sanction will perhaps be unable to prevent – legally or symbolically – prison sentences from remaining the standard for the modern Criminal Law Systems.

2. Since we know that the objectives of imprisonment, or at least actual correctional practices, usually swap their ideal of rehabilitation for a suspicious blend of legal guarantees, retributivism and control (Deleuze, 1990; Houchon, 1984; Lianos, 2003), we may wonder whether non-correctional sentences aren’t taking the same course.

3. The failure of many previous “novelties” (whose goals were deflected, their contents distorted and their importance marginalized) reminds us that the Criminal Law System produces its own legitimating discourses, which often override other differing political or scientific ambitions.

4. The contact of Criminal Justice actors with an unfamiliar environment, mentioned above, is not devoid of ambivalence: will it take the form of an exchange or of colonization?

5. One also wonders about the price to be paid for the integration of these new practices in the day-to-day functioning of the Criminal Law System. For example, it may be the adoption of a repressive profile, or again, maintained stigmatization of the offender. The modern Criminal Law System has always found it difficult to recognize the symbolic value of “alternative” sanctions (Pires, 1998) and to view the adoption of such sanctions as the sign of a new orientation in Criminal Law. This difficulty is particularly evident in the face of serious offenses or of individuals believed to be dangerous. Although it does not necessarily reserve “alternatives” for lesser cases, the Criminal Law System is often reticent about sanctions which do not produce—or do not give the impression of producing—suffering as well.

3. Two Unsatisfactory Interpretations of a Transformation

17Although the forthcoming discussion might have dealt with other aspects specific to community service and equally indicative of an evolution susceptible of analysis in a sociology of penal innovation perspective (Cauchie, Kaminski, 2007), we shall focus on the change of status of community service, with the shift from the status of court order (WPI) to that of punishment (WP). What is involved here is the semantic stakes of this shift (What is the meaning, in terms of credibility for the Criminal Law System, of the changeover from a court order to a punishment? What does “rising in the penal hierarchy” mean?) as well as the series of legal arrangements attending it (changes in terms of penological objectives, management, social guidance, social investigation, the number of hours of work required, the time limit for performing it).

18In the forthcoming section we discuss two readings based on what we call the “reformist” and the “critical” perspectives, while the following sections deal with developments on our own “innovative” perspective.

3.1. The Reformist Interpretation

19The reformist interpretation is the most pervasive, since it constitutes the starting point for change in Criminal Law. It is coextensive with the intention presiding over legislative and statutory changes. There is no need, here, to present the objectives of WPI and WP in terms of the discourses propounding them. That interpretation is fundamentally “liberal” and “humanist”. Penal reforms, inscribed in a history of ongoing progress, are grounded in goodwill, altruism, philanthropy and humanism. This was already the case for prisons: “the birth of the prison in the late eighteenth century, as well as concurrent and subsequent changes, are seen in terms of a victory of humanitarianism over barbary, of scientific knowledge over prejudice and irrationality” (Cohen, 1985: 18).

  • 12  A strategy brilliantly criticized by Foucault (1975), however, when he hinted that the “success” o (...)
  • 13  A Flemish Social-Christian minister who was to resign in 1998 following the (failed) escape of the (...)

20The introduction of the community service, first as a court order (WPI), then as punishment, was seen, then, as corroborating that victory. Not only did it prolong the reformist project, but it added the ambition of moving to a higher level. In complicity with or hopefully replacing prison, it was viewed as sharing the same qualities, those of every arrangement properly labeled as Progress, which is to say, the expression of a growing aversion for physical violence and suffering (Francke, 1995: 249), the postulate of a gradual internalization, by individuals, of external social constraints (Francke, 1995: 249), or again, the inscription in a process of increasingly civilized behavior (Van Dijk, 1989). But that is not all. Community service does not merely follow in the footsteps of prison, it seeks to go beyond it where it failed. That failure is also (temporarily) the failure of reform: that is, the inability to eradicate a form of suffering inherited from the barbarian Ancien Régime, and which is still oozing from those concrete walls. If the successive prison reforms seem to be a solution for (at last) democratizing those prisons, in the end,12 it would be just as judicious —from the reformist perspective—to give greater credibility to alternatives to prison. The policy guideline note drawn up (in 1996) by one Belgian minister of Justice, Stefaan De Clerck,13 on sanctions not involving personal restraint (which sanctions include community service) should be interpreted in reference to that strategy:

The minister enjoins judges, as well as citizens in general, ‘to abandon the very widespread idea that the only real punishment is a sentence to prison: he also encourages them to cease to view other forms of punishment as favors’. According to the minister, ‘equivalent efficiency in terms of recidivism, a much lower cost and a more humane treatment should convince people that the henceforth more extensive application of sentences not involving personal restraint is well founded’. To ‘avoid the trap of diversification and make alternative sentences an effective substitute for imprisonment’, the minister intends to encourage ‘the replacement of short prison terms and greater recourse to alternatives’. (Mary, de Fraene, 1998: 51)

21Another document published under the same minister points out that often punishment, in the most conventional sense, is only meaningful if it is “punitive, in the sense of a pain inflicted by the State and suffered by the offender” (Martin, Meyvis, 1997: 171, italics ours). In order to set community service outside that criminalizing vocabulary, the document then specifies that punishment must henceforth be meant to be a “proposal made ... to the person who committed an offense to act positively, for the benefit of society, to offset the disturbance occasioned by his action” (Martin, Meyvis, 1997: 172, italics ours). What is sought then, apparently, is to punish differently, by repairing the harm done:

Community service has one main principle: to punish differently. The value of action based on this rule is grounded in three elements revealing the various goals which motivate the establishment of this sanction within Criminal Law: (1) it is a sanction which must be accepted [rather than imposed]; (2) the person who commits an offense becomes an active subject of his sentence [as well as of management of it]; (3) the sanction is performed within civil society [and no longer in prison]. (Martin, Meyvis, 1997: 170)

  • 14  Or at the least, a conjunction of the two.

22The reformist interpretation trusts its ability to replace one Criminal Law philosophy with another, it does not see any obstacles to the gradual replacement of prisons by sanctions not involving personal restraint, such as community service.14 In its determination to legitimate this type of arrangement at the most “serious” level possible (Dreyfus, Rabinov, 1984), it almost naturally asks the community service to take on the appearance of a punishment rather than of WPI (a court order).

23Stanley Cohen (1985: 18) views this interpretation of penal reform as problematic, however, and rightly so. According to him, in the reformist interpretation

The system is seen as practically and even morally flawed. Bad mistakes are often made and there are abuses such as overcrowding in prisons, police brutality, unfair sentencing and other such remnants of irrationality. But in the course of time, with goodwill and enough resources (more money, better trained staff, newer buildings and more research), the system  is capable of being humanized by good intentions and made more efficient by the application of scientific principles. Failures, even tragedies, are interpreted in terms of sad tales about successive generations of dedicated administrators and reformers being frustrated by a prejudiced public, poor coordination or problems of communication. Good intentions are taken entirely at their face value and are radically separated from their outcomes. It is not the system’s professed aims which are at fault but their imperfect realization. The solution is ‘more of the same’. A modern version of Enlightenment beliefs in progress, this version represents the mainstream of the rhetoric of penal reform.

24How can a reformist view interpret the change in status of community service? Be it for punishment or court orders (WPI), the reformist view mostly pays attention to the explicit intentions. For instance, it would tend to stress the repeatedly proclaimed desire to punish differently, to punish by repairing. It also starts from the assumption that penal policies or arrangements are entirely programmable, even if they can always be improved. It is well known, however, that many of the effects produced by those programs, however ambitious they may be, do not coincide with the original ideal supported by that policy or arrangement.

25Moreover, the reformist view defends a teleological vision of the history of humankind, and of penal history in particular. Irrespective of whether the community service is a punishment or a court order (WPI), then, it will point out that both court orders (WPI) and punishment are part of a more comprehensive trend by which  « early forms of punishment based on vengeance, cruelty and ignorance give way to informed, professional and expert intervention » (Cohen, 1985: 18). Taking insufficient account of the history and weight of modern penal rationality (see below) in the normative orientation and the self-portrayal of Criminal Law, the reformist interpretation also has more faith in replacement than in accumulation or admixtures. Furthermore, and whereas it may be accused of naivety in its analysis of recent times (from the Enlightenment to the present) in this respect, it takes for granted, and absolutely hastily so, that we are now in a new penal age with respect to punitive manifestations. After its previous cruelty, in the form of torture, followed by the more sober form of imprisonment, here it is cloaked, although timidly, for the moment, in the soothing veil symbolized by community service.

3.2. The Critical Interpretation

26 In the broader sense, the critical view is intented as any serious discourse with the following features: denunciation of the action of the Criminal Law System (and therefore of any incremental action) as an evil per se; a tendency to assess any penal reform negatively straight away (and therefore not to take it seriously); rejection of prison and of alternatives to it in the name of an equally negative evaluation. Although those paradigms, theories and models usually viewed as critical readings (including abolitionist, feminist, conflictualist, Marxist, Foucauldian positions, and so on) do not necessarily contain all of the above-mentioned features, they are nonetheless susceptible of succumbing to the temptation of using those assumptions. Although we regret, as shown below, that the critical approach sometimes yields to that temptation, the approach itself is nonetheless very worth-while and too often dangerously set aside by administrative sociology with its feeble, timid, pragmatic criticism.

27 The critical view may advise caution when a “punishment” is turned into a “court order” (WPI). It tells us that we should be too quick in seeing this as a promising change in the Criminal Law System. Referring to Orwell’s terminology of alienation and camouflage, it will make us aware of the way modern penal rationality propagates its “good news”. The question will not be whether the system is taking us in, but rather, how it does so. According to the Marxist perspective, for example, reformist ideals cannot change history. “Stated intentions are assumed a priori to conceal the real interests and motives behind the system. They constitute a facade to make acceptable the exercise of otherwise unacceptable power. (...) Only the outside observer, uncontaminated by false consciousness, can really know what is going on” (Cohen, 1985: 22).

  • 15  “Consent”, “contractual relations”, “dialogue” and “responsibility”, as well as “involvement in a (...)

28Regarding the present-day diversification of sentences, the critical view whisperingly suggests that we should watch out, and not forget that the trend toward more civilized penality may conceal more refined cruelty (Kaminski, 2001); that a court order may hide a punishment (Mary, 1998); and that a contract may conceal a constraint (Devresse, 2006). In other words, where the reformist view speaks of a gradual teleological shift from cruelty (torture) to civilization (from prison to community service), the critical view denounces the simple but perverse civilization of cruelty (from torture to prison to community service).15 It asks whether there is not a “linguistic mystification” in operation when reformist vocabulary calls sanctions of a penal nature “court orders” or “measures” (van de Kerchove, 1977). This is obviously an interesting and often relevant point. If we accept this view to start with, we can easily imagine the critical reading of the opposite case, that is the transformation of a court order into punishment (which, we recall, is the case in the shift from WPI to WP). The critical reading will primarily regret that this change of status produces a sanction in which punishment is no longer shameful.

4. Innovation as a Tool for the Sociological Observation of Penal Changes

29We now approach the theoretical project of the present paper, in two steps. Following an overview of the dissatisfactions produced by the reformist and critical views of penal changes, we give a positive development of the theoretical challenges to be met in order to build a sociology of penal innovation and produce an “innovative” interpretation of those changes.

4.1. An Unsatisfactory View of Reformist and Critical Interpretations

30The interpretations discussed above unquestionably contribute considerably to reflection on changes in the Criminal Law System. We find them intrinsically unsatisfactory, however. The former is naive and (most often) well-intentioned, and is not worthy of any attention other than to point out the mystifying, mystified discourse denounced by the latter. We will therefore focus mostly, primarily, on the dissatisfactions elicited by the critical view, with which we have intellectual ties. We will then go on to discuss one major difficulty shared by the two interpretations.

4.1.1. Penal Action: an Evil Per Se

  • 16  This supportive attitude toward penal reductionism occasionally leads the critical view to adopt s (...)

31The critical interpretation rests on a denunciation of penal action as an “evil per se”. Logically, then, the critical stance denounces any extension or increment in penal intervention, and supports, however distrustfully, all of the many ways of reducing it (such as advocacy of various sorts of diversion, decriminalization, depenalization and abolition).16 It also points out the importance of a “readjustment” of Criminal Law in the face of class, gender and racial discrimination. Now, while the Criminal Law sphere has definitely been affected by outside social, political and economic changes (as well as internal modifications), all in all, during the last quarter of the 20th century the outcome has tended to be less its reduction or equitable enforcement than greater complexity.

32Another intellectual stance is encountered in critical readings of the penal field. It is the negative assessment of reform in general. The risk here is that by reductively assuming an unchanging structure irrespective of any novelty, one helps to perpetuate the Criminal Law System, in the last analysis. One may also fail to find a balance between the discovery of potentials and the denunciation of obstacles to these. In other words, this intellectual stance consists of considering that the reproduction of a system or an organization necessarily produces something identical. Change is always pseudo-change, excellently described by Bourdieu (1979: 184) when he shows how “permanence may be ensured by change and structure perpetuated by movement”.

33The combination of these first two subjects of dissatisfaction – rejection of all forms of penality and suspicion of any modifications – occasionally elicits the (unsatisfying) feeling that alternative sanctions and prison are rejected on the basis of one and the same negative estimation, so to speak (prison and social control through sentences served in the community are viewed as equivalent in terms of social toll).

34These stances, inadequate in our opinion, are in fact grounded in two underlying assumptions: 1) one consists of concentrating on the critical theme of extension, immediately labeled problematic, generated by any new intervention, while overlooking the complexity possibly introduced by that intervention; 2) the other construes change through a hydraulic conception of its foundations, whereby the extension or increase of one object (“penality” or “control”) necessarily goes hand in hand with the reduction in another object considered antonymic (“social life” or “freedom”).

4.1.2. Can the Criminal Law System Learn?

35Another dissatisfaction addresses both the critical and the reformist interpretation of penal change. Both are insufficiently alert to the question of learning by the system. The reformist interpretation implicitly assumes that the system learns, in the sense that it integrates – more or less well – new components and original elements (each with its own specificity). Conversely, the critical stance always starts from the assumption that the system does not learn. It either adds components instead of substituting them for others, or it misrepresents their specificity or their novelty to make them fit its (dominant) rationality. These contrasting, exaggerated postulates mask a question which both interpretations overlook: how and under what conditions does the system learn or not learn?

4.2. Theoretical Problematization of Penal Innovation

  • 17  It is hard to imagine a Criminal Law System changing the self-portrayal of its identity or its con (...)
  • 18  This postulate therefore stresses the role played by the Criminal Law System in its own evolution. (...)

36Assume complexity before suspecting extension, avoid depicting trends in penality in mechanistic terms, think about the way in which the Criminal Law System learns when faced with original elements: these are the three challenges, directly derived from the above-mentioned dissatisfactions, facing the sociology of penal innovation. The ambition of the sociology of innovation, then, is to show that the Criminal Law System may also reproduce itself through difference (through another self-portrayal, another conceptual framework, other theories of penal sanction)17 and also that the system ’s learning process is a subject in itself. In this respect, it starts from the postulate that every social system reduces the complexity of its environment for the purpose of reproducing and updating itself, but also that it cannot exist and reproduce itself without an environment (Garcia Amado, 1989: 25). We must keep in mind that the system is autonomous, that is, that it necessarily retains an active role in the updating of its own changes.18 Moreover, the observation of innovation (or of a lack thereof) incites us to take truly seriously the weight of modern penal rationality (which the reformist stance does not) as well as the ability of the system to undermine it (which the critical stance does not). The key questions here are as follows: How is innovation conceived and treated in the Criminal LawSystem ? What are the prerequisites for in-depth penetration of the system by innovation? The sociology of innovation therefore claims to discover how the system learns and what is needed in order for it to learn. Making learning by the Criminal Law System a subject in its own right and discovering its ability to change then demands that we look at its cognitive abilities. To do so we must start with a more concise definition of the Criminal Law System and of its rationality, as well as of innovation. In conclusion, we remind the reader that this article does not aim at invalidating the results of the critical stance: simply, that critical position would be more reflexive and accurate if it extended its field of vision to learning by a system whose contours remain to be defined. Rather than radically criticizing penal alternatives by inferring from the onset that the system is unable to learn and to “positively endanger” itself, we should take a closer look at how it learns. This no more and no less than a program for research, a genuine invitation to return to epistemology. We propose, so to speak, and completely immodestly, to reflexively produce a theoretical innovation in the field of penal sociology using a theory of innovation.

37For the inevitable point of departure – the definition of modern penal rationality – we firmly adhere to Luhmann’s perspective as construed by Alvaro Pires. This is the foundation on which to build a new theoretical approach to the question of innovation. Much of the next two sections (4.2.1. and 4.2.2.) is drawn from three unpublished working papers (Pires, 2006b; Pires, Cauchie, 2006 and 2007).

4.2.1. A Starting Point: Modern Penal Rationality

  • 19  Note that this conceptual system has its own specific temporality, and that the initial ideas unde (...)
  • 20  See below.

38There can be noexploration of penal innovations or of the prerequisites for their development without reflecting on the modern western Criminal Law System, as well as on its dominant rationality (Pires, 1998; Cauchie, 2003, 2005). Innovation must be observed with respect to the resistance to change that has affected the system for close to three centuries (Pires, 2002a, 2002b). This defense of the status quo seems to have been caused by the crystallization of a warlike rationality within the system, since the close of the 18th century. (Pires, 2002a, 2002b). Make no mistake: lack of change does not imply lack of alternatives – be they ideas or practices – to the dominant discursive pattern. It simply means that the self-image and conceptual system that accompanied, chronologically, 18th century Criminal Law has remained fundamentally the same up to the present.19 Alternative proposals do of course exist in philosophical and theoretical legal writings, in doctrine, case law and even in committees for reforming the Law System, but there is no clear indication that these proposals were chosen, not to say consolidated by the western Criminal Law System. To this day, the dominant rationality helps to reproduce the overall structural and cognitive framework of Criminal Law System and through that “contribution” it is still an obstacle to the deviantchanges20 occurring in the course of time (Pires, 2006b).

  • 21   Dubé (2004) explains that the identity of a system has to do with two intimately linked elements: (...)

39In several of his writings, Pires expounds the following empirical conclusion: largely on the basis of a discursive pattern (much in Foucault’s sense), the Criminal Law System has gradually achieved differentiation, setting itself apart even within “its own” social system: the Law System. As social systems became more independent of one another, they in fact adopted the “modern habit” of being able to reproduce themselves only by modernizing themselves (Krause, 2001; Luhmann, 1989). This is not only the case for the Law System, but also, of the Criminal Law System within it. Just as the Law System was able to differentiate itself from the Political and Religious Systems, the Criminal Law System achieved differentiation within the Law System, through a long, complex process. As it became more autonomous, the Criminal Law System gradually identified itself with the conceptual system that Pires (1998) calls modern penal rationality;21 that is, an erudite conceptual system proposing clear, specific responses to the following questions: “what is the use of criminal laws and penal legislation? What is a sanction? How should a sanction be chosen, determined and characterized? Should pain be intentionally, directly inflicted on a person who breaks the law? Can the Criminal Law System consent when the victim of an attack pardons the offender? Can a court decide not to punish an offender? Must the criminal legislation necessarily set death, prison or a fine as a sanction for each clearly defined offense?” (Pires, 2006b: 7).

40To answer these questions, the core of modern penal rationality, expressed as simply as possible, contains two mutually inseparable elements: “(1) the assertion that only harm can produce good and (2) the assertion that it is absolutely necessary (if morality and society are to survive) that there be a specialized institution – the Criminal Law System – devoted to that task. This conceptual system then contends that it is absolutely necessary (to give the impression) to cause harm and suffering, so as to produce good, be it abstract (the achievement of an ideal of Justice) or concrete (the reduction or containment of crime)” (Pires, 2006: 7). It is easy to see these as the theory of retribution (Kant, 1797) and the theory of deterrence (Beccaria, 1764; Bentham, 1775), which form the nucleus of modern penal rationality because they represent its most weighty, ancient and inescapable matrix (Pires, 2006a).

  • 22  We are referring here to positive Criminal Law represented in continental Europe and Latin America (...)

41Modern penal rationality is not confined to this nuclear matrix, however. There is also the theory of rehabilitation, or at least one of its paradigms, which forms its “corrective matrix” (Pires, 2006b). The latter theory, which adds complexity to the dominant conceptual of modern western Criminal Law System, is usually in cognitive conflict with the nuclear matrix. But we shall see that for the time being, one of these paradigms definitely cannot be conceived independently of that matrix (Pires, 2006a). The theory of rehabilitation, the only modern theory of penal sanction to have really undergone major transformations since the late 18th century, soon split into two major paradigms (in both science and law). As a “prison theory”,22 the first automatically became a part of modern penal rationality. It agrees that prison may blame (retribution), deter and treat. Living conditions in prison are conceived in view of retribution and deterrence as well as treatment. This paradigm therefore has a number of points in common with the nuclear matrix: “the principle of the obligation to punish, preference for a sanction susceptible of both inflicting suffering and amending, serious reservations about – perhaps even strong opposition to – other alternative sanctions or conflict-solving arrangements. The main idea of producing good through harm is still very definitely present. Moral correction, psychosocial rehabilitationand corporal punishment are not necessarily differentiated. This paradigm sets the ‘negative’ goals of the sentence (retribution, deterrence, etc.) in the same bag with the ‘constructive’ goal of treating.” (Pires, 2006b) Gradually, however, a second rehabilitation paradigm was to develop in the latter half of the 20th century. This paradigm is no longer articulated with modern penal rationality: “looking at prison ‘from a distance’ and radically differing from modern theories of penal sanction focused on the goal of inflicting suffering, this paradigm gives prison a subsidiary role only: in order to treat a person, it is best not to send him to prison, but if ‘confinement is necessary’, it should deprive inmates of as little as possible of their freedom and adjust prison as much as possible to living conditions outside of prison.” (Pires, 2006b: 13) In this view, it is important, for instance, to look at the concrete social ties, real-life contexts and representations of defendants. Also, one must take one’s distance from expert medical or psycho-social interventions (“which know what is good for the person”), which are hardly concerned with the limits of their intrusion in the defendant’s intimacy, and care little about professional secrecy. On the macro-sociological level, it is of course difficult to determine exactly when the first paradigm of rehabilitation began to lose some ground to the second, but the “turning point” is probably in the 1950-1960s (Pires, 2006b). Our discussion (below) of the penal model of assistance bears some evidence of the possible shift from one paradigm to the other.

  • 23  Some scholars would certainly be tempted to add the theory of neutralization, but we have decided (...)

42What are we told by the ties between the theory of retributivism, the theory of deterrence and the first paradigm of the theory of rehabilitation? That over and beyond the antagonisms, however real, between these three types of theories, with their two distinctly different matrices (the nuclear matrix and the corrective matrix),23 “these currents secretly share some assumptions, and that, by defining themselves consistently in opposition with each other, they successfully conceal the ‘closure’ within which their debate takes place, and prevent us from seeing what they all eliminate” (van de Kerchove, 1981: 291). It is with these liaisons dangereuses in mind, then, that we make the claim that for the last 250 years the modern rationality of the Criminal Law System has gradually been grounded in the idea that true punishment must seek to produce suffering (to nullify the harm caused by the offense; to prevent other offenses from being committed; to repair the suffering caused by shattered social cohesion; to show how important the transgressed value actually is for society; to give the transgresser moral, psychological and/or medical treatment).

  • 24  One must be beware of such generalizations, of course, since scholars such as Becker, Goffman and (...)
  • 25  This concept will not be developed here. See Cauchie, 2005; Pires, Cauchie, 2006.

43In conclusion to these developments on modern penal rationality: while it is a fact that reformist analyses under-evaluate its strength and resiliency, whereas the critical stance sometimes commits the mistake of regarding these qualities as sacred,24 modern penal rationality should not be used as a catch-all. It is a descriptive concept with precise limits. For example, it is definitely not synonymous with modern Criminal Law nor even with classical Criminal Law. It is not this dominant rationality which sets up the legal guarantees specific to modern Criminal Law, any more than it is responsible for the main principles (equality, legality, proportionality) on which the latter is founded. But its parasitic action is seen in the way the modern Criminal Law System shapes and limits those guarantees, principles and concepts. It is useful to keep the dominant rationality in mind, then, essentially for observing, describing and understanding how the Criminal Law System changes or again, how it does not change: why it remains indifferent at one point and is vigilant at another. However, this concept is by far not the only path for describing and understanding the inertia and changes in modern Criminal Law. Nor should it be automatically connected with lack of change (Pires, 2006b: 33). Modern penal rationality may indeed be updated, both to produce change (mobilization of the theory of deterrence to abolish the death penalty, for instance) or to produce lack of change (mobilization of the same theory, but to maintain the death penalty) (Pires, 2006b: 33). Rather than speaking of change and lack of change, it would in fact be conceptually more fruitful to identify regressive,25 normal (or usual), deviant and innovative types of change (see below).

4.2.2. Innovation, a Deviant Change that Counts for the Evolution of the Identity of the Criminal Law System

  • 26  Law System and Criminal Law System. Economic System, Scientific System, Political System are other (...)
  • 27  Variation speaks of the production of ideas not usually present in the Criminal Law System. Since (...)
  • 28  Pires (2006b), following Foucault, gives prison the status of an organization attached to the Poli (...)
  • 29  To take a different illustration of this point, let us look at the evolution of technical objects (...)

44Innovation in modern Criminal Law must be taken in the broadest sense (Pires, Cauchie, 2006). Although an accurate definition is important, we must also keep in mind that it may take place at various levels (ideas, theories, discursive pattern; interactions, organizations, function systems26; cognitive level, normative level) and at different points in time (variation, selection and stabilization, “re-stabilization”).27 Innovation at one level (the criminal code) or another (doctrine, courts, prisons and so on)28 therefore does not necessarily mean innovation at all levels, although they may of course spark one another. Moreover, any discussion of innovative change cannot avoid defining normal or usual change beforehand. Normal change is change that may be reduced to the prior characteristics of the dominant system of ideas. It is also predictable and deductible from those prior characteristics. Calling change normal or usual necessarily implies locating it with respect to a reference point; that is, modern penal rationality. Can we now infer, from that definition of normality, that irreducibility, non-predictability and non-deductibility are sufficient features to designate innovative change? To our way of thinking, they are necessary but not sufficient. This is why we felt the need to differentiate deviant change from innovation. These three criteria are indeed sufficient to depict deviance, but too broad to define innovation. Whereas any innovation must first appear as a deviance, we need a theoretical framework capable of distinguishing between deviant change and innovative change. In other words, a theoretical framework capable of identifying a reference point (modern penal rationality) and the signs possibly indicating that it is being called into question.29 This theoretical framework would therefore have to meet at least three requisites (Pires, Cauchie, 2006):

a) It must help us to determine at what point and at what level the particular innovation is located;

b) It must tell us how to observe the level identified; in other words, it must inform us of where the deviance may affect the foundations of the particular reference point, thus becoming an innovation;

c) Last, it must inform us of the type of criteria to be used to identify/describe, at the place shown by b), the presence of an innovation.

  • 30  As Dubé (2004) points out, the concept of evolution should definitely not be taken in the teleolog (...)

45We shall now return to these three requisites in the case of an innovation touching the modern western Criminal Law System, and probably also the evolution of its identity.30

a) Our discussion will focus exclusively on innovations with respect to modern penal rationality.

  • 31  Translation of the French expression programme de normes de sanction used by Pires, Cauchie (2006) (...)

b) Modern penal rationality is a system of ideas primarily focused on ways of conceiving and founding penal sanctions. We must therefore pay special attention to changes touching on the “sanction norms program”.31To be innovative, the change must also touch either the nuclear matrix of modern penal rationality or its corrective matrix.

c) As opposed to the two matrices of modern penal rationality, an innovative (alternative) conceptual system would value social inclusion as a primary goal (in other words, it would aim at constructive action to obtain some good).

46To summarize this point, we may say that four empirically observable requisites are needed for the identification of innovations susceptible of eluding, and at the same time rivaling, modern penal rationality. These are:

(1) They must forego the idea that harm is necessary to produce good, and participate in a less hostile, less abstract, less negative and/or less atomistic conception of the protection of society and the assertion of norms;

  • 32  This feature corresponds to what Hannah Arendt defined as the requisite defining an event. An even (...)

(2) They must not be susceptible of reduction to or foreseeable or deductible from modern penal rationality;32

  • 33  Dubé (2004) holds validation of an element by the system to include the ability of the system to m (...)

(3) They must be selected and even stabilized by some receptive penal structure (theories of penal sanction, case law, doctrine, formal legislation and so on): only validation33of that element by the Criminal Law System may indeed lead the latter to integrate it in its future operations and thus acknowledge it as its own (Dubé, 2004);

(4) They must have the status of cognitive indicator (however weak) of the evolution of the identity of the Criminal Law System: indeed, some elements of deviance may well be unforeseeable with respect to modern penal rationality but yet be totally insignificant for the evolution of the identity of the system.

47A deviant change may gain the status of innovation, but it may also lose that status. Variation does not guarantee selection, and the latter is not necessarily a promise of re-stabilization. Furthermore, there is always an element of uncertainty in the shift from deviance to innovation, inasmuch as innovation is probably only recognized or recognizable as such afterward. In other words, one must always locate the observer’s position with respect to when the innovative effects of the deviance occurred.

5. The Innovative Interpretation of the Changed Status of Community Service

  • 34  According to doctrine, several indicators present in the parliamentary debates, but also in the le (...)
  • 35  See, among others, De Rue, Wattier, 2002; Jacobs, Dantinne, 2002.

48When the status of community service passed from that of a court order (WPI) (1994) to a punishment (2002), some observers believed they might be witnessing innovations possibly eluding modern penal rationality. The first innovation identified involved a sanction norm” (as mentioned, the norm changing the status from a court order to a punishment). This type of innovation is therefore located at the level of the Criminal Law System’s normative program. Community service, listed in article 7 of the Belgian Criminal Code, has indeed been given the status of a main punishment. And even if doctrine rightfully points out the dubious conditions under which this status was granted,34 community service is nonetheless listed in the Code as punishment. Now, given how difficult it is for modern penal rationality to grant that status, it is clearly important to emphasize this consecration. The second innovation identified has to do with the semantics of punishment and is mainly located at the doctrinal level.35 The debates around an alternative semantic also have repercussions elsewhere: in parliamentary debates before the bill was passed, in major documents published under the auspices of the Belgian Minister of Justice (Martin, Meyvis, 1997), and in several specialized arrangements for social work under a court order. Let us simply say that this penal framework based on assistance seems unexpected under the corrective matrix of the modern penal rationality. This framework will be driven to create its own limits both at the judicial and psychosocial levels (see Cauchie, Kaminski, 2007).

49Although innovations that escape the logic of the dominant conceptual system are located at various levels (the normative program, doctrine, sentence-serving and so forth) this does not mean they should be interpreted independently of each other. However, nothing guarantees the number and quality of the connections between those levels. An innovation in sentence-serving may have many effects on the practices of professionals and on the penal experience of offenders. Nonetheless it cannot, in itself, modify the dominant rationality of the Criminal Law System. To do so it must rely on the support of innovations receiving doctrinal encouragement. By supporting an alternative semantic of assistance under a court order, doctrine will in fact validate sentence-serving policies and practices that will go in the same direction, but perhaps above all it will be in a position to give a legal translation of this orientation affecting the normative program. But that is not all: whereas penal doctrine too often relies too much on the normative program in its reflections on the sense of its foundations, it may now make use of a programmatic innovation in order to give further theoretical attention to the semantics of punishment.

50Following a development on programmatic innovation to show the importance of distinguishing between normative innovation and cognitive innovation (5.1.), we shall set forth three interpretations of the change of status of Belgian community service, as advanced by penal doctrine (5.2.). These doctrinal interpretations will be presented with respect to how they assess the status of the punishment and what they foresee as its future.

5.1. Programmatic Consecration of a “Sanction Norm”

51On the basis of the definition of penal innovation we have evidenced a perverse effect of modern penal rationality, which effect has perhaps led that rationality to partial self-destruction. The latter, reputed to be omnipotent, seems to be capable of infinitely multiplying stratagems for perpetuating itself.  It seems to have disappeared, and it is already making a comeback. Not only does it seem unshakeable, but in addition, it seems to paralyze any hint of a desire for systemic change brewing “outside of it” (not to speak of “within it”). Invariably imitating itself, it is believed to be constantly inciting the Criminal Law System to bind courageous initiatives to the specter of well-known threats (a criminal record, imprisonment). Now this is where our study operates a provocative reversal, since it asserts that the most catastrophic scenario – evidenced in the changed status of community service – is perhaps a paradoxical, and definitely unexpected solution for escaping from modern penal rationality. In other words, one possible way of making that rationality vulnerable may consist in speaking its own language while modify its meaning. The penal vocabulary’s usual concepts – punishment, work, control – seem to be suffering from some semantic disorders nowadays (Cauchie, 2003, 2005). Actually, it is perhaps by depicting community service as a painful sentence that the semantics of this “sanction norm” now written into the Belgian Criminal Code will be completely reworked, and its definition of sentencing/punishment detached from its afflictive character. And although that character partially served as an argument in favor of adoption of that sanction, it will perhaps, paradoxically, also end up limiting the weight of modern penal rationality on its future orientation.

52Note, in this respect, that one major problem in observing innovation has to do with the difficulty in distinguishing something original against an old backdrop (Luhmann, De Giorgi, 1998: 386). Yet it is this type of reasoning that enables us to understand that the presence of conventional cognitive elements does not prevent (and may even favor) the occurrence of normative or cognitive innovations.

If we take into account the distinction between cognitive and normative innovations, we may cope with the strange situation in which an innovative norm (a written legislative act) is received within the system’s normative structure with the help of either strictly “normal” (that is, usual, conventional) cognitive arguments or a mixture of conventional and innovative arguments. Now the presence of a conventional argumentation may prevent us from perceiving an innovation in the normative structure. (Pires, 2005)

53This is precisely the situation we wish to evidence in analyzing the programmatic change in community service (Cauchie, 2003, 2005). We may term the 2002 Belgian legislation as “innovative” because it was unexpected and unforeseeable within the usual structure of modern Criminal Law. But at the same time, we note that this innovative act received the support of conventional punitive semantics. Whence, to some extent, the difficulty in perceiving it and defining it as innovative. Admittedly, the point of view of the outside observer as well as his ability to previously develop a theory of the Criminal Law System and to identify indicators, however slight, of changes in its identity, play an essential role in the identification of such innovations.

5.2. Doctrine, or Three Ways of Interpreting “Real Punishment”

  • 36  For a discussion of doctrine, see, among others, De Rue, Wattier, 2002; Guillain, 2002; Jacobs, Da (...)

54The three interpretations given by the doctrine all have to do with the semantics of punishment.36 We discuss them with respect to the way they evaluate the unusual status of community service and they way they see the future of this status. They do not all view modern penal rationality positively, nor do they all update it. Some arguments reassert that rationality, while others reject it or simply observe it.

5.2.1. An interpretation that prolongs, validates and asserts the importance of modern penal rationality

55In the first instance, the doctrine interprets community service as real punishment, in that a series of arrangements differentiate it from community service as a court order (WPI). There is the threat of a subsidiary sentence (a fine or prison); an increase in the maximum number of hours to be served; harsher sentence-serving conditions (less tolerance of lateness on the work site), the compulsory nature of the work to be done, disinterest for any possible personally beneficial aspect of the work done. All in all, the tribute to be paid by community service in order to be a “real sentence” amounts to conforming to modern penal rationality. Independently of the potential and real future of WP on the cognitive level, these arrangements and this interpretation therefore represent a structural and cognitive obstacle to the development of innovations.

5.2.2. The innovative interpretation intended to elude modern penal rationality

  • 37  Including national commissions for legal reform, parliamentary debates, policy guidelines and agen (...)

56In the second instance, the doctrine interprets community service as a real sentence because it is consecrated as such by the Belgian Criminal Code, but also because a semantics of punishment unknown to modern penal rationality is validated here on various crucial scenes.37 Departing from the stereotype of “delivery of pain” (Christie, 1981, 2005), this sentence may then elude its “modern fate”. If this doctrinal prediction were to be attended by a rich exchange between itself and the normative Criminal Law program, the chances are that the possibility of innovations will increase.

5.2.3. The interpretation that doubts of the possibility of eluding modern penal rationality

57The third interpretation present in doctrine, located beyond the contradictory positions described above, is not interested in the conditions that made WP “credible” punishment. Rather, it propounds the following prediction: however updated, WP will never be a credible sentence/punishment. Without necessarily appending a clear-cut ethical position to this claim (does it view the fact as positive or offensive?), this doctrine definitely considers that by threatening a person serving community work with a fine or imprisonment the legislator immediately removed any chance of community service ever becoming a full-fledged penal sanction. And again, the doctrine comes to the same conclusion when it points out that in parliamentary debates, the criterion for (real) penality remained the idea that the credibility of a sentence/punishment depends on its apparent painfulness rather than on its actual vilifying effects (Jacobs, Dantinne, 2002: 876).

58With its suspicion of any innovation, the critical stance of penality will certainly remind us that this is not the first time in modern western penal history that penal sanctions are deemed to be much-awaited remedies to the barbarism of prison (on both the organizational and semantic levels). The critical interpretation will certainly also assimilate the sociology of innovation to a hidden reformist reading, and will accuse it too of being naive, believing stated intentions and having a teleological approach. Lastly, it will probably make the usual Marxist and functionalist reproaches, pointing out that if there were to be any real innovation, it would certainly not be located in theories of penal sanction or even in the conceptual distinctions enunciated (nor should these be legitimated). Be it concealed behind inventive theories of penal sanction or behind honeyed utterances, innovation would lead, at best, to the improved dissimulation of projects aimed at domesticating a “dispossessed people”, or again, to the perpetuation of the eternal conflict over the identification of “true” illegality.

  • 38  In this respect, see McMahon’s approach (1990) to the concept of net-widening and to empirical pro (...)
  • 39  We are in fact opposed to those assumptions which paint the function of social systems solely on t (...)

59This criticism must be addressed if we are to establish the legitimacy of sociology of penal innovation. As opposed to the reformist discourse, the innovative stance has no intention of automatically taking humanistic claims seriously at face value. First of all because it is aware that humanism is a polysemic concept open to all sorts of abuse. Secondly, because it constructs a very strict definition of innovation; lastly, because it is less interested in “fine words” (humanism, reparation, project) than in the semantic patterns in which they are included, as well as in the empirical arrangements that utilize them. Another difference from the reformist discourse is that the innovative stance absolutely does not defend the thesis of a teleological vision of the Western dynamic. But while it categorically rejects the naive Enlightenment view announcing the end of cruelty and the dawn of civilization, it refuses to be fenced into the infinite reproduction of cruelty, however civilized the form it takes. Proponents of the critical stance would be reminded that one may uncover discrimination and develop a critical reading of discriminatory action without predicating one’s work on discrimination. The penchant to which that reading “yields”, when it yields, is to making discrimination a postulate that stifles any other representation of reality.38 Lastly, although the sociology of innovation takes the obvious penal discrimination toward the least affluent members of society extremely seriously, it refuses to see that as the objective or even the function of the Criminal Law System. Rather, it would refer to an effect of the structural and cognitive functioning of the Criminal Law System, thus retaining a much more neutral definition of the notion of function, one which is then much less subject to hasty ideological interpretations.39 In the case of the Criminal Law System we should at most speak of a system whose function is to stabilize expectations (expected behavior) through criminalization and penal sanctions. It should be recalled that the Criminal Law System can only fulfill that function provided it identifies (on the structural and cognitive levels) the problem situations it faces. This definition, based on description rather than denunciation, should certainly not be viewed as apolitical; to the contrary, it is a sociological phase necessary to any denunciation concerned with its falsifiability.

Conclusion

60In conclusion, we wish to recall the main intention of this paper: to help establish the foundations and the constantly renewed legitimacy of a critical reading whose primary objective is, in our opinion, is to be heard. However, this objective must not be tied to any corruption or compromise of the critical stance. Under no circumstances should it confine itself, for example, to the technocratic or “humanistic” aspects with which so many of our contemporary “soft”, pragmatic, sugary critics are satisfied. This would be tantamount to the death of the political sphere, intended here as the absence of spaces and resources devoted to living together and aimed at building a framework within which exchanges may take place on the basis of a trustful relationship susceptible of preventing violence.

61As stated above, our attachment to the critical stance has as much to do with a self-reflexive approach based on our ethical and scientific dissatisfactions with that stance as with the ambition of drawing the sociological conclusions of these. Our concern with introspection as to the scientific accuracy of critical writings (and, by the same token, reflect on their contribution as sometimes having had devastating political effects) is combined with the profound conviction that this gives sociological nourishment to the concept of penal innovation. The basis of this conviction is found deep down in the following postulate, in particular: in order to reproduce itself (and therefore to update its identity, its conceptual system  and its normative structure), the Criminal Law System becomes increasingly complex, reinvents itself, renews itself and occasionally even innovates. In our opinion, the complexification of the system is most propitious to innovation.

62At an even more comprehensive level, we have used the case of Belgian community service in an attempt to show the need for a theoretical sociological reinvestment of various concepts clustered around change. Concepts dealing with (penal) “change” are presently becoming vague, at the very time when they are most needed to account for the complexification of social reality. Not having any full definitions to offer, we hope to have indicated some useful paths in that direction.

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Notes

1  Usually criminologists prefer terms like Criminal Justice System or Criminal Law. But in this paper, we insist on social system’s communications (Luhmann, 1989). Luhmann uses the Law as a social system. It’s the reason why we prefer the expression Criminal Law System.     

2  The authors drew much of their inspiration from the work of Prof. Alvaro P. Pires of the University of Ottawa on the question of modern penal rationality and the requisites for its evolution. This paper, although different, is largely based on a paper published in Champ pénal (Cauchie, Kaminski, 2007).

3 We are of course well aware that the critical and reformist readings of penal change are not too fashionable in the current criminological literature, at least not in the one that has been used to support criminal policy, criminal code and the legal doctrine of the last thirty years. For instance, these two readings have been trumped by administrative, neoliberal and neoconservative criminology. Nonetheless, a discussion addressing those two interpretations is most helpful for the development of a sociology of penal innovation.

4  See for example, in a similar ethical perspective, O’Malley, 2006.  

5  In Belgium, we use this expression: Peine de travail autonome. Theoretically, the work is the sole punishment.

6  The April 17, 2002 Act introduces the work as punishment: “la peine de travail autonome en matière correctionnelle et de police” (Moniteur Belge, May 7, 2002).

7  These developments may be found in Cauchie, 2003.

8  Pires uses the term dominant conceptual framework to suggest that it is not the only system of ideas present in the Criminal Law System. One must then – at least theoretically – postulate the existence of other ideas, other theories and perhaps other, competing, conceptual system s, even if they are “not dominant” (since they are – temporarily ? – “lost”, marginalized or simply emerging within the reservoir of knowledge of the Criminal Law System). As for the scholarly nature of knowledge (Dreyfus, Rabinov, 1984), it does not by any means refer to the content of these, or to their validity or non-validity, but rather to their institutional status, to the fact that they are validated by institutional practices and/or by some authority (Pires, 1998; 2006b).

9  Pires (2006a) actually talks about penal rationality in the sense that it is mainly based on the idea of linking sanctions with the categories of punishment, exclusion and suffering (see below).

10  Examples include the difficulty encountered by modern Criminal Law in compellingly validating the principle of the ultima ratio,how it is bogged down in repetitive debates (proportionate sanctions versus individualized sanctions); its inability to decode offenses as “problem situations” (Hulsman et al., 1982), the stifling of the parties involved in the “problem situation”, the opposition of Criminal Law to solutions which (re)enhance social bonds (between the parties and between the parties and “society”), the distrust or “instrumental reflex” shown by Criminal Law with respect to the knowledge developed by the social sciences (psychiatry, psychology, sociology, education, social work), the non-credibility of solutions not involving apparent painfulness, affliction and stigmatization (except when viewed as favors or as patent signs of excessive leniency) and the distrust toward any development, by the system ’s usual agencies, of sentences served “outside” (such as arrangements for having community service carried out within municipal services).

11  The term sanction is intended simply in the sense of a legal remedy. This notion is interesting in that it is susceptible of encompassing the different legal statuses represented by court orders and punishment (see below).

12  A strategy brilliantly criticized by Foucault (1975), however, when he hinted that the “success” of any prison reform depends less, in the last analysis, on its concrete positive effects on prison life than on its ability (1) either to impart the illusion thereof, (2) or to persuade people that those effects can only see the light gradually through the introduction of other reforms necessary for the accomplishment of that “success”, and so forth.

13  A Flemish Social-Christian minister who was to resign in 1998 following the (failed) escape of the Kingdom’s “number one public enemy”, Marc Dutroux.

14  Or at the least, a conjunction of the two.

15  “Consent”, “contractual relations”, “dialogue” and “responsibility”, as well as “involvement in a project”, depicted by the reformists as having a civilizing effect, are held to establish a stronger (and also more subtle) grip on the user than the mere top-down imposition of a mandatory sentence (Kaminski, 2006).

16  This supportive attitude toward penal reductionism occasionally leads the critical view to adopt some simplistic postulates. Cohen (1985: 35) reminds us of “some radical populist ideas: bureaucracies are anti-human, institutions are unnatural and bad, the community is natural and good, etc.”

17  It is hard to imagine a Criminal Law System changing the self-portrayal of its identity or its conceptual framework merely by modifying the list of criminalized acts (remove abortion, add computer hacking) or by modifying the number of years of imprisonment for a given act (longer or shorter prison terms). Rather, one must look at changes in the ways of grounding and justifying penal sanctions (Pires, 2005).

18  This postulate therefore stresses the role played by the Criminal Law System in its own evolution. It does not deny the relevance and importance of external (economic, political and scientific) factors, but simply emphasizes the clearly insufficient, incomplete nature of any analysis which views those (external) factors as the causes of (internal) effects (Pires, 2006b; in a more general sense, Garcia Amado, 1989).

19  Note that this conceptual system has its own specific temporality, and that the initial ideas underlying its sedimentation developed in the West as early as the 11th century (Pires, 1998).

20  See below.

21   Dubé (2004) explains that the identity of a system has to do with two intimately linked elements: firstly, the way a system has been operationally differentiated from its environment, establishing boundaries between itself and what is not within its province; secondly, the narratives, discourses, conceptual systems and self-descriptions set forward by the system to ensure such differentiation.

22  We are referring here to positive Criminal Law represented in continental Europe and Latin America by the positions of the Italian positive school. In England and the United States writers tend to refer to a “medical model”, or to the Criminal Law of social control. See for example Howard, 1777; Ducpétiaux, 1865; Garofalo, 1885; Prins, 1910.

23  Some scholars would certainly be tempted to add the theory of neutralization, but we have decided to eliminate it, since it does not carry its own justification. It is parasitic, in that it usually only serves the other three justifications: retribution, deterrence and treatment (Pires, 2006b).

24  One must be beware of such generalizations, of course, since scholars such as Becker, Goffman and Garfinkel are accused of not sufficiently taking the legal/penal dimension of their object into consideration (Robert, 2006). Note, in this respect, that the invisibility of modern penal rationality in most of the decisions handed down by judges is by no means synonymous with its absence (Pires, 2006b).

25  This concept will not be developed here. See Cauchie, 2005; Pires, Cauchie, 2006.

26  Law System and Criminal Law System. Economic System, Scientific System, Political System are other function systems (Luhmann, 1989).

27  Variation speaks of the production of ideas not usually present in the Criminal Law System. Since the 1960s there have been many ideas claiming to be alternatives to modern western Criminal Law (questioning of the foundations of the right to punish; decrease in the number of criminal laws, less recourse to imprisonment, and so on). But they must then be selected, and even stabilized by the Criminal Law System. By the selection process, we mean the first stabilization process for a norm or an idea. The fact of accepting community service as punishment in a national criminal code means that it was selected as part of the normative program of the Criminal Law System. If the same normis selected in several countries, is attached to criminalizations other than those originally defined and serves as a basis for the elimination of some prison terms, it enters into a second stabilization process called “re-stabilization” (Luhmann, in Pires, 2006b). According to Teubner (1993), re-stabilization is present, in particular, when penal dogma theoretically validates that particular norm or idea.

28  Pires (2006b), following Foucault, gives prison the status of an organization attached to the Political System rather than to the Law System. Nonetheless, prison is bound to the operations of the Law System as well as to some of its organizations (the courts, for instance). It is therefore at least partially attached to Criminal Law communications.

29  To take a different illustration of this point, let us look at the evolution of technical objects (see Simondon, 1969, chap. 1). Some novelties such as rearview mirrors and the colors of cars cannot be said to represent an evolution. This in no way belittles the importance of rearview mirrors, for the security of passengers for example, but shows its importance to be other than for the evolution of identity. It is important for security but not for the evolution of the identity of cars as machines/systems. Innovation would more probably involve change in the conception of the engine (Pires, 2005).

30  As Dubé (2004) points out, the concept of evolution should definitely not be taken in the teleological sense of “progress” or “constant linearity”. According to him, the evolution of the identity of a system may begin in two ways. In the first scenario, the Criminal Law System begins by changing its structures and then discovers ways of giving a cognitive justification for the transformation it has undertaken (for example, by modifying its modern theories of penal sanctions or again, by a process of differentiation from its environment); the system therefore only changes its dominant rationality during a second phase. In the second scenario (but the two probably overlap, despite their specific time frames) the Criminal Law System first modifies its cognitive apparatus. By validating ideas, and then theories, of penal sanctions susceptible of legitimating structures alien to modern penal rationality, it possibly heralds the sedimentation of a rival system of ideas (Dubé, 2004).

31  Translation of the French expression programme de normes de sanction used by Pires, Cauchie (2006).   

32  This feature corresponds to what Hannah Arendt defined as the requisite defining an event. An event, said she in a lecture on the nature of totalitarianism in 1954, sheds light on its own past but can never be deduced from it.

33  Dubé (2004) holds validation of an element by the system to include the ability of the system to modify its structures, especially by using that element in an independent way (for instance, use of community service without threatening to revert to imprisonment in case of failure). The system is rarely able to validate the element by simply modifying its structures. It also needs a theory of penal sanction capable of being receptive to innovation. This may require backing from a self-portrayal other than those serving modernity, support from a different rationality or again, the emergence of another conception of its identity and its differentiation from the environment (Dubé, 2004).

34  According to doctrine, several indicators present in the parliamentary debates, but also in the legislation actually indicate that WP is not only hierarchically inferior to prison, but that it is even beneath a fine. It points out that imprisonment or a fine legally serve as a subsidiary sentence in case of non-serving of the WP (Jacobs, Dantinne, 2002: 859). A second point brought up by doctrine has to do with hesitations as to the place of that sentence in the Criminal Code. Following a first bill locating punishment to work below sentencing to a fine, it was finally placed on the list of main sentences applicable to various categories of offenses, after sentences for felonies and imprisonment for moderately serious and minor offenses, and before fines (Jacobs, Dantinne, 2002: 859). Doctrine also points to the difficulty of finding a definition for that sentence. It is occasionally referred to as a “sentence in its own right”, at other times as an “alternative sentence”, both of which terms are vague, in themselves (De Rue, Wattier, 2002). Lastly, doctrine questions the credibility of a sanction introduced by article 37ter (that is, by a broad principle) rather than for each specific charge. This also points out the risk that judges will always visualize prison or a fine before a work as punishment (De Rue, Wattier, 2002).

35  See, among others, De Rue, Wattier, 2002; Jacobs, Dantinne, 2002.

36  For a discussion of doctrine, see, among others, De Rue, Wattier, 2002; Guillain, 2002; Jacobs, Dantinne, 2002. For a more complete analysis of the debates, see Cauchie, 2003.

37  Including national commissions for legal reform, parliamentary debates, policy guidelines and agencies in charge of sentence-serving.

38  In this respect, see McMahon’s approach (1990) to the concept of net-widening and to empirical proof thereof.

39  We are in fact opposed to those assumptions which paint the function of social systems solely on the canvas of ideology (see Foucault, 1975; Mathiesen, 2000). Indeed, we feel it essential to give a neutral definition of the function of social systems, so as to avoid the risk of interpreting all of their practices and discourse as informed exclusively by their least noble acts (Luhmann, 1989).

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Référence électronique

Jean-François Cauchie et Dan Kaminski, « Theoretical Problematization of Penal Innovation: The Case of Community Service in Belgium », Champ pénal/Penal field [En ligne], Vol. IV | 2007, mis en ligne le 29 mai 2008, consulté le 25 novembre 2017. URL : http://champpenal.revues.org/4493 ; DOI : 10.4000/champpenal.4493

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Auteurs

Jean-François Cauchie

Assistant Professor, Departement of Criminology, University of Ottawa, Cadenada. jcauchie@uottawa.ca

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Dan Kaminski

Associate Professor, École de criminologie, Université de Louvain-la-neuve, Belgium. dan.kaminski@crim.ucl.ac.be

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