Penal Modernism: An American Tragedy

Critical Analysis of Law, 2020

This paper explores the relationship between literary modernism, as analyzed in Matthew Levay's book Violent Minds, and penal modernism. It argues that, by focusing only on the work of Cesare Lombroso, literary modernism failed to engage in a serious way with the project of penal modernism.

2000

Recently, punishment scholars have challenged the dominant historiography of a relatively uncontested period of penal modernism or penal welfarism across the USA between the Second World War and the 1960s. However, scholarship has not yet explained why penal modernism failed to take hold in particular regions and states. Using the social history of punishment in Florida, I argue that penal modernism failed to take hold in Florida for three reasons: the effect of political arrangements on the ability of political and bureaucratic actors to reform penal institutions; the timing of modern penal initiatives with the capacity of state bureaucracies; and the precedent that linked punishment policy and practices to cultural assumptions about ‘black labor’. The findings suggest that punishment scholars can draw on historical institutionalist scholarship in order to understand continuity and change in penality.

2016

This paper examines how contemporary literature contributes to the discussion of punitory justice. It uses close analysis of three contemporary novels, Margaret Atwood's The Heart Goes Last, Hillary Jordan's When She Woke, and Joyce Carol Oates's Carthage, to deconstruct different conceptions of punitory justice. This analysis is framed and supported by relevant social science research on the concept of punitivity within criminal justice. Each section examines punitory justice at three levels: macro, where media messages and the predominant social conversation reside; meso, which involves penal policy and judicial process; and micro, which encompasses personal attitudes towards criminal justice. The first two chapters evaluate works by Atwood and Jordan, examining how their dystopian schemas of justice shed light on top-down and bottom-up processes of punitory justice in the real world. The third chapter uses a more realistic novel, Oates's Carthage, to examine the o...

Social Identities, 2005

In Modernism and the Grounds of Law (hereinafter Modernism), Peter Fitzpatrick provides a deconstructive social theory of law in which the mythic foundations of the social contract as the central source of Western legal legitimacy is shown to rest on shaky foundations. In a critical sense it is the claims of legal positivism that are the symbolic and even phantasmatic target of Modernism . For example the protestations of globalisation (Modernism , pp. 183 /215) only reveal the claims of a global society that is structured around the ambivalent foundations of one version of the locale, that of Occidental neo-liberalism (Norrie, 2003, p. 124). As Alan Norrie notes this is a ‘patient depiction of the theoretical foibles of modernity’, and of the claims of positivism in both legal and sociological guise. It shows how legal discourse is thoroughly implicated not just in the discourse of race, but how the very identity of Western law was formed and continues to be generated through the relation with racialised forms of alterity. This argument will be of interest to anyone working with critical legal theory in general and for those researching in law and postcolonial studies comparative law specifically. Fitzpatrick’s approach to the questions of foundations is implicitly inspired by what Lyotard characterised as a consensus that is never reached for ‘somebody always comes along to distort the order of reason’ (1984, p. 61), and thus ensures that the search for an origin, the origin of modernity, of the universal, or of the nation is destined to remain structured by an aporia that signals the productive irresolution of signification (Derrida, 1982, p. 6). In a sense presence is always to arrive in the future. The absence of ground for Fitzpatrick is characterised by the phantasmatic core of legal positivism, the illusive beyond of law that functions as its paradoxical origin (Modernism , pp. 97 /101). Modernism opens by documenting the grounds of law that Freud essays in Totem and Taboo . This sets up the argument for the rest of the book. Civilisation must constantly repeat its foundational moment, but this act of repetition is always

2013

I cannot claim to be one of the founding scholars in law and literature—for an explanation of how law and literature as a ‘movement’ arose, there are accounts of this to be found, particularly in relation to the American scene—with Benjamin Cardozo, for example, making explicit acknowledgement of writers as fundamental sources of understanding in law and implicitly of law itself. More recently, James Boyd White in the 1970’s in recognizing the link between the worlds of law and of literature both as a source of analogous narrative models and in the shared investment in critical, deconstructive processes. Later commentary has recognized law and literature as just one aspect of the larger ‘critical legal studies’ movement, claiming the political agenda of exposing the impossibility of neutrality and law as essentially political. However, I feel rather resistant to the categorizing tendency—of sourcing a ‘history’ or a ‘movement’ or even a ‘discipline’ of law and literature. For exampl...

Olson, Greta (2012). Reprint of "De-Americanizing Law and Literature Narratives: Opening up the Story". Dialogues on Justice: European Perspectives on Law and Humanities. Eds. Helle Porsdam and Thomas Elholm. Law and Literature Series. Berlin and New York: De Gruyter, 2012: 15-43. Version with an expanded ending. Please note that the page numbers of the document do NOT concur with the page numbers of the publication.

2013