Why Has Contemporary Criminal Law Ceased to Merely Identify and Penalize Acts?

Abstract

For Foucault, criminal law in modern society has a considerably greater function than the mere identification and penalization of acts. As Foucault himself comments, one of the chief disparities between ancient and modern forms of criminal law is the creation of criminal procedure: this “institutional transformation”, he argues, consisted primarily of “the formulation of explicit, general codes and unified rules of procedure.” This unification process, Foucault contends, expanded the role of law in our everyday lives because it ushered in a form of disciplinary power and knowledge that acted as an invisible controller of our behaviour and our bodies. In some respects, therefore, Foucault contends that the modernization and formalization of criminal law created a series universal norms, or truths, that transformed the criminal legal institutional apparatus into a mechanism that could prohibit certain behaviours through the dissemination of shared knowledge that, for Foucault, is the primary repository for the construction of power relations among members of modern societies.