Breaking the pendulum with Michel Foucault: Modern punishment beyond docile bodies

Abstract

Contemporary penal change is often explained as an institutionally mediated outcome of political, cultural, and social transformations that vacillate between affinity for retributive and rehabilitative penal measures. The retributive approach to punishment is typically associated with symbolic gestures and conflict, whereas the rehabilitative approach is linked to austerity and a drive to create docile bodies that are less inclined to resist. Although widespread in the field, this explanatory framework has recently been critiqued as a “pendular perspective,” a perpetual rebounding between poles that ignores the persistent presence of symbolic charge and conflict within modern punishment—traits especially visible both in the penal measures that target marginalized populations globally and in the Global South's institutional penal landscape. Drawing on Michel Foucault's work from the early 1970s, this article conceptualizes punishment as a discursive act and presents it as a means of transcending the so-called pendular perspective on penal change. It argues that modern punishment—including in its rehabilitative forms—remains symbolically charged and capable of fostering conflict because it enacts a comprehensive moral horizon for subjectivation. This horizon includes not only docile bodies, but also oppositional and consensus-challenging positions such as delinquency, insurrection, resistance, and counter-conduct. Despite the presuppositions of the pendular perspective, penal change thus arises from a historically contingent need to alter an arrangement of conflictual subjective positions, the latter having undergone no core changes since the dawn of modernity in Western societies.