3. The Critique of Punishment

Although criminal justice systems tend to be well established in most countries, the failure to fully justify them and their occasionally dubious utility may open the way to critique, especially when seen to disproportionately affect some groups in society. The critique of criminal justice comes in all kinds of shades, from the ideological left as well as the right, from critiques rooted in the defense of certain minorities to critiques of the system as a whole. The critique may be more or less radical: it may seek the overthrow of the system as we know it or merely its significant reform. Critique here is distinguished from mere criticism of particular features of the criminal justice system, which suggests that some features need fixing but does not take issue with the system at a more fundamental level. There is much liberal discontent with the nature of criminal justice as it is, for example, which is reformist in nature rather than fundamentally critical. Indeed, the criminal justice system is both restrained and produced by liberal political thought.

The critique has at times remained relatively peripheral to the actual destiny of the criminal justice system, but it it expresses deep levels of frustration with criminal justice as it is which have the potential to destabilize the system. Particularly notable historically have been (i) the Marxist critique, which tends to see the system as protecting the bourgeoisie at the expense of workers, (ii) the libertarian/anarchic critique which tends to view almost all state punishment as an undue interference in the lives of free human beings, (iii) the critical-race theory and post-colonial critiques which see the system as deeply committed to the exclusion of certain racial or ethnic groups and their subordination, and (iv) the feminist critique which sees the system as a site of dominant patriarchy. Not all these theories necessarily agree with each other although they may at times have shared ideological platforms for reform. Some are focused on denouncing the prison specifically, others with the biases of the criminal justice system, whilst others have a deeper issue with the very notion of crime. All, however, share a broad commitment to analyzing criminal justice as a form of power and violence.

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