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34 Brit. J. Criminology 14 (1994)
Can Prisons Be Legitimate - Penal Politics, Privitization, and the Timeliness of an Old Idea

handle is hein.journals/bjcrim34 and id is 560 raw text is: BRIT.J. CRIMINOL. VOL. 34 SPECIAL ISSUE 1994

CAN PRISONS BE LEGITIMATE?
Penal Politics, Privatization, and the Timeliness of an Old Idea
RICHARD SPARKS*
The ideas whose time has come are old, familiar, well-tested
ones. (It is the new ideas whose time has passed.)
Timothy Garton Ash
This paper seeks to follow some of the twists and turns of recent penal discourse,
especially those official rhetorics which support the marketization of the system as a
principal means of addressing its problems. I contend that there is a deeply vexed, but
generally unarticulated, problem that haunts most discussions of prisons, prison
disorders, and other aspects of penal politics, whether these spring from 'official' or
'radical' perspectives. This is what has long been known to sociologists and political
theorists as the problem of legitimacy. It is a problem whose practical, theoretical, and
normative dimensions need to be much more carefully and patiently examined than is
currently usual in penal debates. I want to suggest that in pausing to consider the
problem of legitimacy directly, rather than obliquely and implicitly as is more often
done, we may be able to organize and attain a critical point of purchase upon a number
of otherwise confusing and apparently discrete recent developments. Indeed, just as
some commentators propose that legitimacy can rightly be seen as the central problem
of political theory (see Beetham 1991: 41, revising Weber (1991) and Habermas
(1976)), so I hope to show that it can provide an organizing idea in penal politics, in
terms of which both the coherence and justifiability of particular practices and the
adequacy of critical and reforming stances upon them can be considered. In particular
I want to try to assess the claim embedded in the rhetorics favouring privatization (or
contracting out, or proprietary prisons, as the various locutions have it) to have
answered many of the key legitimation problems of modern penal systems. I will argue
that in fact such concerns are more often evaded or suppressed than answered, and that
the arguments over the justification of any practice of imprisonment (private or
otherwise) need to be more strenuously pursued than contemporary rhetorics allow.
What is Legitimacy?
The problem of legitimacy is an abiding concern of political theory. In that sense it can
safely be said to be an old idea. Briefly put, the term legitimacy refers to the claims
made by any government or dominant group within a distribution of power to justified
authority. Historically such claims have rested on any number of grounds, from divine
right of succession to popular election. Beetham in The Legitimation of Power (1991)
* Department of Criminology, University of Keele.
I would like to thank David Beetham, Tony Bottoms, Pat Carlen, Nicola Lacey, and Ian Loader for their help in
formulating the ideas and arguments contained in this paper.
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