Social & Legal Studies

Superficially at odds with the idea of empirical research, autopoiesis is shown on closer study to demand a fundamental reconsideration of the empirico-theoretical relationship. This idea is developed firstly in the context of a possible methodology and secondly in the application of that methodology to a particular regulatory situ ation. The aim is to arrive at a more adequately complex understanding of the regu latory process - as well as of the process of legal sociological research itself.

This article examines the cultural significance of some new 'signs and symbols' of punishment that are to be found taking place (albeit in uneven measure) across English-based jurisdictions at the present time. What I want to suggest is that these developments may be pointers to the emergence of a new penal culture, which makes possible a set of arrangements and strategies that are different from those which had been in the forefront of the modernist penal framework. Some of the values on which this structure had been founded, particularly during the welfare era of the 20th century, bear correspondence to trends seen by Norbert Elias (1939; 1982) as central to the 'civilizing' of modern Western societies. For him, the 'civilizing' process was not a naturally occurring phenomenon, but a social construction based on contingent historical developments - which at any time could be thrown into a 'decivilizing' reverse by such phenomena as war, natural disaster and economic collapse (Garland, 1990). Under such circumstances, there is likely to be a resurrection of practices and behaviour from different cultural eras (Mennell, 1990). This theoretical framework will be used here to analyse current penal trends and their implications.

This article argues that civil rights generally and gay rights in particular have increas ingly become the locus for a politics of changing state sovereignty in the USA, one which calls upon the state to empower itself by doing less. The engine behind this 'downsizing' of the state is a conservative discourse of political economy through which rights claims are understood as excessive and deleterious to limited public budgets, to private property and to efficient use of the 'police powers' over health and safety. Two case studies illuminate these claims: Colorado's anti-gay Amendment 2, and Hawai'i's impending legalization of same-sex marriage.

Another consequence of this development of bio-power was the growing importance assumed by the action of the norm at the expense of the juridical system of the law... I do not mean to say that the law fades into the back ground or that the institutions of justice tend to disappear, but rather that the law operates more and more as a norm, and that the judicial institution is increasingly incorporated into a continuum of apparatuses (medical, adminis trative, and so on) whose functions are for the most part regulatory. A nor malizing society is the historical outcome of a technology of power centred on life. (Michel Foucault, The History of Sexuality Vol. 1, 1979: 144)