Punishment's Legal Templates: A Theory of Formal Penal Change

Published date01 June 2019
Date01 June 2019
Punishment’s Legal Templates: A Theory of Formal
Penal Change
Ashley T. Rubin
The well-known gap between law on the books and law in action often casts
doubt on the significance of changes to law on the books. For example, the
rise and fall of penal technologies have long been considered significant indi-
cators of penal change in socio-historical analyses of punishment. Recent
research, however, has challenged the significance of apparently large-scale
penal change of this kind. This article clarifies the significance of penal
technologies’ rise and fall by offering an alternative account of formal penal
change, introducing the analytical concept of “legal templates,” structural
models of legal activity (e.g., punishment) available for authorization and
replication across multiple jurisdictions. Analyzing punishment’s templates
explains how new penal technologies can be important harbingers of
change, even when they fail to revolutionize penal practice and are not
caused by a widespread ideological shift. This article locates the significance
of punishment’s legal templates in their constitutive power—their ability, over
the long term, to shape cognitive-cultural expectations about what punish-
ment is or should be. This power appears only when the template is widely
adopted by a plurality of jurisdictions, thereby becoming institutionalized.
Ultimately, these institutionalized templates define the scope of future
Awide array of law and society scholarship has described the
law as a severely limited social institution with uncertain influence.
Examples of the law’s limits abound, from the many unlawfully
injured people who, prevented by their vulnerable status, do not
mobilize the law (Albiston 2005; Bumiller 1987; Nielsen 2000), to
disputants who prefer business and community norms over law
(Ellickson 1986; Macaulay 1963). As a tool of social change, the
law frequently disappoints: major court victories and much-
celebrated legislation have been limited in their effect (Edelman
1992; Rosenberg 1991). In myriad accounts, legal change of many
I wish to thank the anonymous referees and LSR editors, as well as Ellen Berrey,
Ronit Dinovitzer, Laurie Edelman, Malcolm Feeley, Phil Goodman, Steve Hoffman,
Johann Koehler, Sida Liu, Paula Maurutto, Fergus McNeill, and Joshua Page for reading
earlier drafts of this article and providing very helpful comments (extra thanks to Steve
Hoffman for reading two versions of thearticle). I am also grateful to Kelly Hannah-Moffat,
Heather Schoenfeld, and John Eason for talking through the paper’s ideas. All flaws are my
own. A previous version of this article was presented at the 2016 Penal Boundaries Work-
shop at the University of Toronto.
Please direct all correspondence to Ashley Rubin, Department of Sociology, Univer-
sity of Toronto, Canada; e-mail: ashley.rubin@utoronto.ca
Law & Society Review, Volume 53, Number 2 (2019): 518–553
©2019 Law and Society Association. All rights reserved.
stripes falls short of expectations because there is a significant,
well-examined gap between law on the books and law in action
(Friedman 2016).
These findings pose a dilemma: in what sense do changes to
law on the books matter? When official policy rhetoric and actual
practice diverge extensively, what is the significance of different
rhetoric and new laws? One version of this dilemma appears in
differing accounts of legally authorized changes to the available
forms of punishment, or formal penal change: while some
accounts describe the adoption of new penal technologies
as sig-
naling important sea changes in penality, other accounts caution
that such shifts hide greater continuities across time and heteroge-
neity across place. What, then, is the significance of formal penal
change, particularly when its impact on practice is smaller, differ-
ent, or more variable than intended or expected?
This article uses formal penal change as a case study to clarify
the significance of legal change. Drawing on neo-institutional the-
ory from organizational sociology (DiMaggio and Powell 1983;
Edelman 1992, 2016; Meyer and Rowan 1977; Tolbert and
Zucker 1983), it proposes a theory of formal penal change. This
theory begins by deconstructing punishment into its constituent
legal templates, or individual structural models of punishment avail-
able for authorization and replication across multiple jurisdictions,
whether defined as legal, political, or organizational units.
Although extant studies of formal penal change have focused on
penal technologies, this study shifts the focus to their underlying
legal templates, thereby splitting penal technologies into their
intention—the guiding idea or principal organizing structure (the
template)—and practice—how they play out in reality. Moreover,
as the formal structures of punishment, templates are distinct
from other outcomes of interest, such as individual-level decisions
to punish, trends in punishment rates, and the popularity of cer-
tain logics or justifications of punishment.
Next, I repurpose insights from neo-institutional theory and
the law and society literature to construct a generalizable narrative
of formal penal change, emphasizing legal templates’ diffusion.
First, many jurisdictions will adopt a legal template not for its
Although some scholars use “technology” specifically to signify the strategic use of
human bodies to achieve political purposes (Foucault 1977; Simon 2013), I avoid this
narrower version. Instead, I use the term “technology” broadly to mean any
instrument—including practices, policies, and organizations—used to achieve particular
In this article, I define jurisdiction broadly to include not only city, county, state,
and national governments, but also government agencies and organizations, including
local police departments, state-level departments of corrections, and individual prisons or
parole agencies.
Rubin 519
effectiveness at crime control, but because it has been institution-
alized. Institutionalized legal templates are legitimacy-granting
structures: formally adopting these templates gives a jurisdiction
legitimacy. Second, institutionalized legal templates may have lim-
ited impact on actual practice when jurisdictions adopt (or retain)
the template simply to emphasize its visible conformity to norma-
tive expectations; such jurisdictions can privately pursue their
technical goals by loosely coupling the template to actual practice.
Finally, institutionalized legal templates can change official and lay
understandings of what constitutes acceptable punishments. Even
in the absence of meaningful change on the ground, such legal
templates can shape long-term expectations about punishment
and the legitimacy of jurisdictions, organizations, and actors met-
ing out punishment.
By examining templates separately from their impact on actual
practice, the template’s diffusion becomes one of the most impor-
tant, but under-emphasized, analytical sites for understanding the
significance of formal penal change. Whereas most accounts of for-
mal penal change focus on factors driving templates’ innovation or
initial adoption, this theory focuses on the reasons for, and conse-
quences of, templates’ diffusion. This analytic shift from innovation
to diffusion changes how we envision penal change over time—
from a linear timeline to a messy, variegated, incomplete process—
in a way that complicates standard theories about the engines,
mechanisms, and significance of penal change. In doing so, it
moves beyond earlier explanations—for example, that penal
change in the form of new penal technologies will have a particular
impact on practice, serving as the physical manifestation of new
values that brought about the new technology—that have been
recently discredited (Goodman et al. 2017). Ultimately, this article
theorizes the conditions under which formal penal change matters,
even when its impact on practice is limited or different from
Penal change is only one example of legal change (Lynch
2011), but this theory is generalizable to other areas of law.
Indeed, we can think of changes to law on the books—the rise
and fall of new rights, jury trials, employment regulations, consti-
tutions, problem-solving courts, alternative dispute resolution
fora—as legal templates, or particular models of legal activity
available for authorization and replication. Applying this theory
encourages a broader, more historical analysis that examines these
developments not in isolation but as part of a longer sequence of
developments. This longer look reveals templates’ broader signifi-
cance: a legal template may facilitate only limited changes to law
in action but, if institutionalized, it may have lasting power as con-
stitutive of future expectations about the law.
520 Punishment’s Legal Templates: A Theory of Formal Penal Change

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