The claim that our society is "postmodern" depends in the end on what one thinks has changed in the present that requires breaking the useful interpretive frames that have been associated with modernity. 1 This paper proposes that one powerful candidate for such a change is the historic relationship between government, punishment, and modernity. A century ago, Emile Durkheim2 argued that the form of legal regulation in a society was a telling indicator of its social order. The degree to which a society was governed through penal laws and sanctions, as opposed to civil law and contractual agreements, provided a kind of index to the modernizing process.
Traditional societies, according to Durkheim, were held together by a "mechanical solidarity," i.e., a common identification sustained by a limited division of labor. The major symbolic resource of this identification with society and its commonality was the criminal law, which provided occasions to invoke forceful and ritualistic mobilization of the social group as a whole against its internal enemies. Since crime and the opportunity to punish provide a critical platform to govern traditional societies, categories of criminals or crimes that disappear must be replaced by redefining other conduct as criminal. 3
Modern societies reproduce social order through a much more complicated system of identifications that Durkheim called "organic solidarity." These identifications arise from a highly developed division of labor. Governing such societies required a shift from penal laws to those