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 Durkheim 2 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.