Reassurance, Reinforcement, and Legitimacy
Abstract and Keywords
This article considers the point of systems of criminal justice; reviews Émile Durkheim's theory and its application to contemporary societies; reviews the evidence concerning the ways in which the criminal law can shape behavior other than by threat or imposition of punishment; examines the evidence for why people obey the law and the significance of the state's claim to legitimacy; and discusses the explosion of punishment in the United States and the United Kingdom, and analyses this as an expressive, Durkheimian attempt to shore up both the state's claim to legitimate sovereignty and the moral order of society. The article is informed by the thought that the most important effects of criminal justice do not result only from its involving the threat and imposition of punishment. These effects are intimately tied to the idea of legitimacy; and in evaluating them we cannot but help ask normative questions about the proper relation of the state to its citizens.
Political, legal, and penal philosophers often focus on substantive questions in the criminal law and on justifications of punishment. Disciplinary boundaries and the particular analytic techniques of philosophy lend themselves to the maintenance of this focus. Yet, the system of criminal justice is embedded in society, and its effects go far beyond those achieved by the threat or imposition of punishments. This chapter is concerned with precisely those other effects. Here, we are concerned with the ways in which the criminal law shapes the behavior of citizens other than by fear of punishment. This issue, in turn, opens up questions of the appropriate relationship of the state to its citizens and of what the state might legitimately do to try to secure the obedience of its citizens.
To address these questions, section I briefly considers the purpose of the criminal law and the broader system of criminal justice. In part, of course, their purpose is to reduce and to respond to criminal wrongdoing. It is easy to think of this in terms of the deterrence effects of threatened hard treatment, and of the infliction of that hard treatment as punishment. However, compliance with the law is not primarily achieved by either of these things, but rather depends on wider socialization. Criminal law and criminal justice do not stand apart from that wider process but are part of it, which is precisely why the focus on the non-threat elements is so important.
(p. 255) To argue that the system of criminal justice contributes to socialization and to compliance is one thing, but it leaves unaddressed how it does this and the issue of what constraints there should be on the process (how, normatively, it ought to do it). In the main sections of the chapter, these questions are taken up through a discussion of Durkheim, the “moral educative” effects of the criminal law, the evidence we have concerning why people obey the law, and, finally, the recent punitive turn in parts of the developed world.
Section II examines Émile Durkheim’s argument that the relationship between a society’s system of criminal justice and its moral order is reciprocal. That is, the criminal law gives expression to deep and important social and moral norms. Crimes violate these norms, and the response of the criminal law to such violations is to reassert and reinforce those norms. In closing this section, some pressure is put on this account both in terms of whether it is necessarily the case that crimes, the criminal law, and the moral order are so benignly connected, and whether any such connection—even were it to hold—could provide an appropriate model for contemporary, pluralistic, societies.
Section III turns to a more recent attempt to analyze the criminal law in broadly Durkheimian ways, but without the support of Durkheim’s byzantine conceptual scaffolding. This is the (largely German and Swedish) development of the idea that the criminal law has “moral educative” effects that are critical in shaping behavior. Although plausible, the evidence for this claim is shaky. Moreover, as is admitted by its proponents, the looser connection between the law and morality and between the state and its citizens—looser, that is, than in Durkheim’s model—means that there is no guarantee that the law will reinforce rather than undermine compliance or that behavior will be effected in desirable ways. A bad law may undermine faith in the law or (perhaps, worse) contribute to the corruption of the morality of the citizens by being effective.
The absence of firm evidence for, and the conceptual dead end of, the Durkheimian model prompts a different way of looking at the question. Instead of focusing on the direct effects of the criminal on the behavior of citizens, section IV asks why people obey the law and what we can learn from that. Using Tom Tyler’s work as the focus, the argument follows the claim that compliance is best achieved in circumstances of procedural justice and where the law broadly reflects the preexisting values of the citizen body. There is a great deal to learn from this, but there is also a great deal to fear. Procedural justice is important, but it can easily mask power and substantive injustice. Similarly, the state has a legitimate interest in creating and nurturing moral values in its citizens, but we also have a critical duty to examine and to scrutinize those values.
Finally, in section V the chapter turns to a conundrum. The evidence points to the fact that the fear and infliction of punishment, just by themselves, make a negligible difference to the overall existence of crime. Yet, in recent decades, parts of the developed world—and, in particular, the United States and the United (p. 256) Kingdom—have pursued increasingly punitive criminal justice policies. We consider here the argument that this is so because of the felt need of politicians to assert their sovereign power and to try to shore up their legitimacy in the eyes of their citizens. Thus, in a sense, the chapter comes full circle with a return to the Durkheimian theme of reaffirmation.
The overall claims of the chapter do not include that the various authors considered were all asking the same questions or addressing the issues in precisely the same ways. Nor is there an attempt to offer a comprehensive survey of the field. Rather, the chapter is informed by the thought that the most important effects of criminal justice do not result only from its involving the threat and imposition of punishment. Moreover, these effects are intimately tied to the idea of legitimacy, and in evaluating them, we cannot but help ask normative questions about the proper relation of the state to its citizens. By placing in juxtaposition authors as different as Durkheim, Andenaes, Tyler, and Garland, the hope is to bring out some of these issues in ways that are mutually illuminating.
This chapter thus:
• Considers the point of systems of criminal justice.
• Reviews Durkheim’s theory and its application to contemporary societies.
• Reviews the evidence concerning the ways in which the criminal law can shape behavior other than by threat or imposition of punishment.
• Examines the evidence for why people obey the law and the significance of the state’s claim to legitimacy.
• Discusses the explosion of punishment in the United States and the United Kingdom, and analyses this as an expressive, Durkheimian attempt to shore up both the state’s claim to legitimate sovereignty and the moral order of society.
The criminal justice system in its entirety is vast and costly. It is (as far as we can tell) a necessary component of social life. Like death and taxes, criminal justice will always be with us. However, it is not at all obvious what criminal justice is for. In a sister volume to this one, Michael Tonry makes the straightforward claim that “criminal law enforcement is what the criminal justice system does” (Tonry 2009, 7). Interpreted narrowly—as the claim that the only function of the criminal justice system is the direct enforcement of the criminal law—this is clearly too restrictive. However, that is not how Tonry intends his claim to be read. Rather, the context makes clear that he means something much more broad; that what the criminal (p. 257) justice system is about is reducing infringements of the criminal law (which, for example, could be achieved by a criminal justice system that somehow ensured that no one was ever tempted to violate the law) as well as—and in part by—responding to those infringements when they occur. This is to stretch the word “enforcement.” Even so, it may still be thought to be too restrictive an account of the criminal justice system, for example, by those who think that one role for that system is to ensure that culpable wrong doers get what they deserve.
If we accept that (at least one) role of the criminal justice system is to reduce infringements of the criminal law, then the question arises as to how it does that. Tonry offers “through deterrence, incapacitation, rehabilitation, and moral education” (Tonry 2009, 7). This chapter is not concerned with the first three of those, nor only with the last. It is more generally concerned with the ways in which the criminal justice system influences (or fails to influence) people’s behavior other than by the threat or effects of punishment. This question is critical: no complex society could sustain order and ensure appropriate behavior only through punishment. Rather, society depends on “mainstream processes of socialization,” glossed by David Garland as “internalized morality and the sense of duty, the informal inducements and rewards of conformity, the practical and cultural networks of mutual expectation and interdependence, etc.” (Garland 1990, 288–89).
As the quotation from Garland makes clear, much of what we depend upon is not itself part of the criminal justice system. As even Hobbes recognized, men “need to be diligently, and truly taught; because [civil society] cannot be maintained by … terrour of legal punishment” (Hobbes 1991, pt. ii, ch. 30, 337).1 Nevertheless, the criminal justice system may contribute to this broader agenda both positively and negatively. Positively, by reinforcing moral and social norms; negatively, by undermining them.
It is worth noting that even those whose accounts of punishment are most (notoriously) instrumental—who conceive of the justification and purpose of punishment as resting primarily on its ability to deter—allow for this wider norm-affecting function. On the positive side, Jeremy Bentham argued that a punishment could “answer the purpose of a moral lesson” by inspiring “the public with sentiments of aversion towards those pernicious habits and dispositions with which the offence appears to be connected; and thereby to inculcate the opposite beneficial habits and dispositions” (Bentham 1970, 171). On the negative, the committed consequentialist theorist Cesare Beccaria argued the flip side of Bentham’s point:
(p. 258) That said, neither Bentham nor Beccaria thought the moral educative, and wider sociological, effects of punishment were at the heart of the matter. For that position, it is necessary to turn to a very different theorist: Émile Durkheim (for example, in Durkheim 1973, 1983, 1984).
[I]f humiliating punishments are given for crimes that are not held to be dishonorable [Beccaria is discussing smuggling], then the feeling of disgrace aroused by those that really are so diminishes. One who sees the same punishment … for the killer of a pheasant as for the killer of a man or for the forger of an important document, cannot see any difference among these crimes. In this way the moral sentiments are destroyed. (Beccaria 1995, 87)
II. Durkheim: Reassurance and Reinforcement2
For Durkheim, the relationship of criminal justice and society’s moral order is reciprocal. Punishment not only reflects and represents the moral order, but also sustains it. This follows in part from Durkheim’s understanding of crime. For Durkheim, crimes violate the moral order of society; an order that is reflected in the moral views of each citizen. The response of punishment has three interlinked functions: it gives expression to the adverse reaction of both the society and the citizens of that society, and it reinforces the moral order that holds the society together. In more Durkheimian language, the citizens of a given society share a set of beliefs and sentiments that together constitute the “conscience collective” (Durkheim 1984, 79). The state guards the conscience collective without which the moral and social order of the society could not be sustained. Crimes violate the conscience collective either directly or in virtue of being offences against the state. This in turn calls forth punishment because of the outrage felt by the citizenry who demand vengeance. It is this—the peculiar authority of the norms violated that arises from the significance of those norms and the resulting anger and indignation at their violation—that explains the necessarily punitive response to which crime gives rise.
This explains how punishment reflects and represents the moral and social order, but it also sustains that order. How so? The answer is by reinforcement and reassurance. The best summary of this from a sympathetic, if critical, stance is given by David Garland. “When crimes occur which violate the norms of social life,” he writes,
Durkheim went on to develop a more communicative account of punishment (in particular in Durkheim 1973) that emphasized the need to uphold the moral order (p. 259) by censuring the criminal. However, the essence of his account remains in the claim that the function of punishment is to reinforce the moral and social order of society and to reassure the society’s citizens of the solidity of that order.
these norms are weakened and shown to be less universal in their binding force. The effect, however, of the upswelling of a collective passionate reaction to such crimes is to give a powerful demonstration of the real force which supports the norms, and thereby reaffirm them in the consciousness of individual members. This functional outcome effectively completes a virtuous circle set off by crime…. Crime and punishment, for Durkheim, are important in so far as they set this moral circuitry in motion. (Garland 1990, 33)
For Durkheim, then, it is clear that society’s moral and social order cannot depend on the “terrour of legal punishment” alone, but equally that punishment and socialization do not run in parallel. Rather, punishment is one mechanism of socialization; it channels, reinforces, and reasserts the sentiments and values at the heart of that order. For that reason, the account invites (at least) two sets of questions; one regarding the plausibility of the account itself, the other with a focus on the applicability of the account to modern pluralist societies. These questions turn out to be interconnected and, at their heart, is the notion of a conscience collective.
As we have seen, Durkheim defines the conscience collective as consisting in a set of values and norms whose authority rests on their being held by the citizen body in a certain sort of way. In a much criticized historical account, Durkheim argues that for primitive societies the conscience collective was roughly “the sacred” and that the reverence and awe with which these norms continue to be held in modern societies has equivalent status. The breakdown of the conscience collective, or the alienation of an individual from it, is thus traumatic (hence Durkheim’s justly famous inquiries into anomie and suicide). Punishment both channels the violent reaction of citizens to the violation of these fundamental norms (equivalent to the outrage earlier persons felt in response to blasphemy), and, as we have seen, in doing so reasserts the status of those norms.
Whatever the historical accuracy of Durkheim’s account, his rich description of the conscience collective renders the theory strange to contemporary liberal ears. Of course, all societies need some set of shared commitments to sustain themselves, but modern liberal theory broadly eschews reference to substantive conceptions of the public good, preferring instead to think in terms of the rights that structure the interactions of citizens among themselves and with the state (Barry 1995; Rawls 1971, 2005). The reason for prioritizing the right over the good being that modern liberal (and other) societies are characterized by pluralism; by the presence of many conflicting conceptions of the good.
Even without this general skepticism about the availability of a common good, there is something too benign about Durkheim’s conception of the conscience collective. Durkheim presents us with a model of a set of authoritative norms and values that arises organically in a society and that is reflected neatly in the norms and values of each “healthy” individual in that society. But, authoritative public norms are established in competition and their place is contested. They are, in short, the outcome of power struggles between classes and groups whose place in the heart of each citizen will vary over time and between persons. What this means, of course, is that the “virtuous circle” set off by the crime may not be completed. Instead, for some citizens, there is the chance that punishment will reinforce their belief that (p. 260) the regime is illegitimate (as, for example, happens when the Burmese government tried and punished the opposition leader Aung San Suu Kyi). For others, the match between the judicial system of punishment and their moral beliefs will simply be loose (as, for example, in the case of those who line up to scream abuse at particular classes of offenders on their way to trial and who believe that these offenders—often child killers and pedophiles—are never sufficiently punished by the system).
In sum, Durkheim may be right that punishment attempts to reassert the authority of an existing moral and social order, but whether it succeeds depends on the nature of that order. Where public norms are contested—which is, contemporary liberal claims, more or less everywhere—the impact of punishment will be to some degree unpredictable (this is, of course, a point that Michel Foucault makes a great deal of in Foucault 1977). Punishment “works,” in Durkheimian terms, only where there is an already existing conscience collective of the kind he describes. But, if the critics of Durkheim’s historical analysis are to be believed, even simple primitive societies were not characterized by any such conscience, and if contemporary liberals are right there is no place for such a notion in the study of modern punishment.
III. Variations on Durkheimian Themes
As with any account that aspires to be both descriptive and normative, there are two possible responses to this critique of the Durkheimian position. One is to reject it as descriptively inaccurate, the other is to ask whether it is normatively valid. That is, one might argue that criminal justice and punishment is legitimate and/or justified only against the background of a conscience collective or something like it. Consider, for example, the sophisticated communicative theory developed by Antony Duff (Duff 1986, 2001, 2007). For Duff, the criminal trial aspires to be a communicative exercise in which the offender (if guilty) is confronted with his crime and called to account for it. His punishment aims to express the appropriate degree of censure for his moral and legal wrongdoing and to invoke in him a kind of “penitential” response. Although eager to stress that his account is both liberal and communitarian (Duff 2001, chap. 2), it is clear that for Duff, as for Durkheim, punishment is a moral exercise, albeit one that is aimed in Duff’s theory primarily at the wrongdoing of the offender (and only secondarily at reasserting the public value of the violated norm). Insofar as real-world conditions do not allow such an account of punishment—perhaps because of the absence of any moral consensus—then the account does not hold. This, though, is not a problem for the account of punishment but rather for the society. Similarly, one response to the absence of the conscience collective could be to argue that it is precisely this absence that is problematic; that (p. 261) as contemporary liberals we are at sea without any moral anchor to hold us and our societies together other than perhaps the endless seeking of utilitarian pleasures (MacIntyre 1984, 1988, 1990), although few people have found that claim compelling (Barry 1995, chap. 5; Horton and Mendus 1994; Nagel 1988).
A different response to the critique of the conscience collective might be to grant that such a rich, moralized notion does not belong in contemporary reflections on crime and criminal justice, but then resist the thought that this shows that the instrumental goal of deterrence or enforcement of the criminal law (narrowly understood) is all that there is to punishment. In his Punishment and Deterrence, Johannes Andenaes cites a modern German and Swedish theoretical movement that is concerned with the “moral-educative” effects, or the “reinforcement of social values,” as the main goals of the criminal law (Andenaes 1974, 114). Andenaes himself offers five ways in which the existence of the criminal law can shape behavior: (1) that persons obey the law just because it is the law and, as such, merits respect; (2) that the fact of something being criminal(ized) makes citizens more aware of its harmful character; (3) that punishment in expressing social disapproval can alter behavior in the long term; (4) that offenses that go unpunished provide “bad examples” and encourage copycat offenses; and (5) that the system of criminal justice is part of the general background against which other forms of socialization occur (Andenaes 1974, 114–25). Although Andenaes is committed to the claim that the “law, and not least the criminal law” is a “fundamental socializing influence,” he admits that the evidence for each of the five categories of influence is difficult to determine. That is not, in his view, to say that it is not there, but that because the law’s “influences permeate society in so many ways,” the evidence is “difficult to isolate and measure” (Andenaes 1974, 126).
Andenaes’s arguments seem to have led to something of a dead end. It seems likely—it is surely plausible—that the existence of the criminal law, and the whole edifice of the system of criminal justice—has some effect in some circumstances on the behavior of citizens other than by direct threat, or application, of punishment. Under some circumstances, the law will help to shape norms and behaviors and thus to sustain a social order that cannot be maintained by “terrour” alone. In other circumstances, a miscalculated or misapplied law will shape norms and behaviors in ways that undermine that order. However, the variables are too many and the counterfactual too difficult (in the absence of the law what would this person have thought about this form of behavior?) for us to be able to say anything very meaningful about these effects. If so, then to get further we need to proceed from another angle; to ask different questions. Not, “when and to what magnitude does the law shape behavior?,” but perhaps “why do people obey the law?,” and “how do people respond to the law?” Progress in answering those questions may allow us to reflect on the nature of the relationship between the law and behavior and the conditions and circumstances that enable, or disable, the law’s shaping of citizens’ attitudes, norms, and behaviors.
(p. 262) IV. Legitimacy
In a series of works, the psychologist Tom Tyler has investigated why people obey the law; he led an assault on the instrumental account that has it that they do so because the existence of a sanction alters the payoffs of the choice not to do so in ways that deter (Tyler’s pioneering work is presented in Tyler 1990; for a recent statement of his position, see Tyler 2009). In Why People Obey the Law, Tyler presented evidence that congruence between the law and the person’s own moral beliefs, and the person’s belief that the law is legitimate, played the most significant roles in compliance (Tyler 1990, 64).3 As Tyler puts it in the later presentation of his findings:
First, values shape rule-following. In particular, values lead to voluntary behavior, including both voluntary decision acceptance and cooperation with legal authorities. Second, procedural justice shapes values. If authority is exercised fairly, the law and legal authorities are viewed as legitimate and seen as entitled to be obeyed. (Tyler 2009, 326)
It is important to note that Tyler is asking a different question to, for example, Andenaes. He is not asking what effects the law has on the values and behavior of persons, but rather why persons obey the law. The fact that the evidence Tyler produces shows that people are more likely to comply with the law when it accords with their values entails some connection between the law and values, but the direction of fit is important: the evidence supports the claim that “values shape rule-following,” not the other way around (although that of course is not ruled out). What does shape values is “procedural justice” and it is important to understand this claim.
Tyler’s argument is not that “procedural justice” affects persons’ substantive moral beliefs (say, about the rightness or wrongness of private property ownership, market speculation, or abortion), but that the willingness of persons to comply with the law is, in important part, a function of the degree to which they regard that law—and the legal authority from which it emanated—as “legitimate.” Legitimacy is defined as “the property that a rule or an authority has when others feel obligated to voluntarily defer to that rule or authority. In other words, a legitimate authority is one that is regarded by people as entitled to have its decisions and rules accepted and followed by others” (Tyler 2009, 313; Tyler attributes this definition to Skogan and Frydl 2003, 297). In turn, legitimacy is secured in large part by the perception of procedural (which Tyler somewhat confusingly contrasts with distributive) justice. That is, people’s perceptions of the legitimacy of a given authority depend on whether they think the procedures followed by that authority are fair (do they take everyone’s view into account, are they impartial, etc.) more than they do on the whether the outcomes decided by that authority are favorable (“distributive justice” (p. 263) is a matter of outcomes; of the distribution of the benefits and burdens that follow from some rule or decision of the authority). As Tyler puts it elsewhere:
[T]he key aspect of authorities and institutions that shapes their legitimacy and, through it, the willingness of people to defer to the decisions of authorities and to the rules created by institutions is the fairness of the procedures through which institutions and authorities exercise authority. This procedural justice effect on legitimacy is found to be widespread and robust and occurs in legal, political, and managerial settings. (Tyler 2006, 382. See also Tyler 2000; 2001).
Thus, the overall argument is simple, and since it is intuitively plausible, it is encouraging that there is hard evidence in its support. It is this: people’s compliance is positively influenced where they are convinced of the legitimacy of the authority from which some decision or rule has emerged, and this is reinforced—and compliance more likely—where the content of the decision or rule is in accordance with their moral beliefs. What follows if Tyler’s evidence is sound and our intuition vindicated?
According to Tyler, what follows are some fairly specific policy implications, and by considering these we can return to some of the themes from the discussion of Durkheim and his successors. Before that, however, it is worth concentrating on one aspect of Tyler’s findings that speaks more directly the influence—all be it, negative—that the law can have on people’s attitudes and behavior. Tyler argues that “the deterrence approach”—that is, a criminal justice system driven by punishment designed to deter—has two negative consequences: first, it “define[s] people’s relationship to law and legal authorities as one of risk and punishment. This lessens people’s focus on other aspects of their connection to society, such as shared values and concerns, and encourages people to act in ways that are linked to personal gains and losses.” Second, “because people associate law and legal authorities with punishment, the instrumental relationship between the public and the legal system is antagonistic.” This in turn means that “people become more likely to resist and avoid legal authorities and less likely to cooperate with them” (Tyler 2009, 310; see also Tyler forthcoming). This is something to which we will return when considering both the instrumentalist response to noninstrumentalist attacks and the punitive turn that has taken place in recent years particularly in the United States and the United Kingdom.
Tyler’s policy recommendations follow fairly straightforwardly from the evidence he presents. If the deterrence approach not only fails but undermines compliance, and compliance is best ensured by engaging people’s values, then it makes sense to develop and engage people’s values and to ensure the procedural justice (and so legitimacy) of the legal authority. More specifically, Tyler argues that we should make “value creation a priority” ideally by making sure that the right values are developed “early in people’s lives as part of the general socialization process,” which will “lead to rule-following as part of a general lifestyle.” Second, we should “evaluate legal policies in terms of their impact upon values.” Third, we should (p. 264) “institutionalize mechanisms for evaluating legal authorities in terms of their legitimacy as well as their consistency of theory policies and practices with the principles of procedural justice” (Tyler 2009, 331–34).
These policy goals have much to recommend them. To give some examples, they suggest that police interactions with citizens (and in particular with adolescent citizens) should be procedurally just and scrupulously fair even when that sacrifices efficiency (for example, by ruling out racial profiling when using stop and search powers); that punishment practices should have “restorative” foci (on restorative justice, see Braithwaite 1989, 2002) as well as being procedurally just; that participants in court should have things explained to them and the chance to express themselves as appropriate; and that the trust and confidence of citizens in the criminal justice system should be thought to be important by legislators and others (for a fuller account of these policy suggestions, and citations of additional evidence, see Tyler 2009, 331–34).
At the same time, there is something worrying about the emphasis on “value creation” and “procedural justice.” In the case of the former, one might hesitate for two reasons. First, although of course a state can have a legitimate interest in instilling the right values in its young citizens in the expectation that this will lead to compliant rule-following, there is the danger of suppressing legitimate criticism and conflict. Indeed, the whole language of instilling values and compliance is likely to make liberals wary.
Second, and interconnected, the state of course has an interest in instilling its values. Tyler’s account is structural, and as he recognizes, it thus hangs free of any particular content those values might have (Tyler 2009, 330). This is an issue that Andenaes confronts directly. He writes (somewhat surprisingly) that “no value judgment is implied” when he speaks of “moral or educative influence.” Rather, he thinks of himself as simply referring to “the attitude-shaping influence of criminal law,” which can result just as much from “bad” as from “good” laws (Andenaes 1974, 112–13). Tyler is less clear and the tone of his work is much more suggestive of an evangelical proponent of value creation whose confidence in the efficacy of his methods has left him desensitized to their potential dangers.
When it comes to the emphasis on procedural justice, a similar worry arises about content. In this case, the worry is not that there might be the wrong content—bad laws or immoral norms—but that the account disregards the justice of the content in favor of the fairness of the procedures. “The law” as Anatole France famously put it, “in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread” (France 1921, chap. 7). One need not be a critical legal studies theorist, Foucauldian, or Marxist to perceive the danger (although, of course, it helps. For an extensive critical review of Tyler’s book from a broadly Critical Legal Studies perspective, see Sarat 1993).
Tyler’s case, then, is not that the law and legal norms shape our behavior in ways other than by fear, but that the empirical evidence shows that our response to the (p. 265) law is driven not so much by fear as by values and by our perception of the law as having arisen in a way that is procedurally fair. The conclusions he draws from this are worthy of serious consideration, but the evidence also points to dangers inherent in any socializing program and in any politics that hides substantive injustices behind a cloak of procedural fairness.
While the evidence for the direct moral educative effects of the law is suspect, and punishment’s role as the glue that holds us together at best unproven, what all the theorists discussed earlier agree on is that the straightforward use of fear of punishment is, at best, fairly ineffective and, at worst, positively undermining of compliance (and not just these theorists; see Doob and Webster 2003; Western 2006, chap. 6; Young 1999, chap. 5; Zimring and Hawkins 1995). Yet, the recent history of much of the developed world—and in particular of the United States and the United Kingdom—is precisely a history of increased punitiveness and rising prison populations (although one should be careful not to overstate the similarities between countries. See Cavadino and Dignan 2006; Tonry 2007). What explains this is, of course, highly contested. But the fact that these developments have gained—and sometimes been driven by—popular support raises a new set of interesting issues about the relationship between the criminal justice system and the citizens it governs.
V. The Expressive Power of Policy
So far, we have mainly been considering the ways in which the criminal law, and the criminal justice system more widely, effects the behavior of people other than by threat or implementation of punishment. There is a broader question that concerns not just how the existence of the criminal law contributes to socialization and rule-following, but how the fact of crime together with our response to it shapes our moral and social worlds. This is a question that takes on particular significance given the rise in crime rates since the Second World War. In thinking about the criminal justice system and its effects, then, we must consider “crime and punishment as part of the same process” (Young 2003, 231).
For David Garland, crime and our adaptations in response to it, characterize, create (and so define) late modernity. As he puts it, “crime control today does more than simply manage problems of crime and insecurity.” In addition,
it also institutionalizes a set of responses to these problems that are themselves consequential in their social impact. In America and Britain today, ‘late modernity’ is lived—not just by offenders but by all of us—in a mode that is more than ever defined by institutions of policing, penality, and prevention. (Garland 2001, 194).
(p. 266) Garland’s book covers a great deal of territory and has generated a considerable debate (see, e.g., the essays in Matravers 2004; Young 2003; Zedner 2002). Much of it considers the attempt to control and regulate behavior by direct means: by threat of increased punishment, CCTV cameras, private security firms, and so on. What is of interest here is Garland’s analysis of both why crime has become so central to our lives and how that fact, and the responses to it, have made criminal justice such a dominant part of (as Andenaes put it) “the general background against which other forms of socialization occur.”
In part, crime is more visible because there is more of it. However, it is also—as we have seen—ineffectively controlled by threat of punishment. In short, the U.S. and UK governments can do little about crime just as, in the modern globalized world, they can do little about their economies, the rates at which their currencies trade, and so on. Against a background of reduced sovereignty and loss of power, the
This, as Garland puts it, leads to a “predicament” for government. Those who vie to run the state know that they cannot deliver what is required by the “myth,” yet they also know the “political costs” of admitting the same. The result is “a remarkably volatile and ambivalent pattern of policy development” (Garland 2001, 110) that revolves around two poles. On the one hand, there is the presentation of criminality and criminals as an ordinary part of everyday life; responsive to rational (dis)incentives and posing a risk that needs to be managed (like any other risk). On the other, there is the need to demonize offenders, to give voice to popular outrage and resentments, and to assert sovereignty by ever-increasing expressive responses to serious crimes. Both responses, of course, put crime and criminality at the heart of political and social life. The one by asserting that crime is “always and everywhere” and needs (risk) management by both the state and by individuals; the other by cranking up the significance of crime as a threat from the dangerous outsider, and asserting the claim of political elites to be effective (and so electable) in response to this. Both also contrast with a past, more optimistic “penal welfarism” in which crime was thought to be manageable through the manipulation of its social causes (poverty, disadvantage, etc.) and rehabilitation of offenders.
perception of high crime rates as a normal social fact, together with the widely acknowledged limitations of the criminal justice system, had the effect of eroding one of the foundational myths of modern society: the myth that the sovereign state is capable of delivering “law and order” and controlling crime within its territorial boundaries. (Garland 2001, 109)
Garland’s analysis—and in particular the degree to which he generalizes to “late modernity” from the cases of the United States and the United Kingdom—has proved controversial (see Lacey 2008, chap. 1; Zedner 2002), and it is certainly the case that not all developed countries have followed the United States and the United Kingdom by massively increasing punishments. Nevertheless, his analysis of the (p. 267) way in which crime has moved center stage, both politically and socially, is compelling. In the light of the above analysis, what sense can be made of this development?
If Tyler, and many others, are right then the one explanation that seems unlikely is that increased punishments are a simple, deliberate, and instrumental attempt to reduce crime. Put bluntly, “criminal justice policy is largely irrelevant as a means of reducing crime” (Garside 2006, quoted in Lacey (2008), 17). Indeed, it is not in the interests of the politicians who propose increased punishments to make much of punishment’s instrumental effectiveness given that if the policy were to be judged by that thesis, it would be shown to be a manifest failure. Garland himself connects the rhetoric—and results—of the policymakers to two different aspects of legitimacy building. In virile expressions of criminal justice policy, the politician tries to firm up the foundational myth of sovereignty. He also, in Durkheimian fashion, reasserts and reaffirms the “correct” values—values shared by “normal” upright citizens and disregarded by offenders who thus put themselves outside civil society—at a time of increasing (and frightening) value pluralism (cf. Lacey 2008, who offers a more structural explanation of the behavior of politicians; for more radical interpretations of the US situation, see Simon 2007; Wacquant 2009). Thus, in addition, the politician seeks to blunt the negative effects of an instrumental, antagonistic approach to criminal justice predicted by Tyler. If society divides into “us” and “them” then “our” relationship with the state is one based on right values and compliance. “Theirs,” of course, is different, but that reaffirms the need for criminal justice and unites “us” in our values.
VI. Concluding Thoughts
If it is true that criminal justice is destined to be always with us, one other certainty is that criminal justice policies and their effects are complex, multifaceted, and impossible to reduce to simple, still less single, explanations. It is striking that despite widespread skepticism about the effects of punitive policies, many countries have proceeded recently down a distinctly punitive path. Moreover, that has not happened in the teeth of popular resistance. Rather, “criminal justice policy has been driven in [this] direction with—perhaps even because of—popular, and hence literally democratic support” (Lacey 2008, 8).4 It does not strike me as sensible, or even possible, to conjecture about the precise mental states of the policymakers who have led the way. Perhaps some think of themselves as Machiavellian master politicians who are cynically trying to position themselves for reelection or to pull the wool over the eyes of the electorate. But, it is equally likely that some are genuine, well-meaning individuals who believe that they are doing what they can in responding to the fears and circumstances of their citizens.
(p. 268) It is important to recognize that policy in this area has consequences far beyond whatever deterrence effects may be achieved. The law gives expression to values, and best invokes in citizens compliance when it is transparently and fairly constructed and when the values to which it gives expression are consonant with the moral beliefs of those it seeks to govern. This is a dangerous power, however. In times of uncertainty, and in multicultural conditions in which public values can exclude as well as bond, the expressive use of criminal justice may be appealing, but of course it has consequences for the growth of actual punishments. Moreover, it has the potential to alienate and to divide in particular where the background conditions are of distributive injustice (as they are throughout the world). Nevertheless, as Foucault famously reminded us, that something is dangerous “is not exactly the same as bad. If everything is dangerous, then we always have something to do. So my position leads not to apathy but to hyper- and pessimistic-activism” (Dreyfus and Rabinow 1982, 231–32) We cannot give up on the expressive power of the criminal law—condemning is, after all, what it does5—but then we cannot give up either on its critique.
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(*) I am grateful to Michael Tonry for advice on this chapter and, as ever, to my colleagues and students at the University of York.
(1) . Of course, the thought that successful societies are held together by more than force has a long history. It appears, for example, in Aristotle’s account of unstable constitutions and in Spinoza’s recommendations about the use of narratives. See Sinclair and Saunders 1981; Spinoza in Curley forthcoming.
(2) . Despite the title of this subsection, the aim is not to give an account of Durkheim’s theory, still less a comprehensive analysis of it. Rather, the aim is to pick out some central themes in Durkheim’s work relating to the question of how the existence of the criminal justice system affects persons’ behavior other than through the instrumental effects of the threat (or application) of punishment. See, for a fuller account of Durkheim’s position, Lukes and Scull (1983).
(3) . Interestingly, a significant majority of those Tyler surveyed (82 percent) also reported that they believed “people should obey the law even if it goes against what they think is right” (Tyler 1990, 45), although, like Andenaes, he seems skeptical about the actual role of such “respect for the formal law” in explaining compliance. See Andenaes 1974, 114–16).
(4) . Or, as Young puts it, “populist and sometimes punitive approaches to the law and order are popular because they resonate with opinions and anxieties widely held within the population” (Young 2003, 230). That said, both Young and Lacey are aware of difficulties of interpretation here. See Lacey 2008, chaps 3 and 4); Roberts and Hough, 2002).