This is a draft of a chapter for The Critical Criminology Companion, edited by Thalia Anthony and Chris Cuneen, Sydney: Hawkins Press.
In his foreword to one of the books that launched critical criminology, The New Criminology, Gouldner (1973: ix) observed that the book’s ‘reorienting power’ was not just that it drew on bodies of social theory otherwise neglected in criminology, or theorizations of crime overlooked in social theory. What made it important was ‘its ability to demonstrate that all studies of crime and deviance, however deeply entrenched in their own technical traditions, are inevitably also grounded in larger, more general social theories which are always present (and consequential) even as unspoken silences’.
It remains, then, an ongoing question how middle-range theories and conceptualizations explain a particular ‘technical’ criminological problem within a broader understanding of how crime comes about, its relationship to the structuring of social relations, modes of inequality and forms of power, as well as its connection to the fundamental ‘nature’ or ‘character’ of contemporary social life. This is especially important when one is attempting to explain how and why things are changing, or why they differ across different countries. It is probably fair to say that it is generally a turn to social theory that makes criminology ‘critical’, as opposed to approaches influenced by economics or psychology.
Conversely, a number of social and political theorists place an understanding of the origins of criminal behaviour as well as its management (especially punishment) at the centre of their accounts of modernity, seeing the forms taken by punishment as a kind of index to the whole society. The New Criminology was in many respects an extension of these types of arguments for taking crime and punishment from the periphery to the very heart of disciplines such as sociology, a plea for the centrality of de-naturalising and de-individualising crime, of perceiving the mechanisms by which deviance and crime are socially constructed, to the broader sociological analysis of modern and now post- or late-modern society.
Since then, criminology has traversed an enormous expanse of theoretical ground, beginning with the Left Realist reactions against an oversimplified construction of criminal justice as an expression of class domination, through the emergence of feminist approaches to criminology (Smart 1976), the Birmingham Centre for Cultural Studies’ analysis of the rise of authoritarian policing (Hall et al. 1978), the continuing impact of Foucault’s (1977) Discipline and Punish and the subsequent analyses of the linkages between changing modes of crime management and contemporary forms of governance ‘beyond the state’, a linguistic and cultural turn, criminologies of postmodernity as well as postmodern criminologies, just to mention a few of the landmarks. At the same time there have been ongoing debates about the proper empirical concerns of criminology and arguments about shifting its boundaries, often expanding them to include white-collar and corporate crime and state crimes such as genocide, sometimes in the other direction towards decriminalising victimless crimes such as drug use, which have also had theoretical effects in requiring new conceptual tools and modes of analysis.
Many of the other chapters in this book will engage with different particular aspects of criminology’s relationship to a range of orientations and concerns in social theory, and this is not the place to attempt any kind of overview or synthesis. What this chapter will do is select some of the central theoretical themes running through contemporary critical criminology and draw out a number of, hopefully provocative, questions that can be raised about those themes. The selection is entirely idiosyncratic, no claims are being made about their centrality or particular salience. One could make equally valid claims about questions such the importance of rethinking the relationship between theory and practice in criminology, the problems associated with conceptualising organized (usually state) violence such as genocide as crime, the importance of analysing crime in terms of masculinity, the theoretical issues raised by the increased use of the terms ‘regulation’ and ‘security’ and the ‘terrorisation of the world’, just to mention a few.
The issues I will address are, first, the conceptualisation of the fundamental shifts which many observers see as having taken place in the criminal justice systems of ‘late’ or ‘post’ modern societies. Second, the continuing role of a logic of ‘social control’ in criminological understandings of the state and varying modes of governance, power and authority. Third, as one possible way of responding to the problems in these two arenas, the question of how the ideas surrounding Norbert Elias’s arguments for analysing what we see, experience, and normatively argue for as ‘civilization’ as part of a long-term historical process, which includes mechanisms of ‘decivilization’, might be more effectively used in analysing contemporary patterns of crime and criminal justice.
Theorising ‘late modernity’
Critical criminology is marked by a number of on-going arguments about the nature of the changes that have taken place in the dominant perceptions of the incidence and control of crime over the last three decades. On the one hand, there are accounts of how the longer-term tendencies of crime control have significantly changed direction (
On the other hand, there are at least as many, perhaps more, critical and skeptical responses to this narrative, pointing out the how inconsistent, diverse, differentiated and contradictory the various changes have been, and indicating the wide range of plausible explanations that do not rely on the idea that we have suddenly moved into a fundamentally different kind of social and criminological ordering.
This conceptual opposition runs through most of the literature on the post-1970s developments, which organizes itself around a number of core themes, including the emergence of private security (Shearing & Stenning 1983), ‘actuarial justice’ (Feeley & Simon 1994 1996), strategies of ‘responsibilisation’ (O’Malley & Palmer 1996: 142-4) and the ‘enterprising prisoner’, the increasing recognition of the victim’s perspective and voice, restorative justice, the tendency towards the ‘warehousing’ (Cohen 1977) of prisoners, and increasing punitiveness in the treatment of criminals. The developments in the field of criminal justice of criminal justice are also analysed within the context of broader changes in the concepts, techniques and practices of liberal government more broadly, towards ‘advanced liberalism’ (Rose & Miller 1992; Rose 1996: 2000) or neo-liberalism.
Between rupture and process
There are a number of reasons to be cautious about the notion of a radically new configuration of crime control, and here I will only touch on a few of them. One is the binary, ‘before and after’ logic of the argument. In his critique of the earlier attempts to theorize the transition from tradition to modernity, Bendix pointed how that the basic logical problem is that many of the supposed typical characteristics of the ‘after’ period can also be found in the ‘before’ period, and vice versa. When you look at
Weber (1949: 101) pointed out that we can be tempted to organize our analysis of what are in fact ‘developmental processes’ in terms of ‘ideal types’, which do have important analytic value, but also generate ‘the danger that the ideal type and reality will be confused with one another’. Garland (1995) himself argued along these lines by insisting that current changes should be analysed as part of an ongoing long-term process of modernisation, rather than as indicated any kind of significant rupture.
Much of the critical response to the idea of a dramatically different, ‘late modern’ construction of crime and criminal justice is reacting to this problem in one way or another. Brown (2005) observes that the argument only works with a romanticized view of the operation of prisons in the supposedly ‘penal-welfare’ approach to punishment, which never did have much ‘welfare’ in it, and was no less punitive. Current developments are contradictory, and sometimes move further along the ‘penal welfare’ road rather than in the opposite direction. Braithwaite (2005) notes that just about all of the supposedly ‘late modern’ techniques of crime control have been borrowed from business regulation. The initiatives in the field of restorative justice are often attributed to a recent affective turn in criminal justice and the new responsiveness to victims, especially in relation to the management of victim-offender relations in Indigenous communities. However, Braithwaite (2005: 13) makes it clear that for him the logic of restorative justice has a much earlier origin, in ‘business regulatory practices oriented to restitution, victim empowerment (tripartism), community policing, coproduction of security and restoration of trust and relationships’.
In general Braithwaite thinks that most of the features of ‘late modern’ crime control that are seen as reconfiguring the old penal welfare system are best understood as products of the interplay between markets and the institutions created from the mid-19th century (and earlier) to regulate them (Braithwaite & Drahos 2000). An important problem with the concept ‘neo-liberalism’ is that the practices referred to by the concept generally have much longer roots, generally paralleling the history of liberal political thought and practice itself, but simply across different fields of state and private economic activity. For Braithwaite, the explanation for shifts in the logic of crime control needs to look as much to changes in the forms of criminal behaviour itself, organized along increasingly complex lines with the relevant criminal ‘actors’ needing to be understood in the same way as any complex organisation, making the paradigms characteristic of business regulation increasingly relevant to crime management overall.
Second, are we really more punitive towards an expanding category of law-breakers being defined as ‘criminals’? Yes and no; there are certainly good reasons to search for more specific explanations of the punitiveness that can be observed. Although it is true that there is widespread criticism of the leniency of criminal sentences, it is also the case that the closer the average citizen gets to real crimes committed by real human beings, the more likely they are to support precisely the outcome currently delivered by the criminal justice system (Hough & Roberts 1999; Roberts & Stalans 1997). When asked how crime is best prevented, the respondents to Hough and Roberts’ (1999: 22) survey were not indifferent to questions of causation and motivation: 20% believed that crime would be most effectively prevented by making sentences tougher, but the majority, 36% felt that increasing discipline in the family was most important, and a further 25% rated the reduction of unemployment as most important.
In other words, any increase in prison populations should not be attributed simply to an irresistible tendency in public opinion; it is only very partially true that ‘masses of people are now emotionally invested in crime control issues and supportive of tougher legislation’ (
Third, we should be similarly cautious about assertions concerning how fearful everyone has become about crime, as well as about how central crime is to their fearfulness (Lupton 1999; Lee 2007). Although it is correct to point out that whatever fears and anxieties people have about crime can only partially be addressed by engaging with their degree of rationality and objective ‘truth’ (Lupton & Tulloch 1999), we also need to recall that fear of crime is only one of a whole complex of fears and anxieties, and by no means the central one (Beckett 2001: 907). In their survey of perceptions of risk in
There are, in other words, a number of ways of conceptualising the changes taking place that do not rely on a ‘coming of late modernity’ account. Zedner (2007) frames the shift as a temporal one from a post- to a pre-crime society, from a primary concern with responding to wrongs to giving precedence to assessing risks and forestalling them. This transformation necessarily generates different expectations of the state, individuals and communities: in the first logic, the emphasis is on the state, but in the second, responsibility extends beyond the state. For Braithwaite, many of the key changes are translations from other fields of regulation, particularly that of managing business conduct, and he argues that we should think it terms of ‘regulatory capitalism’ rather than neo-liberalism or late modernity. The conceptual problem remains that of grasping the relationship between continuity and change, and of seeing the ways in which shifts from one decade to another fit within longer-term processes of development and change.
Social control: ‘Use with caution’
The second issue I would like to address is the concept of social control. In Ross’s (1901) original formulation, it was used to refer to forms of regulation directed not just downwards towards the criminal classes, but also upwards, towards the emerging large corporations who appeared, unlike most of the rest of society, to be unconstrained by conventions, public opinion, religious sentiment, or cultural prescriptions in their pursuit of economic gain (Spierenburg 2004).
With the critical turn in the late 1960s and 1970s, social control took on a more restricted meaning as a synonym for domination, by capitalism, the state, the ruling class, welfare, psychotherapeutic and criminal justice professionals, and patriarchy (Cohen 1985). However, even as it was being formulated, this ‘social control as domination’ approach was subjected to various critiques (Ignatieff 1983; van Krieken 1986 1991; Rose 1987), and the concept is now used in a more subtle way. In criminology, the concerns have been to ‘decentre the state’, to observe the salience of mechanisms of control beyond state agencies (private security, etc), built much more extensively into the fabric of social life itself (the market, organisations, etc), and to acknowledge that a great deal of the social control exercised through the criminal justice system is not simply, sometimes not at all, about class domination, since the types of crime as issue operate within working-class communities, and reducing crime is actually rather a good idea, not just a capitalist or state authoritarian plot.
Nonetheless, it still appears difficult to shake off the ‘control as domination’ paradigm, partly because critical criminologists are particularly interested in paying more attention to questions of power and inequality than ‘administrative’ criminologists. Often this orientation is useful and productive, but equally often it is not, and it remains a theoretical issue being able to tell the difference.
One of the on-going internal criticisms of contemporary critical criminology thus remains that of its Chicken Little tendencies, towards a ‘criminology of catastrophe’ (O’Malley 2000) and dystopian visions (Zedner 2002) of the directions being taken by criminal justice and penal policy. As one of the targets of this critique, Garland (2004: 170) responds by suggesting that these critics ‘might reflect on the nonpunitive modes of managing crime that these deep transformations make possible, the new conceptions of culpability, harm and victimisation that they bring into focus, and the progressive (if problematic) potential that they entail for building security in ways that need not depend upon the increase of state power or the reduction of civil liberties’. These suggestions are interesting, but the broader aims of The Culture of Control, as Garland (2004) explains, were to analyse how particular regimes of criminal justice come about by relating changes in penal and criminal justice policy to wider transformations in social and cultural conditions, and the substantive analysis leans heavily towards casting those changes in a negative light, as entailing some kind of loss in relation to penal welfarism.
In contrast, Braithwaite argues that it is important to keep in view the ways in which corporate entities and state agencies are also being subjected to increased regulation, with a close connection operating between privatisation and new regulatory mechanisms, rather than an opposition between free-for-all marketisation and a regulated welfare state. As well as privatisation of the public, we have also seen publicisation of the private (Freeman 2003), and privatisation is generally accompanied by increased regulation (Scott 2002). Braithwaite (2003: 11) argues that the state gets regulated as much as the private sector, and increasingly so. He gives the example of prisons: their privatized generates calls for new regulatory mechanisms to ensure their adherence to a range of basic legal and ethical principles, but this then feeds back onto state prisons when it is noticed that they have been less effectively regulated in the past. This is why Braithwaite (2005: 26) has shifted from the term ‘the regulatory state’ to ‘regulatory capitalism’, because he believes one can see ‘heightened regulation of the state as well growth in regulation by the state’. In some senses there may be more democratic control over, say, policing, when it is privatized than when the state has a monopoly. The commodification of security then generates new problems, but that is a different question. The broader picture that Braithwaite (2005: 33) draws is one of a more differentiated separation of powers, with a complex network of different state agencies, NGOs and corporate actors bound up in a mutually regulating network.
The question of the extent to which the absence of social control may be the object of criminological critique has also tended to be underestimated. Pratt (2002) draws our attention to this with reference to the novel, The Lord of the Flies, and suggests that another kind of dystopian vision of the future might be not too much social control, but too little that is too poorly organized, with state power replaced with the tyranny of mob rule. In the history of legal systems, state control has frequently operated precisely to protect people from the justice of their peers. The nurturing aspects of community tend to be constitutive of an over-arching normative consensus that often comes at the expense of individuality and diversity. Punch also made this point in his account of the sociology of what he called ‘anti-institutions’ like free schools, specifically Summerhill. For Punch (1974: 323), the attempt to create structure- and control-free social institutions was an inherently unstable contradiction in terms, and ultimately only possible because of “the immense normative power exercised by the group over the individual.” The power exercised over ‘deviance’, wrote Punch, ‘may be exercised as thoroughly as in the most sophisticated police state’.
My third concern is the concept of civilization. For criminologists, the original attraction of Elias’s (2000) theory of processes of civilization was its contribution to explaining how the techniques of punishment and the sensibilities surrounding it had gradually changed over time, becoming less publically brutal and cruel, without either adopting a Whig view of history, or seeing this development simply as yet another cunning turn in the exercise of power (Pratt 1999 2002; Garland 1990). One of Elias’s central arguments was that what we experience as ‘civilization’ is constituted by a particular habitus or psychic structure which has changed over time and which can only be understood as linked to changes in the forms taken by broader social relationships. Elias thought that the restraint imposed by increasingly differentiated and complex networks of social relations became increasingly internalized and less dependent on its maintenance by external social institutions, a shift in the balance between external, social compulsion and internal, psychological compulsion towards the latter. This gradual ‘rationalisation’ of human conduct, its placement at the service of long-term goals and the increasing internalisation of social constraint was, suggested Elias, closely tied to the processes of state-formation and the development of monopolies of physical force.
This account appeared to make good sense of a variety of features of the history of crime and its control between the 13th and 20th centuries. There is general consensus that the history of criminal violence has seen a long-term trend downwards, that social tolerance of violence, aggression, cruelty and brutality has generally declined (Eisner 2001; Gatrell 1980; Garland 1990: 230; Johnson & Monkkonen 1996; Wood 2006; but for a contrary view, see Macfarlane 1987). This did not mean that such violence and brutality disappeared – in relation to prisons, entirely on the contrary (Pratt 1998; Vaughan 2000; Strange 2001). However, it did mean that increasing proportions of the population of Western European countries lost their stomach for the ‘spectacle of suffering’ (Spierenburg 1984), a development in mentality, sensibility and culture which has left us with an apparently unresolvable ‘conflict between a perceived necessity of punishment and an uneasiness at its practice’ (Spierenburg 1984: 207). The more recent developments in crime control and punishment, ‘the re-appearance in official policy of punitive sentiments and expressive gestures that appear oddly archaic and downright anti-modern’ are seen as ‘confounding’ not only the interpretation based on Elias, but also those of the earlier Foucault, Marx and Durkheim (Garland 2001: 3). ‘Not even the most inventive reading of Foucault, Marx, Durkheim, and Elias on punishment could have predicted these recent developments,’ writes
However, it is a misconstruction of the analysis of processes of civilization to see it as an argument simply for the gradual disappearance of emotive punitiveness. The point is that human emotional life becomes enmeshed in ever more complex webs of interdependence, but this does not mean simply that passion gives way to reason. The conflict between the requirements of punishment and discomfort about its reality remains: despite the continued existence of the death penalty in some US States, the search for more ‘civilized’ way of killing continues, no matter how contradictory that notion actually is. Despite the occasional resurgence, public humiliation of prisoners remains exceptional, and where it does appear, it can be explained in terms of the specific social, political and economic history of the region concerned (Pratt 2002: 146-8).
It is true that a central problem left unaddressed by Elias’s original analysis was the continuing persistence of violence and aggression even when processes of civilization could be seen as relatively advanced. One obvious example was the Holocaust, but one could also include the continuing violence inflicted by the prison system (Garland 1990: 236; Strange 2001). It is also true that although punishment became less visible, this did not mean that its violence simply disappeared; rather, it provided fertile ground for internal instability – the ‘incomplete’ or only ‘partial’ civilizing of the prison (Pratt 1999, Franke 1995; Vaughan 2000; Strange 2001).
Elias (1996) addressed these kinds of question in his later work, where he looked at the ways in which civilization and decivilization occur simultaneously, with monopolies of force being capable of as extreme violence as situations where the ‘means of violence’ is more diffusely controlled (Mennell 1990). Elias (1996: 159–60) argued that the integrative effect of norms tend to be emphasized at the expense of their ‘dividing and excluding character’, and pointed out that social norms had an ‘inherently double-edged character’, since in the very process of binding some people together, they turn those people against others. Elias (1996) also placed more emphasis in this later work on the essential precariousness of the forms of habitus generated by processes of civilization, drawing attention to the speed with which established forms of restrained, civilized conduct can crumble when the surrounding social conditions become unstable, threatening and fearful.
If we take the phenomenon of ‘emotive and ostentatious’ punishment, the trend towards punitiveness can, then be understood as a marker of decivilization, indicating increased dis-indentification across society (Pratt 2000: 422; 1998; 2005; van Swaaningen 1997: 189), and that such social divisiveness is an outcome of particular mode of dealing with increasing length of chains of interdependency (Breuer 1991: 405-6). An important aspect of the increase in crime is an ongoing process of change in our own expectations of each other, in turn related to the changing structure and dynamics of social relations. As Wouters (1999: 420) has argued, ‘the development of more egalitarian relationships has exerted pressure towards a rise in the moral standard and a higher level of mutually expected self-restraints’, in turn meaning that ‘departures and transgressions are met with stricter social sanctions’.
The punitiveness of the response to, say, sex offenders, needs to be seen in this light, as part of a changing understanding of what is or is not acceptable in the realm of sexual activity, especially between adults and children, and a relatively new willingness to sanction particular kinds of sexual conduct. Changes in the legal response to rape and domestic violence are part of the same development, and it is important to recognize the specificity of these dimensions of ‘popular punitiveness’ rather than simply attributing it to the exclusionary politics of neo-liberalism or neo-conservatism, or some obscure welling-up of populist emotiveness. What Young (2007) calls the ‘vertigo of late modernity’ can also be understood equally well as the demands of on-going processes of civilization, in Elias’s sense of the increasing complexity and density of social relations, and this theoretical orientation can do a lot to overcome the problems associated with the use of concepts like ‘late modernity’ and ‘social control’.
These are just some of the theoretical challenges with which contemporary criminology is grappling. Nelken (1994) has argued for the importance of the question of reflexivity for criminology today, both in the sense of the recursiveness of the relationship between criminology and its ‘object’ – crime and punishment – and in the sense of a self-awareness about the sources and origins of criminological debates, their relationship to broader streams of thought in social theory. To the extent that a ‘civilized’ social life is a core element of both the analytical and normative concerns of criminology, an important aspect of the development of such reflexivity in criminological thought will be a more vigorous engagement with what it means to be civilized.
Part of such a reflexivity, too, will be the extension of the debates around the ways in which criminal behaviour and criminal justice are changing in association with surrounding social changes. For Brown (2005: 103), an important criminological question is that of the broadening of what constitutes ‘crime’. The boundaries between crime and other types of harms is becoming harder to sustain, and ‘the criminal’ is less and less an individual, and increasingly constituted by organisations, indeed networks of organisations, requiring modes of regulation that go beyond CSI-style forensics.
Many of these issues converge on the question of how the theorisation of power and control should be linked to that of crime and punishment. In pursuing his argument for seeing all forms of regulation as interconnected, and pointing to its ongoing expansion and growth, Braithwaite (2005: 2) pauses for an instant to highlight the normative question of ‘whether this growth in hybrid governance contracts freedom, or expands positive liberty through an architecture of separated power that check and balance state and corporate dominations’. He leaves the question unanswered, and perhaps it is not the best way of putting it, but one important task for a reflexive criminology will be to continue to develop its theoretical engagement with relations and structures of power in analysing crime, criminal justice and the expanding mechanisms of security and regulation.
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