CEPA eprint 4003

Critical criminology meets radical constructivism

Carrier N. (2011) Critical criminology meets radical constructivism. Critical Criminology 19: 331–350. Available at http://cepa.info/4003
Table of Contents
The Exclusion of Radical Constructivism from the Realm of Critical Criminology
The Playful Avenue
An Alternative to the Playful Avenue
Some Critical Contributions of a Radically Constructivist Criminology
Reworking the Concept of Social Control
Focusing on Power and Force
De-legitimizing the Legitimized Force and Power of Criminalization
Concluding Remarks
Critical criminology and radical constructivism are frequently regarded as an impossible pair – or, at least, as a rather schizophrenic one. This is so, notably, because radical constructivism rests on the (paradoxical) abandonment of what Jean-Francois Lyotard named meta-recits. It rests on the refusal to distinguish between the phenomenal and the symbolic, and thus implies the complete vanishing of the classical difference between ontology and epistemology. This would consequently deprive criminology (or, more generally, the social sciences) of any anchoring point enabling a critical utterance. The present contribution’s thesis is that, on the contrary, radical constructivism can catalyze critical criminology. Among the possible contributions of a radically constructivist sociology of criminalization, this paper focuses on: its call for a reworking of the concept of social control, which avoids problems related to its contemporary usage; its focus on power and force, in a way which avoids Foucaultian perspectives’ aporetic elements, and problematizes every instance of legitimized authoritarian practices.
The diversity of the forms taken by critical criminology can be observed everywhere on a long continuum between the highly abstract universes that theoretical architects create, and the heavily concrete arenas in which activists sweat and scream. Such plurality led some to suggest that there are as many forms of critical criminology as there are criminologists labelling themselves as critical (e.g. Schwartz and Hatty 2003: ix). The internal differentiation of critical criminology, as well as the very production of the boundaries of the critical realm within criminology, is nevertheless far from being chaotic. Despite its internal differentiation, critical criminology presents a unity that is constantly produced and reproduced through an array of strategies that we use to distinguish ourselves from ‘conventional’, ‘mainstream’, ‘administrative’, or ‘orthodox’ criminology. These strategies are distributed along theoretical, empirical, methodological and epistemological axes. Mobilizing different theories (Marxist, feminist, neo-Foucaultian, etc.), placing the analytical gaze on particular, sometimes neglected, objects of inquiry (state crimes, wars, mass incarceration, mass media, etc.), and adopting methodologies allegedly less conventional (e.g. Ferrell et al. 2004) constitute non-contentious ways to locate oneself within a critical criminological space. But trying to anchor critical criminology on a constructivist epistemology might be more contentious, particularly if there is a pretension to radical constructivism. Indeed, as further discussed below, the impact of the ‘linguistic turn’ has been associated with a debilitation of the very possibility of critique, and radical constructivism has been excluded from the realm of critical criminology, the two being regarded as irreconcilable. This article defends the (maybe controversial) thesis that, on the contrary, a radically constructivist critical criminology is possible.
The first section of the article quickly discusses how relativism has been instrumental in the solidification of certain forms of critical criminology, and how it is now usual to posit that radical constructivism cannot provide any foundation for critical criminology. This impossibility is then challenged. I discuss how a postmodern practice in the social sciences can be mobilized in critical criminology. But I mainly challenge the idea that radical constructivism cannot provide any foundation for critical criminology by arguing that the postmodern practice is not the only way to embrace a radically constructivist critical criminology. The article suggests that Luhmann’s epistemology can provide a sound alternative foundation. This thesis is not defended by mobilizing the entirety of Luhmann’s theory, but rather by focusing mainly on the radical constructivism on which it is built.
After discussing how Luhmann’s epistemology can provide an alternative to postmodern practice, the last sections of the article clarify some corollaries of this proposed meeting between critical criminology and radical constructivism. What can be gained from such a deviant and improbable union? I focus on three related points. Firstly, a radically constructivist critical criminology can lead us to question the current conceptualization of one core criminological concept: social control. Approaching meaning production as a self- referential achievement, radical constructivism not only spotlights problems inherent to the ‘social reaction’ perspective through which social control is usually conceptualized, but begs the following question: why limit social control solely to the constitution of deviance and crime? As I will argue, a radically constructivist posture militates for a re-conceptualization of social control, that can be enabled by returning to the work of C. W. Mills.
Secondly, the re-conceptualization of social control directs the analysis to the enforcement of particular realities. To put it differently, radical constructivism invites a critical criminology because it strongly problematizes the use of power and force in the production of the symbolic realm. In clarifying my argument on this point, I shall emphasize how radical constructivism avoids the problematic analytics of power that permeates many forms of critical criminology that are heavily influenced by the govern- mentality perspective.
Thirdly, radical constructivism can rejuvenate critical engagements with the power and force of criminal law by constantly pointing to its impossible legitimacy. As such, a radically constructivist critical criminology does not advocate for criminalization, as some proponents of zemiology do, but rather nurture an anarchistic or abolitionist sensibility.
The Exclusion of Radical Constructivism from the Realm of Critical Criminology
Since Thorsten Sellin’ s essential Culture Conflict and Crime, published in the late 1930s, relativism has been a constant and crucial instrument for critical criminologists. Albeit already present in G. H. Mead’s symbolic interactionism (Mead 1925), it is through its simplification and radicalization by the 1960s Chicagoans – primarily, the ‘version’ advocated by Howard Becker (1963) – that relativism has been placed at the centre of critical criminology enterprise. Mostly through ethnographic works, notably because of the more pronounced contestation of realism in anthropology, and through studies focusing on the “construction of social problems” (Cohen 1973; Spector and Kitsuse 1977; see also Lippert and Stenson 2010; Denzin 1992), the relativist posture had, by the end of the 20th century, even reached the summit of Everest in calls for a postmodern criminology (e.g. Pfohl 1990, 1993a, b; Milovanovic 1997a, b; Young 1997).
If relativism has been the common ground of a large spectrum of the criminological critique, it has also been (and continues to be) violently condemned by various critical criminologists. On this topic, we may note, for instance, the Marxist critique addressed towards a sociology preoccupied with petty criminals, and failing to assess the capitalist hegemony (Tombs and Whyte 2003; Liazos 1972), and the diagnosis of an “intoxication wrought by postmodernism within contemporary Critical Criminology,” which would lead to “historical myopia” and “many [other] unfortunate side-effects” (Russell 2003: 114; see also Lea 1998, O’Neill 1995). We might also think of accusations of anti-humanism (with which Foucaultians are all too familiar), as well as of various hateful remarks against the “narcissists,” “alienated suburbans,” that relativists are said to be (Bourgois 1995: 14).
As such, critical criminology and radical constructivism are frequently regarded as an impossible pair – or, at least, as a rather schizophrenic one. This is so notably because radical constructivism rests on the paradoxical abandonment of what Jean-Francois Lyotard (1979) termed meta-récits. This abandonment is paradoxical since the end of métarécits constitutes a meta-récit (see also Bauman 1992). Constructivism rests on the refusal to distinguish between the phenomenal and the symbolic, and thus implies the complete vanishing of the classical difference between ontology and epistemology (e.g. Luhmann 2002; Denzin 1997; Rorty 1980). This would consequently deprive criminology (in fact, the social sciences) of any anchoring point enabling a critical utterance (e.g. Russell 1997).
As announced above, the thesis defended in this article is that, on the contrary, radical constructivism can serve as a catalyst for critical criminology. In keeping various manifestations of power and force in the criminological realm under the analyst’s spotlight, a radically constructivist critical criminology can dodge the aporetic elements found in the govemmentality hype, as well as propose to re-conceptualize social control in order to make up for the limits inherent to its contemporary mobilizations. How can we lay the basis of a radically constructivist critical criminology? What has been termed “sceptical” (Rosenau 1992), or “ludic” (Best and Kellner 1997), postmodernism is one possibility. Below, I show how this playful avenue has been travelled by some criminologists. It has been so far the main avenue explored in criminology in order to mobilize a radical form of constructivism, and these explorations might have fuelled the widespread idea that radical constructivism is irreconcilable with critical criminology. After providing a glimpse at this playful avenue, I place the focus on the alternative offered by Luhmann’s social systems theory, thus far neglected in the criminological field, yet providing a stronger basis to make a resolutely critical criminological practice meet with radical constructivism.
The Playful Avenue
Postmodernism is a practice that might be regarded as enabling the development of a radically constructivist critical criminology. It should be underscored that a postmodern practice in the social sciences differs from the sociological diagnosis of the coming of postmodemity, as the latter implies refusing the former (see Freitag 1986a, b, 2001, 2002, 2003a, b; Gagne 1993). Many ‘postmodern’ criminologists indeed fail to operate this distinction – such as when importing concepts from contemporary physics to reaffirm the ‘scientific’ character of aetiology-obsessed criminology – and are thus unable to assume a constructivist epistemology (see Carrier 2006b).
The possibility of a postmodern critical criminology obviously stems from the practice of deconstruction (of dangerousness, of risk, and so on, but centrally of authority). This practice may be qualified as ludic when its promoters satisfy themselves with deconstruction. That is, when the temptation to reconstruct social objects is refused. This, in turn, may lead to highly personalized analyses. Cultural criminologists’ fresh, irreverent attitude and anti-authoritarian agenda may be illustrative of this (e.g. Ferrell 1994, 2007; Ferrell and Websdale 1999; Muzzatti 2006). But clearly, they do not embrace a non-representational epistemology,[Note 1] which may be taken as the core of a postmodernist’s self-observations and self-descriptions (e.g. Baudrillard’s (1987) Cool Memories).
Embracing postmodernism implies that any aesthetical, ethical or moral judgement can be deconstructed. Postmodernism refuses the idea that any aesthetical, ethical or moral evaluation can legitimately compete to be the ‘right one’. As a corollary, this type of practice considers every social object – crime, psychopathology, victimization, to cite only a few criminological objects – as the result of the use of particular language games (e.g. Arrigo and Bernard 1997; Pfohl 1986). And any language game can be questioned or put aside. In such a perspective, no criteria can be universalised to dictate to crime a particular essence: neither the lack of probity and pity, which constituted “natural” crimes according to Garofalo, and which are today restated, under different terms, in some mainstream theories (notably Hirschi’s (1969) control theory and Cusson’s (1998) strategic analysis); nor the liberals’ focus on harm to others, today used by many critical criminologists (e.g. Ward 2005; Hillyard et al. 2004; Kramer et al. 2002; Henry and Milovanovic 1996); nor the anarchists’ idea of “antisocial” conduct – uncommonly used in the criminological realm; nor violations of our “human rights” (e.g. Stanley 2007; Schwendinger and Schwendinger 1970). Instead of prescribing what crime ought to be, ludic postmodernism fights against representational epistemology, and its related essentialization of social objects. It is the very same political fight in which many critical criminologists are engaged. At least in this sense, the idea that postmodernism is apolitical is quite debatable. But when ludic postmodernist art-like, self-reflexive products are regarded as being closer to David Lynch’s movies than to social science work, critical criminologists’ policing of what is worth publishing (i.e. conformist-critical criminology) seems to be as efficient as a good, old-style, authoritarian cleansing of the metropolis that we/they condemn.
An Alternative to the Playful Avenue
The possibility of a radically constructivist critical criminology can also be opened up by mobilizing the epistemology of Luhmann’s social systems theory. Although receiving scant attention amongst analysts of the penal realm, his oeuvre is not exotic in the sociology of law (e.g. Guibentif 2001, 2010; Deflem 2008; King and Thornhill 2005, 2006; Teubner 2001a, b).[Note 2] A reader familiar with Luhmann’s work might point that he sometimes used ‘operational constructivism’ instead of radical constructivism in order to distinguish social systems theory’s epistemology from the one supporting the postmodern practice. Here, I do not distinguish radical and operational constructivism; in erasing the classic scission between ontology and epistemology, both are radical. As my focus is on the potential contributions of radical constructivism in critical criminology, it is not necessary here to comprehensively discuss how Luhmann’s use of Spencer-Brown’s (1969) concept of distinction differs from Wittgenstein’s (1961) concept of language game, Derrida’ s (1967) concept of diffIrance, or Lyotard’ s (1983) concept of différend. Since the focus is on the epistemology of social systems theory and that very few of its concepts are mobilized in this article, some vital elements and discussions cannot be adequately examined in this paper, including the evolution of the theory (e.g. the profound differences between Luhmann’s three major books (1985, 2001a, b, 2004) in the sociology of law), most claims of the theory, and the major debates it sparked in social theory (that are obviously not limited to dated debates with Habermas). Consequently, I am not interested in judging whether his oeuvre can be instrumentalized by conservative forces, or what kind of political bread the author himself was eating; the case I am making is that the epistemology of the late forms of Luhmann’s social systems theory can serve as a foundation for a radically constructivist critical criminology.
In proposing that “the world as it is and the world as it is observed cannot be distinguished” (Luhmann 2002: 11), the theory’s epistemology leads us to assume the inaccessibility to things (injustice, crime, harm, and so on) conceived otherwise than cultural products of a given socio-historical context. To put it in a Luhmannian language, the epistemology suggests the inaccessibility to things that would be something else, or something more, than the observer’s product. It is on those grounds that Luhmann suggested that “those who claim certainty subject themselves to deconstruction and can expect support only from the faithful” (Luhmann 1998a, b: 95; my italics). Such arguments, similar to the ones founding the postmodern practice, have an astounding, or terrifying, corollary: it supposes that our relation to the world is totally self-referential (see notably Luhmann 1998a, 1999a, b, 2002). This means that the essence of crime, if we can speak in such terms, cannot reside elsewhere than in the discourses that constitute it as such.
But Luhmann goes beyond the postmodern practice: he suggests that the self-referential construction of social objects can be the product of autonomous communication systems (e.g. Luhmann 1993a, 1995, 1998b, 2001a). We may, on this point, note the propinquity with Foucault’s (1969) concept of “discursive formation,” which is less exotic in criminology, and which similarly suggests that meaning regimes institute themselves around self-created objects. As in Foucault’s oeuvre, it is quite difficult to equate the autonomy of communicational achievements in Luhmann’s sociology with solipsism and autarchy (e.g. Luhmann 2000: 107). This is a frequent way of discounting Luhmann’s sociology of law (e.g. Capps and Olsen 2002), despite the fact that, instead of posing law’s autarchy, it invites us to apprehend the relationships between (the social system of) law and its social environment in an original, challenging way (Carrier 2007; Clam 1997, 2001a; Teubner 2001b).
In Luhmann’s theory, social systems are constituted by the recursive organization of particular differences, or language games. This particular type of organization is called autopoiesis (i.e. self-creation). A given difference – the difference between the allowed and the prohibited, or between the true and the false for example – is not in itself apprehended as a social system (see Clam 2000). In other words, a difference is not constitutive of a social system. It only presents and shapes the potentiality of such a constitution (Luhmann 1990: 112). It is the continued recursivity of communicational operations – operations through which the world is given meaning through the play of a particular distinction – which is constitutive of systemic unity. In the case of law, for instance, legal pluralists such as Rod MacDonald (1986, 1998, 2002) suggest that the distinction between what is permitted and what is not is far from being homogenous, and that conflicting constructions of the permitted and the prohibited are always present. That is, the difference permitted/prohibited can be approached as the language game constituting law, but without thinking law in the terms of a social system.
It is only the juridical delimitation of the permitted and the prohibited which, in the case of law, can be approached in systemic terms. This means that it is only the juridical quality of the social construction of an object as prohibited, and maybe criminalized, which may be observed as resulting from recursively organized operations, as being autopoietic (Carrier 2008a). In much simpler terms, we could say that the juridical system has no tolerance for dissidence, while the social uses of law are, at least potentially, anarchistic. Anarchistic uses of law are easily and convincingly illustrated when crime is approached from a critical anthropological point of view (e.g. Parnell 2003; Nader 2003; Wedel 2003). That the juridical system has no tolerance for dissonance means that it cannot be observed that an act or a condition is juridically allowed and prohibited at the same time It does not mean that one cannot use law to contest law, that the juridical system cannot observe past juridical decisions as being unconstitutional (and thus observe itself as having decided unlawfully), that the juridical system is homeostatic, and so on.
The autopoietic character of social systems means, in Luhmannian sociology, that all recursively organized operations that constitute them mobilize elements which are the system’s own creation. In the case of the juridical system, this means that every argument uttered to justify the prohibition of a given condition or act is a juridical (not political, scientific, economic, etc.) performance. The juridical system might, for instance, justify the criminalization of drug related offences by relying on social sciences (e.g. drug use constructed as posing a risk to success in school among teenagers), on medicine (e.g. drug use constructed as posing a health risk), on politics (e.g. drug prohibition constructed as a political will, the political space being constructed as unresponsive to various politically implemented committees having concluded that a greater juridical liberalism is warranted), and so on. But, in so doing, the juridical system has to select some of those elements and to interpret them through its own perspective. This corresponds, in Luhmann’s epistemology, to an act of juridical creation. As numerous analysts of different theoretical affiliations have suggested, the “official version of law” (Naffine 1990) achieves a (re)construction of criminalized events which is completely out of touch with the actors’ point of view (Comack 2006), or even with “common sense” (Teubner 2001b). Luhmann’s argument is not that a social system creates a reality ex nihilo, but that each system (juridical, political, educational, etc.) constitutes an organized way to grant the world with meaning, to construct it. The juridical and the medical constructions of health risks associated with drug use are not regarded sociologically as being the same objects (or social achievements; see Carrier 2004; Carrier and Quirion 2003), in the same way that same sex marriage, terrorism and pollution do not have the same meaning – are not the same thing – in political and juridical spaces. Like Henry and Milovanovic’s (1996) constitutive criminology, a radically constructivist critical criminology established on a Luhmannian basis thus necessarily refuses any project to discover the causes of crime which would be something more than an analysis of the social work of criminalizing discourses and practices.
Some Critical Contributions of a Radically Constructivist Criminology
In order to make more explicit and to stimulate the possibility to have critical criminology meet with radical constructivism, I shall now discuss some critical contributions that this union is likely to generate. Taken together, they illustrate how some dimensions of Luhmann’s oeuvre can be used to advance a strong critique of the power and force of criminalization without carrying through the backdoor problems associated with the ontologization crime. Moreover, such a critique of power and force avoids the aporetic elements found in the criminological critique grounded in the popular governmentality perspective, while still enabling a strong problematization of every instance of legitimized authoritarian practices. To begin with, I will focus on the reworking of a central criminological concept that a radically constructivist critical criminology (potentially) calls for. But before doing so, allow me to make another epistemological comment.
The exclusion of radical constructivism from critical criminology notably rests on the idea that this epistemological posture cannot allow observers to make any empirical, analytical, and critical claims. In the sections that follow, I make such claims (for example, I suggest that certain governmental strategies are clearly influential). These claims could be observed as an instance of realism, that should have no place within a radically constructivist framework (see, for example, the arguments of Hacking 1999). But if we refuse idealistic constructivism, then we can still allow ourselves to talk about something. That is, we might still want to convey to others our own observations about reality, i.e. our own constructions of reality. This is one strength of Luhmann’s epistemology: by positing that hetero-reference is nothing more than the de-paradoxification of an unavoidable selfreferentiality, it includes its own blindness. Thus, stating that ‘x’ is influential is done while abandoning the Modem dream to establish knowledge’s accuracy outside knowledge. In simpler terms, it means that scientific authority is refused. Science, like Luhmann’s theory, provide us with nothing more than a possible vision. It is not to suggest that the laws of physics, for instance, are (to be constructed as) unhelpful, but only that they provide us with lens to see the world – to construct it, interpret it, and, in corollary, to act on and in it. Kuhn (1970) and Feyerabend (1975), among others, convincingly argued that science’s aprioristic structures are not historically stable, which in turn means the contingency of truth and heresy (as they are defined by science’s autopoiesis, or self-regulation). One corollary is thus that even orthodox positivists’ facts cannot pretend to a higher level of legitimacy than the objects mobilized by other “socio-ideological practices” (Freitag 1986a: 67; see also Laudan 1996). The full recognition of this corollary in Luhmann’s epistemology is why, when mobilized in the criminological realm as elsewhere, it can nurture an anarchistic ethos.
Reworking the Concept of Social Control
If meaning production is approached as a self-referential achievement, we have to look at any social construction as implying, if only temporarily, that alternative ways of relating to the world are silenced. To construct a particular condition/event as a crime (and, in so doing, to promote hostility towards criminalized actors) is contingent. Choosing law’s lens is never necessary, but it implies that the event/condition cannot be observed, at the same time and by the same user-maker of cultural symbols, as a source of pleasure, a symptom of psychic defect, the result of relative deprivation, a righteous retaliation, and so on. But there are plenty of users-makers of cultural symbols. Realities are, obviously, multiple and highly contested. And even the most powerful domestic tool of liberal democracies – criminal law – cannot even pretend to hegemony.
Recognizing the plurality of competing, and irreconcilable, processes through which realities are made into social entities leads us to find the contemporary conceptualization of social control quite narrow. This narrowness was indeed intended when various scholars, notably Stan Cohen in the Anglophone realm and Philippe Robert in the Francophone realm, influentially worked on what has come to be known as the social reaction perspective. In effect, many criminologists posited themselves against a concept of social control associated with the making of society (or social order).[Note 3] On various fronts, social control was pulled away from the very centre of sociology, and limited to the designation of, and reaction to, deviance and crime. In other words, starting in the late 1960s, the concept of social control suffered an important, and problematic, depression (Carrier 2006a): no longer a tool used to account for the unifying mechanisms that make society possible despite – following TOnnies’ model – the absence of community, it will be restricted to processes separating deviants and criminals from the social body (Foucault’s pratiques divisantes; see notably Digneffe et al. 2002; Bergalli 1997; Sumner 1997; Melossi 1990; Robert 1984).
If, by totally dislocating it from the sociological problem par excellence, depressing the concept of social control has the merit of a clear critical edge, it limits the analysis to the social making and social processing of deviants and criminals. This – notably because Foucault is so d la mode – forces a very problematic link between deviance and crime (see Carrier 2008b). From Surveiller et punir to contemporary work on social control, crime is indeed seen as Foucault suggested: the “rough” extremity of le pouvoir de la nonne; its “terminal form” (e.g. 1972: 1178; 1976a: 21; 1976c: 263). But criminalization is not always justified by, or linked to, pathologized realities, nor is it necessarily a mere solidification of the normal/pathological distinction. We could thus observe pathologization and criminalization as two different forms of social control. This, of course, is not to suggest that we cannot observe influential, yet socio-historically contingent, articulations of crime and pathology.
In addition to this problem related to the a priori continuity of deviance and crime, numerous mobilizations of the concept of social control present the following epistemological contradiction: deviance and crime are taken as products of social control (events/conditions are defined as such), but then increased levels of crime are seen as resulting from the breakdown of (notably informal) social control (e.g. as a result of Late Modernity’s disembedding mechanisms; Garland 2001; Young 1999; Robert 1999). This is another indicator that criminology oftentimes mobilizes quite a selective constructivism (see Carrier 2006b). In short, notwithstanding solid work contesting the conceptualization of social control for its narrowness, flaws, and obsolescence (e.g. Lianos 2001; Scheerer and Hess 1997; Bogard 1996; van Krieken 1991; Castel 1988), criminology still mobilizes it (e.g. Beckett and Herbert 2008; Bloomberg and Hay 2007; Franko Aas 2007).
A radically constructivist sociology of criminalization can thus invite us to rework the concept of social control. One possible way to do so, building on either a postmodern practice or Luhmann’s theory, is to return to C. W. Mills’ critical conception (1939, 1940, 1956, 1959). This supposes thinking of social control in linguistic or communicational terms, and approaching discourses as the main conflicting sites in contemporary society. This does not suppose that we espouse an idealistic posture, that we swallow Baudrillard’ s thesis on hyperréalite (1981), as it does not suppose the neglect of institutions and social practices. To think of social control as the mechanism through which the world’s complexity is arbitrarily reduced[Note 4] – given meaning through the use of a particular distinction – simply supposes to assert, with Mills, the inaccessibility of a “world of solid facts” (1959 [1963: 405]). This does not mean that the symbolic is the material, but that the material is always mediated through language. This leads us, just like C.W. Mills but also like G.H. Mead (1918, 1925), to treat social construction and social control as synonymous. From this follow two main corollaries. The first is that there is no ground on which we can limit the work of social control to the sole creation of crime and deviance (Carrier 2006a, 2008a). The second one presents itself as a – certainly not new – question: which (and whose) reality is enforced?
Focusing on Power and Force
Returning to a concept of social control which includes all instances of social construction invites us, following in the footsteps of Mills, to focus on the mise en force of particular realities. Rendering social construction and social control synonymous immediately signals the partiality, and the necessary incompleteness, of any meaning production. That is, not only can a radically constructivist epistemology enable the observation of power and force, but it is premised on the very idea of the incommensurability of language games (or observing systems), thus always seeing in the mobilization of one (e.g. criminalization) the absence of many others. This absence may be interpreted as the mere result of influence: instances of social control are not necessarily sustained through threats, and backed up by force. But some are. In the case of the particular form of social control that criminalization is, the absence of different ways to give meaning to reality – that is, the selection and mobilization of criminalization as a significant horizon for discourses and practices – cannot be reduced, with the Foucaultians, to a mere question of influence (that they call power).
Limiting Foucaultians’ concept of power to influence presents the considerable, and critical, advantage of reintroducing something pathetically missing in Foucault’s popular analytics of power: the capitalization of the means to structure, through the threat of force as well as through the use of force, the “field of possibilities” of action (Foucault 1982a: 220). By suggesting a technological understanding of power, of which the operations necessarily depend on the recognition of the “freedom” of subjects under its gaze, Foucault, like many others today (e.g. Rose 2007, 1999b; O’Malley and Valverde 2004; Otero 2003; Dean 1999), make the (celebrated) argument that le pouvoir est “impuissant” (power is “powerless”; Foucault 1975b, 1976a, 1978: 629, 1981b).
With a conception of “freedom” which could be observed whenever remains “the possibility to kill oneself (…) or the other” (Foucault 1984a: 1539, my translation), that is, with a conception of freedom unable to account for any type of constraints (see also Garland 1997), Foucaultians may be warranted to disentangle power from any notion of possession, and of capacity. The question is not only whether or not we prefer another conception of liberty. It is also: what exactly disappears when we work with such an oxymoronic conception of power? One answer is: the capitalization and mobilization of the means to structure the “field of possibilities” of thought and action. Put differently, the possibility of a critical criminological practice might be severely compromised if we follow the Foucault of Surveiller et punir and La volonte de savoir[Note 5] and try, like him and contemporary Foucaultians, to annihilate a ‘negative’ conceptualization of power; a concept of power which finds in law, not technology, its primary referent.
The Foucault of power/knowledge proposes to us not only a powerless power, but also another oxymoron: the positive constraint. Despite Foucault’s attempt to de-juridicize the concept of power (e.g. 1974b, 1976a, b, 1977), he is unable to dissociate it from constraints. The idea of a positive constraint is perfectly illustrated when neo-Foucaultians suggest that contemporary individuals are “obliged to be free” (Rose 1999a). The positive constraint is the “non masochistic” pleasure that “obeying power” provides (Foucault 1981a: 1019; my translation). It is, for example, letting oneself be seduced by various ‘technologies’ of health or security. Clearly, various ‘governmental’ strategies are not devoid of social influence. But the mode of operation of (juridically valid) criminalization, although possibly interpreted through the “governing through crime” framework, cannot be reduced to influence. Focusing on power and force is thus not premised on the claim that they are more important than influence[Note 6] – and, indeed, it may well make us run the risk of obscuring exactly what Foucaultians focus on. In a nutshell: even if following Foucault’s (critical take on his) Brave New World, we might want a concept of power which is not ‘positive’ at all, in the sense contemplated by Foucault. Can Luhmann’s conceptualization be helpful?
Some have interpreted Luhmann’s conceptualization of power as being limited to the political system (e.g. King and Thornhill 2005; Guzzini 2000), and Schecter (1995) even suggested that Luhmann’s conceptualization is completely disconnected from any notion of coercion. But what Luhmann suggests is to conceptualize power as resting on a non- actualized possibility of mobilizing capitalized sanctions (Luhmann 1975: 24). This, we might note, is not completely incompatible with conceiving power as the “conduct of conduct,” as long as we distinguish forms of ‘government’ that are supported by virtual sanctions from those that are not. Power is thus here associated with a capacity, but not with a capacity to achieve something in particular (as in numerous classical sociological conceptions of power; e.g. Giddens 1984; Dahl 1975; Lukes 1974). Power rests on the non- actualized capacity to impose sanctions – which in no way need to be ‘legitimate’ to be observed as such. And if one characteristic of power, in Luhmann’s sense, is to act only as a possibility, then we have to refrain from looking at police repression and punishments as expressions of power. They would be instances of force, where force is understood as the “expression of the failure of power” (Luhmann 1986: 119). And it might well be that the failure of such a ‘negative’ power presents itself positively: producing good by inflicting pain, doing justice through punishment, affirming ‘positive values’ through the death penalty, and so on.
The presence/absence of capitalized sanctions, and the virtuality/actuality of sanctions, could provide us with the basic formal distinctions that could guide our analysis of different modes of operation of social control. Or, to put it differently, we could distinguish social control operating as influence, power, or force. If social control is rendered synonymous with social construction, and if granting the world with meaning is associated with the mobilization of either a particular language game (the postmodern option), or a particular distinction (the Luhmannian option); if criminalization is one particular form of social control, then we might want to be able to observe different uses of criminalization: as influence, as power, and as force. For example, various critical criminologists are engaged in promoting a particular vision of what ought to be criminalized (i.e. regarded as criminal), but lack any kind of power and force in doing so (the “newsmaking criminology” project is, it seems to me, a good example of this). Another good example of a powerless attempt to influence the ways in which reality is controlled – constructed – is this very article. Figure 1 illustrates the relationship between the modes and (some) forms of social control.
Figure 1: Modes and (some) forms of social control
A critical sociology of criminalization established on constructivist grounds could not only focus on power and force, but also on de-legitimizing any instance of the legitimized use of the power and force to criminalize. As such, it could follow a rather anarchistic or abolitionist agenda, refusing any authoritarian use of criminalization.
De-legitimizing the Legitimized Force and Power of Criminalization
Following such an agenda could be done by placing at the center of the analysis of the power and force of criminalization the paradoxical, or tautological, character of the foundation of the right to prohibit and to punish (Carrier 2008a; Luhmann 2004; Teubner 1994). This implies that the critique is not limited to, or goes beyond, taking the power and force of criminalization as expressions of political or economic interests (e.g. Welch 2003; Chevigny 2003; Wacquant 2001). The paradoxicality of (here: criminal) law’s foundation derives from the self-referentiality of observation that radical constructivism suggests: every attempts to solidly anchor the juridical on legitimate normative principles are, in the end, vain (Luhmann 1993a, b). Luhmann (e.g. 1999a, 2001b) has gone as far as to assert that even a concept of justice cannot legitimately support the right to prohibit and to punish. The juridical authority can rest only on itself: it is the expression of violence without any possible (external) foundation (Luhmann 2001a; Clam 2001a). Or, if you prefer, at the center of Luhmann’s analysis of law is the idea that legitimization is always self-legitimization.[Note 7] How can the distinction between what is legal and what is not be legal? On what basis can the juridical apparatuses affirm that it is legal to distinguish between the legal and the illegal? One has only to go back to any national constitutional act to observe that a juridical document asserts the legality of the distinction between the legal and the illegal. In other words, at the very basis of our juridical apparatuses, we find that law is justified by law. God, the social contract, and Reason have been the classical ways through which juridical self-legitimization have been made to appear as legitimization.
The ‘fundamental principles of justice’ and the need to respect law for law’s sake can provide two rapid illustrations of juridical paradoxicality. In the first case, the analyst will soon find out that it is the juridical apparatus which defines what is fundamental to its own operations. For example, in 2003, three Canadians appeared before the Supreme Court of Canada, confident that they will have the prohibition of cannabis declared unconstitutional. Central to their argument was the idea that criminalization violates Section 7 of the Canadian Charter of Rights and Freedom (‘guaranteeing’ the right to liberty), and that this violation is not in accordance with the fundamental principles of justice. That is, this violation is not “reasonable and justifiable in the context of a free and democratic society.” Since the harm principle is (at that time, juridically constructed as) one principle of fundamental justice, one of the central questions before the Supreme Court was: if the prohibition of cannabis is encroaching the right to liberty and that it fails the requirements of the harm principle, is this “reasonable and justifiable in the context of a free and democratic society”? Here is the trick: the Court simply affirmed that the harm principle is no longer a principle of fundamental justice. The Court thus stated: “the harm principle is better characterized as a description of important state interest rather than a normative legal principle” (R. v. Malmo-Levine et al. 2003: s.114). The paradoxicality of this fundamental justice is solved by the juridical fabrication of an extra-juridical “consensus” about the principles that are “fundamental” to “our” idea of Justice: fundamental principles are those that would be “accepted, in general, among reasonable people.”
A second example which may rapidly be summarized is the obligation, for citizens, “to obey the law of the land.” The Supreme Court of Canada bluntly states that this obligation is maintained regardless of the actual content of the Criminal Code (see Carrier 2007). That is, the fact that so many people deliberately do not “obey the law of the land” is taken as a good motive to continue to apply it (R v Malmo-Levine et al. 2003: s.174). Punishment can thus be justified on the sole ground that individuals refuse to conform to a particular juridical prescription. The juridical, tautological, argument could thus be broken down to this: the law of the land stands because it’s the law of the land.
Introducing the paradoxicality of the right to prohibit and to punish in the criminological field thus enables a renewal of the critique of criminal justice. It does so through the constant contestation, not only of the necessity to prohibit and to punish, but also, and more deeply, of the very possibility that there are situations and actions towards which it is legitimate to use the power and force of criminalization. Since the 1960s, notably because of Schur’s (1965) influential work, critical criminology has often considered that only one category of crime lacks legitimacy: “crime without victims.” Through a liberal posture, it has thus been possible to take for granted that there are crimes which are correctly founded. We could, in this regard, suggest the hypothesis that one of the perverse effect of the critique articulated around the notion of crimes without victims has been the reinforced naturalization of what Alvaro Pires (2002) termed “standard crimes.” That is, crimes towards which the juridical system can easily distinguish between an aggressor and a victim, and work with clear-cut oppositions between innocence and guilt.
Concluding Remarks
This article suggested that radical constructivism can catalyze critical criminology, and that possible contributions of such (an improbable) union include: returning to a wider, less problematic, conceptualization of social control; focusing on power and force, in a way which avoids problems inherent to the current Foucaultian fashion, and; de-legitimizing every legitimized authoritarian practices. In suggesting this, I do not dream, in contradistinction to Wheeldon and Heidt (2007) and others, of a critical criminology which would constitutes itself as a “normal science” in Kuhn’s (1970) sense; that is, as a field in which would reign some sort of epistemological, theoretical, and conceptual purity and harmony. As they do, I believe that critical criminology cannot ignore the postmodernist critique. But, notably with Hogeveen and Woolfrod (2006), I think that what is needed is to envision an alternative to positivism. Plurality of positions, propositions, (mis)understandings, refusals; this ‘keeps the conversation going’, as Rorty (1991) might say it. This article was written with no other pretension than that.
Debating on the meanings and interpretations of various phenomena is as necessary as ever, and this obviously implies having some space to think about and discuss our theoretical “toolbox,” to use Foucault’ s metaphor (1974a: 1391). The idea that contemporary universities are environments imposing more and more constraints on this ‘useless’ project is certainly not a new argument, but analyses building on the impact of managerialism and pragmatism (e.g. Walters 2003, 2007), or, more broadly, on postmodernity (e.g. Freitag 1995), point to deep changes that profoundly structure the field of possibilities of critical criminology. We don’t need to accept the idea that universities are no longer autonomous, that they have become vassals of a State obsessed with control, to observe the subtle and less subtle pressures orienting academic work towards a very narrow conception of utility, which is obviously at odds with the traditional project of the university. The tremendous success of criminology schools, institutes and departments, oftentimes at the expense of sociology, is a symptom of the (partial) social disqualification of disciplines that do not produce (what is regarded as) useful knowledge, as well as a symptom of the clientelism of universities as organisations.
In the same way that prisons are more and more regarded as instruments to stimulate impoverished rural economies (e.g. Wacquant 2005; Christie 2000), criminology, taken as a discipline instead than as a field, presents itself as a sure cash cow for contemporary universities dealing with tighter public funding. In this context, critical criminology could, possibly, blossom in defending the formula harm = crime, and in producing ‘evidence’ that ever expanding areas of life need to be subjected to the power and force of criminalization on the grounds of the presence of harm. The arguments advanced here suggest that, on the contrary, we can refuse to essentialize crime (which includes refusing to re-essentialize it around harm after having ‘deconstructed’ juridical categories). We could thus prefer to take on the task of proposing our interpretations of criminalizing processes, and to constantly put into question any form of criminalization. For the right to prohibit and to punish shall always be, from a constructivist point of view, highly problematic.
This article builds on a presentation given at the congress Le pénal aujourd’hui: pérennité ou mutations? I would like to thank Renee Zaubennan for inviting me to speak at this congress, which was closed by a celebration of the 30th anniversary of the academic journal Déviance & Société. This journal has been, over the last three decades, the principal vehicle for the development of critical research and scholarly debates in the (relatively) small Francophone criminological realm. One might say that this journal has been one highly influential media in the very production of most critical criminologists in Belgium, France and in French-speaking enclaves of Canada. Sadly enough, a real dialogue between Francophone and Anglophone criminologies has yet to be established. I would also like to thank scholars who commented on various versions of this paper: Jean-Francois Cauchie, Gilles Chantraine, Richard Dube, Umnmi Khan, Michael Mopas, Augustine S. J. Park, George S. Rigakos, Dale Spencer and Kevin Walby.
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Numerous exemplifications of cultural criminologists pretending to have a ‘superior’, ‘truer’ or simply ‘more human’ access to crime’s “reality” – despite their usual suspicion towards the ontologization of crime – can be found in Cultural Criminology Unleashed (2004).
Of course, some uses of Luhmann’s sociology can be found in criminological work, notably in those of Alvaro Pires and Richard Dube (e.g. Pires 2001; Pires and Cauchie 2007; Dube 2007; Dube and Cauchie 2007). Introductions to Luhmann’s grueling theory can be found, notably, in Moeller (2006), King and Thornhill (2005, 2006), Clam (1997, 2000, 2001a, b), Stichweh (2000) and Ertler (1999). See also King (2001) for a presentation of, and answers to, common, but ill-founded, critiques of the theory.
Clear linkages between social control and the dynamic processes through which Modernity is (re)produced can be found, notably, in Ross (1901), Mead (1925), Park and Burgess (1924), Elias (1939), Horkheimer (1944), Mills (1939, 1940), and Parsons (1951). Mead and Park were particularly targeted by criminologists advocating a restricted conception of social control, because their work was taken as being blind to “conflicts over norms” and to State apparatuses, and failing to problematize “the objectives of control” (Lowman et al. 1987: 3). On the defence of a restricted concept of social control, see Quirion (2001), Pitts (1991), Horwitz (1990), Cohen (1985), Black (1984), Robert (1984), Cohen and Scull (1983), Gibbs (1982), Meier (1982).
Arbitrariness here only refers to the self-referentiality of meaning production (see the analytical, not phenomenological, decomposition of meaning in factual, temporal and social dimensions in Luhmann’s theory, e.g. 1995: 75). For example, statements like ‘we should punish crime’, ‘incapacitation is (or should be) the single most important penological principle’, ‘imprisoning individuals for non violent criminal(ized) acts/conditions is inhumane’ all consist in an arbitrary reduction of the world’s complexity, since they are deprived of any ultimate, external, foundation. I will come back on this in addressing the issue of legitimacy.
Foucault himself distinguished three major phases in his work, the study of: the relationship between various “truth games” (“jeux de vérite”), the famous power/knowledge (through the study of disciplinary practices), and “truth games” as they are involved and mobilized in the “hermeneutic of the subject” (Foucault 1982b, 1984b: 13). The ‘first’ Foucault, particularly in Naissance de la clinique, relied on a very negative (or juridical-like) conception of power that the ‘second’ heavily criticized (see also Foucault 1977).
This, of course, is just a way to rearticulate the traditional question of the social impact of legal versus non-legal norms. As Weber noted (Weber 1971: 13), it is quite problematic to assume that conformity to what he called the “juridical order” derives from its ‘legitimate’ threats and violence, as the advocates of classic utilitarianism and contemporary rational choice posit.
The processes through which law (as a social system) de-paradoxifies (or de-tautologizes) its operations are thus central to a Luhmannian sociology of law. A classic example of de-paradoxification (because taken as a juridical artifact) is the ‘reasonable person’ standard.
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