Controlling Crime, Controlling Society

Thinking about Crime in Europe and America

Dario Melossi

• Publisher: Polity
• Year: 2013
• Print ISBN: 9780745634296, 9780745634289
• eBook ISBN: 9780745657776
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

How did anxieties about crime and deviance emerge in the modern world, first in Europe and then in America? How did they come to occupy centre-stage in the ongoing drama played out in public discourse? And how have theories of crime and deviance related to the actual practices of social control and punishment, and to the main currents of social conflict?

In this illuminating new book, Dario Melossi addresses these crucial questions, and at the same time offers an engaging survey of the theories of social control, crime and deviance. From the early work of Beccaria and Lombroso, via the pioneering sociology of 1920s Chicago, to 60s radicalism and the subsequent emergence of a "culture of fear", the book covers the full range of theoretical thinking in this area, including more recent assessments of mass imprisonment in post-9/11 America. In a sharp and lucid style, Melossi argues that two orientations have always been battling each other in society, one in which the control of crime is paramount, and the other in which controlling crime becomes secondary to the exercise of wider social control.

Conceived and written by a scholar who has been active for many years both in Europe and the United States, the text will be an invaluable aid to advanced students and scholars of sociology and criminology on both sides of the Atlantic.

Part I: State, Social Order, and “the Criminal Question” in Modern Europe

1

Leviathan’s Subjects: From the Social Contract to Cesare Beccaria

The theory of the social contract was the form within which the age of Enlightenment – and still, in a sense, our age – was able to express and conceive the idea of political order. It was an idea that started taking form during the dissolution of medieval society. The fundamental poles of the contract – on the one hand the concept of a multitude of individuals, and on the other the idea of the State – both found their origins within the crisis of the medieval order and of the theocratic thought that supported it. The theoretical concepts as well as the institutions informed by those concepts originated within a process of “liberation” from social and conceptual structures that belonged in the Middle Ages. From within the dissolution of such an order, both “the State” and its “subjects” emerged.

British historian of philosophy Quentin Skinner has noted that “the surest sign that a society has entered into the secure possession of a new concept is that a new vocabulary will be developed, in terms of which the concept can then be publicly articulated and discussed” (Skinner 1978, vol. 1: xii–xiii; see also 1978, vol. 2: 352, and 1979). It is in the work of Machiavelli that we can locate the origin of the modern concept of the State, along with the early uncertain instances of a modern usage of the word. The ones who established the two directions of political and social thinking in the centuries that followed, however, were Hobbes and Locke. Between Hobbes and Locke, between the State as Leviathan and the State as civil society, a new vocabulary was originated, a vocabulary that allowed modern Western society to express the question of order.

Yet the roots of such a new vocabulary are to be found in that “moral disorganization” – we may venture to say today – that was described by the man who, in 1513, had been the all-powerful Secretary to the Florentine Republic:

Here the question arises: is it better to be loved than feared, or vice versa? I don’t doubt that every prince would like to be both; but since it is hard to accommodate these qualities, if you have to make a choice, to be feared is much safer than to be loved. For it is a good general rule about men, that they are ungrateful, fickle, liars and deceivers, fearful of danger and greedy for gain. While you serve their welfare they are all yours, offering their blood, their belongings, their lives, and their children’s lives … – so long as the danger is remote. But when the danger is close at hand, they turn against you. Then, any prince who has relied on their words and has made no other preparations will come to grief; because friendships that are bought at a price, and not with greatness and nobility of soul, may be paid for but they are not acquired, and they cannot be used in time of need. People are less concerned with offending a man who makes himself loved than one who makes himself feared: the reason is that love is a link of obligation which men, because they are rotten, will break any time they think doing so serves their advantage; but fear involves dread of punishment, from which they can never escape. (Machiavelli 1513: 47–8)

This imagery suggests a crucial connection between “the political entrepreneur,” the prince, and the “anarchy” of his subjects. Machiavelli’s prince was to give form to human nature through the use of his skill, his craft (his virtù). Machiavelli’s men and women were egoist, deceptive, tricky – as in his play La mandragola, or The Mandrake Root (1519). In Machiavelli’s art, as had been the case in Boccaccio’s Decameron (1348–53) or Chaucer’s Canterbury Tales (1386–1400), a world was portrayed peopled by double-crossers and vagabonds, artisans and teachers in the newly created universities, poor peasants and soldiers, penniless artists and corrupt officials. It was also the world of the “free cities” of Central and Northern Italy and of Germany, as well as of a countryside run by mercenaries, bandits, and all kinds of political and social dissidents.

The themes of Il principe were certainly present in Hobbes’s reflections, especially Leviathan (1651). Hobbes shared Machiavelli’s harsh view of humankind, and his concept of a state of nature was one in which “the life of man [is] solitary, poor, nasty, brutish, and short” (1651: 100). Fear constituted therefore the foundation of the social contract. Hobbes’s solution to these conditions of anarchy was, however, different from that sought by the Florentine secretary. Hobbes did not share the notion that the prince’s virtue and fortune are the basis for political society. Moving from the state of the prince to the State of Leviathan meant discovering the principle of an abstraction and personification of unity and power, that is, Leviathan. Leviathan is – Hobbes wrote – “a COMMONWEALTH, or STATE, in Latin CIVITAS, which is but an artificial man; though of greater stature and strength than the natural, for whose protection and defence it was intended” (1651: 19). This is built “by the art of man,” similarly to the way a watch is built. The State was now therefore an “automaton,” funded by a contract of men, a contract that gave life to a persona. No longer a passive instrument of the will of powerful seigneurs, it was now an active agency, already quite close to Kelsen’s “macro human being.” It was a principle of unity and cohesion destined to counter the terrible fate of the war of all against all.

Both Machiavelli’s and Hobbes’s solutions should in fact be viewed against the backdrop of the social and historical situations the two authors were addressing. They saw the century-long dissolution of medieval society and the emergence of a new age. A dialectical movement was begun that other social contract theorists were later to develop. The compact that established the State was the product of members’ free will. Society’s members were supposed to cede their claims to individual sovereignty voluntarily. However, as Hobbes was careful to point out, their contract was a hypothetical construct, not an historical event. In what sense, then, was the members’ contractual will truly “free”? The State, a creature of its members’ free volition, was at the same time the very enforcer of the voluntary, rational character of the contract. It was the State itself therefore that, by means of “its” rules and institutions, led the “subjects” toward their “free” appreciation of its own rationality. A “rational” State – a State built according to the principles of natural philosophy – was the best evidence for the rational necessity of its existence.

From the Constitution of Subjects to the Contract to the “Penitentiary Invention”

How were such subjects “constructed” so that they could come to appreciate the rationality of their Great Father? The conceptualization of the State could not be separated from the conceptualization of its constituents, the subjects (Tinland 1985). During the late Middle Ages and the Renaissance, a number of conditions brought about an enhanced experience and notion of the individual. The rise of capitalism, the emergence of absolutist political regimes, and the Reformation were all answers to what Machiavelli’s and Hobbes’s contemporaries perceived as lawlessness and anarchy. The newly emerging order of these three historical movements centered on the transformation of pre-Durkheimian “anomic” individuals into legal subjects, bearers of rights and obligations, protected and enforced by a legal order promulgated by the State (Burckhardt 1860: 81–103; Costa 1974; Orrù 1987). Together with the State, the individual too became an a priori starting point for social analysis (as Dewey was to observe much later, there is more than a passing relationship between the idea of the legal subject and that of the knowing ego with which Descartes had inaugurated the course of modern philosophy about a century before Hobbes’s Leviathan; Dewey 1927: 88).

A precisely delimited, measurable property and its rational, civil proprietor constituted the decent Utopia about which society’s members had to be enlightened. The social compact, by virtue of which a civil state was to be created, came to be a veritable myth of the modern age and an operating assumption of the political and intellectual leaderships of the eighteenth century. The cultivation of rationality in society, and the establishment of a legal order with social institutions geared to this end, were one and the same thing. Because the State rested on the willed consent of rational, proprietary individuals, a society of such persons became the objective of the State itself.

Although “private” institutions could perform the same functions as “public” institutions (Althusser 1970; see below), this happened not so much because the former were also controlled by the State as because both “public” and “private” institutions were established on the same basic rationalist premises. The invention of a whole array of social machines geared toward the rationalization of people and things – such as Bentham’s Panopticon (made famous for a wider and later audience by Michel Foucault (1975)) – was not necessarily a product of the action of public authorities. The early Dutch workhouses, as well as Bentham’s treasured invention, were initially conceived as private, profit-making institutions. They were devised for propertyless men and women deemed unworthy and unable to be a party to the social contract because they were lazy, self-indulgent, and criminal. As historical studies on such institutions have shown (Melossi and Pavarini 1977), they were intended to transform the members of the “dangerous classes” into fully rational subjects who would at least understand themselves as owners of their own labor, able to dispose of it in the form of a labor contract. The State was also seen as the beneficiary of such institutions, insofar as a “reformed” individual was able to enter the civil state and leave his or her own private state of nature. Public powers became involved as the agents of rationality, in other words, because rationality was the raison d’être of the State – a line of thinking that was later developed especially by the greatest German philosopher, Georg W. F. Hegel (1821). For those who could lift themselves up to comprehend the rational character of the State, the legal order represented the enactment of the natural laws of the state of nature that protected and developed the basic rights of life, liberty, and property.

Both in the practice and in the theory of emerging bourgeois societies, the concept of social contract therefore underwent a bizarre inversion. The “State” that supposedly was constituted by the power of a contract among its subjects – subjects who could express such power by virtue of their “rationality” – set for itself, as its fundamental task, the molding of its own subjects, i.e. furnishing them with the “rationality” that would undoubtedly help them appreciate the rationality of the State. What kind of “rationality” was here at stake, however? It meant predictable behavior based on work and ascetic virtues, the habit of a methodical life, discipline measured by the “artificial” time of the clock, regulated during everyday life experience by expectations concerning the individual’s moral life – expectations famously investigated by authors as different as Max Weber (1904–5) and Michel Foucault (1975, 1976a, 1978). In other words, the human type that was supposed to be the author of the social contract and that found himself increasingly at the source of power – the adult white male European proprietor, preferably Protestant – was to be expanded and “exported” to larger and larger sections of the population. The twin processes of rationalization and democratization that took place in the following centuries were therefore also, at the same time, processes of “colonization,” by this particular form of rationality, of those “lifeworlds,” alternative rationalities, social areas, classes, cultures, and whole countries that were still “outside” the colonized area (Habermas 1981a: 318–73).

To speak of “imperialism” in this respect is more than a metaphor. In the same way in which capitalism has been feeding itself on a continuous expansion toward “subsistence economies” that had previously escaped it – an ongoing process under our very eyes – similarly the “ethic of capitalism” was to be expanded toward new peoples to conquer, be such new peoples “domestic” to core areas (youth, women, peasants, marginal proletarian strata) or “outsiders.” These outsiders belonged to societies and cultures at first, in the nineteenth century, colonized, and then, after the twentieth-century decolonization movement, subject “only” to economic expansion (a process that coincided with the transition of global hegemony from the “old” European powers to the United States). The social contract – on its way to becoming what we now call “democracy” – was increasingly capturing and incorporating newer and newer strata of populations who were uprooted from a “natural” way of life to be magnanimously and benevolently included into a “superior” way of life – a process supported of course by the power of military penetration in case those people were unable to see the great good fortune that was offered to them. What is often today expressed through the rhetoric of “social exclusion” was therefore, first and foremost, “social inclusion,” whether by choice or by force – very similar to the way in which, at the dawn of modernity, both “deserving” and “undeserving” poor would be institutionalized in basically the same “workhouses,” but the former as a form of relief and reward for their willingness to be included, and the latter as a form of punishment for their unwillingness to be included.

A “family” of social institutions conceived from the sixteenth century onward played a crucial role in this overall process of “subjectivation” – an institutional genus that we could characterize as “the penitentiary invention” (Foucault 1975; Melossi and Pavarini 1977; Ignatieff 1978; Garland 1985, 1990). “Invention” is not a misnomer, because until then the prison had essentially been an instrument of confinement to other ends, not to the end of punishment itself. A place of detention was of course necessary for those waiting for trial or for a punishment already meted out and which the condemned would have certainly rather escaped, like a corporal punishment, or the pillory, or capital punishment itself. It was only under modernity that the prison became the site of a definite form of punishment: the punishment of detention for a pre-established amount of time. This was a modality of punishment that had already appeared in the Middle Ages but only for the religious personnel of European monasteries (Treiber and Steinert 1980). Here too, however, with the Reformation, the experience of the few was to become the experience of the many, and punishment was to be laicized:

Luther, we grant, overcame the bondage of piety by replacing it by the bondage of conviction. He shattered faith in authority because he restored the authority of faith. He turned priests into laymen because he turned laymen into priests. He freed man from outer religiosity because he made religiosity the inner man. He freed the body from chains because he enchained the heart. (Marx 1844b: 182)

Between the second half of the sixteenth century and the first half of the seventeenth century, the ecclesiastical pattern inspired by penance, consisting in isolation in a cell for a pre-determined period of time, met with the more recent “invention” of the “manufacture,” the proto-factory, in a world that was deeply renewed by the social transformation driven by the Reformation. Indeed, it was in the areas where a proto-capitalist development met the experience of Protestant Reformation that we find those kinds of proto-prisons or ur-prisons, the workhouses or houses of correction or, in England, bridewells. They went from London to Hamburg to the other cities of the Hanseatic League in Northern Germany, from Geneva to probably the most famous and paradigmatic case, that of the Rasphuis in Amsterdam (the most famous partly thanks to the studies by Thorsten Sellin (1944), who reconstructed that historical experience on the basis of the work of the Dutch historian A. Hallema (1936, 1958)). All such experiences were later to feed the institutions of the English colonies in North America – especially in William Penn’s “holy experiment” in the new Quaker State of Pennsylvania (see below, chapter 4). Later on, they spread also to Catholic countries, such as France and Italy (the first and most interesting example in Italy being the House of Correction of Milan under the enlightened kingdom of the Austrian Maria Teresa, inaugurated in the same year when Cesare Beccaria published, in Leghorn, On Crimes and Punishments). From the start, this new kind of institution was reserved to those who were guilty of behavior that expressed “social insubordination,” such as vagrancy, mendicancy, and the refusal to work on conditions imposed by a legislation that, in times of scarcity of labor power, was trying to compel the newcomers from the countryside to adapt to the new discipline of cities and manufactures.

The “revisionist” literature of the 1970s expressed two main orientations toward such topics. The first one followed in the tracks of the classic work by Georg Rusche and Otto Kirchheimer, Punishment and Social Structure (1939), focusing on the relationship between punishment and the labor market. The second orientation was the one that can be found in Foucault (1975) and in Melossi and Pavarini (1977) concerning the relationship between punishment and “discipline.” In Punishment and Social Structure, Rusche and Kirchheimer had in fact established a relationship between the “value” of labor power – as determined by the labor market – and the function of punishment. They claimed that when the demand for labor is high and labor power is a scarce resource, the value of labor tends to increase and the function of punishment accordingly moves toward “keeping,” “integrating,” or “reintegrating” labor power, trying to coerce labor into offering its services on given conditions. On the contrary, when the labor market sees a surplus of labor offer, the value of labor tends to decrease, the fungibility of labor becomes even higher than usual, and therefore there is no reason to try and “spare” labor power. In this instance, the orientation of the main punitive institutions will tend to be “Malthusian” – that is, contemptuous of the value of human life and labor – and the only limit to the dissipation of labor power will be constituted by the historically given but changing threshold of “decency” in the treatment of prisoners and, more generally, of convicted persons (since Rusche and Kirchheimer’s analysis applies not only to the punishment of detention but also to other forms of punishment).

So, for instance, in the late Middle Ages, when there was plenty of labor power available, a very repressive legislation developed and there was a generous use of corporal and capital punishments, whereas in the previous period, in the early medieval epoch, the scarcity of labor power had found expression in a broad use of pecuniary punishments, es...

Table of contents

• Cover
• Title page
• Copyright page
• Preface
• Introduction
• Part I: State, Social Order, and “the Criminal Question” in Modern Europe
• Part II: Democracy, Social Control, and Deviance in America
• Part III: The “Crisis Decades”: “State,” Social Control, and Deviance Today
• References
• Index