Punishment and Political Order :

Keally McBride

• Publisher: University of Michigan Press
• Year: 2007
• eBook ISBN: 9780472901135
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

Most of us think of punishment as an ugly display of power. But punishment also tells us something about the ideals and aspirations of a people and their government. How a state punishes reveals whether or not it is confident in its own legitimacy and sovereignty. Punishment and Political Order examines the questions raised by the state's exercise of punitive power—from what it is about human psychology that desires sanction and order to how the state can administer pain while calling for justice. Keally McBride's book demonstrates punishment's place at the core of political administration and the stated ideals of the polity.

CHAPTER 1

The Whip of Utopia

On Punishment and Political Vision

He who will not listen must feel.

—German proverb

Utopias and dystopias amplify the powerful ambiguity of all political philosophy as thinking that nonetheless tries to accomplish change. They are fictional accounts that are deliberately ahistorical and present dreams or nightmares—not manifestos that demand action. As Judith Shklar notes, “It is a vision not of the probable but of the ‘not-impossible.’ “We tend to dismiss Utopian visions as fantastic or idealistic to a fault: a proposal that is labeled “utopian” is not destined for realization. Paradoxically, the limitations of Utopias as blueprints provide their political salience. Utopias present a viewpoint unmarred by history or necessity; in contrast to Utopia “all historical actuality is here brought to judgment . . . and found wanting.”¹ The power of Utopian writing springs from the careful presentation of contrast: contrast between the culture being presented and the reader's and/or writer's own, and between idealism and practicality. Dystopias also bring a shock of recognition through comparison. Here is a distasteful vision. What elements of this picture can be found in your own world?

In this chapter, I look at two pieces of writing from remarkably different ages and orientations that fulfill the political function of Utopias and dystopias: Sir Thomas More's Utopia and Franz Kafka's “In the Penal Colony.” The parallels between the two pieces are striking, even though the tone of each work could not be more different. Travelers cross cultural and political boundaries and present their wisdom to an audience. The message of each is sufficiently ambiguous and uncomfortable to propel a shift in perception on the part of their readers. Both texts frame their message by focusing on practices of punishment. Here I will explain how this thematic focus is closely related to the overall purpose of both texts to shift the political consciousness of their audience. Punishment allows More and Kafka to mobilize their readers: how will you respond to this exercise of power? What practices of state power do you accept as given, and why? Furthermore, examining practices of punishment displays how a regime itself negotiates between the demands of rule and the pursuit of justice. Both Utopian thought and punishment serve as a catalyst: they offer the pointed opportunity for reflection and critique. How do we judge the exercise of power in relation to its larger ideals, and how are we to respond, given this newly found awareness?

More and Kafka both drive home the message that political orders are contingent upon the proclivities, not only of their rulers, but also of the population at large. An outside perspective stirs our consciousness; we evaluate the strange world being presented, but then, ideally, we turn these trained eyes onto our own systems and start to consider what an outsider would say. Punishment as the central theme in both of these texts helps to intensify this process of political reeducation in a number of ways.

First of all, it brings the incomplete nature of political regimes into sharp focus. The basic task of political order is to create harmony out of what is a volatile and varied population. For this reason, the unruly aspects of human existence are rarely glimpsed in tracts of political philosophy and most works of political science today. Political philosophy is often engaged in composing systems that neutralize or eliminate human imperfections; recent political science strives for empiricism and predictive capabilities, hence the out of the ordinary is “controlled” or registered in “standard deviations.” Nonetheless, anything involving human beings strays from the ideal-type. Political orders invariably contain ideals that are imperfectly realized: therefore a clash between ideal and empirical is bound to occur. Even if our theories and models do not acknowledge this chasm, political regimes must find some way of dealing with the troubling propensity of human beings to nonconformity. This gap between human behavior and political ideals is occupied by state punishment. The nagging reality that accompanies the impulse to political idealism is the mortality and bodily existence of human beings. The body that desires, bleeds, kills, and dies is the inescapable ground of human life: it administers and requires punishment to bring it into line with the promise of order. Punishment is where the ideal of perfect administration collides with our moral and material weakness. It is one thing to have an ideal, another thing altogether to realize it. Emphasizing this difficulty allows both More and Kafka to deny their readers the simple denigration of the real in favor of the ideal; instead they are forced to reckon with the need to balance both aspects in a regime.

Second, punishment not only points toward the unrealized promise of political order; it also provokes the question, What efforts to realize an ideal are appropriate? More and Kafka both present punishment as an expression of a regime's ideals, not just its brute powers. From the perspective of an outsider as provided by More and Kafka, we reconsider accepted forms of punishment and are forced to judge which practices are truly appropriate in the name of realizing ideals. As Corey Robin points out in Fear: The History of a Political Idea, the horrors of the twentieth century have led us to regard idealism with suspicion. Totalitarian regimes are commonly blamed upon “ideas that cast death... as a way, the way, of life.”² George Kateb describes a similar dynamic in his essay “The Adequacy of the Canon,” arguing that what he terms the “hyperactive imagination” is culpable for the mass atrocities of the twentieth century. He describes the hyperactive imagination as “the rabid capacity to make the present absent, to imagine a different reality, to have designs on that reality.”³ What characterizes this imaginative capacity is the ability to see a vision of what can be to the complete exclusion of what is, combined with the drive to turn that vision into reality. While Kateb's examples are extreme, which is appropriate to his task of explaining the catastrophes of our times, this dynamic is present in the more mundane acts of state punishment, as both More and Kafka make clear. Most people would regard killing, maiming, or depriving personal freedom in the name of an ideal with considerable suspicion. Yet this is precisely what states do when they punish. Clearly individual rights are subordinated to some ideals today, no matter how fervently we think we distrust this sort of activity.

But Robin's observation about the ideologically wary population of the early twenty-first century prods me to argue that the other option—relinquishing any ideal at all—is just as tragic. If idealism leads to egregious actions, it is tempting to conclude that it is simply a dangerous element in politics. Should we do no more than embrace order for the mere sake of order? I don't think so. Clearly the correct balance must be a dedication to ideals that is not myopic, and a willingness to envision alternatives while acknowledging material preconditions and limitations, which ultimately is the message presented by Utopia and “In the Penal Colony.”⁴

Both texts are deliberately disorienting, helping us to see that the question of how to relate political ideals and a given population cannot be definitively resolved; rather, it is the negotiation between the two that composes political citizenship. In these texts, and in our lives, punishment provides a clear forum for the negotiation between rights and pragmatism and the cultivation of legitimacy and stability for a political regime. By making these points through the presentation of punishment, both More and Kafka bring an urgency to our ability to grasp these dilemmas of political thought. In punishment, the ethereal debates about theory and practice contained in virtually all tracts of political philosophy fall to the ground in a most spectacular fashion; questions of principle and right become ones of life and flesh.

Punishment in Utopia

In a letter, Erasmus reported that Sir Thomas More had initially written only the second book of Utopia that described the practices and society of the Utopians but then later wrote the first “because it was needed.” So rather than being a straightforward account of a fictive society, there are two different worlds represented in Utopia, and it is in the juxtaposition of the two that the book's central themes and brilliance are achieved.

Sir Thomas More's Utopia begins by setting the stage of Raphael Hythloday's detailed account of the political and social order of Utopia. Thomas More is in Flanders during a journey for the business of state, when his friend Peter Giles introduces him to Raphael Hythloday, who has traveled the world and combines the wisdom of a philosopher and the scientism of an explorer. The second book is the traveler's account of Utopia; the first book is a dialogue between Giles, More, and Hythloday that frames the story of the second.

The themes of the first book are complex, but two important elements emerge from the seemingly secondary introduction. The first is that Hythloday is established as a reliable source, unsullied by service to any of the powers that be, in marked contrast to More himself who is in Flanders serving the Crown. This is one of the most central problems for anyone interested in political reform: only those subject to a political order would be motivated to reform it, but they lack the perspective to know what the alternatives are. The purpose of Utopian works is to insert the outside perspective into a given political context, thus achieving a destabilization of perception. Greatly impressed by Hythloday's acute observations and knowledge of different political orders, the narrator, More, wonders, “why do you not enter into the service of some king . . . this learning of yours and your knowledge of peoples and places would not only serve to delight him but would also make you fit to inform him.”⁵ Hythloday recoils at the suggestion saying he would not want to be enslaved by any king. A king's ear is deaf to all but the counsel he seeks, and Hythloday would prefer to be pursuing the truth than currying favor.

When Peter Giles first introduces Hythloday to More, he tells him he is a voyager “like Plato,” immediately linking his geographical wisdom with the same remove as the philosopher. Plato wanted philosophers to rule, because they would ensure the persistent impact and enlightened judgment of the outside perspective. Quentin Skinner has discussed this dynamic in More's Utopia and termed it the problem of counsel. Hythloday uses this interchange as an example of his unwillingness to compromise, and how this truthfulness would be poorly received by rulers. The struggle over counsel and politics is also autobiographical: Skinner reports that More had agreed to go into the service of Henry VIII immediately before writing the book.⁶ Though Hythloday insists that he is not to be corrupted by service to actual powers, the text of Utopia suggests otherwise. Hythloday's indignant protestations can be read as signaling that the suggestions that follow are uncorrupted by proximity to power. After his cantankerous pronouncement regarding the state's creation of thieves, Hythloday's powerful listeners do entertain alternative notions of punishment. And while the first book of Utopia insists that princes spurn wise counselors and vice versa, the second book plainly offers Hythloday's services by recounting his story. Hythloday's perspective as an outsider makes him bring reformatory ideas to English penal practices, but it also establishes to the reader the necessity of seeing one's order from the outside. More points out the paradox that guides his Utopian project: only the wisdom of outsiders can provoke this kind of self-reflection and the potential for reform.

The content of this debate over the relationship between wisdom and ruling is punishment. As an example of the myopic wisdom of rulers, Hythloday recounts a conversation with the Archbishop of Canterbury and one of the king's counselors about the practice of hanging thieves. The counselor lauded the rigorous application of the principles of justice: “They were executed everywhere, he said, sometimes as many as twenty at a time hanging on one gallows, and he remarked that he was all the more amazed that the country was cursed to have so many of them prowling about everywhere, since so few escaped punishment.”⁷

Hythloday disagrees with this assessment and offers an enlarged view of the problem of thievery including the shortage of land (his famous sheep-eat-men observation), the learned incompetence of the middlemen who administer the feudal orders, the markets for beef and wool, the desire for luxurious living, and the presence of gambling houses that leave many in desperate ruin. The bodies that litter the state's gallows could not be pulled down quickly enough to make room for more under such circumstances.

Certainly unless you remedy these evils, it is pointless for you to boast of the justice administered in the punishment of thieves, a justice which is specious rather than either just or expedient. In fact when you bring people up with the worst sort of education and allow their morals to be corrupted little by little from their earliest years, and then punish them at last as grown men when they commit the crimes which from childhood they have given every prospect of committing, what else are you doing, I ask you, but making them into thieves and then punishing them for it?⁸

The crime has nothing whatsoever to do with the punishment but instead results from social organization.

More scholar George Logan has observed that the debate about punishment aptly establishes the primary themes of Utopia⁹ In commenting that the practice of hanging thieves is neither just nor expedient, Hythloday introduces the central question of Utopia, and indeed virtually all political thought, by asking how best to reconcile the needs of practicality and justice. Hanging thieves, since it fails to prevent thievery and is a betrayal of the principle of proportionality in punishment, fits neither criterion. While it is tempting to assume that More is building the ideal with little attention to the practical, in actuality Utopia offers a more nuanced message on this problematic, which becomes clear when contrasting the penal practices of little value in England with the penal practices of Utopia.

To introduce a Utopian vision by discussing punishment seems counterintuitive to say the least, so we expect to encounter a rapid shift from the critique implied in the first book to a more idyllic political vision in the second. But the unsavory elements of More's discussion persist even in the second book of Utopia, when we have presumably moved from the corrupted European order to the Utopian one. Hythloday has commented that inequalities of wealth and property create crime, along with an undue love of luxury. Utopia has eliminated wealth, luxury, and property yet still has to conduct punishments. If Hythloday's prognosis in the first book were to hold true, in such a perfectly engineered society there would be no need for punishment. Nevertheless, we find slavery in Utopia. Rather than killing criminals, Utopians enslave them, and they perform many of the menial tasks upon which their society is absolutely dependent. Prisoners wear differently colored clothing for quick recognition and must devote their lives in public service to amend for the harms caused to the community by their crimes.

There are three classes of slaves: those who were condemned to death in other countries and sent to Utopia where they can instead labor their days away; the poor of other countries who presumably come to Utopia and request to be their slaves since such an existence is better than the life offered to them in their own countries; and finally the Utopians who have committed crimes. “Utopian slaves, however, they treat more harshly since they consider them baser and deserving of more severe punishment because they had an extraordinary education and the best moral training, yet still could not be restrained from moral wrongdoing.”¹⁰

Hythloday points out with apparent delight the practicality of this system of punishment: all benefit from their labor when none would profit from their execution. The public slaves also serve as a counter-monument. He compares the criminals in chains to the statues of local heroes: they both serve as an incentive for citizens to become virtuous. If slaves can prove that “they regret the sin more than the punishment” the sentence can be ended, commuted by the rulers or by popular vote.¹¹ This comment reveals an understanding of the complexities of state punishment. This penitence is no simple task to discern or to produce. For virtually everyone who is punished is quite sorry indeed that they have been caught, but very few become truly remorseful of their crime.

One paradox of punishment is that the pain is supposed to encourage reform and recognition of personal duty. On the contrary, those being punished are more likely to blame those administering the pain for their misfortunes. Acceptance of personal responsibility for the crime would require that the person being punished give more legitimacy to the law and its executioners than to their personal choices or comfort. Hythloday's account of punishment in Utopia quickly discards these subtleties. If the slaves refuse to labor and are disruptive “they are finally slaughtered like wild beasts.” So much for the inherent worth of man and the promise of just social order whereby individuals combine together, sometimes giving up their individual gain for collective good.

The international order of Utopia is no less troubling. The Utopians are a peace-loving people, so they hire mercenaries to fight their wars so as not to stain their own population with wanton bloodletting. As self-proclaimed peaceniks, we might assume they fight only in self-defense, but they invade other countries who may have insulted their friends, countries who treat their citizens badly (and who might be happier as slaves in Utopia), or countries that might threaten their interests. Ultimately, Utopia sounds imperialistic. Shlomo Avineri has commented upon these unappealing aspects of Utopia, concluding, “Utopian thinking never really maintains that the given human nature is perfect; on the contrary, it has to be purged and cleansed from its intrinsic evil.”¹² In Avineri's view, Utopia is created as “perfect” by its ruthless excision of anything that is less than perfect—wars are fought on other turf and by soldiers from other countries, slaves become the repository of the population's moral failings—their public display asserts the relative morality of everyone else. The problem with Avineri's reading is that it replicates the simplistic understanding of crime and punishment that Hythloday explicitly rejects in the first book of Utopia. More does not think you can eliminate thievery by killing thieves; instead you must look into the inherent causes of criminality. In Hythloday's view, Utopia does all it can to prevent criminality through the eradication of property and wealth and by creating the best possible system of education. Nonetheless, More remarks to Hythloday, “For everything will not be done well until all men are good, and I do not expect to see that for quite a few years yet.”¹³ The only available strategy is to balance the needs of practicality and justice and to create the best possible arrangements for cultivating virtue and achieving stability. The social organization dispenses with all the requirements of justice; those people that persist in falling outside the utopic order can be punished i...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction Strange Brew—Punishment and Political Ideals
• CHAPTER 1. The Whip of Utopia On Punishment and Political Vision
• CHAPTER 2.” Man's Life Is but a Prison” Human Reason, Secular Political Order, and the Punishments of God
• CHAPTER 3. Earthly Divinity Punishment and the Requirements of Sovereignty
• CHAPTER 4. Severing the Sanguinary Empire Punishment and Early American Democratic Idealism
• CHAPTER 5. Punishment in Liberal Regimes
• CHAPTER 6. Hitched to the Post Prison Labor, Choice, and Citizenship
• CHAPTER 7. Punishment and the Spiral of Disorder
• Notes
• References
• Index