Democracy Part XXV: Law as Command or Surveillance as Law in an Era of of the Mass Production of Political Organization

 

(From Wayne Drehs, Not My Coach, Not My Town, Not Anymore, ESPN: The Year in Sports, Dec. 26, 2011; photo Phil Toledano)

A century from now schoolchildren will be taught that at the turn of the 21st century, the fundamental operation of the state, and along with it, the character of law, changed in a most dramatic way that marked the triumph of both the totalitarian and democratic ideals in state organization and in the relationship between the individual and the political community.  The democratic ideal triumphed int he form of popular participation in governance to an unprecedented degree.  Ironically, mass democracy carried with it the great marker of the repressive totalitarian states of the 20th century which had appeared to have been squashed in the great anti-fascist wars of the mid twentieth century and the victory of the democratic West over the Soviet Empire of the late twentieth century.   That marker--an ever present watchfulness, once vilified by Western elites during the great propaganda campaigns against the Soviets, has now become the centerpiece of the way in which populations are managed in democratic states.

At the beginning of the 21st century, states, like other governance organizations, turned increasingly away from command to management and from law to surveillance.    I have suggested the contours of this movement in other areas of governance.  See, Larry Catá Backer, Surveillance and Control: Privatizing and Nationalizing Corporate Monitoring after Sarbanes-Oxley (August 25, 2010), Law Review of Michigan State University, 2004 (full text here); and Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007 (full text here). See also, Larry Catá Backer,  The University and the Panopticon: Naturalizing "New" Governance Forms for Behavior Control Beyond Law, Law at the End of the Day, Sept. 17, 2010; and The Panopticon in Space: Holland and the Domestic Spy Eye in the Sky, Ibid., April 29, 2008. Almost a generation ago, Michel Foucault began to outline the parameters of slow, centuries long movements from law and command states to the more diffused managerialism of contemporary power arrangements.  See, e.g., Michel Foucault, Discipline and Punish:  The Birth of the Prison (Alan Sheridan, trans., 1979); Foucault, Michel, Security, Territory, Population, Lectures at the Collège de France 1977-1978 (Graham Burchell, trans. New York: Picador Palgrove Macmillan, 2007) esp. e.g., pp. 87-110; 115-120. Cf., e.g., Bart Simon, "The Return of Panopticism: Supervision, Subjection and the New Surveillance," Surveillance and Society 3(1):1-20 (2005); David Lyon The Electronic Eye: The Rise of Surveillance Society (Minneapolis: University of Minnesota Press, 1994): 57-80.

(From THE STORY OF 2011: ESPN The Magazine’s Year in Sports Issue on Newsstands Friday, ESPN MediaZone,Dec. 2011)

But all of this has usually been dismissed as the prattle of ivory tower residents whose vocabularies far exceeded their common sense.  Yet it is ironic that those at the vanguard of such critics were also the leading forces for the creation of the very systems they argued did not exist.  There is no better illustration of this than in the context of the recent sexual scandals that emerged from American universities, and principally Penn State, where a former member of the football coaching staff, Jerry Sandusky, was accused of engaging in inappropriate sexual conduct--not with university aged student athletes--but which children harvested from a charitable organization with which he was involved and then brought onto the university campus.   The influential popular magazine of the ESPN network recently well illustrated not only the change in technique but also its wide acceptance among the masses as the principal means through which people now ought to be managed. See Wayne Drehs, Not My Coach, Not My Town, Not Anymore, ESPN: The Year in Sports, Dec. 26, 2011, pp. 42-47.

Mr. Drehs nicely  posited the problem and its solution in quintessentially 21st century terms and without the pedantry (or precision) of academic discourse:  He starts with the clearly sad tale of a family having to deflower their young sons, at least figuratively.  The sex scandals involving coaches has forced parents to confront issues of sex and sexual abuse. That which was once taboo must now be broached. These discussions are characterized by the sense of a loss of innocence (Ibid, p. 44)--the breach of a core social perception of the knowledge base of children and the boundaries of decent conversation between parents and their offspring.   Drehs suggests that discomfort of this sort is easier to deny than confront.

 Every day that passes, the urgency of what allegedly happened at Penn State and Syracuse undoubtedly lessens.  It's human nature:  The more distant an uncomfortable situation becomes, the less we want to talk about it.  So parents, coaches and administrators will do what comes naturally--exercise denial.  Not my coach.  Not my kid.  Not my town.  Yet one can't help wondering:  What if they're wrong? (Ibid., p- 44).

Mr. Diehs then incarnates the problem through the use of statistical analysis and anecdotal stories from highly accomplished people.  "According to the Centers for Disease Control and Prevention, an estimated 1 in 4 girls and 1 in 6 boys are sexually abused before their 18th birthday.  That's potentially five girls on every 20-member soccer squad, two boys on every 12-player basketball team."  (Ibid.).  This incarnation does not implicate law and legal norms as traditionally understood.  For most of the modern era the law has commanded punishment for sexual violation of minors as those terms are understood from age to age.  Instead, this incarnation of the problem provides an opportunity for experts seeking to use it for the purpose of effectuating change in the way in which communities are managed--not law as command, but watchfulness as management.  These experts

see this as a pivotal pointing the history of our nation's sports culture--the Anita Hill moment, something that can spark a systematic change in how we protect young athletes from such horrors.  In a way, they're trying to capitalize on these tragedies to strengthen their pleas for action beyond improved  background checks or a handout on mandatory reporting requirements. . . . They want parents involved.  Families, coaches and administrators who are constantly watching and are trained to react, not turn away.  And government-supported standards and certifications for our nation's coaches.  They want to empower each of us to be able to act. (Ibid., p. 45).    

For right thinking people, the consequence should be a willingness to operate "under a microscope."  (Ibid., p. 46). 

 

(From We are Watching You, The Horse's Mouth, Nov. 9, 2009))

Mr. Drehs provides a glimpse at the new order of things--the avoidance of touch, the creation of taboos about meeting without witnesses.  "The goal is an atmosphere in which sexual predators can't succeed.  It takes a village--the institutions to make rules, the parents and other coaches to genuinely embrace them, and the teammates to feel powerful enough to speak ip when they see something that isn't right.  And everything has to be transparent."  (ibid., p- 47).  Michel Foucault could not have said it better when describing the totalizing forces shaping modern governance.  Law has become transformed to normative standards that are effectuated through the disciplines of life--from the reificaiton of issues through scientific study, to the development of panoptic systems for their enforcement, to the objective of managing conduct under a totalizing vigilance in which we are all drafted as agents of state power, or rather, where state power is manifested through the army of its citizens in their everyday activities.  Traditional law, and the traditional state, along with the distinctions between public and private, legal and social, collapse within this new framework of governance.   

 

(From Social Norms, Office of Prevention Programs, Broward County Florida Public Schools)

And what of the instrumentalities of the state within this totalizing approach to management of behaviors?   Mr. Drehs suggests that the Canadians, apparently are leading the way toward these new modalities of control.  (Ibid., 47).

In the end, the answers seem obvious.  Parents watching coaches.  Coaches watching each other.  More training.  More transparency.  A more, well, Canadian approach.  Perhaps that explains why U.S. Senator Barbara Mikulski (D-Md) has invited Kennedy  [Sheldon Kennedy, former NHLer abused by his coach and founder of Respect in Sport] to testify at a Senate hearing--the first federal hearing about the Penn State ansd ASyracuse scandals since they broke.  It will explore options for preventing, intervening, and deterring child abuse, and Respect in Sport will surely be on the agenda. 'You can't be naive enough to think this isn't going to happen again,' Kennedy says.  'But if it does, you need disclosure.  You need action.  You need to give people the tools to stop it.  A tragedy like Penn State can be a great platform for change.  But you have to embrace that change.'?  (Ibid., 47).

Indeed, the scandals provide a moment from where a change, fundamental in quality, has already begun to occur.  This is not merely a matter of a precise response to violations of strong social sexual taboos.  It is a marker of the methodologies for responding to such violations.  In the past, political societieas spoke in terms of command; social norms were left to the private sphere--as effective as that sphere might or might not have been I leave for others.  The profound change is that the social sphere, and its methodologies have now moved to occupy a more central role in the operation fo the state and in the construction of the relationship between state and individual.  We distinguish less between the state and the community, and between law and management.  We understand law as legality--as managerial tools rather thna as command.  We invoke disciplines--the tasks of ordinary life, as the central stage for the invocation of governance power, exercised not merely by individuals volitionally but by the state in its command capacity.  What Mr. Drehs sees so clearly in the totalizing campaigns against child predators one can see applied inn equal measure to all other sorts of social problems.  It seems to each of us will, in the future, serve increasingly as the agents of the state and of a politicized communal power, in the management of individual behaviors deemed obnoxious to those who can mobilize enough of the masses to effect control of the machinery of state (and society). This is a trend that will affect not merely states, but all sorts of governance organizations--from corporations to non-state actors seeking a governance role.

The evolving methodologies of law and governance will change things quite a bit. This is not necessarily a result that is good or bad, I leave that judgment to another day--it is however, inevitable.  What is important to remember is whether one likes it or not, it is a trend that will become more marked as we move more deeply into this century.