Ruminations 37: From Regimes of Law to Systems of Assessment, From the Outlaw to Deviant

(Pix (c) Larry Catá Backer)

 The sufficiency of law is not judged so much by its ability to effectively define activity as illicit and punish those who transgress, but by its success, through the process of declaration, to eradicate the conduct entirely. This represents something significantly more intrusive than mere behavior control.  This shift expresses the triumph of law as an instrument of the control of the internal dimensions of the individual.  IFor law is now meant to aid in the formation and control of thought and belief as well as the actions that underlie these. And quite ironically, as now recast, law now (re)emerged as the newest branch of the field of medicine (fore the rationalist/humanist) or theology (for the rest).




Recent scandals and media coverage of abuses, all in violation of law as expressly set out in statutes, regulations and judicial opinion, legal  provisions, have focused less on the punishment of the offender, and significantly more on the use of law as a tool in the prevention of criminal activity before it occurs.  

(From Marisol Bello and Greg Toppo, Penn State case presses others to tighten abuse laws, U.S.A. Today,  Nov. 16, 2011) (Pennsylvania Governor Corbett attending University Board of Trustees Meeting "in the wake of the massive shakeup prompted by a child sex abuse scandal" Ibid.) ("Lawmakers and university officials across the USA are moving quickly to tighten up rules on who must report sexual abuse on campus in the wake of the Penn State scandal. . . .  Pennsylvania Gov. Tom Corbett, a Republican, said Sunday that the assistant coach who in 2002 witnessed former Penn State assistant coach Jerry Sandusky allegedly abusing a child 'met the minimum obligation of reporting it up" to head coach Joe Paterno, but the assistant "did not, in my opinion, meet a moral obligation.'"))

The sufficiency of law is not judged so much by its ability to effectively discover criminal activity, detain the perpetrators and punish them in accordance with law, but instead by its success in eradicating the proscribed conduct and eliminating even the tendency of people to engage in such anti-social activities in the first place.  "'When something like this happens, it helps you see what the weaknesses are in your own laws," she says. "You do what you can because you hope it does not happen again.'" (From Marisol Bello and Greg Toppo, Penn State case presses others to tighten abuse laws, U.S.A. Today, Nov. 16, 2011, quoting  Maryland Republican state Sen. Nancy Jacobs)

 

  (From Crime Prevention Tips Literature, Strategic Response Bureau, Columbus Police)

This represents a significant turn in social expectations of law, one that is facilitated, to a large extent, by the availability of new technologies of behavior management, and a greater willingness of individuals to tolerate more intrusive actions by the agents of governance institutions. More specifically, this shift in the cultural expectations of communities, now expressed through the idiom of law, points to the end of law as command-and-compliance system and the emergence, now more fully articulated, of law as an idiom of the management on individual and collective thought.

Though this is expressed though the more banal language of behavior control, it represents something significantly more intrusive than mere behavior control.  This shift expresses the triumph of law as an instrument of the control of the internal dimensions of the individual.  It does not command the body (behavior) but instead is directed at the spirit (belief, attitudes). For law is now meant to aid in the formation and control of thought and belief as well as the actions that underlie these. And quite ironically, as now recast, law now (re)emerged as the newest branch of the field of medicine (fore the rationalist/humanist) or theology (for the rest).

(From John J. Brent, Illness or Deviance: A Contested Space Between Criminal Justice and Medicine

Sociology Lens, Nov. 10, 2011)

Let us consider the nature of the shift and its consequences for the use by government of law as an instrument of totalizing social control.

The traditional approach might be understood as substantially more limited in scope, at least in its application by the state.  The foundation of the traditional approach was a presumption of law as command.  The relationship of law, the state and the offender was direct--the state commanded through law, its agents enforced through the police power of the state, and the individuals were punished for infraction. The fundamental expectation was that law will be broken, the law breakers found and punished. No expectation of eliminating conduct. Law is said to fail when criminals are not caught and punished.  Transparency is focused on the functions of reporting. 

But the willingness to vest states, especially since the Russian Revolution, with a more totalizing power over behavior, appears to have changed the tolerance of societies for the role of the state and its expectations of the ends of law as the instrument of state power.  There is much in evidence an embrace of the idea that law is now not command but signal--a law as signal of social wrong. The command is directed toward the public government and social governance ­­­­­­­­­­­­­­­­apparatus to manage behavior so that condemned conduct does not occur. Societal expectation changes from the punishment of disobedience of law (an after-the-fact approach to law)  to a concentration on the elimination of the occurrence of the conduct identified in law (an anticipatory approach).  Law is said to fail when criminals are caught and the invocation of the judicial process for punishment is required.  The ideal is law with no law breakers. As a consequence the focus is not on command and punishment, but rather on behavior standards and assessment.

(Cover of The Minority Report, the 4th volume of PKD's collected stories; Philip K. Dick: Minority Report (Gollancz: London, 2002); contrast Lawrence W. Sherman, Denise Gottfredson, Doris MacKenzie, John Eck, Peter Reuter, and Shawn Bushway, Preventing Cr¡me, What Works, What Doesn't, What's Promising:  A Report to the United States Congress Prepared for the National Institute of Justice, 2002).

Method as Substance--the Role of Transparency (monitoring, Surveillance, and Reporting):

Transparency, understood as a cluster of assessment techniques, assumes a dual character. First the aggregate of the framework of assessment techniques serves as the structure of the standard of conduct. Second, the techniques themselves are constructed to “herd” behavior by the construction and illumination of the benchmark and the power to separate the deviant from the herd. Deviance, in turn, serves a social role that parallels that of the ancient understanding of the out-law; to be outside the law and its protections and thus to permit social actors to move or behave against the out-law (now the deviant) with fewer or no social/legal consequences.  And thus the invocation of moral as well as legal imperative in the construction of mandatory obligation of the "normal" against the "deviant" (in place of the citizen against the out-law).  And consequently, as well, the effort to regulate social space to reduce those dark corners of human activity that falls outside the gaze fo the community and its public instrumentalities.  Consider, for example, the naturalness of movement to inscribe social norms in law:

 The Centers for Disease Control and Prevention published detailed guidelines for preventing abuse in "youth-serving organizations," but advocates want implementation to be made mandatory — at least for organizations that receive federal funding.
The guidelines address employee and volunteer screening, inappropriate interaction between adults and kids, and how to respond to questionable behavior, allegations of suspicious behavior and breeches of policy, and ways that the organizations physical space should be set up to avoid blind spots where abuse could take place. (From  Kari Huus, When abusers are 'like us,' how can they be stopped?, Life on MSNBC.com, November 11, 2011)

 (From Louisiana Governor Takes Steps to Prevent Sexual Abuse and You Can Too, LaMotheLea Aertker LLC, Dec. 5, 2011 ("The more people who are legally responsible for reporting abuse, the more likely that a problem will not be allowed to continue to escalate. Louisiana law requires people in certain positions to report child abuse or neglect. Now, thanks to Governor Jindal’s order, university employees are also on that list. Failure to report could result in a fine of $500 and six months of jail time.").

 This, of course, is not to suggest a judgment of the trend.  Social movements of this type of irresistible.  Resistance is likely to be ground up under the relentless push of social forces that have been moving in this direction for decades.  Rather, it is important to understand the character and direction of these movements, and perhaps to reshape the foundations of our study of these very human responses to the needs of social order and its institutional frameworks.