by Keally McBride. Ann Arbor: The University of Michigan Press, 2007. 208pp. Cloth. $55.00. ISBN: 9780472099825. Paper. $19.95. ISBN: 9780472069828.
Reviewed by Samuel T. Morison, Office of the Pardon Attorney, U.S. Department of Justice. E-mail: stm5 [at] georgetown.edu.
The vast literature discussing the justification of punishment has been written, by a fairly substantial margin, from the perspective of moral philosophy. In one sense, of course, this is perfectly understandable. The practice of punishment is without doubt fraught with moral dilemmas, because it involves deliberately treating people in ways that ordinarily would be thought to violate their fundamental rights. For this reason, the rationale for locking someone in a cage, taking away his property, or perhaps even killing him is obviously a matter of urgent ethical concern.
As a result, there is widespread agreement that in order to be morally acceptable, the state’s treatment of an offender must satisfy certain stringent constraints, including that only those properly found guilty should be punished and that the severity of the sanction imposed should not exceed a loosely-defined limit of “fit” with the seriousness of the offense. The literature then tends to become mired in an increasingly sterile debate about the relative priority between our deontological and consequentialist intuitions, with partisans on each side pointing out the relative theoretical shortcomings of the other, as if the only relevant question was how to bring about a morally desirable state of affairs.
What often gets overlooked in these debates is an explicit consideration of the political context in which punishment takes place. It might be a good thing, to be sure, perhaps even emotionally satisfying, when a criminal gets what he arguably deserves for his misconduct. Nevertheless, it is hardly obvious that the state is the proper institution for expressing that virtue, at least when it would serve no useful social purpose or is otherwise objectionable as a matter of political morality. From the perspective of the liberal tradition anyway, one might reasonably conclude that a person committed an illegal act, for which he is morally blameworthy to boot, and yet deny that it is the legitimate business of a secular state to punish him for it, particularly for the avowed purpose of maintaining a sort of cosmic balance sheet between inner wickedness and punitive suffering. As our recent attempts to export Western-style democracy to the last remaining bastions of theocracy ought vividly to remind us, legal punishment should never be confused with divine retribution. A complete justification of punishment, then, must not only give an account of the conditions under which it is morally permissible, but also why it is legitimate to pursue such goals through the mechanism of state coercion. [*58]
Keally McBride’s PUNISHMENT AND POLITICAL ORDER is a thoughtful contribution to this wider normative project. The standard social scientific approach to the practice of punishment, she begins, typically views it as a straightforward “expression of and a tool for consolidating power” and reinforcing “racial and economic inequalities” (p.3). Without denying the validity of this perspective, McBride correctly points out that no government, even the most dictatorial, can in the long run govern exclusively through brute force. This is true for the simple reason that the actual exercise of political power is continuously dependent on the willingness of substantial numbers of people to comply with the dictates of the regime, including amongst others “the hand that holds the key, the judge that shuffles the papers and the person who chooses whether or not to file charges” (p.79).
Power alone thus cannot be the exclusive source of the obligation of obedience, contra Hobbes, since that power itself is the product of widespread allegiance to the state. As such, punishment is never merely an instrument for threatening collective violence as a mechanism of social control. Instead, it is also the simultaneous expression of “the ideals inherent in a political order” (p.15), some greater good that justifies the exercise of coercive authority over the lives and property of the citizenry as something other than an arbitrary exercise, “whether that be service to God, impartial courts, the light of reason, or the necessity of power” (p.10). The officials who administer the system of punishment must therefore “demonstrate that they deserve their unique privileges because they serve the larger interest of justice. As soon as punishment is entirely about the power of command[,] it . . . will quickly destroy the tenuous connection between power and justice cultivated by all regimes” (p.150). Indeed, if punishment were simply an expression of brute force, McBride rightly observes, “it would not have spawned the intricate legal codes and machinery for assistance” through which it is implemented (p.75).
From this perspective, then, the practice of punishment involves an intricate balancing act, pursuant to which the state attempts to fill the normative gap between an animating ideal of social order, which “offers the possibility that human beings can construct an earthly system that redeems our existence” (p.11), and the disorderly reality of the human condition. It is in this space, according to McBride, “where the ideals of a polity come to be dramatically situated in close proximity with the realities of governance” (p.10). In the liberal tradition, for example, the even-handed and judicious enforcement of the law through punishment plays a crucial role in instantiating the intangible ideal of the rule of law (pp.7-8), as well as giving practical existence to “abstractions such as morals, rights, duties and sovereignty” (p.121). McBride thus argues that punishment is central, rather than peripheral, to liberal ideology, since in this view the state punishes precisely in order to establish “the two core elements of a liberal regime: its emphasis upon the rights of individuals and the bounds upon state power” (p.122).
At the same time, of course, the perfect realization of justice is invariably beyond the reach of human institutions. Consequently, the practice of punishment also “invites examination of whether the exercise of state power is [*59] actually bounded by its declared ideals” (p.5). A regime thus stakes its legitimacy on the extent to which its penal practices are perceived by the public to conform to its ostensible ideals. Where theory and practice persistently conflict, the resulting cognitive dissonance tends to undermine the stability of the legal system and, in extreme cases, provokes active resistance. Indeed, McBride openly worries that when secular states, in the wake of the Enlightenment, began to punish “in their own name, not that of God,” they undertook a paradoxical and perhaps impossible project, namely to “redeem human suffering . . . in the name of worldly ideals.” “Secular states must be able to punish in their own name,” she writes, “but this fact is nonetheless the Achilles’ heel of any regime. Punishment provides the foundations of political order, but they are invariably Manichaean” (p.11).
On this somber note, McBride proceeds to explore the dynamic relationship between political idealism and the actual practice of punishment in the course of seven chapters devoted to an ambitious range of topics in the history of political thought: the utopian and dystopian theorizing of Thomas More and Franz Kafka; a comparative study of suffering and redemption in THE BOOK OF JOB and Hobbes’s LEVIATHAN; the development of modern conceptions of sovereignty; the role that punishment theory played in the early American Republic’s struggle to free itself from the influence of the British colonial empire; the place of punishment in the classical liberal political theories of John Locke and Jeremy Bentham; the relationship between liberal democracy and the use of prison labor; and, finally, a case study of the prisoner abuse scandals at Abu Ghraib and Guantanamo Bay.
I cannot in this space explore each of these topics in the detail they deserve, but McBride’s treatment is always interesting and engaging, and would be appropriate material for any course in law and society or the intellectual history of criminological theory. I was especially struck by the chapter on the early American movement for penal reform, which was largely inspired by the vision of the great Enlightenment figure Cesare Beccaria. McBride shows that Beccaria’s work was widely read by the founding generation, which convinced “the new legislators in the United States,” who had “experienced the [English] penal system as a clear affront to their ability to self-legislate,” that overly harsh laws are in fact “the source of criminality” (p.91).
There is a certain irony in the fact that during this formative era of the American Republic, the patriotic impulse that motivated the rejection of foreign law was intended to ameliorate the cruelty of the penological practices inherited from England. Yet, the most ardent contemporary proponents of American exceptionalism on the U.S. Supreme Court, who categorically reject the validity of consulting international human rights norms to assess the appropriateness of domestic penal practices, such as the death penalty for juveniles, do so under the banner of fidelity to a jurisprudence of originalism. Thus, in his dissent in ROPER v. SIMMONS, Justice Scalia argues that the correct point of reference for the interpretation of the Eighth Amendment is the Anglo-American common law as it existed in the seventeenth and eighteenth centuries, citing as authorities William Blackstone and Matthew Hale. But if [*60] the point of the interpretive exercise is to remain faithful to the understanding of the founding generation in this country, as Justice Scalia insists, then McBride’s analysis suggests that perhaps he has misread the historical moment.
McBride does, occasionally, strike a false note. She flatly asserts, for example, that the severity of our current punishment practices “reveal[s] how completely democratic idealism has disappeared” in the United States (p.102), that the prevailing neoliberal economic ideology entails “that a significant portion of our population, in particular black men, be sacrificed” to incarceration (p.145), that the prison abuse scandal in Iraq “has led to an unraveling of U.S. political power in the world” (p.153), and that “degradation and torture” have become “normalized” and “routine” within the domestic prison system (p.162). I do not mean to suggest that none of these claims has a degree of truth. The Abu Ghraib imbroglio, to be sure, was by all accounts both a moral and a public relations disaster, there seems to be a growing consensus that minority groups have been disproportionately affected by current sentencing policies, and so forth. Be that as it may, the foregoing assertions are hardly self-evident, at least in the sweeping form in which McBride states them, and would require much more support than appears in the text to be convincing. For this reason, I found these sorts of remarks to be a distraction from the overall flow of the argument.
Finally, I want briefly to take issue with one of McBride’s key methodological assumptions. The principal theme that runs throughout the text, as we have seen, is the dynamic relationship between the state’s punishment practices and its professed political ideals, such as maintaining the equal moral status of each citizen. For McBride’s purposes, however, the legitimacy of the system is completely dependent upon the perception of those subject to state action. She thus contends that “[t]here is no empirical distinction between the exercise of tyranny and the administration of punishment; it is entirely a matter of perception. . . . Once an instance of punishment is perceived as an expression of the state’s power, rather than the criminality of the person being punished, a fundamental shift has occurred. Punishment has ceased being an unquestioned and given activity and become an opportunity to judge the state’s exercise of its given authority” (pp.10, 148).
This use of the concept of legitimacy is strictly sociological, however. While it might tell us something about what the members of a polity actually believe about punishment, this gives us little insight into what social practices are likely to be rationally justified in terms of our considered normative ideals. After all, although McBride is frankly skeptical about the validity of our current penal practices, she acknowledges that most Americans “perceive them to be acceptable,” which she attributes largely to the baleful influence of “the racialized nature of mass incarceration” (p.124). In any event, she admits that there is no necessary causal relationship between unjust social practices and political instability or unrest (p.147).
A normative theory of legitimacy, on the other hand, should aspire to give us some critical leverage in assessing the proper limits of state action, in particular an account of why certain policies are unjustified given our concern for equal citizenship, as opposed to what people [*61] are contingently prepared to accept, which may be based on mistaken empirical conclusions or distorted value judgments. McBride herself alludes to the correct standard, I think, when she suggests that prevailing sentencing laws and conditions of confinement must be justified as a reasonable exercise of coercion from the perspective of those who are incarcerated. “How many prisoners in the United States today,” she wonders, “believe the laws are a manifestation of the social contract of which they are a part?” (p.102).
According to this account of political legitimacy, which under the influence of John Rawls has dominated contemporary political thought, the principles of justice are those that would be rationally acceptable to each person qua citizen, on the assumption, among other things, that each of us might easily find ourselves on the wrong side of the criminal law. The goal of such an inquiry, as Corey Brettschneider (2007) has recently argued, “is not to legitimize only those punishments that criminals would actually accept but rather to assess which punishments a criminal might reasonably accept were she motivated to find universal agreement about how to balance her interests with the interests of others” (emphasis added). In this way, the contractual paradigm functions as a heuristic device to sift out the principles of social organization that would be reasonable for anyone to accept, without presupposing the privileged status of any preexisting social or economic class, and still less any controversial religious or philosophical doctrine. The resulting principles of “public reason” define the necessary conditions on the legitimate use of force that a regime must satisfy if its legislative and judicial edicts are entitled to a prima facie duty of obedience by those who disagree with them.
If this is the right philosophical approach, it goes at least part of the way toward answering McBride’s concern about the ability of the secular state to administer justice. A sound normative theory of legitimacy – one which eschews any appeal to contentious transcendent beliefs – gives us a practical standard to hold up against the world as it actually exists. While this is by no means a guarantee that we will faithfully live up to our best ideals, it may, as Rawls (2001) remarks, “calm our frustration and rage against our society and its history” by giving us hope that the construction of a more just and humane penal system is a realistic possibility.
Brettschneider, Corey. 2007. “The Rights of the Guilty: Punishment and Political Legitimacy.” 35 POLITICAL THEORY 175-199.
Rawls, John. 2001. JUSTICE AS FAIRNESS: A RESTATEMENT. Cambridge, Massachusetts: Harvard University Press.
ROPER v. SIMMONS, 543 U.S. 551 (2005).
© Copyright 2008 by the author, Samuel T. Morison. The views expressed in this review are the personal opinions of the author and do not represent the official position of the U.S. Department of Justice.