Cite as: Deflem, Mathieu. 2012. Review of Law as Punishment/Law as Regulation, edited by Austin Sarat, Lawrence Douglas, & Martha Merrill Umphrey. Law & Politics Book Review 22(8):416-418.
This edited volume is published in the Amherst Series in Law, Jurisprudence, and Social Thought, likewise edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, all three from Amherst College. Now published by Stanford Law Books (after the series had been published for some time by the University of Michigan Press), this series aims to offer interdisciplinary perspectives to questions relating to the social and cultural turbulence brought about since the beginning of the new millennium in the once presumably less contested arena of law. The present volume is situated around the central theme of classification by law, that is, the manner in which legal categories classify behavior and prepare the way for certain procedures of punishment and the contours of other outcomes. The book focuses on the physical control of people and considers the dual conception of this control by law as a tool of regulation as well as of coercion. How punishment and law overlap and relate is the question at the heart of the essays here collected.
The essays in this book were originally presented in a series of seminars at Amherst College. Besides an introductory chapter by the editors, the book contains five chapters. The editors offer a perspective that argues for the increasingly blurred nature of the distinction between regulation and punishment. It will cause no surprise to the informed reader that this blurred understanding is conceived theoretically on the basis of the work of Michel Foucault. Although discussed by the editors in terms of Foucault’s disciplinary power, it is actually his notion of governmentality that offers the clearest idea of a new form of power whereby the subject is implicated, not excluded, and whereby regulation of behavior and punishment almost inextricably intertwine.
The five scholars writing substantive essays in this book take up this central question of legal regulation and punishment in different, yet complementary ways. Let me briefly review each chapter. In his chapter on the regulatory aspects of punishment, Markus Dubber questions the usual differentiation of legal regulation and legal punishment in terms of the distinction between law and police. Specifically, Dubber questions the distinction between private law and public regulation and the related understanding of law for this distinction would underestimate how privatization and collectivicization may co-exist. In fact, law and police necessarily go hand in hand and enable one another. Dubber goes on to discuss this problem in ancient Greek political thought and suggests a gradual evolution whereby law comes to be applied at an individual [*417] level, while police power pertains to the management of collectivities.
In his chapter on rights and Rousseau, Corey Brettschneider begins with the familiar notion that authority implies both rights to use power and coercion and certain limitations imposed thereupon. Interestingly, Brettschneider argues that Rousseau’s notion of the social contract can be relied on to suggest that punishment not merely be legitimate in terms of the authority of the state but also should be able to rely on the consent of the individual on whom it is enforced. In this sense, the equality of punishment (applied to all who violate the law) is complemented by the freedom of each to whom it might be applied.
Alec Ewald’s chapter entitled “Collateral Consequences and the Perils of Categorical Ambiguity” addresses some of the important consequences of punishment in the light of the mass-incarceration that presently marks the United States. There are at least three such extended programs of punishment at the federal level pertaining to the right to serve on a jury, the right to own a firearm, and the right to serve in the military. Additional consequences can involve restrictions on the right to vote or to receive public housing. Ewald argues how problematic it is to categorize these collateral consequences as either regulation or punishment. For instance, legal citizens have different rights and obligations in terms of having to be informed of whatever the collateral consequences are based on their specific legal standing. In reality, these practices represent an exclusion of citizens from full citizenship.
On the basis of the Richard Price novel Clockers, Susanna Lee in turn argues for the blurring of the distinction between regulation and punishment, suggesting that legal obedience or effective regulation precludes the need for punishment, when obviously infractions of laws are followed, in principle, by an imposition of a punishment. Based on a reading of the Clockers novel, Lee concludes that regulation always carries within it the threat and, at times, the reality of punishment.
In the final chapter of this volume, Paul Butler argues that regulation can already be punitive in and by itself (before any infraction) as it is experienced on the part of the subjects to whom it is applied. Butler relies on the example of the stop-and-frisk police practices that can occur on the basis of the authority granted in Terry v. Ohio (1968) wherein the U.S. Supreme Court gave police officers the right to search a person when there is probable cause of a crime. By definition, such a stop-and-frisk procedure is legally not a form of punishment, although it is also the case, Butler suspects, that the practice will be experienced as punitive on the part of those who have to endure it. Even more so, the practice can be experienced as tortuous as it is applied to the body.
Reviewing this volume, I need not, for once, make the all too often used remark that the contributions in this book are uneven in quality. Instead, I find it more outstanding and, in fact, not all too intellectually stimulating that the chapters in this book are very much alike, especially with respect to the argument, repeated time and again throughout the book, that the separation between regulation and punishment is blurred. As such, these essays read [*418] almost like a collection of student answers to a teacher’s request to make arguments in favor of a stated position. I would have preferred more variation in perspectives, possibly even the inclusion of some dissenting opinions.
For it is indeed possible to take issue with some of the statements defended in this volume. Most distinctly, I note that the book continually uses the words punishment and regulation as distinct concepts only to then argue that the lines between the two are blurred. The argument can be made logically only if a careful distinction is made (pun very much intended) between conceptual differentiation and empirical variability of separation. Specifically, the book’s authors and editors do not fully recognize, it appears to me, the distinction between conceiving of regulation as punishment or the reverse, on the one hand, and the observation that regulation and punishment are empirically more and more interconnected, on the other.
With this cautious note in mind, I find that the chapters by Ewald and Butler have somewhat more food for thought to offer because they develop their theoretical arguments in relation to concrete realities of law and punishment. Even essays on new ways of thinking about law can benefit from some measure of empirically oriented social science.
Terry v. Ohio 392 U.S. 1 (1968).