Crime, Governance and Existential Predicaments

Crime, Governance and Existential Predicaments Edited by James Hardie-Bick and Ronnie Lippens Crime, Governance and E...

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Crime, Governance and Existential Predicaments Edited by

James Hardie-Bick and Ronnie Lippens

Crime, Governance and Existential Predicaments

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Crime, Governance and Existential Predicaments Edited by

James Hardie-Bick Keele University, UK

and

Ronnie Lippens Keele University, UK

Selection and editorial matter © James Hardie-Bick and Ronnie Lippens 2011 Individual chapters © their respective authors 2011 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6–10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identiﬁed as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2011 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978–0–230–28315–2 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Crime, governance and existential predicaments / edited by James Hardie-Bick, Ronnie Lippens. p. cm. Includes index. ISBN 978–0–230–28315–2 (hardback) 1. Criminology. 2. Existentialism. 3. Structuralism. I. Hardie-Bick, James. II. Lippens, Ronnie. HV6025.C716 2011 364.01—dc23 2011024172 10 9 8 7 6 5 4 3 2 1 20 19 18 17 16 15 14 13 12 11 Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne

Contents Contributors

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Introduction James Hardie-Bick and Ronnie Lippens

1

1

Goffman, Existentialism and Criminology James Hardie-Bick and Phil Hadfield

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Subjectivation as Problem and Project: Is there an Existentialist Motif in Foucault? Claudius Messner

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Vengeance and Furies: Existential Dilemmas in Penal Decision-Making Simon Green

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4

Total Institutions and the Last Human Freedom James Hardie-Bick

5

Existential Predicaments and Constabulary Ethics Danny O’Rourke-Dicarlo and James Sheptycki

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Heidegger, Restorative Justice and Desistance: A Phenomenological Perspective David Polizzi

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Crime, Harm and Responsibility Don Crewe

8

Mystical Sovereignty and the Emergence of Control Society Ronnie Lippens

Index

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85 108

129 156

175

194

v

Contributors Don Crewe Senior Lecturer in Criminology, Leeds Metropolitan University, UK. Simon Green Lecturer in Community Justice and Criminology, University of Hull, UK. Phil Hadfield Visiting Senior Research Fellow at the Centre for Criminal Justice Studies, University of Leeds, UK and Director of philhadfield.co.uk, a research consultancy specialising in the alcohol and drugs field. James Hardie-Bick Lecturer in Sociology, Keele University, UK. Ronnie Lippens Professor of Criminology, Keele University, UK. Claudius Messner Associate Professor of the Philosophy of Law, University of Salento, Italy. Danny O’Rourke-Dicarlo Lecturer in Social Science, York University, Canada. David Polizzi Assistant Professor of Corrections, Indiana State University, USA. James Sheptycki Professor of Criminology, York University, Canada.

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Introduction James Hardie-Bick and Ronnie Lippens

What is existentialism? That which characterises human existence, according to existentialists, is a certain openness, or indeed indeterminacy. Without this openness, without this indeterminacy, there would simply be no human existence. All that is deemed essence, in human existence, flows from this very openness, and carries, within it, the indeterminacy of its origins. Nothing in human existence will last forever. Human existence floats on indeterminacy. The present is future (i.e. the potential for the new) to a much greater extent than it is the determined result of a weighty past. Precious little, if anything, in human existence, is cast in stone. Human existence takes place and shape through transformation. That which is human is becoming. Existentialists such as Sartre (e.g. 1940, 1943, 1946, 1952) gave this process of the becoming of human existence a name: choice. Human existence comes about through choice. But that of course presupposes the existence of an entity that contemplates its existence, that decides, and that chooses how it will become. That entity is consciousness. Consciousness is, itself, empty. It is a void. It has no clear essence, and yet, it exists; it exists as a void, as a hole of indeterminacy in being. Precisely because it is a void, filled only with radical indeterminacy, it is the location of reflection. It is there, in the void, that the world is reflected, indeed, is reflected upon. If consciousness were no void, if it were filled with some substance or other, there would be no entity that had the capacity to reflect upon the world, to contemplate, to decide, and, ultimately, to make choices. In other words, there would be no entity that had the capacity to act. Since consciousness is, itself, void, it always and inevitably is consciousness of something. It manifests itself only if and when it reflects upon 1

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Introduction

something; or, to put it slightly differently, it manifests itself only if and when something is reflected upon, indeed is reflected within the void of consciousness. Consciousness is intentional. It resides at the heart of intentionally acting entities. Consciousness (the location of intentional action) is what makes human existence become. The typically human capacity to become, and to become ever anew, resides in the undetermined void of intentional consciousness. Certainly, much in human existence is a jumble of unintended consequences. But that is not the issue here. The issue is that unintended consequences are themselves the result of intentional action. They are the result of choice. Human existence is chosen existence. It is through choice that consciousness will negate that which is. Choice negates that which is. Granted, more often than not choice wilfully reproduces the status quo. But here again, that is not the issue. The issue is that, with each choice made, the potential for the transformation of that which is (so typical of human existence) gets to be mobilised. It is this very potential that underpins all human action, every single human choice. Without this potential for transformation, or negation, no human choice, no human action, no human becoming would ever be possible. Human existence is existence in radical freedom. ‘Freedom’ here means that in every possible instance of human existence, choice will be possible. However, now that choice will never be unlimited. Never. In every possible instance of human existence choice will inevitably be restricted: only a limited number of avenues or courses of action will have been contemplated, and deemed possible or desirable by consciousness. But (and this is the point) choice there will be. Always. And that choice will be made in utter, complete freedom. That choice will be made from within the hole of radical indeterminacy (nothingness, says Sartre) that dwells at the heart of human existence – that dwells at the heart of each and every human being’s existence. The future is never cast in stone. Never. Human existence can always choose to be otherwise. Always. However much accepted and indeed popular this fundamentally humanist existentialist insight might have been during the forwardlooking 1940s and 1950s, the ascent of structuralism during the 1960s, and of post-structuralism from the 1980s onwards, buried existentialism under what might be called an avalanche of a-humanistic theorising. The quite pervasive aura of a number of other, equally a-humanistic, sociological perspectives and models (systems theory, most conspicuously) contributed to the slow but gradual demise of existentialist thought. But that was then.


3

Existentialism is now slowly making a comeback (for an overview, see Crewe & Lippens 2009, pp. 1–11, in particular). The contingency and indeterminacy of our age – some still call it postmodernity – is probably not completely alien to this revival. By no means though is existentialist thought the only strand of intellectual effort that tries to get to grips with the fluid (see e.g. Bauman 2000) features of late, very late modernity. Complexity theory (or chaos theory, as it is often called) produced a body of literature – roughly between 1990 and 2005 – that focused to a very significant extent on the indeterminacy of the world, of life, and of human existence. One only needs to look at works such as Henry & Milovanovic’s classic Constitutive Criminology (1996) to appreciate the tremendous effort made by complexity theory-inspired criminologists, for example. And recent post-structuralist work that deploys Deleuzoguattarism in order to make sense of radical contingency (see e.g. Arrigo & Milovanovic 2009) is very much worth a closer look. But neither complexity theory nor Deleuzoguattarism tackle the issue of consciousness, of the void, of choice, of intentional action. Indeterminacy in human existence, according to this literature, is just … indeterminacy. It differs in no way from the indeterminacy that underpins Newton’s and other physical laws of nature. There is nothing specific about human existence. There is nothing worth noting about human consciousness. Human consciousness is no void. It is not where reflection takes place. It is a chimera, a mere illusory effect (still according to a-humanism) of the play of indeterminacy that underpins all transformation in all matter, indeed in all that is the matter. Becoming, in this perspective, is the mere mattering forth, if you wish, of the world. Existentialism however accepts (or assumes, depending on your point of view) that in human existence there is such a thing called consciousness, that it is a void, that it is contemplative and reflective, that it is intentional, that it has the capacity to imagine that which is not (or that which is not yet), that it is inevitably local and localised, and that it brings about the human world through choice. One of us, in this very collection, has tried to paint, with all too broad a brush stroke, some of the issues involved here (see Lippens, Chapter 8). Whether or not this humanist point of view really is what human existence actually, factually, is all about, or whether it is the a-humanists who have got their facts right, is a matter which we may not hope to be able to resolve – and certainly not here, in a single collection of essays. Suffice to state, however, that the existentialist focus on reflective contemplation and on intentional choice as the engine of human becoming has at least one practical benefit going for it: it provides us with a lever to influence the

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Introduction

extent and direction of human becoming. This lever, that is, consciousness, is one that existentialists argue we should use when change is due. In order for there to be change, we will have to work on consciousness first. That means we will have to work on reflective contemplation and on intentional choice. In human existence no change can come about without it having been contemplated and then chosen. Anyone involved in policy (e.g. in criminal policy, or regulation, or governance) or in any kind of activity and practice (e.g. criminal justice practice, restorative justice, and so on) could do worse than ponder that the problem of human becoming, and therefore of human transformation, is, first and foremost, a problem of choice, and not so much, if at all, a problem of pre-structured development or evolution. Let us be clear: human existence is not only a matter of choice. Hormones exist. Affection exists, as does love, or hatred. The visceral dimension of human existence is very real. Human existence is also biological, physical, mechanical existence. But (and here is the crux of the matter) it is not just mechanical, physical or biological existence. Ultimately its law (if law there must be) is one of radical freedom. This is the inescapable freedom to choose within restrictions, whether real or perceived. Yes, the level of hormones was skyrocketing. Yes, the biography was tragic. Yes, the affinities were tremendous. Yes, the visceral sentiment was unmistakable. Yes, all those restrictions were in place, pre-structuring the field as it were. But choice there was. Radical, free choice.

Existentialism, crime and governance The instances when or where criminologists (or, more broadly, specialists in governance studies) made efforts to explore or apply existentialist thought to aetiological questions such as criminal careers or desistance, or to problems of criminal justice, restorative justice, policy, community building, and so on, have been very few and very far between. Particularly the 1970s, 1980s and 1990s were short of, indeed lacking in, existentialist-inspired criminological reflection. Attempts to provide an overview of, as well as additions to this work were made in a few collections (see e.g. Crewe & Lippens 2009, already mentioned) and textbooks (e.g. Lippens 2009). That a criminal career is, first and foremost, a matter of choice, is for many criminologists still too unbearable an insight. That criminal justice, or restorative justice, community work, or regulation, and so on are equally matters of choice is perhaps a more accepted view among criminologists. But that doesn’t mean they have turned to the


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body of literature called ‘existentialism’ (the body of literature par excellence to deal with the issue of choice) for inspiration. Quite the opposite has been the case. Now it could very well have been that, by the early 1960s, academics (including criminologists) were quite simply tiring of existentialism, which, granted, had been dominating academia between, say, 1945 and 1960. Boredom, exhaustion, and ennui are human … all too human (to evoke Nietzsche). Also in academia there would have been many who felt that the time had come for something new. The aforementioned strands of thought and perspectives were there to oblige. Their a-humanism would have chimed, at least to some extent, with the sense of stability that came to characterise the more or less ‘systemic’ workings of the welfare state in Western democracies. But that stability has now gone. In its place came instability and sheer contingency. The attempt to get to grips with all this instability and contingency, with the help of a whole series of a-humanistic ‘post’ isms, and with complexity theory, only provided temporary relief. At the most basic level those isms tell us that contingency and indeterminacy are the very fundamental principles whence all existence flows, not just human existence. That may be so, but it offers little insight into the specific humanness of human existence. It doesn’t tell us much about how contingency and indeterminacy in human existence take a specific shape, that is, the shape, however elusive, of consciousness, of reflective contemplation, and of intentional choice. Anyone who is even remotely interested in how human beings become (and criminologists, as well as experts in regulation and governance really ought to be interested in that) could do worse than make consciousness, contemplation, and choice their foremost topic of study. With this collection of essays we hope to be able, on the one hand, to retrieve some of the existentialist insights into human existence (largely lost now), and, on the other, to contribute to a gathering momentum of renewed interest in the underpinnings of our existential age. Our focus will be on the existential dimension of, very broadly put, contemporary regulation, governance, and criminal justice practice. It has often been said that our age is one that witnesses considerable levels of de-traditionalisation and de-institutionalisation. Much of the systemic, patterned features of human existence is gradually fading away. Reflection, contemplation, decision and the necessity to choose are all now much more part of life than was the case previously, in a now bygone age. Some have called this age of ours ‘reflexive modernity’ (e.g. Beck, Giddens & Lash 1994) – somewhat erroneously perhaps as ‘reflective’ modernity might have been a more appropriate name. Reflective

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Introduction

action, sometimes reflective agony indeed, has become quite predominant. This is the agony that goes hand in hand with the necessity, real or perceived, to make decisions and choices, incessantly, unrelentingly. Political choices, policy choices, aesthetic choices, moral choices, pragmatic choices …: the well of choices that have to be mulled over, reflected upon, taken account of, and ultimately made from within unbearable and inescapable freedom (however paradoxical that may sound) has now truly burst to the surface. In an age, for example, when, as some have it, governance has turned utterly ‘nodal’ (e.g. Shearing & Wood 2003; Burris et al. 2005), nodal activity is boiling down to the reflective assemblage and re-assemblage of an ever-proliferating number of fragments of different ‘logics’, scripts, strategies, tactics, and improvisation. Such assemblages and re-assemblages carry within them the constant potential for invention and change. The process which underpins nodal activity is one that existentialists have analysed in another existential age. Call it indeterminacy. Call it freedom. Call it choice.

The contributions The first chapter in this collection considers both Sartre’s existentialism and Goffman’s dramaturgical model of social interaction, and draws out key synergies between their work. James Hardie-Bick and Phil Hadfield argue that despite important differences, there are parallels that can be identified. In particular, they suggest that both Goffman and Sartre maintain ‘that there is no essential character behind one’s acts’ and demonstrate how the self ‘is free to perform a variety of official and unofficial selves’. In this respect, they argue, Goffman shows more than just a familiarity with Sartre’s existentialism. The chapter provides an account of Sartre’s phenomenological ontology and considers examples of ‘bad faith’ to demonstrate similarities between descriptions of everyday life in both Sartre’s Being and Nothingness and Goffman’s The Presentation of Self in Everyday Life. Their chapter explains the importance of acknowledging Goffman’s intellectual affinities with Sartre’s existentialism and considers how Goffman’s concepts and themes have the potential to influence sociological studies into many areas of crime and incivility. In Chapter 2 the focus shifts from Goffman to the work of Foucault. In this chapter Claudius Messner is concerned with whether it is possible to find an existentialist motif in Foucault’s work. Although Foucault is well known to have distanced himself from Sartre’s philosophy, Messner argues that the young Foucault still found himself ‘captivated’


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by Merleau-Ponty’s phenomenology. Messner examines Sartre’s phenomenological ontology and discusses why Merleau-Ponty was critical of Sartre’s description of being. In particular, we learn how MerleauPonty criticised Sartre’s ‘radical dichotomy’ between the for-itself and the in-itself for failing to provide a satisfactory account of human existence. Messner explains Merleau-Ponty’s main objections to Sartre’s ontology, and by examining their differences in relation to consciousness, freedom and choice he also provides insightful overviews of both philosophical positions. However, despite their differences, for Foucault both philosophers were still seen to be representatives of the philosophy of experience. In their attempt to understand the significance of human experience-in-the-world, Foucault argues that the existentialists find themselves trapped by an ‘abstract humanism’ and ‘dogmatic anthropocentrism’. Messner considers Foucault’s main objections to the existentialists and examines why Foucault rejected Sartre’s philosophy of consciousness. In the light of such criticisms, Messner goes on to consider Foucault’s project in relation to philosophical archaeology, genealogy, power and subjectivity. Finally Messner turns his attention to Foucault’s later work by specifically concentrating on the problems of ‘governance’, ‘subjugation’ and ‘resistance’ and comments on how Foucault’s main focus of attention shifts from power to the subject. As Messner argues, far from being trivial, it is this shift that can be found in his later work that leads Foucault to reconceptualise his understanding of power. The existential dilemmas in penal decision-making are explored in Chapter 3. Simon Green argues that while existentialism may have been eclipsed by more recent theoretical stirrings, key existential questions around freedom, choice, conformity and anxiety remain pertinent. Green discusses insights that can be gained from studying The Oresteia, a trilogy of plays by the Greek playwright Aeschylus. He explores the shifting meanings associated with punishment and proceeds to examine the structural and cultural conditions that have redefined the boundaries between public and private responsibilities. He argues that these factors, together with the politics of neo-liberalism, are ‘conspiring to reintroduce the private individual back into penal decision-making’. Taking into account the emotional content of contemporary public discourses about crime and punishment together with the introduction of punishments that are designed to provoke an emotional response, he argues that an existential understanding of the penal process is now of crucial importance. Green addresses many of the theoretical similarities between existentialists and theorists of late-modernity. Although there

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Introduction

are many differences between the work of Jean-Paul Sartre and Anthony Giddens, for example, there are also significant similarities in relation to self-identity, choice and anxiety – all of which, Green argues, are particularly salient in late-modern society. The social, cultural and political forces at work in late-modern societies place a great deal of emphasis on individual freedoms and responsibilities and it is precisely here that existentialism can assist our understanding of how people experience the penal process. Existential philosophy is useful, Green argues, for drawing attention to some of the unresolved pressures and tensions in a penal decision-making process that attempts to accommodate both private concerns and collective priorities. In Chapter 4 James Hardie-Bick examines the intellectual currents that shifted attention away from existentialist philosophy and explores Sartre’s views on freedom in relation to the experiences of everyday life in total institutions. The chapter draws on empirical research on total institutions and examines the personal accounts of those who survived and reflected on their experiences of life within the German concentration camps of the Second World War. The main aim of the chapter is to consider Sartre’s notion of ‘ontological freedom’, the belief that, regardless of their circumstances, human beings are always free to stand back, assess and give meaning to their lives. Hardie-Bick argues that the empirical findings into how people behave and adapt in tightly monitored and closed environments can be seen to support Sartre’s theory of consciousness. Even the reflections of those who survived the most extreme and brutal living conditions often support Sartre’s views on freedom and choice. The chapter critically engages with Sartre’s philosophy and draws on Simone de Beauvoir’s distinction between ‘ontological’ and ‘moral’ freedom to develop and build upon Sartre’s ontology. Hardie-Bick suggests that research on how people survive in total institutions together with the personal accounts of those who have survived the most extreme and hostile living conditions hold important lessons for social scientists and highlight key aspects of Sartre’s existentialism. In Chapter 5 Danny O’Rourke-Dicarlo and James Sheptycki directly engage with the question of what existential philosophy can tell us about policing and suggest how existential concerns of authenticity, freedom and choice are especially relevant to the everyday strategies and practices of the constable. In particular, they argue that Sartre’s philosophy can highlight ‘some contradictory predicaments in contemporary policing’. Their chapter explores how a practicable understanding of ‘ethical action’ can be derived from Sartre’s philosophy and directly applied to the working life of the constable. Their discussion of ‘bad faith’ demonstrates


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the concept’s relevance for exploring the various dilemmas constables experience and the rationalisations that attempt to justify and excuse their (over)reactions to situations requiring intervention. Much of their discussion concentrates on Sartre’s philosophy in Being and Nothingness, but O’Rourke and Sheptycki also refer to Sartre’s concept of the ‘practicoinert’, a concept developed by Sartre in his later work Critique of Dialectical Reason. Their discussion explains why the ‘practico-inert’ is of great importance for illuminating the tensions of policing and further supports their argument concerning the relevance of existential philosophy for developing a Constabulary Ethic. Their discussion of a fatal tasering incident in Vancouver International Airport in 2007 highlights how police officers’ ‘bad faith’ can often result in ‘unnecessary and excessive’ force involving the ‘complete abdication of personal responsibility’. O’Rourke and Sheptycki show how Sartre’s existentialism offers an insightful way of thinking about engagement, responsibility, choice and action and explain why existentialist thought has the potential to uphold the values of human freedom and serve to create positive change. Chapter 6 is specifically concerned with Heidegger’s existentialphenomenology and focuses on how Heidegger’s philosophy of being can provide a phenomenological formulation of restorative justice and desistance. David Polizzi argues that placing the restorative process within the context of an existential-phenomenological formulation creates possibilities for understanding the ‘transformation of being-in-the-worldas-offender relative to the dictates of the they-self of the criminal justice system’. Polizzi explains concepts such as the ‘they-self’, ‘being with’ and ‘being in’ and explores how the ‘care structure’ represents Heidegger’s views on the ‘ontological character of being-in-the-world’. Polizzi’s discussion of The Autobiography of Malcolm X further demonstrates the relevance and applicability of Heidegger’s concepts. After providing a thorough overview of the phenomenology of social existence, Polizzi presents an historical account of restorative justice, explores the question of what actually is being restored and why such a question remains unanswered or incomplete. Polizzi argues that an alternative to both restorative justice and desistance can be provided from Heidegger’s existential-phenomenological perspective. This chapter offers an astute account of how both restorative justice and desistance can be seen from the ‘the vantage point’ of Heidegger’s existential phenomenology. In Chapter 7 Don Crewe addresses recent criminological debates concerning the concept of ‘crime’ and ‘social harm’ and the problematic nature of the criminological object. Proponents of the ‘social harm’ approach maintain that criminology should define its object in terms of

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Introduction

the social harm caused by problematic behaviour. Replacing the concept of ‘crime’ with that of ‘social harm’, it is argued, allows criminologists to focus their analysis on behaviour that causes a great deal of harm, regardless of the legality surrounding the problematic behaviour. Crewe’s chapter provides a critique of both models and maintains that both the ‘crime’ and ‘harm’ perspectives remain ‘guilty’ of some of the same flaws. Crewe suggests that engaging with the study of ethics via the work of existentialists may provide a useful way to overcome the limitations of both approaches and may well provide important answers ‘concerning the proper object of criminological study’. Yet Crewe remains unconvinced by traditional existentialist accounts that focus on freedom, responsibility and authenticity. Instead, he introduces the work of Emmanuel Levinas and argues that this can provide a radically different and more adequate ethic of freedom and responsibility. Crewe suggests that Levinas’ notion of ‘infinite responsibility’ provides criminologists with an alternative way of reconceiving the object of criminological study. In this respect Crewe is highlighting how Levinas’ work can be viewed as offering a powerful challenge to the entire criminological project. In the final chapter Ronnie Lippens reflects on late modern ‘control society’ as a particular form of life. The aim of his chapter is to explore the origins of control society, which, he argues, can be found in the immediate period after the Second World War. Of particular importance here is existentialism’s focus on ‘radical freedom and choice’, which is seen to be just as much part of control society as the idea of structured and rampant control. The question ‘How do forms of life emerge?’ is answered by examining both vitalism (via Spinoza, Bergson, Nietzsche and Deleuze and Guattari) and existentialism (especially the work of Sartre). The vitalist answer to this question focuses on how the momentum of life, ‘élan vital’, is unstoppable. It is an indivisible force that ‘bursts forth’ and is ‘pure movement’. Sartre’s existentialist answer focuses on how new forms of life emerge through radical choice and how human subjectivity is formed around spaces of nothingness. For Sartre, nothingness is at the heart of being and it is this gap, this nothingness, that makes people completely responsible for their actions. Lippens makes connections between vitalism and existentialism (especially between Bergson’s ‘gaps’ and Sartre’s ‘nothingness’) before examining the late modern desire and will to absolute sovereignty as a paradoxical form of life. He suggests that this form of life is paradoxical as ‘To be absolutely sovereign is to be (in) nothingness; it is to be void.’ The immediate consequence of this is that ‘All sovereign choice is absurd sovereign choice.’ His discussion focuses on why this form of life is ‘shot through with sheer agony’ and explains


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how the ‘ineradicable indeterminacy’ suggested by Sartre’s existentialism manages to capture and express this sense of late modern existential angst. All of the contributions in this collection directly engage with existentialist philosophy and collectively they offer a unique assessment of the impact that existentialist ideas continue to have on criminological scholarship. Some of the contributors have searched for affinities with existential ideas in the work of theorists who are not usually associated with existentialism. Others have critically engaged with existentialism, demonstrating the importance of understanding philosophers such as Heidegger, Sartre, Merleau-Ponty, and de Beauvoir and have drawn attention to neglected areas of their work. There are chapters that focus on recent criminological debates examining the nature of the criminological object, the existential dilemmas in penal decision-making and the existential predicaments involved in being a constable, while others have offered a more theoretical exploration in relation to a variety of existential themes such as freedom, choice, responsibility, transcendence and bad faith. All the contributors agree that existentialism has the potential to shed light on a range of substantive criminological areas, yet their assessment of a variety of philosophers and social theorists including Bergson, Levinas, Merleau-Ponty, Heidegger, Foucault, de Beauvoir, Goffman, Deleuze and Guattari, and, of course, Sartre, indicate key differences in the contributors’ appreciation of existentialist ideas. Our engagement with existentialism may surprise some readers. As we previously noted, in the 1960s and 1970s existentialism was attacked and discredited. The existentialist conception of human subjectivity was considered to be naïve, and humanist ideas, especially the humanism of Sartre’s philosophy, were undermined. Social theorists such as Althusser and Foucault paraded on the new academic catwalks and existentialist concerns of freedom, choice and responsibility were increasingly seen to be passé. But thankfully not all academics follow intellectual fashions. Not everyone accepted the structuralist and post-structuralist accounts of human subjectivity. Despite the attacks against existentialism, a number of sociologists, anthropologists, philosophers, psychologists, psychotherapists and criminologists have continued to recognise the significance of existentialism for their own disciplines. The specific relevance of the existentialist orientation for criminologists was addressed, for example, in the aforementioned collection on Existentialist Criminology. The collection at hand can be seen to build directly on this work, further encouraging critical engagement with existentialist ideas.

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Introduction

The chapters in this collection engage with important aspects of existential thought, highlighting the value of ideas that until recently were considered to be out of date and insignificant for understanding the complex nature of our global-risk society. As this collection demonstrates, many of the central concerns of existentialism are remarkably similar to the concerns of social theorists who focus on de-traditionalisation and individualisation and on the increasing amount of choices and possibilities that people have to manage on an everyday basis. This literature refers to how people must now precariously negotiate a range of possible options concerning their increasingly flexible life course. They must invent their own ‘do-it-yourself’ or ‘reflexive’ biographies (see Beck 1998; Beck and Beck-Gernsheim 1996) rather than rely on traditional norms and expectations. People have to increasingly depend on themselves to discover their own path for a more rewarding life by reflexively constructing their own ‘tightrope biographies’ that produce high levels of anxiety and insecurity (also see Giddens 1991, 1994; Bauman 2000, 2001). There are clear similarities here with the concerns of existentialism. Indeed, many of the puzzling questions that Beck and Beck-Gernsheim argue are now ‘spinning around in people’s heads’ (1996: 29) are existential questions. When considering debates concerning the increasing amount of demands that individuals have to manage and assess it is important not to lose sight of the fact that freedom, choice, responsibility and anxiety are all core existential themes that have been addressed by creative thinkers including Socrates, Kierkegaard, Nietzsche, Jaspers, Heidegger, Dostoyevsky, Ortega y Gasset, Kafka, Sartre, Camus, de Beauvoir and Yalom, among others. The connections, similarities, differences and continuities should be recognised and acknowledged. It is clear that the collection here only addresses a small fraction of existential ideas that could be relevant for examining the existential predicaments and choices that underpin current debates and developments in the governance of crime and criminal justice. While we acknowledge this, we also feel that the essays in this volume make an important contribution to current debates and hope this collection will encourage readers to study the existential themes addressed in more detail. Those who decide to explore the vast literature on existentialism will soon learn that there is a great deal of diversity among those usually labelled as existentialists, and it is interesting to note that many persistently rejected the label. Even Sartre claimed not to know what the word existentialism meant, before applying the label to his own work and using it for his own purposes (Cooper 1999). Not only is there a great deal of diversity among those labelled as existentialists, such as Sartre, Camus, Heidegger,


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Marcel and Kierkegaard, there are also important modifications – some quite fundamental – that can be found in their own philosophy. Sartre is a good example of a philosopher who changed his mind about many philosophical and political issues during the course of his life. This is, of course, as it should be. As Nietzsche argued, it is important to think against oneself, to challenge your most deeply held ideas, to evolve and change. Yet although there are differences between Being and Nothingness and his later work Critique of Dialectical Reason (see Anderson 1993), there are continuities. Most importantly, despite Sartre’s interest in combining existentialism with Marxism and his aim in the Critique of Dialectical Reason to ‘place man in society’ (see Gerassi 2009), Sartre never lost sight of the individual and the freedom and responsibility that are part of human existence. Existentialism had a significant impact on the twentieth century philosophical landscape and some would argue that this is precisely where existentialism belongs. We disagree. To think of existentialism as a philosophical relic from the past is based on a misunderstanding. As Robert C. Solomon argues, ‘existentialism is not a dead doctrine to be bottled and labelled. It is a living attitude that is yet defining and creating itself’ (1989: 244). Unlike Jaspers, Camus and Heidegger, Solomon is one of the few philosophers associated with existentialism who accepted the label. We share his enthusiasm and believe the essays in this collection offer existentialist insights that will encourage readers to think about, reflect upon and explore a range of existential issues. We hope this collection will further criminologists’ acknowledgement and understanding of existentialist thought, as well as their appreciation of the relevance existentialism has for enhancing a critical and philosophically inspired criminological imagination.

References T. C. Anderson (1993) Sartre’s Two Ethics: From Authenticity to Integral Humanity (Chicago: Open Court). B. Arrigo & D. Milovanovic (2009) Revolution in Penology (Lanham: Rowman & Littlefield). Z. Bauman (2000) Liquid Modernity (Cambridge: Polity Press). Z. Bauman (2001) The Individualized Society (Oxford: Polity Press). U. Beck, A. Giddens and S. Lash (1994) Reflexive Modernization (Cambridge: Polity Press). U. Beck and E. Beck-Gernsheim (1996) ‘Individualization and “Precarious Freedoms”: Perspectives and Controversies of a Subject-Orientated Sociology’, in P. Heelas, S. Lash and P. Morris (eds) Detraditionalization: Critical Reflections on Authority and Identity (Oxford: Blackwell).

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Introduction

U. Beck (1998) Risk Society: Towards a New Modernity (London: Sage). S. Burris, P. Drahos and C. Shearing (2005), ‘Nodal Governance’, Australian Journal of Legal Philosophy, 30: 30–58. D. Cooper (1999) Existentialism: A Reconstruction 2nd ed. (Oxford: Blackwell Publishing). D. Crewe and R. Lippens (eds) (2009) Existentialist Criminology (London: Routledge). J. Gerassi (2009) Talking with Sartre: Conversations and Debates (New Haven: Yale University Press). A. Giddens (1991) Modernity and Self-Identity (Cambridge: Polity). A. Giddens (1994) ‘Living in a Post-Traditional Society’, in U. Beck, A. Giddens and S. Lash (eds) Reflexive Modernization: Politics, Tradition and Aesthetics in the Modern Social Order (Cambridge: Polity). S. Henry & D. Milovanovic (1996) Constitutive Criminology (London: Sage). R. Lippens (2009) Studying Criminology (London: Sage). J.-P. Sartre (1946) ‘L’Existentialisme est un Humanisme’, Lecture. Available from http://www.danielmartin.eu/Textes/Existentialisme.htm. J.-P. Sartre (1963) [1952] Saint Genet: Actor and Martyr (New York: George Braziller). J.-P. Sartre (1983) [1939–40] Les Carnets de la Drôle de Guerre (Paris: Gallimard). J.-P. Sartre (2003) [1943] Being and Nothingness (London: Routledge). C. Shearing and J. Wood (2003) Nodal Governance, Democracy, and the New ‘Denizens’, Journal of Law and Society, 30: 400–19. R. C. Solomon (1989) From Hegel to Existentialism (Oxford: Oxford University Press).

1 Goffman, Existentialism and Criminology James Hardie-Bick and Phil Hadfield

Introduction This chapter considers how the work of Goffman can be understood in terms of its affinity with certain tenets of existentialist thought, notably in the work of Sartre. Sartre’s descriptions of ‘Bad Faith’ speak of personal identity as being constructed through forms of performativity that have certain parallels with Goffman’s dramaturgical model of social interaction. On the other hand, Goffman departs from the existentialists in offering an account of the ways in which social interactions are patterned or structured, as constituents of a social order that is constructed through ritualised exchanges. Goffman applied this approach to his studies of breakdowns in the ritual order; occasions in which failure to respect informal codes and social expectations often overlap with legally defined categories of crime, anti-social activity, and mental illness. In Criminology, subsequent scholarship influenced by his work has considered how key concepts such as ‘face-work’ and key themes such as ‘bystander intervention’ remain central to our understanding of the micro-level choreography of crime events and people’s responses to them. At the same time, a resurgence of interest in the emotionality and identity-work involved in criminal risk-taking has raised the profile of both Goffman’s canon and that of the existentialists, while tending to overlook connections and departures between both bodies of work. This chapter will begin by examining Sartre’s phenomenological ontology and go on to look more specifically at his perspectives on choice, responsibility and living in ‘bad faith’. These cornerstones of Sartre’s existentialist philosophy are then compared with interactionist accounts of the ‘performing self’ as found in the sociology of Goffman. The chapter then considers Goffman’s enduring influence on sociological studies of 15

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Goffman and Existentialism

crime, incivility and official reactions to such behaviours. In particular, impression management and the negotiation of challenges to the presentation of self are considered in relation to the social choreography of courtroom trials and violent street crime. The penultimate section explores notions of transcendence wherein legal voluntary risk-taking and criminal action become imbued with positive social meaning within a general context of constrained and routinised experience in contemporary Western societies. In concluding, the chapter draws out key synergies between the work of Sartre and that of Goffman. The authors posit that in failing to acknowledge intellectual affinities with Sartre, subsequent social studies of crime and deviance influenced by Goffman’s canon may have overlooked important normative questions concerning societal reactions to crime and deviance implicit in the writings of Goffman himself.

Existential interactions The intellectual influences on the philosophy of Jean-Paul Sartre and the sociology of Erving Goffman would appear to be worlds apart. The influence of Hegel, Heidegger and Husserl enabled Sartre to develop a philosophical approach to human freedom and responsibility in an essentially meaningless world. Whereas Sartre developed an existential phenomenology, Goffman’s ultimate concern was with the ‘interaction order’ and he is well known for his remarkably detailed and imaginative descriptions of face-to-face encounters. Taking into account the impact that sociologists such as Emile Durkheim, Everett Hughes and Georg Simmel had on Goffman’s project, the different academic approaches and intentions of both Sartre and Goffman is hardly surprising. Yet despite working in very different traditions, there are parallels that can be drawn from their work. As Lofland (1980) recognised, in certain respects Goffman’s work can be read as an existentialist sociology. Goffman’s claim that ‘doing is being’ (1961b: 77) and Sartre’s claim that ‘Man is nothing more than which he makes of himself’ suggest that ‘the qualities imputed to persons are the result of action’ rather than being determined by some ‘inner’ qualities that reside in the individual and determine who one is (Lofland 1980: 46). Sartre and Goffman both maintain that there is no essential inner character behind one’s acts. Sartre’s ontology rests on the notion that existence precedes essence, and Goffman’s dramaturgical approach vividly captures how the individual is free to perform, project and manage a variety of official and unofficial selves. As Goffman stated, there are passages in Being and Nothingness that are pure ethnology (see Cohen-Solal 1987: 277) and in The Presentation of Self in Everyday

James Hardie-Bick and Phil Hadfield

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Life (1959) Goffman uses two quotations from Being and Nothingness (1998) and shows a familiarity with Sartre’s work. Taking into account the popularity of Sartre’s existentialism at the time Goffman was writing The Presentation of Self in Everyday Life (see Cooper 1999), it would have been difficult for Goffman not to have become acquainted with some of the central tenets of existential thought. But Goffman’s work displays more than just a familiarity with Sartre’s existentialism. Indeed, as Sartre’s biographer has noted, Sartre and Goffman ‘share the same outlook, stripped of any complacency, raw and straight, directed to the real, the existential’ (Cohen-Solal 1987: 277).

Sartre’s phenomenological ontology Sartre’s existential phenomenology describes two ontologically distinct types of being. In Being and Nothingness (1998) Sartre makes a distinction between being-for-itself and being-in-itself. Being-in-itself refers to opaque and inert objects in the world. This type of being is simply what it is, the existence and essence of the object coincide, ‘the in-itself has nothing secret; it is solid (massif )’ (Sartre 1998: x1ii). A rock is a rock just as an ink-well is just an ink-well. The in-itself ‘is what it is’ and can therefore not ‘be what it is not’ (1998: x1ii). The other type of being posited by Sartre, being-for-itself, refers to conscious being, the only form of being that can place its very being in question. Contrary to the in-itself, the for-itself has no essence and possesses no permanent attributes. For Sartre, being-for-itself is defined as ‘being what it is not and not being what it is’ (1998: x1i). The for-itself describes beings that can transcend their situation by looking forward beyond their immediate situation or looking back into the past. Conscious beings are in a constant process of becoming. Whereas the in-itself is defined as being filled with itself, the for-itself is defined by a lack. The key feature of the for-itself is that it is conscious of being conscious of something. Following Husserl, Sartre maintains that consciousness is always consciousness of something (1998: 11) and without being conscious of something, consciousness is a nothingness. In Sartre’s ontology what differentiates human being from all other being is precisely this nothingness. As Sartre maintains, ‘Man is the being through whom nothingness comes to the world’ (1998: 24). Sartre is referring to human beings’ distinct ability to withdraw, ‘to nihilate’ being, to question, doubt, contemplate, access and stand back from themselves. Sartre’s theory concerning the indestructible freedom of human beings and the non-existence of any essence or human nature to excuse, justify or determine actions is directly based on his view of

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human consciousness. It is through freedom that nothingness comes into the world and it is impossible to distinguish freedom ‘from the being of human reality’ (1998: 25). Sartre’s existentialism maintains that human freedom and human reality are inseparable. Freedom is not something human beings can possess: ‘Man does not exist first in order to be free subsequently; there is no difference between the being of man and his being-free’ (1998: 25). Being for-itself is the realm of human consciousness and consciousness is an emptiness or nothingness. Regardless of the situation, human beings are always free to question, to contemplate themselves, survey their surroundings and give meaning to their lives. Indeed, it is only through the ability to ‘detach’ from the world (1998: 25) that human beings can give any kind of meaning or significance to their existence.

Choice, responsibility and bad faith Human beings have to continually make choices and even the decision not to choose is itself a choice. Sartre’s view is that, regardless of the situation, human beings are always free to choose and create their own project in the world. The nothingness or indeterminacy at the heart of human existence means that nothing is written in stone (Lippens 2009). There is no determinism or specific human nature to justify or excuse our behaviour. This is why Sartre argues that people are condemned to be free: We are left alone, without excuse. That is what I mean when I say that man is condemned to be free. Condemned, because he did not create himself, yet is nevertheless at liberty, and from the moment that he is thrown into this world he is responsible for everything he does. (1973: 34) Sartre recognises that such responsibility can produce a great deal of uncertainty and anguish. Many people prefer not to acknowledge their freedom as conscious subjects and convince themselves that they have to act in certain ways. They may deny their freedom and justify their actions by deceiving themselves that they had no other choice and that their actions were determined by forces beyond their individual control. These states of denial provide psychological props through which people seek to escape the anxieties provoked by their freedom and responsibilities, allowing them to live an inauthentic existence – what Sartre refers to as ‘Bad Faith’. The existence of bad faith would not be possible without the ability of human beings to detach themselves and nihilate being. Bad faith demonstrates the ability of the for-itself to think and conceive of


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what is not and shows the freedom of self-consciousness to separate itself from itself. The patterns of bad faith described in Being and Nothingness defend his ontological claim. As Warnock suggests, to be in bad faith involves both ‘seeing what one is, and denying it: asserting that one is what one is not’ (1970: 100). Sartre provides various examples to illustrate how people evade the burden of responsibility and live in bad faith. One example provided by Sartre involves a woman who is taken out to a restaurant. She is fully aware of the man’s intentions and she is also aware that she should make a decision. But she avoids taking responsibility for her situation, continually disarms the sexual undertones of their conversation and pretends to herself that he has no desire for her: But then suppose he takes her hand. This act of her companion risks changing the situation by calling for an immediate decision. To leave the hand there is to consent in herself to flirt, to engage herself. To withdraw it is to break the troubled and unstable harmony which gives the hour its charm. The aim is to postpone the moment of decision as long as possible. We know what happens next; the young women leaves her hand there, but she does not notice that she is leaving it. She does not notice because it happens by chance that she is at this moment all intellect. She draws her companion up to the most lofty regions of sentimental speculation; she speaks of life, of her life, she shows herself in her essential aspect – a personality, a consciousness. And during this time the divorce of the body from the soul is accomplished; the hand rests inert between the warm hands of her companion – neither consenting nor resisting – a thing. (Sartre 1998: 55–6) According to Sartre, this woman is in bad faith and deliberately uses various mental and behavioural strategies to continue acting in bad faith. The example shows how she permits herself to ‘enjoy his desire’ yet at the same time she denies her own awareness of his intentions. She then continues to remain in bad faith by leaving her hand resting in his hands. Even though she is fully aware of her body, she still manages to contemplate her own body ‘as if from above’ as a ‘passive object to which events can happen’. As Sartre states, ‘Bad faith flees being by taking refuge in “not-believing-what-one-believes”’ (1998: 70). She adopts these procedures to evade her freedom to choose a course of action and therefore escapes her responsibility for making a decision. Sartre goes on to provide other detailed examples of bad faith. He describes a waiter who enthusiastically and mechanically conforms to the role of being a waiter. Sartre describes how the waiter imitates the

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automated manner in which waiters walk, demonstrating an ‘inflexible stiffness’ while carrying the tray ‘with the recklessness of a tightrope walker’ (1998: 59). Even the waiter’s gestures and voice seem to be mechanisms. The waiter is playing at being a waiter, his rapid and light movements rigidly conform to a pre-existing role. There is pressure on the waiter to conform to the role of being a waiter. As Sartre states, ‘all of his behaviour seems to us a game’ (1998: 59) and his behaviour is no different from other roles that people are obliged to conform to: This obligation is not different from that which is imposed on all tradesmen. Their condition is wholly one of ceremony. The public demands of them that they realize it as a ceremony; there is the dance of the grocer, of the tailor, of the auctioneer, by which they endeavour to persuade their clientele that they are nothing but a grocer, an auctioneer, a tailor. A grocer who dreams is offensive to the buyer, because he is not wholly a grocer. Society demands that he limit himself to his function as a grocer, just as the soldier at attention makes himself into a soldier-thing … There are indeed many precautions to imprison a man in what he is, as if we lived in perpetual fear that he might escape from it, that he might break away and suddenly elude his condition. (1998: 59) Whether one plays the role of being a waiter, lecturer, grocer, or soldier, there is pressure to identify with what is expected from each position. But Sartre is highlighting how, despite the pressure from other staff, students, parents, customers and the general public, people still have to decide to conform to these roles even though they behave as if they had no choice but to conform. To be in bad faith is to deceive oneself into thinking that one’s behaviour has been determined from the outside. Sartre insists that there are always choices. As Warnock states: ‘Bad Faith consists in pretending to oneself that one is bound by necessity … This is pretence.’ The waiter in Sartre’s example is attempting to make himself into the ‘being-in-itself of the café waiter’ and pretending to himself that he has no other choice but to behave in a particular way (Warnock 1970: 104). He is attempting to flee from his freedom as a fully conscious and authentic human being.

The performing self In The Presentation of Self in Everyday life, Goffman uses Sartre’s example of bad faith as a ‘good illustration’ in support of his view of how


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a person’s social position can be ‘performed with ease or clumsiness’. Regardless of whether roles are performed with ‘guile or good faith’ it is still ‘something that must be realised’ (Goffman 1959: 81). Lofland (1980) has recognised how Goffman assumes a gap between an official identity prescribed by organisations and the performing self who puts on the presentation. As Goffman made clear, social actors are capable of distancing themselves from their official roles and protecting their sense of self. Lofland (1980) argues that it is exactly this capability that implies an existentialist view of the self. This is not to suggest that Goffman was an existentialist, or that Goffman was directly influenced by Sartre’s ontology. As Ashworth notes, ‘Sartre’s early philosophy is not the hidden, underlying theory of Goffman’s work’ but it should be recognised that both Sartre and Goffman have similar interests and are ‘speaking the same language’ (1985: 128). Goffman may have been familiar with Sartre’s theory of consciousness but, unlike Sartre, it was not the direct intention of his work to develop and defend an ontological position. Nevertheless, Goffman’s work does not contradict Sartre’s ontological phenomenology (Lofland 1980) and it is possible to read Goffman’s work “‘within-the-world” of a Sartrean fore-understanding’ (Ashworth 1985: 106). The descriptive accounts of how actors are free to distance themselves from their roles and the skilful manipulation that such distancing entails certainly support Sartre’s ontology. In Asylums (1961a) Goffman shows how even in the most constraining environments inmates can find enough ‘elbow room’ and selfhood that is ‘beyond the grasp of the organisation’ (1961a: 276–9). Goffman describes the subtle forms of defence that he observed during his research on total institutions. Despite the series of abasements and humiliations inmates are subjected to, it is still possible to find various techniques and strategies that demonstrate their personal autonomy. There are always ways in which inmates can decide not to accept the official view about what they ‘should be putting into and getting out of the organization’ (see Goffman 1961a: 267). Goffman’s social actors are constantly reflecting on their performances and thinking about how to manage and repair the impressions they create. To show how Goffman’s technique resembles Sartre’s style of approach, Ashworth draws attention to the introduction to The Presentation of Self in Everyday Life (1959): Here he gives an instantiation of a phenomenon, and invites the reader to agree with a subsequent analysis. The paradigmatic example is drawn from a novel by Sansom, and is a description of an

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Englishman on holiday in Spain, Preedy, whose non-verbal behaviour on the beach seems to be a little too much of a performance, a little too well-adjusted to the conveying of specific impressions. And, although we could immediately jump to the conclusion that Goffman wants to discuss bad faith, this is not what the description is for. (1985: 130) Thus, while demonstrating his awareness of Sartre’s descriptions of bad faith (see Goffman 1959: 81–2), it seems that Goffman’s objectives in drawing attention to the performing self were quite different to those of the French philosopher. Goffman was concerned with the way in which people ‘manage’ their selves and he uses the extract from Sansom’s novel A Contest of Ladies to show how social actors perform for their audience. As Goffman explains, ‘Preedy is improperly concerned with the extensive impressions he feels his sheer bodily action is giving off to those around him’ (1959: 17). However, Goffman’s aim is not to show how people rigidly conform to their social identities in order to deny their freedom. Goffman brackets such ‘moral implications’ (Ashworth 1985: 160) and is not concerned about whether or not Preedy is acting in bad faith. The main point of the example is to show ‘that the kind of impression Preedy thinks he is making is in fact the kind of impression that others correctly and incorrectly glean from someone in their midst’ (1959: 17). For Goffman, the way individuals perform their identities is not simply a matter of bad faith, it is a ‘necessity of intersubjectivity’ (Ashworth 1985: 161). In this respect, the fragile, delicate and manipulative performances described by Goffman provide a broader canvas through which the actions of criminals, victims and criminal justice agencies may be understood.

The social choreography of crime and crime control Goffman’s thought continues to suffuse many strands of criminological scholarship and particularly empirically derived qualitative analyses in the sociology of crime and deviance and its more recent inheritor, cultural criminology. Goffman’s primary method was participant observation, which he used to ground his conceptual frameworks in lucid reportage. Goffman was a masterful observer of the routine, micro-level behaviours of social actors, alert to the choreography of social settings. His particular concern was to reveal the rule-bound nature of human communication, both verbal and non-verbal, and its role in the construction, negotiation and defence of identity. Goffman sought to document how our identities (or senses of selves) are necessarily formed through interaction; at an


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ontological level, human identity is always social identity, having no form or expression outside of its negotiation with and recognition by, others. Thus, positive identity markers such as associations of success, credibility and respect are interactional accomplishments achieved through the successful management of impressions and application of the will to achieve desired (and socially recognised and sanctioned) ends. Negative identity markers – those of stigma, embarrassment and humiliation – denote a ‘spoiled identity’ revealing the inevitable fragility and impermanence of our interactional achievements. For Goffman, this on-going (and unavoidable) identity-work is strongly linked to the emotional life and to our capacities to negotiate and manage everyday material constraints, opportunities and resources. Some restraints upon the individual are applied by state or private institutions and other bureaucratic organisations; but always with a human face. The organisational and/or political will may be considered, in Goffman’s terms, as a form of ‘teamwork’ through which individuals co-operate to pursue desired ends and defend collective identities (Goffman, 1959); that is, to save the ‘face’ of the group. Goffman’s sociology has affinities with the existential concept of ‘throwness’ (Heidegger 1962), which highlights the inescapable social and material conditions into which individuals find themselves located from infancy. The possibilities of life are always subject to constraints related to our physical, social and material circumstances and capacities, many of which are not of our own making. We did not choose to be born into the type of societies in which we were socialised, but rather were ‘thrown’ into particular contexts. It is therefore inevitable that our sense of selves can only develop as we forge a path through forests of preordained rituals, constantly negotiating powerful pressures to conform. As Macquarrie notes, ‘possibilities only occur in actual situations, and this is to say that they are already limited by the situational element’ (Macquarrie 1980: 191). In particular, actors are required to ‘perform’ according to various social scripts – that is, sets of socially sanctioned rules or expectations. In his work on mental patients, Goffman (1961a) introduces the notion of a moral career, a sequence of changes in a person’s notion of self and in his or her framework of imagery for judging self and others. Through the series of ‘abasements, degradations, humiliations, and profanations’ experienced within the hospital system, the patient’s previous identity is systematically ‘mortified’, forcing the inmate to reconstruct themself in accordance with a new set of circumstances and power relations. In describing the ‘underlife’ of hospital culture, Goffman draws attention to the techniques patients use to resist institutionalisation. Goffman’s central message, however, is that social

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pressures and power relations also apply beyond institutional walls; we are all products of our environment to the extent that we must carve a moral career for ourselves in relation to the various circumstances we inhabit throughout the course of our lives. The social constitution, ordering and policing of ‘interaction rituals’ is historically, culturally and situationally contingent; thus, we see that, although many of the specific empirical illustrations used by Goffman now appear archaic, the conceptual tools he bequeathed to us remain sharp. Traces of Goffman’s theory and method have infused the development of sociological criminology and criminal justice studies exploring the social world of crime, criminals, victims, and control agents. It has been through detailed scrutiny of naturally occurring interaction in specific social settings – be it the prison, the courtroom, or the street – that Goffman’s work has continued to exert the most influence, either explicitly, or implicitly (Hadfield & Hardie-Bick, 2010). In the following paragraphs we discuss two empirical arenas in which criminological scholarship has emphasised impression management and particularly the management of honour and shame: the social organisation of trials, and the situational dynamics of street crime, violence and ‘incivility’. These examples are used in order to draw out a number of existential themes in Goffman’s criminological legacy.

The trial In The Presentation of Self in Everyday Life (1959) Goffman uses the theatrical stage as a metaphor to explain the context and method of human identity construction. He introduces the term ‘dramaturgy’ to describe the active maintenance of a general consensus around how different social encounters and situations should be negotiated and managed as a result of social expectations concerning how people should behave. These social rituals are culturally and historically contingent, but as part of the process of being fully socialised (or domesticated) into society, come to be understood and experienced by people as universal rules. The ‘ritual order’ is primarily enforced, not by means of formal sanction, but rather by informal pressures to conformity brought to bear in our everyday interactions with others. For Goffman, all of social life is like a play in which each of us is an actor and those around us are our audience. Whenever we are with others we are ‘on show’ and – with differing degrees of intent and purpose – seek to ‘put on a show’. Moreover, we are highly attuned and sensitive to audience ‘feedback’ through our capacity to read, interpret and attach significance to people’s responses to us.


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In Goffman’s view, personal identity is formed and expressed through everyday rule-bound interactions that are subject to external (social) evaluative threat. As a result, individuals may suffer anxiety as to how others judge their performances – and thus their character. This paranoia encourages individuals to think carefully about the impressions they convey to others, so as to avoid feelings of shame and to maintain a positive sense of self. Goffman (1959) referred to this form of self-conscious presentation of the self as ‘impression management’, as manifested in communicative action: choice of words, style of speech, mannerisms, posture, personal grooming, choice of clothing, bodily adornments, body shape, and so on. Goffman’s dramaturgical model has proved especially fruitful in exploring the social world of the courts in which people’s presentation of self is subject to intense scrutiny through live oral testimony and cross examination by lawyers in front of an attentive and evaluative audience (Carlen 1976; Ellison 2001; Hadfield 2006). Furthermore, in the trial context it is not only the witnesses who are encouraged to place unusually high emphasis on impression management; the court itself and the legal professionals who inhabit it are equally involved in presenting the public face of justice in such a way that decisions on the fate of others might be judged legitimate (Garfinkel 1956; Rock 1993). This enactment of justice is strictly choreographed with trial participants all playing pre-defined roles. In staging the trial, court staff and legal professionals seek to produce and maintain ‘formality’ through the use of arcane and technical language, the relative placing and elevation of participants, strict control of time, and the adoption of ceremonial attire and forms of address. Such ‘props’ variously convey impressions of authority, gravitas and efficiency, while invoking awe and bewilderment in the uninitiated. The main purpose of courtroom dramaturgy, however, is to construct a setting for the enactment of ‘due process’ through the presentation of live oral testimonies, wherein each party has the opportunity to have their opinions, claims, accusations and defences heard and assessed. In an adversarial setting, lawyers and witnesses representing each ‘side’ will attempt to influence the outcome of the trial by presenting decision-makers with the most credible and persuasive ‘evidence’. Strategies of impression management come to the fore, each participant seeking to shape the content and form of the evidence they present (Brannigan & Lynch 1987). Goffman drew an important distinction between ‘front stage’ and ‘back stage’ behaviours: ‘front stage’ actions are visible to the audience and part of the performance, while those occurring ‘back stage’ are less visible,

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relatively unguarded and usually occur only when the actor is alone, or in the presence of trusted confidants. In the trial context, for example, although defendants may perform to a pre-determined ‘script’ in open court, they may be more candid in private consultation with their advocate. Thus, as in relation to mental health institutions and prisons, Goffmanesque analyses of the trial allow us to understand how even in the most rule-bound and oppressive of situations individuals retain the capacity to skilfully manipulate the impressions they convey, thereby protecting their sense of self and expressing a form of Sartrean freedom – a freedom to elude and disrupt categorisation.

The street In Encounters (1961b), Behaviour in Public Places (1963), Interaction Ritual (1967) and Relations in Public (1971) Goffman turned his attention to the minutiae of human interaction between strangers in the public realm. Goffman saw respectfulness and intuition as essential tools of social competence, with actors employing what has more recently been termed emotional intelligence: a ‘feel for the game’ of etiquette in various social situations. Goffman spoke of a web of situational expectations concerning one’s behaviour in public – adherence to rituals surrounding one’s degree of involvement and accessibility to others, civil attention and inattention, and forms of address when opening and closing interactions, being opportunities to demonstrate that one has the necessary social skills to partake in society. Goffman points to ways in which the individual pays ritual respect to their fellow citizen by neither unduly imposing on them, nor ignoring their needs and concerns. Issues such as eye contact, spacing, queuing, turn-taking, personal hygiene and respect for personal space become especially salient in crowded, anonymous, urban spaces in which the ritual order is threatened whenever the carrying capacity of physical environments is tested. It is the feeling that people increasingly need to be formally reminded of their implied obligations to fellow citizens and punished for failing to meet them that underpins much of the contemporary debate about ‘incivilities’ (Von Hirsch & Simester 2006). Goffman saw individuals as enrolled in a tacit contract with their fellow citizens, the competent interactant remaining mindful, not only of their rights, but also of their responsibilities. This field of study is now more fertile than ever for Western criminologists given that popular media and political discourse would have us believe we are experiencing an unprecedented coarsening of relations between strangers; an individuation process, in which


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codes of public conduct, of the type Goffman identified, are being eroded (Anderson 1996; Truss 2005). In this view, ‘rudeness’ and the intimidating colonisation of another’s personal space is unbecoming of a citizen. This is perhaps partly because, once the arbitrary status of the ritual order is exposed, we are confronted with chaos, and chaotic environments remind us of our existential freedoms and associated angst. Goffman used the concept of ‘face-work’ to describe how social actors usually attempt to project an impression of themselves which has ‘positive social value’ (1967: 5). This projection is referred to as the face he or she presents to the world. During mundane social interaction, people perform ‘face-work’ as they seek to regulate their behaviour in order to maintain a consistency between their actions and projected selves (1967: 12–13). In most social situations, people conspire to protect not only their own face, but also that of others. Goffman regarded such ‘tact’ as a vital lubricant of interaction, used to preserve social situations that might otherwise break down. Ruptures of the interactional order are subject to social censure and may even lead to aggression and violence. Goffman identified a ‘standard corrective cycle’ in face-saving: (1) The challenge, offered by those who are offended by another’s face-threatening behaviour; (2) The offering, from the one accused of being offensive; (3) Acceptance of the offering by the challenger, and finally, (4) The forgiven person conveys a sign of gratitude (ibid. p. 20). However when a challenged offender patently refuses to heed the warning and continues with his offending behaviour, instead of setting the activity to rights, this move shifts the play back to the challengers. If they countenance the refusal to meet their demands, then it will be plain that their challenge was a bluff and that the bluff has been called. This is an untenable position; a face for themselves cannot be derived from it, and they are left to bluster. (22–3) To avoid this fate, Goffman sees the challenger as having two feasible options, either ‘tactless, violent retaliation’, or withdrawal in a ‘visible huff – righteously indignant’ (23): Both tacks provide a way of denying the offender his status as an interactant, and hence denying the offensive judgment he has made. Both strategies are ways of salvaging face, but for all concerned the costs are usually high. (Ibid.)

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Thus, we see that, for Goffman, expressions of courtesy and a respect for etiquette fit ‘precisely into the logic of the ritual game’ (23), as a form of insurance against personal offence; an implicit set of systematised techniques for managing face-to-face encounters. In routine interaction, most people, most of the time, will go to great lengths to avoid instances of ‘breakdown’ wherein an affronted person feels socially obliged to resort to verbal aggression and violence to save face, or else to withdraw in burning resentment at their public humiliation. Clearly, the habitual use of everyday remedial routines makes the resort to violent resolution of initially minor infractions the exception rather than the rule. However, scholars such as Elijah Anderson (1999) and Robert Garot (2007a, 2007b) are divided as to the extent to which certain populations, particularly those adopting a ‘street persona’ in an innercity context, may be more prepared than most to accept the high costs of tactless violent retaliation. Here the concept of face-work has been used to unpick sequences of events, utterances and verbal and non-verbal cues as they occur within the immediacies of interpersonal conflict. Such situations are especially Goffmanesque as they involve the face-to-face negotiation of identity, sometimes in front of an attentive audience. The presence or absence of an audience may play a significant role in the outcome of aggressive verbal and/or gestural exchanges given that situations which escalate into violence have often been found to involve a concern with gaining or protecting one’s ‘reputation’ – a thoroughly social and evaluative concept. Certainly, in some situations, defending one’s ‘reputation’ may carry a high premium in helping preserve future safety (Anderson’s view); on the other hand, as Garot notes, social approval may also be afforded to those who keep their ‘cool’ and refuse to be drawn into spiraling and destructive contests of honour. In his analyses of street crime and its perpetrators, Jack Katz (1988: 178) refers to the importance of Goffman’s work in understanding how people routinely read social interactions for indications of the character and intentions of others. As a result of this attunement: ‘one can create an intimidating presence by the solely negative achievement of holding back the deferential postures and gestures that assure others that one is sensitively respectful’. Failure to convey sensitivity in one’s interactions with others can have powerful communicative impact, imposing claims to attention and physical space which seek at once to dictate relations of status and entitlement. The other is belittled and rendered insignificant: a ‘“non-person”, for whom no consideration need be taken’ (Goffman 1959). The ‘badass’ – to employ Katz’s vernacular – is a specialist in situational impropriety, comporting his or herself in such a way as to unsettle


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and frighten others. The power of a badass – at least, that portion that is engendered through fear – is enhanced whenever the interactional challenges they throw to others are not met; the target capitulating. Thus, for Katz, there is, in the behaviour of violent criminals, a sinister playfulness in which normative social rituals and expectations are manipulated in such a way as to provide thinly veiled excuses for status enhancement and material gain. The deliberate instigation of a ‘bump’, followed by proclamations of humiliation or injustice, is, for example, identified by Katz (1988) as a key strategy in the choreography of street robbery and other violent crimes. Goffmanesque empirical studies of how women (Gardner 1995) and taxi drivers (Gambetta & Hamill 2005) negotiate urban public space offer important insight into popular notions of ‘street wisdom’. Such research has analysed the interactional counter-strategies of potential victims of crime and public harassment who learn to read their social environment so as to avoid confronting high-risk situations and attention from persons with ill intent.

Crime as transcendence Attention to the immediacies of street crime brings us to a consideration of ‘Where the Action Is’ (see Interaction Ritual, 1967), an essay which arguably set the tone for many recent theoretical developments in sociological criminology and the sociology of leisure; chiefly, it contains phenomenological accounts of the moral, sensual and emotional attractions of crime and other forms of ‘intense experience’. Of key interest to Goffman were those situations in which individuals intentionally embrace risk, seeking out what he referred to as ‘action’. The ritual order depends upon co-operative interactional maintenance to reduce the fatefulness of social situations; courses of action needing to be reliably managed, gratification deferred and ‘goals progressively and predictably realised’ (Goffman 1969: 128). Yet Goffman realised that activities such as gambling are performed in curiously ambiguous relation to the ritual order. Here Goffman’s legacy can be found in those debates initiated by Lyng (1990) concerning the concept of ‘Edgework’. Edgework describes activities that involve a clearly observable threat to one’s physical and mental wellbeing, or sense of ordered existence. Edgeworkers voluntarily participate ‘in life-threatening or anomie-producing activities’ (Lyng & Snow 1986: 169) to exercise skill in negotiating a challenging, passionate experience that sweeps aside the rational concerns of modern Western culture. As Ferrell has noted, the activities of those attracted to extreme

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experiences offer a type of resistance to the dehumanising constraints and routine degradations of everyday life. Voluntary risk-taking provides individuals with creative and self-actualising experiences that can amount to a form of transcendence (Ferrell 1998; Lyng 1990). In The Seductions of Crime (1988: 207) Katz describes how ‘Goffman saw gambling as the prototype of action’ and goes on to highlight intimate connections between the thrills of gambling and those of crime, as recounted in the autobiographical accounts of professional criminals. Katz’s account of moral transcendence through crime also bears close comparison to Lyng’s work. In criticising ‘rational choice’ models for understanding crime, contemporary writers such as Katz (ibid.), Ferrell (1998) and Young (2003) have sought to further explore the importance of subjective experience in criminal action, especially around notions of escape, the quest for intense sensual stimulation, testing of the body, and the construction and display of character. Of course, the idea that crimes may often be committed to overcome boredom and test oneself in a personal challenge pre-date Goffman, being found, for example, in a Chicago School treatise on female ‘delinquency’ (W. I. Thomas 1923) and another on street gangs (Thrasher 1927). What Goffman provided was a theoretical lens through which this quest for ‘action’ may be more fully understood. Goffman noted how many of society’s core values are revealed through action, with ritual honour being paid to those who voluntarily seek, embrace or meet the challenges of a fateful life. Displaying and gaining character requires the chance-taking action that routine social life curtails and is organised to avoid. Thus, while leading a conventional life, in which one ‘takes care’ to minimise unnecessary risks, may be considered blameless, it is unlikely to be accorded the higher forms of social prestige. Goffman notes how the types of adulation and respect afforded to ‘action heroes’ of sport and film and so on, are also often extended to criminals (1967: 198). Crimes such as the ‘heist’ exist in curiously ambiguous tension to the ritual order, being both infractions of that order and expressions of its highest values. It is interesting to consider how the notoriety and acclaim afforded to voluntary risktakers and other action-orientated individuals may be linked to widely held existential concerns involving lives lived in a state of bad faith and fantasies of transcending the social, economic and bureaucratic order to live in more spontaneous ways which accord with authentic selfhood. Yet, from a Goffmanesque perspective ritual codes clearly serve a positive social function in providing the ‘glue’ of social cohesion, in the absence of which social life becomes more competitive, harsh, individualised and potentially violent.


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Goffman also wrote prophetically of the commercialised ‘action of consumption’ (1967: 197), and here again we find the criminal to the fore. Contemporary researchers such as Wright and Decker (1997), in noting the propensity of street robbers to ‘burn’ the proceeds of their crimes on hard partying and luxury goods demonstrate further tensions between social value and disavowal, as revealed by the glamour attached to the lifestyles that proceeds of crime can afford. Here the ‘action of consumption’ may well meet other existential concerns, notably impression management involving defensive attempts at self-promotion in order to shore up a fragile ego. While the trappings of status, stable careers, supportive families and social networks act as protective buffers the middle classes fall upon to console themselves when experiencing loss of face, these resources are often absent in the case of inner-city youth. Social and economic marginalisation is a material aspect of throwness in neo-liberal societies, placing people in constraining social situations in which options and resources are comparatively limited. Here criminal opportunities are necessarily pursued at street level. Both violent responses to feelings of humiliation and conspicuous consumption have been linked to insecurities about how one is perceived (Wilkinson & Pickett 2010). For these authors, structural forces are at work, with hierarchical societies displaying greater rates of violence, due in part, to those at the bottom having limited means by which to achieve and maintain self-respect in other ways. Social approval is widely attached to the ‘action of consumption’ regardless of questions concerning the ways in which the goods or services on display, or the financial means to afford them, were achieved – which could include by theft, fraud, or extortion. Such considerations imply that face-work, status defence, and reputational concerns linked to notions of potency and material success hold considerable sway in contemporary capitalist societies, to the extent that for many citizens they may trump support for the law and adherence to fixed and universal moral and/or religious codes. Perhaps Goffman’s greatest criminological legacy has been to show us that while general adherence to the ritual order is essential for a functioning society, the necessity to impressionmanage the self we present to others also creates opportunities for competitive self-enhancement, including opportunities for individual advancement to occur at the expense of others.

Conclusion This chapter has drawn attention to certain similarities between the work of Sartre and Goffman that are often neglected. Even though their work

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reveals a different emphasis on how individuals conform to and perform their social roles, Goffman was clearly aware of, indeed, perhaps even inspired by, Sartre’s philosophy. Goffman may have bracketed Sartre’s concern for authenticity, but Goffman’s actors still choose to perform and rehearse their roles or distance themselves from the roles societal pressures encourage them to play. Drawing from various sources, this chapter illustrates how Goffman’s dramaturgical approach provides important, and often overlooked, insights into many areas of crime, deviance and criminal justice. We have suggested that Goffman’s dramaturgical model does not contradict Sartre’s ontological claim that freedom and existence are indistinguishable from one another. Goffman and Sartre believed that there is no essence that can determine the behaviour of human beings. Sartre’s phenomenological descriptions of bad faith and Goffman’s observations of the performing self show how human beings always have the capacity to question, doubt, access and stand back from themselves. This core existentialist notion is implicit in Goffman’s work (also see Jacobsen & Kristiansen 2010). Goffman described how people are constantly monitoring and repairing the impressions they give to others. Studies of the social choreography of crime and crime control have demonstrated how the interactional (face) work involved in defending a sense of self and sometimes fragile ego can either support, or stand in tension to the ritual order. The usual co-operative and remedial interchanges, for example, can be subject to deliberate manipulation by intending criminals. These issues arise in new guises in relation to on-line bullying and harassment via social networking sites and may achieve particular significance when they occur in front of an audience that is both wide and significant to the victim. Interaction on social networking websites seems especially Goffmanesque as it involves the presentation of the self and image management in front of a large on-line audience. Real and complex ‘off-line’ lives remain obscure and the reader is presented only with those aspects of the self that the profile writer wishes to reveal. Territorial youth gangs have used such mediums to intimidate, provoke and enhance their reputations across on-line communities. The cultural significance of impression management, which may well be linked to existential concerns, is revealed in the esteem afforded to forms of ‘action’, including crime, and to lifestyle indicators associated with the proceeds of crime. Criminals can achieve notoriety and admiration as ‘outlaws’ and ‘folk heroes’ among certain constituencies. As well as being contexts for crime and deviance, social-networking websites provide online forums for eulogising criminals and debating their reputations.


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The ‘Facebook’ page ‘R.I.P. Raoul Moat’, for example, which refers to a nightclub doorman shot dead by police in North East England after he had gone on a shooting spree involving the murder of several people, had over 9000 supporters at the time of writing. The man’s own profile page had not been removed, his on-line identity living on. If people rigidly conform to their social identities in order to deny their freedom and then experience fantasies of escape into a more authentic state of being, this may go some way to explain the cultural fascination with criminal action. The sensitivity to audience ‘feedback’ Goffman attributes to our capacity to read, interpret and attach significance to people’s responses to us can give rise to a range of emotional responses ranging from feelings of shame through to pride. As noted, ‘reputation’ is a thoroughly social and evaluative concept; and while public condemnation and thus shame is heaped upon the pedophile, child killer or terrorist, the gangster or outlaw elicits a typically more ambiguous set of responses, perhaps linked to their role as folk heroes in popular culture and propensity towards conspicuous consumption. If ritual honour is paid to those who voluntarily seek, embrace, or meet the challenges of a fateful life, the action-seeker is likely to bask in the glow of social approval, not the pit of social reprobation. Thus, it is the contention of this chapter that in failing to acknowledge the close affinity with Sartre, studies of crime and deviance influenced by Goffman may have overlooked important normative questions concerning crime and criminals and societal reactions to them implicit in the writings of Goffman himself. Key among the normative questions that arise is whether the material and reputational payback sometimes afforded to those who live a criminal lifestyle may trump the injunction to avoid rupturing the ritual order, and thus encourage further crime. Goffman spoke of a web of situational expectations governing, for example, one’s behaviour in public, but expectations are of a different – less demanding – order to strong beliefs and attachment to prescribed social norms. Does the affinity between Goffman’s performing self and Sartre’s discussion of bad faith imply a degree of moral relativism? Does the recognition of our inevitable freedom and the tendency to cling to the securities of a life lived in bad faith give rise to a positioning of the self such that universal moral codes are denied in favour of the maxim of the ends justifying the means? Thus, is the Goffmanesque subject not only paranoid, but to some extent conflicted, if not hypocritical? Goffman offers no explicit answer to such questions, his writings implying that the social approval of ‘action’ and social anxieties concerning maintenance of the ritual order are countervailing forces within our social world, occurring in on-going and ambiguous tension.

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References D. Anderson (1996) (ed.) Gentility Recalled: ‘Mere’ Manners and the Making of the Social Order (London: The Social Affairs Unit). E. Anderson (1999) Code of the Street (New York: W. W. Norton). P. Ashworth (1985) ‘L’enfer c’est les autres: Goffman’s Sartrism’, Human Studies, 8: 97–168. A. Brannigan & M. Lynch (1987) ‘On Bearing False Witness: Credibility as an Interactional Accomplishment’, Journal of Contemporary Ethnography, 16 (2): 115–46. P. Carlen (1976) Magistrates’ Justice (London: Martin Robertson). A. Cohen-Solal (1987) Sartre: A Life (London: Methuen). D. Cooper (1999) Existentialism: A Reconstruction, 2nd edn (Oxford: Blackwell Publishing). L. Ellison (2001) The Adversarial Process and the Vulnerable Witness (Oxford: Oxford University Press). J. Ferrell (1998) ‘Criminological Verstehen’, in J. Ferrell and M. Hamm (eds) Ethnography on the Edge (Boston: Northeastern University Press). D. Gambetta and H. Hamill (2005) Streetwise: How Taxi Drivers Establish their Customers’ Trustworthiness (New York: Russell Sage Foundation). C. B. Gardner (1995) Passing By: Gender and Public Harassment (Berkeley: University of California Press). H. Garfinkel (1956) ‘Conditions of Successful Degradation Ceremonies’, American Journal of Sociology, 61 ( January): 420–4. R. Garot (2007a) ‘Inner-City Teens and Face-Work: Avoiding Violence and Maintaining Honor’, in L. Monaghan and J. Goodman (eds) A Cultural Approach to Interpersonal Communication: Essential Readings (Cambridge: Blackwell Press). R. Garot (2007b) ‘Non-Violence in the Inner City: “Decent” and “Street” as Strategic Resources’, Journal of African American Studies, 10 (4): 94–111. E. Goffman (1959) The Presentation of Self in Everyday Life (New York: Doubleday). E. Goffman (1961a) Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (New York: Doubleday). E. Goffman (1961b) Encounters: Two Studies in the Sociology of Interaction – Fun in Games & Role Distance (Indianapolis: Bobbs-Merrill). E. Goffman (1963) Behaviour in Public Places (New York: Free Press). E. Goffman (1967) Interaction Ritual: Essays on Face-to-Face Behaviour (New York: Pantheon). E. Goffman (1969) Strategic Interaction (Oxford: Basil Blackwell). E. Goffman (1971) Relations in Public: Microstudies of the Public Order (London: Allen Lane The Penguin Press). P. Hadfield (2006) Bar Wars: Contesting the Night in Contemporary British Cities (Oxford: Oxford University Press). P. Hadfield and J. Hardie-Bick (2010) ‘Erving Goffman, 1922–82’, in K. Hayward, S. Maruna and J. Mooney (eds) Fifty Key Thinkers in Criminology (London: Routledge). M. Heidegger (1962) Being and Time (Harper and Row: London).


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M. H. Jacobsen and S. Kristiansen (2010) ‘Labelling Goffman: The Presentation and Appropriation of Erving Goffman in Academic Life’, in M. H. Jacobsen (ed.) The Contemporary Goffman (New York: Routledge). J. Katz (1988) Seductions of Crime: Moral and Sensual Attractions in Doing Evil (New York: Basic Books). R. Lippens (2009) A Very Short, Fairly Interesting and Reasonably Cheap Book about Studying Criminology (London: Sage). J. Lofland (1980) ‘Early Goffman: Style, Structure, Substance, Soul’, in J. Ditton (ed.) The View from Goffman (London and Basingstoke: Macmillan). S. Lyng (1990) ‘Edgework: A Social Psychological Analysis of Voluntary RiskTaking’, American Journal of Sociology, 95 (4): 876–921. S. Lyng, and D. Snow (1986) ‘Vocabularies of Motive and High-Risk Behavior: The Case of Skydiving’, in E. J. Lawler (ed.) Advances in Group Processes, 3: 157–79. Greenwich, CT: JAI Press. J. Macquarrie (1980) Existentialism (Harmondsworth: Penguin). P. Rock (1993) The Social World of an English Crown Court (Oxford: Clarendon Press). J.-P. Sartre (1998) Being and Nothingness: An Essay on Phenomenological Ontology (London: Routledge). J.-P. Sartre (1973) Existentialism and Humanism (London: Methuen). W. I. Thomas (1923) The Unadjusted Girl: With Cases and Standpoint for Behaviour Analysis (Montclair, NJ: Patterson Smith). F. Thrasher (1927) The Gang (Chicago: University of Chicago Press). L. Truss (2005) Talk to the Hand: The Utter Bloody Rudeness of Everyday Life (London: Profile). A. Von Hirsch and A. P. Simester (2006) (eds) Incivilities: Regulating Offensive Behaviour (Hart: Oxford). M. Warnock (1970) Existentialism (Oxford: Oxford University Press). R. Wilkinson and K. Pickett (2010) The Spirit Level: Why Equality is Better for Everyone (London: Penguin). R. T. Wright and S. H. Decker (1997) Armed Robbers in Action: Stickups and Street Culture (Boston: Northeastern University Press). J. Young (2003) ‘Merton with Energy, Katz with Structure’, Theoretical Criminology, 7 (3): 389–414.

2 Subjectivation as Problem and Project: Is there an Existentialist Motif in Foucault? Claudius Messner

Introduction ‘Our modern mode of being subjects’ (Foucault 2003, p. 9) in the world has always been a central topic in Foucault’s thinking, from the first studies on Unreason – the History of Madness – to the last ones centred on the ‘concern for the self’. ‘Government’ in the sense of the reflexive conduct (conduite) of oneself and of others by the self seems to constitute the very key to the writings and practices of Foucault. One might well say that his reasoning revolves around the issue of individual and social existence as complexity, as problem and project. However, to consider this an existentialist motif or even leitmotif is implying too much. Foucault’s ‘archaeology’ reacted to the Kantian problem of how to conceive a rational (philosophical) history of reasoning, without either being derived from Kant’s anthropology or making Foucault a Kantian (Kant 2008). Likewise, Foucault’s questioning of existence is influenced by the views and puzzles of existentialist thinkers, but his approach does not depend on them nor is it limited to theirs. Foucault refused to be called an existentialist, and in fact he wasn’t one. I cannot see any existentialist motif in Foucault. It would nonetheless be helpful to conduct a short review of some basic assumptions generally associated with existentialism. Together with Foucault’s critical remarks they may serve as a matrix from which Foucault’s thinking stands out. The analysis of this background will allow for a better understanding of what Foucault is trying to do in his work on discursive practices and strategies of power; it will also help to clarify how the aims of his later writings, beginning with the second volume of the History of Sexuality, affect the relevance to archaeology of the so-called ‘hermeneutics of the subject’. In my view, the hermeneutics and related 36

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writings do not ‘develop an ethics that is based on a model of aesthetic self-fashioning’ (Harrer 2005 p. 75). They are not works of ethical theory. Rather, the studies centred ‘around the slow formation of a hermeneutics of the self’ are, as Foucault puts it, elements of a ‘history of truth’ or, more precisely, of the ‘“truth games”, the games of the true and the false within which existence is historically constituted as experience’ (Foucault 1989 p. 13). This history would be about ‘the conditions in which the human being expounds the problems of what it is, what it does, and of the world wherein it lives’ (ibid.). Hence, no ethic is proposed, but instead a framework in which actions and choices are to be viewed. This framework does not tell one what to choose or how to live. There is no reason to suppose in advance that the beliefs and practices described by Foucault represent his own attitudes. If this is the correct view of Foucault’s analysis of “the subject”, then it may still be important for us to understand what it means when people have an ‘aesthetic’ mode of being subject and a ‘fine’ life. Therefore, to answer our question about existentialism and Foucault, we should briefly summarise Sartre’s and Merleau-Ponty’s view of ‘existence’, and then go back to Foucault’s project and remind ourselves of what he says he is doing. In the light of this, we will be able to see what we might reasonably expect from the remarks about ethics in his later writings and lecture transcriptions. I will restrict my discussion to three notions: experience, being subject, and governance.

Existence In this section I will focus on the main representatives of the French brand of the existentialist movement and give a brief sketch of the approaches of Sartre and Merleau-Ponty (my exposition draws on Abbagnano 1957; Hammond et al. 1991). It is well known that the former was repeatedly the object of Foucault’s explicit criticism, whereas the latter, by comparison, seems to have been handled with kid gloves – in fact, the young Foucault was ‘captivated by him’ (DE I, p. 19). In Being and Nothingness (1943) Sartre offers a radical revision of the traditional ontology which underlies realism and idealism. Sartre takes it upon himself to describe the objective world. The book opens with the claim that philosophy has made progress in rejecting the view of appearance and reality according to which reality lies hidden behind appearances: ‘Modern thought has realized considerable progress by reducing the existent to the series of appearances which manifest it’ – and not, instead, ‘to a hidden reality’ (BN p. xxi). So, the dualism of being and

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Subjectivation and Foucault

appearance, Sartre claims, has been replaced by the monism of the phenomenon. But if it’s true, Sartre argues, that existent objects cannot be conceived without the activity of a cognising subject, it is also true that what exists cannot be understood as mere constructions of that subject. ‘Being of the existent’ or ‘being of the phenomenon’ means ‘that the being of that which appears does not exist only in so far as it appears’ (BN p. xxxviii). The monism of the phenomenon risks ending up in pure phenomenalism. If we were to characterise the phenomena in a way which avoids the ontologies of idealism and realism, we must not start from the abstractions of subject and object, but from the evident fact of their interaction. The point of departure has to be the concrete ‘union of man with the world’ (BN p. 3) of which consciousness and phenomena are only moments. This is the basis on which to enquire into the respective characters of existent objects and active subjects. Clearly, then, it is no coincidence that Sartre begins his description with what he calls ‘conducts’. Conducts are events which are concrete – they exist independently and can be observed objectively; and they are instances of relations between consciousness and the world, rather than instances of the items so related. Sartre’s description of being is organised around two major themes: one is the dissociation of consciousness from being, the other is the distinction of two types or regions of being called ‘being-for-itself’ and ‘being-in-itself’. Sartre presents being as the complete opposite of consciousness. Being is what the conscious subject questions, and it is independent of that subject. This independent being lacks all determinate character. Being is ‘opaque’, ‘solid’, ‘filled with itself’. Concepts such as activity and passivity, temporality and change, possibility and necessity do not apply to being. Being, Sartre says, is ‘beyond’ all these. To be precise, the only thing one could say about it is that it is what it is. Consciousness, by contrast, is entirely transparent to itself; it has no hidden features. A conscious state cannot be hidden from itself and no further state can reveal it. Consciousness is nothing more than self-awareness. Hence, it must be as it appears to itself to be. ‘Consciousness has nothing substantial, it is pure “appearance” in the sense that it exists only to the degree to which it appears … it is total emptiness (since the entire world is outside it)’ (BN p. xxxii). Sartre’s second theme is the difference between, on the one hand, the being of consciousness or conscious being (‘being-for-itself’), and on the other hand, the being of objects and the world (‘being-in-itself’). One feature of being-in-itself is that it obeys the Law of Identity. Each item one discovers in the world is what it is and not some other thing.

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An object is just the set of its properties. Here lies the fundamental difference: being-for-itself is not governed by the Law of Identity. The principle applies only to things and not to human beings. A human being, because it is conscious of its properties, can dissociate itself from any of those properties. The relation between a conscious subject and an essence as they together make up a human being is not adequately captured either by an affirmation or by a denial of identity between them, so long as identity is understood in the sense in which it applies to objects in the world. What makes it oneself that one reflects on is the particular concern which one has for the past and future of that self, for it is one’s own; however, in reflecting upon it, one makes it an object of one’s consciousness. In reflection, it is not a subject, not consciousness. It is not an ‘I’, but a ‘me’. It is no longer one’s past self and not yet one’s future self: there is no identity. It is because human beings are conscious that they can question – and so endorse or resist – their present state and act towards a future state, which is envisaged in advance as neither determined by the present nor the result of external events. This is what Sartre means by his claim that the Law of Identity is not a ‘constitutive structure’ of human being. Sartre’s discussions of ‘anguish’ and ‘bad faith’ aim to reveal that human being does not conform to the principle of identity, does not ‘coincide’ with itself. Anguish is the awareness that one is both free and responsible; it is the reflective consciousness of freedom. In bad faith one flees from both these realisations. The conduct which exemplifies anguish is that of putting to oneself the question: ‘What shall I do next?’ What one discovers when one asks this question is a ‘lack’ or ‘gap’ in oneself, just as questioning the world can reveal a lack or non-being in the world. The lack revealed within oneself is a lack of anything determining one’s actions. Nothing in one’s past or present – whether character trait, reason, decision or promise – can actually force one to act in one way rather than another. One is free. But human action is not only free in the negative sense of the absence of determination or imposition; it is also free in a positive sense: it is freely chosen, there are genuine alternative choices available, and nothing determines which alternative is chosen. So, what then would be the ground from which human being receives its orientation, what has to be considered the equivalent of the principle of identity in the realm of being-for-itself? Sartre’s answer is that being-for-itself obeys what he calls the principle of ‘presence to itself’: ‘The law of being of the for-itself, as the ontological foundation of consciousness, is to be itself in the form of presence to itself’ (BN p. 77). Being-for-itself has a peculiar ‘constitutive structure’, an ‘ontological

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foundation’ radically different from that of objects. Nor is human being an idealist subject, for it is inescapably situated in the world. Its only standpoint is a standpoint in the world, and it is this standpoint which gives it its individuality. Thus, the notion of ‘presence to itself’ has three important implications: first, transparency of consciousness; second, non-determination of being-for-itself (for Sartre, the free subject must have no fixed properties, no ‘essence’ it cannot change); finally, ability to withdraw from oneself: what is central to human reality is not its involvement in the world and its own activities, but its capacity to detach itself from itself and the world. Against the background of this admittedly simplified sketch of Sartre’s argument, Merleau-Ponty’s position might be summarised in the following, even more crude way. Merleau-Ponty agrees with Sartre in rejecting the realist and idealist theses on the ontological status of the ‘real’ world. But he objects to the radical dichotomy between the for-itself and the in-itself articulated by Sartre, and argues that no satisfactory account of human existence can be given which relies upon this dichotomy. He reproaches Sartre for his intellectualist account of the human subject. The concrete subject, rather than being pure consciousness in a situation that is external to it, is ‘conscience engagée’ (de Waelhens). It is not an uninvolved observer of its situation; every sense conferred to it emerges from the interaction of subject and world. Hence, Merleau-Ponty emphasises the natural and social situation as part of the subject’s being-in-the-world (Merleau-Ponty 1973), and not (as Sartre had it) as characteristics of the self, that is, on the object side. Phenomenology, then, should employ a method which consists in treating phenomena ‘as modalities and variations of the subject’s total being’ (PP p. 108). Merleau-Ponty’s main objection to objective thought is that it misrepresents the nature of the world one actually experiences. Objective thought presupposes that every object is fully determinate by the character of its properties, and maintains that (in principle) one can give a complete description of objects, including a fully specified list of its properties. Something is determinate if it has precise limits or boundaries. The ideal description would be a term which ascribes properties to things by employing a definition that identifies the necessary and sufficient conditions for its correct application. For Merleau-Ponty, the nature of the lived world is such that it cannot be adequately described by ‘determinate’ concepts of that kind. In particular, a formal language, a language with determinately fixed concepts, will be unsuitable for the description of the actually experienced world. His argument, however, is not about linguistic or conceptual problems. ‘Ambiguity’ or ‘equivocation’ is not a

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matter of words, it is a feature of the ‘lived world’ itself: its objects often display mutually incompatible properties. Normal experience, according to Merleau-Ponty, does not present single objects and isolated elements, but more or less meaningful wholes, shapes and forms in the sense of gestalt psychology. This applies, in particular, to the basic events considered by Sartre, the ‘conducts’ – that is to say, human action. In ordinary experience we find a fittingness and a meaningful relationship between the gesture, the smile, and the tone of a speaker. But this reciprocal relationship of expression which presents the human body as the outward manifestation of a certain manner of being-in-theworld, had, for mechanistic physiology, to be resolved into a series of causal relationships. (PP p. 55) Normal experience presents a meaningful configuration of facial expression, sound and movement, in which elements are seen as fitting together, as suitably conjoined, and indeed as not altogether distinguishable from one another. In this sense, Merleau-Ponty can say that each event/element is itself an expression of ‘a certain manner of being-in-the-world’. As he had observed, contra Husserl: truth is not in the ‘inner man’ (PP p. xi). More precisely, for Merleau-Ponty, the primary mode of the human subject’s ‘being-in-the-world’ is a practical one: it is not a cognitive relationship of ‘thinking’ or ‘being conscious’ of the world (PP p. xiii). Nor is his concept of the subject of action the same as Sartre’s. Merleau-Ponty also has a different view on the role of the past. The crucial difference between him and Sartre resides in what Merleau-Ponty calls ‘sedimentation’. Whereas for Sartre the past becomes part of the subject only by the sense-constituting act of that subject, for Merleau-Ponty the past is already always part of the subject. Sedimentation is a necessary precondition for the exercise of freedom for both Sartre and Merleau-Ponty. However, while the former sees it as an object of one’s consciousness, the latter holds that it is a feature of the very subject itself. According to Merleau-Ponty, meaning emerges from the situation in which one acts. That is to say, contra Sartre, it does not come solely from the actor. Nevertheless, despite this ‘external’ origin of meaning, the historical or social situation is not seen as detached from the agent’s viewpoint, and therefore it is not seen or felt as operating on the agent in a causal fashion. There is no logic to govern events from the outside. On the contrary, as Merleau-Ponty will say a few years later in his inaugural lecture at the Collège de France, the emerging formations of meaning are

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exactly ‘what Marx calls praxis … sense which spontaneously becomes apparent at the intersection of the actions by which man organises his relationship to nature and to other men’ (Merleau-Ponty 1984, p. 143). This meaning, he continues, ‘is inherent in the interpersonal event and is as fragile as this. And this is just why the event gains importance as production of reason … Rationality passes throughout from concept to interpersonal praxis’ (ibid.). So, it is clear why Merleau-Ponty holds that Sartre’s characterisation of the ‘sedimented’ traits of the self gives undue emphasis to the pure consciousness in virtue of which one can, in principle, be a ‘general refusal to be anything’ (PP p. 452). Merleau-Ponty emphasises: ‘We must not say that I continually choose myself, on the excuse that I might continually refuse what I am. Not to refuse is not the same thing as to choose’ (ibid.). For Merleau-Ponty one can only refuse to be something one has been by being something else – not by remaining nothing. ‘By taking up a present, I draw together and transform my past, altering its significance, freeing and detaching myself from it. But I do so only by committing myself somewhere else’ (PP p. 455). Habit, sedimentation, and inertia are all features of the subject’s action in the world. But to see these as actively chosen is to deny those extra-individual features of oneself which are already part of the subject. And it is to deny that these features are the basis for freedom: The fact remains that I am free, not in spite of … these motivations, but by means of them. For this significant life, this certain significance of nature and history which I am, does not limit my access to the world, but on the contrary is my means of entering into communication with it. It is by being unrestrictedly and unreservedly what I am at present that I have a chance of moving forward. (PP pp. 455f.)

Foucault’s critique To Foucault, Sartre and Merleau-Ponty are the representatives of the ‘philosophy of experience, of sense, of subject’ (DE 361: 944). Alluding to Sartre’s ‘union of man with the world’, he explains his own aim as being to ‘unite man’ with his ‘real world’ (DE 37: 669f.). The error of the existentialists consists in trying ‘to grasp the significance of daily experience in order to reaffirm the fundamental character of the subject, of the self, of its transcendental functions’ (DE 281: pp. 60, 77). This error leads them in the end to an abstract humanism which not only finds man to be the

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centre of the world, but even finds another centre within the ‘inner’ man. Foucault opposes to this dogmatic anthropocentrism what one might call a thematic anthropocentrism or, to use Althusser’s term, the project of a ‘theoretical humanism’ that explores human rationality from all its sides. That includes ‘thought of the outside’, la pensée du dehors. In the context of the philosophy of the subject, as we have seen, ‘outside’ is more than just a metaphor, but not yet a ‘determinate’ concept. Foucault, it seems, rather than providing a precise definition, takes advantage of the ‘ambiguity’ of the term (for a critique, see Rorty 1991, p. 195) and does so deliberately in order to denote the complexity of human reality. Foucault’s critical objections can be summed up in three major points: the fundamentalist character of the philosophy of the subject, the intellectualism of an ethics rooted in rule-oriented morals, and the misconception of power. In Sartre’s view, it is the individual subject to whom non-being is revealed, so that the real world of objects is not necessarily an intersubjective one. Therefore, in this view, Foucault says, it is a solipsistic subject to ‘confer sense to the world. This point has never been questioned’ (DE 281: 77). Lived experience, Foucault argues, and facts such as discontinuity and ‘limit-experience’ disprove the very idea. But this might not suffice to call ‘in question the category of subject, its supremacy, its founding role’ (DE 281: 60). There is, however, more. The reason why the ‘apriori theory of the subject’ must be refuted is that the subject ‘is not a substance. It is a form’ (DE 356: 888). This form is neither constant nor identical. The practices of self-constitution cannot be said to be ‘invented’ by a subject. Rather, they are to be considered as culturally pre-constituted and socially imposed schemes. It is precisely at this point that the question of the adequate description of ‘being subject’ goes far beyond the issues of the positive reality of existence by evoking this question: is it true ‘that the subject is the only possible form of existence’ (DE 281: 62)? Sartre had rejected the idea of the self as something given to us. From the fact that there are always alternatives of action available, he deduced that the subject is free: ‘there is no determinism. Man is free, man is freedom’ (Sartre 1963 p. 47). That man is what he himself makes of himself means in the end that ‘there is no other law-maker outside of him’ (Sartre 1963 p. 92). Sartre’s account of authenticity depends on this notion of the subject as legislator. But first and foremost, it means that it is one’s thought and will to decide, as in the case of the artist: ‘The common element of art and morals is creation and invention. We cannot decide a priori on what we shall do’ (Sartre 1963 p. 79).

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This brings us to Foucault’s second point: the refusal of an ethics stuck to the game of the contemplative gaze. Due to the voluntarism and juridical sense of freedom as sovereignty in Sartre’s ‘morals of authenticity’ (DE 344: 758), logic and morals coincide and form the imperative that ‘one must be oneself and truly oneself’ (DE 326: 473). Foucault is very clear that the error lies in the same fallacy we observed above. In order to show the universality of sense, he notes, Sartre is using an ambivalent notion of sense that is, at one and the same time, descriptive and normative. However, from the observation that there is sense, it does not follow that we could or should give sense to everything (see DE 37: 665). Sartre’s idea of the autonomous subject depends on the representation of its authenticity as ‘accordance with itself’ (344: 758), that is, it depends on the Law of Identity. Nevertheless, Foucault argues, the constitution of the subject as it emerges from the ‘living’ relationship-to-self is neither the result of reflection nor the product of a ‘making’, it is the work of a doing. Subjectivity, the ‘rapport à soi’, is ‘structured as a praxis … The praxis of the Self is a complex and varied realm’ (ibid.). If this is true, he concludes, then there will be no theoretical solution, but, hopefully, a ‘practical way out … which is not predetermined: we must make of ourselves a work of art’ (DE 326: 473). This important clarification paves the way, but certainly cannot answer what is, for Foucault, the decisive practical problem: how to make one’s constitution as a subject work ‘without recourse to cognition and to universal laws’ (ibid.), indeed how to practise freedom without submitting to some kind of rule. The focus is on ‘self-direction’. Thus, Foucault’s third point is Sartre’s misconception of power as an object and his failure to recognise freedom as the precondition for power relations. According to Sartre, whereas the subject is constituted by action, an object’s distinctive characteristic is to be acted upon. The subject is free, the object is not. Hence, power is evil, the way out is refusal or escape. But escape from power, Foucault argues, is not identical with being free, and claiming one’s freedom is not practising it. Insisting on moral or rational pretensions and juridical declarations, ‘one misses completely the ethical problem of the praxis of freedom: how to practise freedom’ (ibid.). The ethical, social and political problem is not entitlement, but empowerment. The positive freedom of self-fashioning, of the mise en scéne or Gestaltung of one’s own self so that one can make the best one can and have a ‘fine’ life, this freedom is unimaginable outside of power relations. Escape and refusal is the impossibility of them. Power ‘is exercised only over “free subjects” in as much as they are “free”’ (DE 306: 287); it is in alignment and not in contrast with the idea of freedom. Thus, Sartre’s abstract concepts are to be abandoned, and power relations must be conceived ‘as strategic

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games between free players’, more precisely as a whole consisting of ‘legal rules, rational governmental technologies, and ethos, i.e. the praxis of self and freedom’ (DE 356: 899f.).

Foucault’s project The aim of this section is to outline Foucault’s philosophical project and conceptual framework. We begin by looking briefly at Foucault’s epistemological position as it emerges from his discussion of existentialism and especially Sartre’s ‘phenomenological ontology’. On this basis we shall explore in more detail some basic concepts. In characterising Foucault’s position I have two things principally in mind: the denial of ontological objectivity and the rejection of realism. Roughly speaking, one might say that his approach is not based upon objects, but on forms, that is, on distinctions made and used by an observer. Foucault agrees with phenomenology, in particular with Merleau-Ponty, in refuting the Cartesian dualism of ‘subject’ and ‘object’. This separation, with its ontological presuppositions and epistemological implications is, or so it seems, what Foucault calls the ‘cartesian moment’ (Foucault 2003 p. 16). This is not the place to discuss the whole issue; here I aim only to discuss the form of Foucault’s overall argument. Ontology is concerned with the question of basic assumptions about ‘what exists’ or ‘what there is’ in the world. In order to ascertain existence, ontological theories start from some basic assumptions about the world and the relationship human beings may be taken to have with the world; they then ask what must be the case with regard to the world, or with regard to what there is, if this is to be possible. In Cartesian dualism the fundamental distinction is between two kinds of substance – that is, the thinking thing and the extended, bodily thing – these are radically different and have different essential properties, yet somehow are brought together in a union of which no account can be given. This claim about existence is inseparable from the epistemological point about direct, indubitable access to the mental (in its pure form, that is, thinking). Each of us has direct access to our own states of mind in a way that we do not to the physical. Descartes’s point is that thinking must be distinguished from any feature of physical things, because whereas the latter can be conceived not to exist, that is not the case with thinking. So, by transferring the ontological terms into an epistemological context, Descartes transforms the res cogitans into the ‘subject of knowledge’ and the res extensa into the ‘object’. This operation generated the ‘subject-object-problem’ of modern

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philosophy. Both the ‘subject’ and the ‘object’ appear to be posed for knowledge, and not something produced by it. Both constitute a problem to modern knowledge. As we saw in the last section, Foucault rejects the philosophy of consciousness and emphasises the fact that our world views are always already ‘located’ by the body. The localisation of human beings through their bodies implies more than holding (like a table) a determinate temporal-spatial position. It means being situated, hence oriented, because the body is experienced, in Husserl’s words, as a ‘point of view of the world’. ‘Body’ and ‘mind’ can be separated only analytically as aspects of a subject’s being. The interface between subject and reality does not reside in perception, knowledge, or language, but in situated interactions. As a consequence, perception, cognition, and description should be considered as forms of action. It is therefore not surprising that Foucault, in his studies of modern society, employs throughout the vocabulary of the theory of action and portrays society as a dynamic network of actors. However, Foucault rejects an ontology of action if this term is meant to imply that at least actions are real and therefore able to serve as an objective point of reference. On the contrary, actions are seen by Foucault as ‘strategically’ ascribed attributes. Foucault also rejects all foundational thinking. But he does not differentiate between uncritical positivism or mainstream thinking on the one hand and his own critique on the other. On the contrary, he does not believe that there is a place, an argumentative platform, from which one could be critical in any universal sense. The affirmation of truth, he insists, is always founded on a kind of force. Foucault’s is a non-dualistic approach that lets the empathic question of the one ‘true reality’ rest, and focuses instead on showing how realities emerge from our practices and what we can do with them. From an epistemological point of view, Foucault’s position is best characterised as a kind of ‘social-constructivist’ thinking (see Messner 2002 p. 116ff ), more specifically as a second order thinking that observes observations as observations (for example, see DE 50: 776). In other words, observations are not reduced to something else (subjectivity, intention, history, ideology and so on). An observation is an indication within a frame of difference (see Messner 2009 p. 145ff.). The frame for second-order observations is defined through guiding distinctions. For the second-order observer, the guiding distinction divides the world and dictates how the world can be observed. Naturally, this approach too entails ontological presuppositions. However, it does not presuppose determinate things-in-the-world, objects

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which would be there even if all observers were to disappear. We cannot say what the world consists of. We can say that the world is as it is, but we cannot say how it is independently of any representation of it. In this sense, one can say that Foucault employs, in a way similar to MerleauPonty, a bracketed ontology which is concerned with the observation of how the world comes into being as a direct result of specific perspectives. While the world emerges in specific ways, observers themselves emerge as individuals. Observations can be observed as specific positions of situated observers. Since these positions could be made differently with different implications for the emergent object, observations can be described as selections or choices of the observer. Thus, distinctions such as manifest/latent, surface/depth structure make no sense. For Foucault there is only one level, which is that of observed events, of statements as events (DE 281: 95). The aim is to describe their emergence and transformations. Foucault himself seemed well aware of (and oddly systematic in) his use of guiding distinctions. Whereas the fundamental distinction in the Archaeology of Knowledge is the difference between regularity and dispersion of statements, the guiding difference used in the ‘historical’, that is, genealogical studies is that between continuity and discontinuity (see, however, Foucault 1971, p. 222f.). Finally, the history of subjectivity (DE 304: 260) which is also ‘ethics’ (DE 304: 261), is observing no longer through dichotomies such as ‘subject and object’ or ‘fools and nonfools, ills and non-ills, criminals and not-criminals’ (ibid.); its guiding distinction is the difference between subjection and subjectivation.

Experience Let me begin with what I would like to call Foucault’s self-practices. They are rooted in the relationship between experience and statement. In a famous interview, Foucault, while commenting on Discipline and Punish, states that his writings have no systematic force in the sense of following a method which could be generalised. So, he says, my books have no doctrinal value, rather ‘they are invitations, public gestures’ (DE 281: 58). What he’s producing are not ‘truth-books’ or ‘proofbooks’, but ‘experience-books’ (DE 281: 59); all of them ‘constitute an experience for me that I would like to be as rich as possible. An experience is something you come out of changed’ (DE 281: 52). This is a first, empathic meaning of the term. Intimately connected to this is a second, methodical sense: writing is an experiment in self-exploration. For the phenomenologists, Foucault says, experience is basically a way

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of reconstructing sense out of lived experience. He himself tries through experience ‘to reach that point of life which lies as close as possible to the impossibility of living, which lies at the limit or the extreme … to gather the maximum amount of intensity and impossibility at the same time’ (DE 281: 54). The point, here, is the event, the moment of presence, and the difference is between extremely raising it and completely undermining it in favour of a supposed logic. However, Foucault is, as has been noted, ‘beyond the sterile choice between naïve experiential immediacy and the no-less-naïve discursive mediation of that experience’ ( Jay 1998, p. 73). For experience, to Foucault, is reactive: it ‘is always a fiction, something constructed, which exists after it has been made, not before; it isn’t something that is “true”, but it has been a reality’ (DE 281: 56f.). As with any other ‘work’, it is necessary to establish a basic ‘text’ in a process of construction, which entails a certain number of sometimes tricky decisions. Paradoxically, it is that originality which compels one to free oneself from certain interpretative habits, and to find technical and aesthetical solutions capable of expressing one’s experience to the full, while naturally passing it through the prism of one’s own imagination and subjectivity. This is the third, methodological or ‘hermeneutical’ meaning of experience. In all its connotations, the term implies the denial of the Sartrean project of action as deliberate self-fashioning which situates true existence in a future state, thus undermining the moment of presence essential to experience. One could hardly overestimate the role of the event, this mark of presence, for the architecture of Foucault’s thought. Centred in this paradoxical anchorage without ground, logic, or truth, the guiding lines of the archaeological observer radiate and give shape to the project. What I am analysing of the discourse is not the system of its language nor, in general, the rules of its construction: for I don’t care very much about knowing what it is that renders them legitimate or confers them intelligibility and allows them to function within communications. My question is not about the codes, but about the events: the law of existence of the statements, what made them possible – them and not others in their place; the conditions of their singular appearance. (DE 58: 869) What matters is the ‘individual law’ that governs the existence of statements, of the spoken words (énoncés), that is, of saying as action.

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A statement can be defined as such only if it is integrated into operations ‘in which its identity is maintained or effaced’ (Foucault 1971, p. 141). A statement is not simply that which is said independently of time, place, and materiality. ‘Saying something is an event’ (DE 281: 95). Statements choose their materiality, their medium of creation: speech, image, writing and so on. Always staged in a ‘context’, the statement has a specific status which derives from the strategic situation of its emergence. ‘Emergence’, Foucault writes, ‘denotes the point where something stands out. It is the principle and singular law of an appearance’ (DE 84: 174). Statements are always strategic in the sense that they emerge as one choice among other possible actualisations in a ‘field of utilisation’. Strategy is about rules of selection. Statements as events constantly produce subject positions, objects, relations and strategies. Through the circulation of the statements, one might say, a world comes into being. Or, what amounts to the same, existence is a selective blindness (Spencer-Brown 1997, p. 192). In order to grasp its ‘individual law’, one ought to observe what it is and what it is not, but, eventually, might have been (see DE 59: 899, DE 68: 1000). This is, as is well known, the fundamental question of discourse analysis. But let us not forget that the French ‘discours’ also simply means a saying, talk, or speech, that is, not necessarily the order of the disciplineddisciplinary discourse. Consider the characteristics of the discourse given by Foucault at the opening of his inaugural lecture at the Collège de France. He presupposes that in every society the ‘production of discourse is, at the same time, controlled, selected, organised and canalised’ by certain procedures which ‘serve to overcome the forces and dangers of the discourse, to ban its unforeseeable character as an event, to prevent its heavy and alarming materiality’ (Foucault 1977, p. 7). This is, more or less, what the translations say. Let us now substitute ‘saying’ for ‘discourse’. Foucault, then, is saying: we regulate our saying, because as event, as mere talk, it comes out powerfully and dangerously. Hence, the philosophical task could not consist in critical interventions which only substitute one rule of discourse construction for another. Rather it must present the saying in what is said (énoncé) and show, inside the discourse, what is ‘on its other side’ (Foucault 1977, p. 6), that is, the moment of presence. By doing so, the philosophical operation treats what previously – from Kant to Husserl and Sartre – were facta rationis (rational facts) as ‘empirical’ truths. This is to say, archaeology does not construct rationality from the inside of its rule-guided ways of production, but observes rationality from the ‘outside’. Now, Foucault’s ‘dehors’ is a title which comprises at least the following interdependent dimensions: the ‘material-physical’

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including, by way of the concept of discourse, knowledge as an autonomous realm of reality; the ‘systemic’ as composed of rules, forms, and structures; and the ‘technical’ which involves all kinds of mechanisms and mechanised practices, and, especially, devices and strategies of power. What archaeology unearths, then, is not reason or rationalisation, but different rationalities (DE 306: 272), not one truth, but various ‘games of truth’ (DE 345: 777, 356: 875, 363: 967). The latter term, as is well known, points to the existence of established regimes of knowledge and truth that regulate our approach to ourselves, each other and our environment respectively. It has another side too. This is the one where Foucault’s ‘invitation’ to participate in self-practices applies, where the ‘reality’ of experience is playfully put on the line against ‘truth’. ‘What else then’, Foucault asks, ‘is philosophy today – I mean philosophical activity – if not the critical work of thinking on itself?’ The answer reminds us of Montaigne’s Essais and the scope of examining, when generalising experiences, one’s own judgment: The examination [l’essay] – which is to be understood as a selfmodifying attempt in the game of truth and not as simplifying appropriation of others for communicative purposes – is the living body of philosophy, if it still continues to be, today, what it once was, that is to say, an ‘ascesis’, a self practice, in thinking. (Foucault 1989, p. 14) To the extent its invitation meets response, philosophy will be part not of nostalgic reprises of ancient forms of life, but of the present practices of self-transformation of human beings. We are now in a position to better understand how the project of philosophical archaeology is carried out by the use of different ‘discursive analytical strategies’ (Andersen 2003), which, as we said, are based on three guiding distinctions. Discourse analysis is, after all, not to be confused with textual, literary or structural analysis. Nor is it commentary. A discursive formation is a system of dispersion for statements as observed by an observer. It is not a structure that exists on a different level from those very statements. By describing discursive facts, archaeology deals with the emergence and regulatory character of discourse. The genealogical strategy is designed to outline the historical strategies of control by which knowledge and discourses are constituted and through which they operate. Its object, then, is displacement of disciplinary forms. However, what is more important in our context, genealogy, as a history of the present, answers the question of who we are and what we

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are at present, “in our reality” (DE 364: 999; DE 306: 280; DE 351: 838). But it takes these issues as a matter of interpretation, rather than as of the ontological condition humaine. The term has to be taken in a very specific sense: If interpretation were the slow exposure of the meaning hidden in an origin, then only metaphysics could interpret the development of humanity. But if interpretation is the violent or surreptitious appropriation of a system of rules, which in itself has no essential meaning, in order to impose a direction, to bend it to a new will, to force its participation in a different game, and to subject it to secondary rules, then the development of humanity is a series of interpretations. The role of genealogy is to record its history: the history of morals, ideals, and metaphysical concepts, the history of the concept of liberty or of the ascetic life, each time as the emergence of different interpretations, and these must be made to appear like events in the staging of the court. (DE 84: 178) Individuals, one might say, are being interpreted or interpret themselves, not in the sense of explaining their intimate essence, but in the sense of ‘either being submitted to relationships of power or voluntarily applying them to themselves’ (Harrer 2005, p. 82). This paraphrase is certainly correct, but it fails to capture the full sense of Foucault’s observation. The essence of this extraordinary passage is first, that interpretation always submits to a system of whatsoever rules; second, that the function of genealogy is to describe emergence and displacement of different systems of submitting to rules; and third, that genealogy must show interpretation as a performance, doing, mise-en-scène which marks the line between order and excess – in other words, as an art that makes possible real experiences (Parr 2005). For, what is this notion of a staging? The cultural elaboration of the movable pieces of discursive and non-discursive sceneries on which reason is founded, sceneries which conserve the institution of life. In linking the institution of life to the (nonlinear) construction of reality, Foucault hints at the aesthetic dimension of law. So, I would like to conclude that genealogy explains the theatrical, that is, performative construction of the present and the subject. In so doing, it interrogates subjectivity and unsettles the clear and distinct positions that subject, object, observer and institution occupy. In fulfilling this task, genealogy evidently presupposes and complements the working of archaeology.

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Foucault’s third strategy concerns the history of subjectivity. The analysis of ‘technologies of the self’ describes the practices available to an individual’s manifestation of itself as subject. Technologies of the self allow for individuals to influence operations that concern their own personality, so that they are able to transform themselves and achieve a specific state (DE 356: 876). In so far as they define the individual’s capacity of self-control and self-awareness, self technologies have a normative character. With respect to the subject we may resume the functions of analytical strategies in this way: the archaeological strategy describes the ways in which statements create subject positions; the genealogical strategy describes the ways in which normalising powers (1) produce individuals, and (2) transform individuals into subjects; the history of subjectivity is about the how of self-transformations, it describes the ways of the practical staging of the relationship between individual and subject position.

Being subject For Foucault, there are principally two modes of subjectivation and so of ‘being subject’. Subjectivation occurs through the interplay of (more or less) heteronomous and (more or less) autonomous mechanisms, both consisting of (more or less) formal and (more or less) material elements. Heteronomous mechanisms produce ‘subjection’ or, in the narrower political-institutional sense, ‘subjugation’; autonomous mechanisms work necessarily on the basis of the former and lead to ‘self-constitution’ of individuals as subjects. I should emphasise that both of them allow for a relative autonomy of the individual. Subjection means, first and foremost, that an individual is proclaimed subject within a specific discourse. The individual is submitted to rules which it must (and can) draw on for orientation or relief. It is offered a specific position in the discourse from which to speak and act meaningfully in a specific way. Thus, the term also points out the processes of ‘fabrication’ of individuals by normalising mechanisms. But when Foucault holds that the individual is the effect of power relations, he means the concrete effect, the concrete individual. It is not that there would be, first, the beautiful totality of the individual which then is altered by social order, rather it is that the individual is carefully fabricated. Normalisation is individualisation, Foucault insists, not fictitious individualisation. What he opposes is forced individualisation, ‘direction through individualisation’ (DE 306: 274) which has as its matrix the state with its pastoral

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power (DE 306: 275ff ). That individualisation is as abstract as its complement, totalisation, is universal. It is no coincidence that the analyses of Foucault’s later period focus on their interconnection called ‘bio-power’ (Foucault 1983, p. 124). Self-constitution, in contrast, means that the individual not only has been made subject but also wishes to be one. Through technologies of the self, the subject’s (trans-) formation results in the appropriation of a subject position. The genesis of the subject is essentially articulated in three moments: subjection, individualisation, and self-constitution. To Foucault, these are not categorically distinct phenomena. Self-constitution derives from the governmental mode of power. Hence, it comes as no surprise that Foucault, in surveying the ground upon which to build future practices of the self and thereby new modes of being subject along the line of an ‘aesthetics of existence’, applies his vocabulary of power and government. Substantial differences between disciplinary and ethical practices are hardly to be expected. However, may we conclude that any difference here is in attitude, not in content: ‘attitude is what determines whether a given practice serves as a practice of freedom or one of subjection’ (Harrer 2005, p. 79)? Might the reference to ‘attitude’ not be equivalent to a return to the existentialist’s voluntarism and intellectualism criticised earlier? Or should we translate attitude as ‘ethos’, thereby begging the question? In this respect, it is worth turning our attention to another fact pointed out by Foucault in the History of Sexuality (see Balibar 1994). It is discourse itself which demands one’s active – that is, free – self-appropriation of a subject position. More precisely, discourse – to borrow from Althusser, whose topic was ‘ideology’ – invokes ‘les individus concrets en sujets concrets, par le fonctionnement de la catégorie de sujet’ (1995, p. 305): ‘subjecting’ not only requires the individual to accept a particular subject position, but also to care for him or herself in doing so. That is, discourse marks a difference between subjection and subjectivation, and invokes the subjected to cross the line, thereby making him/her sovereign. Discourse acts in a way to transform individuals into subjects – not in a ‘true’, but in the real sense. Let us recall Althusser’s illustration of what we are to understand by interpellation. Imagine, he says, a police officer’s calling on the street ‘Hey you over there’ and the invoked individual’s turning – ‘par cette simple conversion physique de 180 degrés, il devient sujet’ (ibid.), for the individual recognises that he/she is ‘well’ the addressed one, and that it was ‘well’ he (and not another one) who had been interpellated. The concrete individual, one might say, is interpellated to interpellate himself or herself.

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The example shows that there is no ‘inner voice’, no voice of conscience to call the individual. No specific ‘doing’ is imposed. Is there a public or social voice, instead? No, it is for the specific ‘situation’ – recognised as such by the individual – to declare de facto and de jure (i.e. according to the rules of discourse) the free subject, to declare the subject sovereign. Furthermore, it makes clear that the opinion according to which Foucault sees ‘human subjectivity as a centerless bundle of contingencies’ (Rorty 1991, p. 197) is groundless for two reasons. While Foucault’s individual has no inexpressible heart, it is ‘toujours déjà’ (always already) organised. And, far more important, the subject is constituted free and sovereign not by reducing, but by increasing contingency. However, this fact also intensifies the problematic nature of Foucault’s project. How to relate government and the practices of freedom? Is sovereignty, after all, the only mode of being free? Is our position bettered when we impose rules instead of following them? Is the imposition of rules the only mode of governing? And what precisely does the idea of ‘submitting to a rule’ mean?

Governance The process of self-constitution is situated in a field of forces and starts out through a relationship to others, which in turn aims at producing a relation to self. In this respect, we need to remember that ‘force’ does not denote an ‘object’ or property, it is a field-effect, an event. Forces arising from interactions with others prepare the ground on which selfaffection can take place. Hence, the concrete mode of relating to others will condition the modes which the self practises in order to relate to itself. So, power is ‘always present’ (DE 356: 890) in our approach to the world: when referring to things insofar as the objects we relate to are always discursive objects, when referring to ourselves insofar as our relation to self is a product of power, when referring to others insofar as the concrete realities we ascribe to them are discursive positions which are established with the intent to control their conduct. These are the premises for Foucault’s later proposal to discuss relationships of power as problems of ‘government’ and ‘self government’. According to this perspective, ‘subjugation’ and ‘resistance’ assume new meanings that no longer refer to the forms of political power and/or economic exploitation, but to ‘all that binds the single one to him/ herself and so guarantees his/her submission to others’ (DE 306: 275). Conversely, resistance now means individual struggle, uninterrupted

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personal struggle, for what is at stake is the status of the concrete individual. The struggle against political and economic apparatuses is absolutely not to be considered finished, but far more important, at present, are ‘the struggles against the forms of “objectivation”, against the subjection of subjectivity’, against ‘objectivating forms … that make subject the human being’ (DE 306: 276, 269). Thus, the focus of the analysis must be shifted. The centre of attention ‘is not power, but the subject’. What becomes interesting now is the description of the mechanisms of objectivation and of their interplay. This applies to the analysis of state power too: it is to be considered not primarily as ‘form of political power’, but as a ‘complex nexus of technologies of individualisation and procedures of totalisation’ (DE 306: 277). How to withdraw from this force, how to refute the constraints imposed by modern forms of power? The challenge involved here is not the liberation from the State, but the attempt to become independent of the forms of individualisation connected to the State. This requires us to find ‘new forms of subjectivity’. The shift in perspective leads to an adjustment of the concept of power. In view of the free subject, power is understood, in a first step, as the ‘ensemble of actions and reactions reciprocally induced’ (DE 306: 282), and, in the next step, specified as a ‘form of action which calls up the others’ (DE 306: 285). The resulting conclusion is rather blunt: ‘power does not exist but as action’ (DE 356: 890). These definitions might appear trivial. However, in addition to the radical contextualisation of power (which avoids reification) by now it is clear that power can neither be founded on rejection or delegation of rights and liberties nor be explained by reducing it to violence as its primordial form. Power, Foucault insists, is not properly characterised by its effects, but by its structure. It is a way of acting that influences other actions, ‘possible or real acting, future or present acting’. Violence compels and puts down, breaks and destroys possibilities. Its counterpart is passivity. Power, by contrast, implies, first, that the other is ‘recognised constantly and until the end as an acting subject’, and second, that there is ‘an entire field of possible answers, reactions, effects and inventions’ (DE 306: 285). Ultimately the new conceptualisation of power seems not too distant from Max Weber’s concept of social action: ‘the ensemble of actions which are oriented to possible actions … it is acting oriented to acting’ (DE 306: 286). This definition emphasises the reflexive character of power relations. Power is action that aims at canalising possible other actions. Power does not prescribe behaviours. Its ultimate end is to

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‘conduct conduct’. On the basis of this explanation Foucault traces the analogies between government of others and government of the self. In highlighting the reflexivity of acting, Foucault takes up his old distinction between comportment in the behaviouristic sense and conduct as ‘the real comportment of the human individual’ being ‘reaction to another one’s reaction’ and, as such, ‘submitted to regulation’ (DE 2: 182). Conduct signifies outcome-orientation of action. Its continuous adjustment and readjustment paves the way for establishing and maintaining relationships. The orienting force of power lies in the ability to set the course of action. As a consequence, one’s concern must be with the ‘possible or real, future or present’ actions, and precisely with possibilities of action as expected from both one’s own and others’ point of view. Whatever ‘orientation’ means in the concrete case, one element will be lacking from its meaning: determination. The sharp contrast between determination and orientation, rule and ‘regulation’, clarifies Foucault’s notion of government, but it also sheds some light on the many facets of the notion ‘submitting to a rule’. Regulation or government of the self is seen as the opposite of all that holds the subject bounded – to itself, to the other, to the world – by subsuming his or her thinking under rules, by subordinating his or her actions under programmes, or by submitting his or her being under an order. ‘Self-direction’ implies the refusal of imperative principles of order, of commands, of a master’s voice, be it that of the sovereign, the law or conscience. Self-direction is the denial of any imperative to respond to. Rather, orientation comes close to strategy. Indeed, in seeking to prepare a ‘complete plan of action covering all contingencies’ (Howard 1971, p. 240) it coincides with strategy. Strategic action not only presupposes, as do all forms of action, contingency, it also takes into account complexity. Edgar Morin seems to suggest that it is complexity that makes strategy vital: ‘la complexité appelle la stratégie. Il n’y a que la stratégie pour s’avancer dans l’incertain et l’aléatoire’ (complexity calls for strategy. There is only strategy for moving forward in uncertainty and risk) (Morin 1988, p. 16). The ‘situation’ within which Foucault envisages individuals governing themselves and others freely and in new ways is characterised by contingency and complexity. From the perspective of contingency, one would say that they are invoked to select selections; conversely, from the perspective of complexity, they are invoked to relate relations. This relates to Foucault’s approach to ethics and aesthetics. The relationship between governmentality and ethics seems to indicate a strong methodological nexus, rather than substantial congruency. Ethics, Foucault observes, is not about ‘the codes’ or values. What ‘constitutes the very

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realm of ethics’ is the ‘freedom of the subject and the relationship to others’ (DE 356: 901). In particular, ethics is nothing but the ‘reflected form of freedom’, and, unequivocally, the ‘reflected praxis of freedom’ (DE 356: 879). Hence, the ethical problem is about how to practise freedom. The answer to this question is no longer to be found in the search for practices of liberation (DE 356: 877). Rather, we – omnes et singulatim – must define positively ‘what we must do in order to live as good as we should’ (see DE 326: 471). It is about the ‘microphysics’ of freedom, about the freedom at the edge of every moment. This ethics can only be outlined by explaining its method or its general form, which is threefold: concern for the self, the other and the truth. The first two elements denote the subject’s ‘concern for concern’, which has the same structure as the ‘conduct of conduct’. The latter element – introduced, as we said, long before as an instance of selfexamination – serves, in the present context, not only to ensure the balance between autonomy and heteronomy (DE 306: 291), but also allows for a further increase of complexity. For this reason the concern for the self (epimeleia) includes, but is absolutely not identical with taking care of oneself. Concern means being engaged, preoccupied, busy with a praxis of designing and manufacturing relationships, which requires activity, attention, knowledge, technique (DE 326: 484). But the very point is that ‘this work on one’s self … is not imposed through laws of the State or religious duties, but is a choice taken by the individual’ (DE 326: 486). It is precisely at this point that the various analyses converge and give shape to the idea according to which the ‘principal oeuvre … is one’s own self, life, existence’ (ibid.). Hence, Foucault’s representation of the ‘fine’ life, of the ‘aesthetics of existence’ (DE 326: 464) has no need to go beyond the descriptions already given under the title of ethics as reflected praxis of freedom (see DE 326: 464, passim).

Conclusion To summarise, my answer to the question about an existentialist motif in Foucault or, to put it another way, about the ‘later’ Foucault’s supposed ‘return to the subject’, is negative: there is no ‘subjectivistic turn’ in Foucault. Foucault adheres to the project of a philosophical history of (the nature of) reason, even where he seems to go beyond that by considering – from the ‘outside’ – our rationalities rather than rationality in general, by shifting weights and directions, or, finally, by seeking to understand reason, from a ‘pragmatic point of view’, as an ‘aesthetics of existence’. As I have argued, Foucault’s idea of ‘governance’ as the reflexive conduct of oneself and of others by the self opens a promising

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perspective for answering the question of what it means to ‘submit to a rule’. But this question remains unanswered. The role of the law (droit) for ‘our modern mode of being’ also remains underexposed, even in this new light. Curiously enough, for, on the one hand, ‘le juridique’ is used by Foucault, from the period of Discipline and Punish up to the lectures on governmentality and The Birth of Biopolitics, in a quasi-paradigmatic way to illustrate the functioning of rule, command and act (loi). On the other hand, by cutting off the law in the context of an ‘art of existence’, Foucault fails to recognise both that the modern ‘juridical’ is a really new ‘social truth generating system’ (Ewald 1994 p. 32), and that an emblematic way of being a person in modern society is the ability to produce an argument from legal necessity. But that would have to be argued elsewhere.

Abbreviations and translation The following abbreviations are used throughout the text: BN: J.-P Sartre, Being and Nothingness, London: Methuen, 1958. PP: M. Merleau-Ponty, Phenomenology of Perception, London: Routledge, 1981. DE: M. Foucault, Dits et Écrits, cited by number and page (e.g., DE 304: 260). 2: La psychologie de 1850 à 1950, 1957. 37: Entretien avec Madeleine Chapsal, 1966. 50: Che cos’è Lei Professor Foucault?, 1969. 58: Réponse à une question, 1968. 59: Sur l’archéologie des sciences, 1968. 68: La naissance d’un monde, 1969. 84: Nietzsche, la généalogie, l’histoire, 1971. 281: Conversazione con Michel Foucault, 1980. 304: Subjectivité et verité, 1981. 306: The subject and power, 1982. 326: On the Genealogy of Ethics, 1983. 344: On the Genealogy of Ethics, 1984. 345: Foucault, 1984. 351: Qu’est-ce que les Lumières?, 1984. 356: L’éthique du souci de soi comme pratique de la liberté. 361: La Vie: l’expérience et la science, 1985. 363: Technologies of the Self, 1982. 364: The Political Technology of Individuals, 1984. Translations from French, Italian and German are the author’s.

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References N. Abbagnano (1957) Philosophie des menschlichen Konflikts. Eine Einführung in den Existentialismus (Reinbek: Rowohlt). L. Althusser (1995) [1970] ‘Idéologie et appareils idéologiques d’État’, in L. Althusser, Sur la reproduction (Paris: PUF). N. Å. Andersen (2003) Discursive Analytical Strategies (Bristol: Policy Press). É. Balibar (1994) ‘Subjection and Subjectivation’ in J. Copjec (ed.) Supposing the Subject (London: Verso). F. Ewald (1994) [1986] L’État providence (German trans, Frankfurt: Suhrkamp). M. Foucault (1971) [1969] Archaeology of Knowledge (Italian trans, Milano: Rizzoli). M. Foucault (1977) [1971] L’ordre du discours (German trans, Frankfurt: Ullstein). M. Foucault (1983) [1976] The Will to Knowledge (German trans, Frankfurt: Suhrkamp). M. Foucault (1989) [1984] The Use of Pleasure (German trans, Frankfurt: Suhrkamp). M. Foucault (2003) The Hermeneutics of the Subject: Collège de France Course Lectures 1981–1982 (Italian trans, Milano: Feltrinelli). M. Foucault (2001) [1994] Dits et Écrits, 4 vols (German trans, Frankfurt: Suhrkamp). M. Hammond, J. Howarth and R. Keat (1991) Understanding Phenomenology (Oxford: Blackwell). S. Harrer (2005) ‘The Theme of Subjectivity in Foucault’s Lecture Series ‘L’Herméneutique du Sujet’, Foucault Studies, 2: 75–96. N. Howard (1971) Paradoxes of Rationality: Games, Metagames, and Political Behaviour (Cambridge, MA: MIT Press). M. Jay (1998) ‘The Limits of Limit-experience: Bataille and Foucault’, in M. Jay, Cultural Semantics (Amherst: Massachusetts UP). I. Kant (2008) Anthropologie du point de vue pragmatique, précédé de Michel Foucault, Introduction à l’Anthropologie (Paris: Vrin). M. Merleau-Ponty (1973) [1950–1] ‘Phenomenology and the Sciences of Man’, in M. Natanson (ed.) Phenomenology and the Social Sciences (Evanston: Northwestern UP). M. Merleau-Ponty 1981 [1943] Phenomenology of Perception (London: Routledge & Kegan Paul). M. Merleau-Ponty (1984) [1953] ‘Éloge de la philosophie’, in M. Merleau-Ponty, L’Œil et l’esprit (German trans, Hamburg: Meiner). C. Messner (2009) ‘Crime, Crisis, Critique. On Dogmatic and Creative Uses of Foundations’, in R. Lippens & P. Van Calster (eds) New Directions for Criminology. Notes from Outside the Field (Antwerpen Apeldoorn Portland: Maklu). C. Messner (2002) ‘Die kriminologische Beobachtung der Kriminalität’, in P. Rusterholz and R. Moser (eds) Wege zu wissenschaftlichen Wahrheiten (Bern Berlin Wien: Lang). E. Morin (1988) ‘Le défi de la complexité’, Chimères 5/6, http://www.revuechimeres.fr/drupal_chimeres/files/05chi05.pdf, last access: 15.01.2011. A. Parr (2005) ‘Becoming + Performance Art’, in Adrian Parr (ed.) The Deleuze Dictionary (Edinburgh: Edinburgh University Press).

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R. Rorty (1991) ‘Moral Identity and Private Autonomy: The Case of Foucault’, in R. Rorty, Essays on Heidegger and Others (Cambridge: Cambridge University Press). J.-P. Sartre (1958) [1943] Being and Nothingness (London: Methuen). J.-P. Sartre (1963) [1946] L’existentialisme est un humanisme (Italian trans, Milano: Mursia). G. Spencer-Brown (1997) Laws of Form/ Gesetze der Form (Lübeck: Bohmeier).

3 Vengeance and Furies: Existential Dilemmas in Penal Decision-Making Simon Green

Introduction: Reason and judgement For over two and a half thousand years the Western intellectual tradition has been dominated by a philosophy that saw knowledge and reason as the route by which understanding and progress could be achieved. Since Socrates ruminated in ancient Athens the forward march of humankind has been driven by a desire to understand the nature and purpose of our existence. The culmination of this tradition is commonly associated with the late seventeenth-century birth of Enlightenment, during which philosophical reasoning took precedence over clerical wisdom and Western European societies increasingly began to organise themselves around secular and rational criteria instead of spiritual or divine ones. Enlightenment and the subsequent emergence of capitalism and modernity represent a period in humankind’s history where the Age of Reason reached its zenith. Government, politics, knowledge and discovery were now governed by reason and logic. Science and philosophy flourished. Nations burgeoned and societies transformed with ever more sophisticated technologies and understandings of both the natural and social world. This is the world which we have inherited. Like so many other aspects of the social world our criminal justice system is also a product of this Age of Reason, and the principles and philosophies on which it is premised derive directly from the philosophical thinking of the time. John Locke’s (1690) Second Treatise of Government, Cesare Beccaria’s (1764) much celebrated On Crimes and Punishments or Jeremy Bentham’s (1789) The Principles of Morals and Legislation provided the basis for reforming criminal justice along clearly articulated and justified lines that seek to delimit the extent of punishment and provide a reasoned basis for its use. 61

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Vengeance and Furies

Central to the formation of the modern criminal justice system has been the exercise of moral and rational principles that legitimate how our governments treat people and the terms under which it becomes acceptable for them to inflict punishment. More recent times have seen a diminution of reason as the basis through which human progress can be achieved. With the appalling human cost of the Second World War, the creation of the atom bomb and the horrors of Hitler’s Final Solution the belief in the power of science and reason to achieve human progress was suddenly and irreversibly shaken. Bauman’s (1989) Modernity and the Holocaust is perhaps one of the most powerful renditions of the extremes to which rationalism can be harnessed, but new directions in how we think about the human condition began to emerge in post-war Europe. The rise of postmodernism and its associated deconstruction of both language and social conditions present an alternative in which there is no truth, no goal, no future epiphany that will reveal the nature and purpose of existence to us. Instead there are only specific, contextual and therefore multiple ‘truths’ that arise out of the cultures in which we exist and which shape both the structure of the social world and the decisions we make within it. This postmodern perspective is therefore perhaps best understood as an ongoing shift in both the intellectual and public psyche of many advanced industrial countries that demarks the replacement of grand theory and the search for truth with the search for self-identity and its associated value pluralism. While postmodernism is by no means a fully articulated or realised philosophical movement it does present a clear challenge to the orthodoxy of the Western philosophical tradition and does begin to provide powerful insights into the changing nature of social conditions and public mentalities in the latter half of the twentieth century. The rise of postmodern thinking has, however, at least partially eclipsed the slightly earlier existentialist philosophy which emerged out of France in the immediate post-war era. Born a generation earlier, existentialism shares a core concern with postmodernism that can be best summarised as an eschewal of the central philosophical tenant that there is some hidden truth that can explain what it is to be human – something that we will eventually work out through systematic, reasoned argument. At its core existentialism therefore breaks with orthodox philosophy insofar as it refutes there is any direction or purpose beyond our lived existence which can explain the nature or trajectory of our species. Existentialism is thus primarily concerned with the individual and how he or she experiences the conditions of their existence. This focus perhaps at least partly

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explains the ascendency of postmodernism over existentialism as the former provides a much more powerful platform from which to analyse and explain not only human experience but the social world in which such experience is shaped. This by no means invalidates existential questions, which are primarily concerned with the internal feelings, actions and thoughts of individuals, but has meant that existentialism is often overlooked in explorations of social institutions or phenomena like crime and criminal justice. The goal in this chapter is to begin to reconcile existential perspectives with postmodernity (or perhaps more acutely late modernity) in an effort to shed light on the individual’s experience of penal decisionmaking. The contention is that as our penal system adapts to a changing social and intellectual environment so too does the meaning of punishment. It will be argued that these changes are currently poorly understood or articulated and that this is due to an unfortunate double-bind that at once separates the penal from the cultural and the public from the private. This manifests itself in a chimera criminal justice system that is caught between the rational policies of modernity and the expressive qualities of postmodernism. It is thus caught betwixt and between, a horrid hybrid monster-of-a-system that simultaneously needs and fears the expressive contribution it increasingly requires to remain both credible and legitimate. As will be demonstrated, this has led to the acceptance of some emotions within penal decision-making but not others, to wit vengeance, retribution, disgust and hatred. This presents a dangerous and problematic situation that, far from providing secure and balanced justice, destabilises punishment since the expressive, performative and dramaturgical meaning it needs to convey cultural significance has been effectively neutered.

The Oresteia and the subordination of the Erinyes The Erinyes are Greek goddesses or spirits of vengeance. The Latin word ‘Erinyes’ translates into English as ‘Furies’, meaning ‘the angry ones’. The Furies are usually depicted as women wearing serpents around their head and arms and dripping blood from their eyes. These goddesses came into existence when the Titan Kronos castrated his father, Ouranos, and threw his genitalia into the sea. From the drops of blood were born the Furies, whose purpose was to hunt down and persecute those who committed the most heinous crimes against the natural order. When not engaged in such pursuits they lived in Hades, the Underworld, where they continued their unending punishment of the guilty. The Oresteia is a trilogy of

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plays (the only surviving trilogy of Greek tragedies) written by the Greek playwright Aeschylus and originally performed in Athens in 458 BC. These three plays consider the aftermath of the Trojan War and the murder of Clytemnestra by her son Orestes in revenge for her murder of his father, Agamemnon. Jean-Paul Sartre (1981) in his play The Flies, written during the Nazi occupation of France in 1943, provides a modern take on the second play of Aeschylus’ trilogy, The Libation Bearers. In it, Sartre explores the existential concern with freedom and conformity. His version therefore shifts the focus of the original away from matricide and vengeance towards responsibility and remorse. His adaptation does not include the third play, The Eumenides, which dramatised a trial marking the end of vengeful and violent justice and the beginnings of rational and procedural justice. In The Eumenides the Erinyes, or Furies, track Orestes to the temple of Apollo (who encouraged Orestes to murder his mother) at Delphi where he has sought sanctuary from these vengeful goddesses who have been tormenting him since he murdered his mother. Apollo is unable to protect Orestes from the Furies and sends him to Athens under the protection of Hermes while he works on delaying the Furies. However, the Furies are not to be denied and once in Athens they hunt Orestes down and surround him. After a desperate supplication from Orestes, the goddess Athena intervenes and organises a jury of 11 Athenians and herself to pass judgement. Apollo appears as advocate for Orestes and the Furies represent Clytemnestra, the murder victim. A debate then rages between these central protagonists as each seeks to convince the jury of the facts, mitigation and seriousness of the crime. This play therefore marks something of a watershed moment in the cultural meaning of punishment in ancient Greece. When a crime is committed the Furies hunt down and torment the criminal. This acts as a moral lesson that at the time engendered fear of supernatural wrath: if a person commited a crime so evil, so unforgiveable then the goddesses of vengeance themselves would climb up out of hell and exact a full measure of punishment upon them. The Furies thus represent vendetta and an implacable and certain blood debt that will be paid by any criminal who commits a serious crime. Retribution is therefore both terrible and violent; justice is certain and unforgiving: Of justice are we ministers, And whosoe’er of men may stand Lifting a pure unsullied hand, That man no doom of ours incurs,

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And walks thro’ all his mortal path Untouched by woe, unharmed by wrath. But if, as yonder man, he hath Blood on the hands he strives to hide, We stand avengers at his side, Decreeing, Thou hast wronged the dead: We are doom’s witnesses to thee. The price of blood, his hands have shed, We wring from him; in life, in death, Hard at his side are we! (Aeschylus 458 BC: pages 23–4) In opposition to this dreadful proclamation Apollo seeks to mitigate the crime by pointing to his own complicity in it and the unresolvable dilemma Orestes found himself in. Caught between his filial responsibilities to both his father and mother Orestes was cursed whichever course of action he took. Either his father’s murderer would go unpunished or he would have to kill his mother. Ultimately, Apollo argues that it is the father and not the mother who takes priority and uses Athena’s own parentage as the offspring of Zeus alone to convince her of this. The jurists then cast the vote and in true dramatic fashion they are tied, six either way. Athena then bargains with the Furies to see Orestes freed from vengeance by offering them a place of honour in Athens and renames them The Eumenides, which translates as ‘the kindly ones’. The bargain struck between Athena and the Furies is symbolically powerful on a number of levels. As old gods the Furies represent an older tradition of justice, that of lex talionis, the law of retribution. Conversely, Orestes’ vindication by trial and Athena’s persuasion of the Furies to accept the trial’s verdict subordinates emotion to reason as the basis on which justice is decided. As new gods, both Athena and Apollo represent a new emerging order in Greek society that places reason and logic above superstition and instinct. Furthermore, the Furies’ subordination to reason is reinforced by the bargain they strike with Athena. In lieu of bloody retribution the Furies accept a place of honour and are integrated into the life of Athens. As such they eschew their former vengeful ways and pronounce: And nevermore these walls within Shall echo fierce sedition’s din, Unslaked with blood and crime; The thirsty dust shall nevermore

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Suck up the darkly streaming gore Of civic broils, shed out in wrath And vengeance, crying death for death! But man with man and state with state Shall vow The pledge of common hate And common friendship, that for man Hath oft made blessing, out of ban, Be ours unto all time. (Aeschylus 458 BC: 67) Thus the play concludes with the new order of reason winning over the old order of instinct. In fact the play goes further than this as reason converts vengeful instinct into benevolence by placating it with veneration and devotion. Therefore the moral of the story is that not only is reason better than emotion but that some emotions are better than others.

Emotions unbound: Personalising justice in late modern society Although this Greek tragedy contains other lessons that will be revisited later, what the present discussion demonstrates is the cultural transformation of the Greek, and more widely, Western psyche that separates the intellectual from the emotional and the personal from the public. At the level of criminal justice this is perhaps more succinctly expressed as the transformation from substantive to procedural justice. Instead of justice being about retribution it becomes a matter of fairness. While it might take nearly 2000 more years for this to transform into the rule of law and the objective principles by which we now try to ensure impartiality in our criminal justice system, the beginnings of a system of justice based around the weighing of evidence and argument and the administration of punishment by the state rather than the individual are given precedent in this dramatisation of the victory of reason over instinct. While less than perfectly applied and subject to the same sorts of human error and manipulation as anything else, these objective principles culminate in Locke (1689) and Rousseau’s (1762) notion of a social contract and the rule of law. In this contract we willingly give over certain freedoms to the state in exchange for entry into civil society and the various forms of protection it offers. These include protection from violence or theft at the hands of any other private citizen and the protection

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from unfair or arbitrary punishment or harm at the hands of either private citizens or the state. Thus this contract explicitly forbids private retribution, relegating such behaviour to the status of just another criminal act, that of vigilantism. Similarly, the state’s administration of justice elevates punishment above emotional urges and justifies its use in terms of rational and instrumental goals such as deterrence, rehabilitation or public protection. These principles have governed Western criminal justice systems for over 300 years. Yet they are firmly rooted in the conditions and psyche of both Enlightenment and modernity. As society begins to move into a new era of late or postmodernity then new tensions and stresses start to manifest themselves within criminal justice. Bearing witness to these tensions are a range of recent penal reforms and academic commentaries that begin to develop the place of personal emotions in penal decision-making. Beginning in the late 1960s and 1970s a growing realisation about the marginalisation of the victim within the criminal justice system emerges (Shapland et al. 1985; Mawby & Walklate 1994). This realisation leads to persistent attempts to give the victims of crime a new voice in the penal process. Whether extra-legal in the form of support and services, or procedural in the form of state and offender compensation, victim impact statement, vulnerable witness provision or restorative justice (Green 2007), these changes begin to reintroduce emotions into the penal realm. While driven by a growing victims’ lobby that argued justice was not being delivered for crime victims, these reforms also begin to shift the contours of how justice works. Alongside the state (which prosecutes on behalf of the victim) and the defendant (who is accused of a crime) the victim now steps forward. The introduction of victims in the penal decision-making processes reintroduces those directly affected by the crime, and in particular all of their feelings and frustrations, back into a system that had been designed to exclude emotion from the delivery of justice. Loader and de Haan (2002) have pointed to a number of ways in which emotions have become more central to the delivery of justice concluding that emotions have become ‘inescapably implicated in both the “volatile and contradictory” nature of late modern penality’ (Loader & de Haan 2002: 247). David Garland (2000) discusses this trend in his analysis of the culture of high-crime societies, pointing to the social changes associated with late modernity as a way of understanding the new emotionalism found in penality. To this end he identifies a number of significant trends that help explain this emotionalism. Chief among these is the

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increasing cultural salience of the symbolic victim, the impact of which he describes in his polemic on the culture of control: The victim is every victim, she could be you or related to you. This personalizing trope, repeated endlessly on television news and documentaries, represents the crime victim as the real life, ‘it could-beyou’ metonym for the problem of personal security. And in so doing, it shifts the debate away from the instrumental reasoning of crime control analysis towards the visceral emotions of identification and righteous indignation. (Garland 2001: 144) Hence the symbolic power of victimisation is intrinsically connected to media portrayals of crime and justice which portray both real and fictional accounts of when the criminal justice system fails victims and which invasively thrust crime and its awful consequences into the homes and consciences of everyone. For Garland (2000, 2001) these expressive and emotive conditions are strongly associated with the conditions of late modernity from which they arise. In a similar vein, Karstedt (2002) explores what she refers to as the emotionalisation of the law. Like Garland (2000) she also sees this trend to be in keeping with the conditions of late modernity and explains emotionalisation in terms of authentic assertions of self-identity that underscore individual autonomy and self-representation. Karstedt (2002) considers the impact of these conditions on the way in which the penal process functions. While she acknowledges the emotional context in which crime and criminal justice have always occurred, she argues that over the last decade or so there has been a noticeable increase in the emotional content of public discourses about crime and the introduction of punishments that ‘are explicitly based on – or designed to arouse – emotions’ (p. 301). Drawing Garland (2000) and Karstedt (2002) together, a picture begins to emerge of the cultural conditions that heighten the symbolic power of the victim and introduce emotionalism into the penal process. It is therefore perhaps unsurprising that virtually all of the arenas in which emotionalism has crept into penal policy have been predominantly victim-centred. Victim impact statements, restorative justice, vulnerable witness and victim programmes in court and Victim’s Commissioner all resonate strongly with both the increasing symbolic significance afforded to crime victims and the direction in which our cultural sympathies lie.

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Alongside Garland (2000) and Karstedt (2002) others have sought to consider the increased salience afforded to emotions in criminal justice. For example, Laster and O’Malley (1996) discuss the advent of what they refer to as ‘sensitive new-age laws’, arguing that the conditions of late modernity have inculcated both technocratic and emotional tendencies in the penal process. This accords well with Garland’s (1996) criminologies of the self and other and the rational-offender-versus-sadistic-monster dialectic that, he argues, emerges from the state’s failure to control the crime rate. Hence they conclude that claims that either technocratic or emotional justice are emerging as the dominant trend are misplaced; both are, in fact, emerging simultaneously and in response to the tensions and contradictions inherent is wider social conditions. Freiberg (2001) has argued that crime prevention will fail to succeed, regardless of how technically successful it becomes, unless it manages to ‘tap into the deeper psycho-social forces which have driven the recent wave of popular punitiveness and which underlie the criminal justice system generally’ (p. 266).

Individualising justice: Advanced liberalism and the politics of responsibility Alongside these criminological commentaries about the emotionalisation of the penal system as a consequence of cultural conditions, there is a compatible commentary about the political conditions that also help to contextualise this emotionalism. This commentary tends to take as its point of analysis neo-liberalism, advanced liberalism or governmentality. These interconnected themes point towards a number of key trends, chief among which is the shift in responsibility for crime control from the state to either the local or individual level. For example, Garland (1996, 2001) provides a structural explanation for the state’s need to redefine both the nature of the crime problem and where responsibility for its prevention lies. This leads him to consider the existence of the ‘criminogenic situation’ which is the site of intervention for governmental practice about crime control (Garland 1997). The criminogenic situation is the place in which crime occurs; it is not individual offenders but a particular location or domain with its own features and characteristics. It is populated by active subjects and usually provides some form of economic or social function outside of its criminogenic features. Examples of such sites include: unsupervised car parks, football games, bus stops and subway stations. This, Garland

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(1997) argues, presents a problem for government as the site generally has some form of social or commercial value and must, therefore, be allowed to function normally despite any crime reduction projects. The criminogenic site must therefore be governed but not coercively controlled. In response to this conundrum he argues that the government should pursue strategies of responsibilisation where state authorities (typically the police or Home Office) seek to enlist other agencies or individuals to form a chain of coordinated action that reaches into criminogenic situations, prompting crime control conduct on the part of ‘responsibilized’ actors. (Garland 1997: 188) In a similar fashion, Hughes (2007) has drawn on both Garland (2001) and Johnston and Shearing (2003) to explore what he refers to as the ‘preventative turn’ in criminology. Johnston and Shearing (2003) argue that responsibility for policing has been partly devolved from central government across a range of local and community organisations to create ‘community networked governance’ instead of the traditional model of a state police service This articulation of the process of responsibilisation draws its theoretical potency from Foucault’s (1982) and others’ (Miller & Rose 1990) conception of governmentality. Fundamentally, this issue of governmentality represents a technology of control whereby the state seeks to govern from a distance, exercising its power by shaping the active choices made by its citizens. Nowhere is this truer than in recent New Labour administrations proselytising about the need to build strong and responsible communities. Foucault’s (1982) discussion of governmentality is presented as a revised concept of power. He attempts to sidestep the longstanding criticism that he neglects the role of the state and tends to overemphasise citizens as ‘docile bodies’ rather than active subjects (Garland 1997). Governmentality is thus construed by Foucault (1982) as the process by which active choices by individuals are the mechanism by which power is exercised. Therefore, government relies on individuals who will exercise their choices in line with governmental priorities. In other words to govern is to ‘shape’ the way in which individuals exercise their choices. Within this analysis Foucault (1982) locates a range of governmental authorities who have responsibility for regulating people’s conduct. Included are the family, medical practitioners, psychiatrists, educational

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institutions and employers. As Garland (1997) states, this means that traditional boundaries between state and civil society or between public and private become blurred. The business of governing is thus diverted through those social bodies that have responsibilities for providing modern forms of ‘pastoral’ care (Foucault 1982). For Rose (1996) this represents the end of social government in the sense that its aim should be the national provision of collective welfare. The welfare agenda was criticised for its cost, injustices and burdens. Too much power was centralised in the hands of the welfare system and its agents. Instead, a libertarian consensus emerged which focused on the rights and empowerment of ‘active citizens’ leading to a fundamental shift in the locus of responsibility (Green 2008). No longer was civic responsibility to be understood in terms of an obligation between citizen and society, rather: [I]t was to be a relation of allegiance and responsibility to those one cared about the most and to whom one’s destiny was linked. Each subject was now located in a variety of heterogeneous and overlapping networks of personal concern and investment – for oneself, one’s family, one’s neighbourhood, one’s community, one’s workplace. (Rose 1996: 331) Within the criminological discourse this analysis has been adopted by other commentators. Chief among these are O’Malley (1992, 1996) and Stenson (1993) who have both taken the concept of governmentality and applied it to crime. For Stenson (1993) policing is the subject of interest. He argues that contemporary notions of community policing represent a governmental technology in which the government attempts to harness a range of social bodies that ‘create their own regulatory strategies’ (Stenson 1993: 384). Within this framework it is the community in which policing operates and responds, and it is the community in which these moral authorities are situated. Therefore, by aligning itself with the particular needs and concerns of a community the governmental strategy is to create active citizens who will self-govern by directing the activities of the police service. Stenson’s (1993) argument echoes the earlier work of Rose and Miller (1990) in which the characteristic of advanced liberal governmentality is government at a distance and demonstrates a further example of how the boundaries between public and private space have become increasingly blurred.

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Similarly, O’Malley (1992) comments on the ways in which crime prevention can be understood in terms of the governmentality thesis. According to O’Malley (2001, 2004) this dynamic explains how the decline of the welfare state has led to the growth of individualised risk management or ‘prudentialism’. This shift represents a move away from social strategies of welfare (or social insurance) to individualised forms. For O’Malley (1992, 2001) this is connected to a neo-liberal agenda where individual responsibilities and active citizens ‘foster devolution of crime prevention to the citizenry and promote risk-based models of governing crime in the community’ (O’Malley 2001: 89). While there remain significant differences in focus and nuance within these perspectives, they share a broad conclusion that the politics of neo- or advanced liberalism seeks to redefine the boundaries of public and private responsibilities. In place of state provision the private citizen is increasingly expected to shoulder the burden of providing for their own welfare and security. When combined with the structural and cultural context in which emotionalism becomes an increasingly important penal currency the political reaffirms the growing importance of the individual as the unit in penal decision-making for both the commission and resolution of crime.

Reconciling justice: Public meets private It would seem that this combination of structural, cultural and political conditions are conspiring to reintroduce the private individual back into penal decision-making. The state and the judiciary have been the avatars of justice for hundreds of years yet in contemporary society, with its focus on the individual, this no longer seems sufficient. As Garland and Young (1983) note: We would conceive of penality as a specific institutional site which is traversed by a series of different social relations. Political, ideological, economic, legal and other social relations do not merely, ‘influence’ or ‘shape’ or ‘put pressure upon’ penality – they operate through it and are materially inscribed in its practices. (Garland & Young 1983: 21, emphasis in original) As with all other social institutions the penal system is not immune to change and as our social relations begin to realign themselves so does the penal process. Yet as Garland and Young (1983) contend, penality is not just subject to change but is also a vehicle through which new social

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processes occur. This is crucial to understanding the private citizen’s new relationship to the delivery of justice. Justice cannot be understood in purely instrumental terms about how we respond to crime; it is also a cultural process through which individuals can express themselves in ways that both construct and affirm identity and social bonds. Hence, penal decision-making becomes heavily invested with layers of meaning that include public concerns about fairness and procedure together with private concerns for expressive and substantive justice. Of particular relevance is the work of Anthony Giddens (1990, 1991) which characterises late modernity as a ‘careering juggernaut’ that cannot be controlled or predicted. As such, late modern society has high levels of uncertainty and insecurity that Giddens (1991) argues are a consequence of the decline of traditional community and kinship networks and the separation, or disembedding, of social institutions from both place and time. Without these anchors the world becomes an increasingly unpredictable and risky place in which psychic and existential anxieties pervade. This ontological insecurity is managed through a continuous process of reflexive creation and recreation of self-identity which then allows the individual to connect to the past and present by constructing an authentic self-identity that is true to oneself while also being able to adapt to an ever-changing social world. Thus, one of the core features of late modernity is ontological insecurity and the on-going task of building an authentic self-identity that provides a measure of control and composure in conditions where the self is contantly buffeted in the eddies of a simultaneously liberating and deeply threatening social and cultural malaise (Giddens 1990, 1991). How is this authentic self generated? For Giddens (1991) one of the main consequences of late modernity is the basis on which trust is established in a world where community and kinship networks are in decline. In such a world Giddens (1991) argues that personal trust is achieved by developing intimate relationships with friends and lovers. In an environment increasingly devoid of stable social institutions, trust is achieved through mutual openness and self-disclosure rather than pre-existing social networks. Intimacy is therefore achieved through an ongoing process of self-enquiry and self-discovery with other people. This is the basis of what Giddens (1991) refers to as the pure relationship, developed in relation to internalised emotional desires and personal connections. This pure relationship forms an important part of the search for an authentic self-identity as it provides defence against external threats and nurtures the capacity to connect with abstract notions of trust which are essential to survival in the late modern world.

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Authenticity is therefore derived through emotional honesty and openness with other people. These purely emotional and very intimate connections become central to the search for ontological security. Emotions and emotionalism are thus increasingly vested in a wide range of social interactions that are as transient as they are powerful. From intoxicating romance to wailing grief through to blinding rage the social world is increasingly charged with a level of emotional outpouring hitherto unknown. Whether it’s sat on the sofa with Oprah, histrionics in the Big Brother house or tabloid campaigns to ‘out the pedo’, emotions have become very public. If authenticity is achieved by emotional openness, such displays can be understood as part of a cultural practice of reaching out to others – the louder and stronger the emotion, the greater the need for self-identity and security. What this demonstrates is the importance of emotions in providing both the basis and insight into how people seek to authenticate themselves by transcending, or lifting themselves out of and above, an uncertain and insecure late modern world. Emotions are therefore not only the basis and currency of authenticity, they are also important in understanding the cultural meanings of action. For Katz (1988) the emotional appeals of rule-breaking are just one example of understanding the role emotions play in explaining action. But located within the social theory of Giddens (1991) emotions become the last human resource upon which a person can rely in the day-to-day navigation of risks and relationships in late modernity. The character of intimacy is therefore transformed as a consequence of a disembedded and increasingly global society that is nevertheless still routinely traversed on a day-to-day basis in physical localities. In response to this dynamic, intimacy becomes part of the search for selfactualisation and identity – a way of exerting one’s sense of presence or purpose in a world which constantly shifts around us. Intimacy therefore becomes a form of defence against the intrusion of the vagaries and challenges of an external and threatening world. Giddens (1991) characterises this intimacy in terms of a ‘pure relationship’: A pure relationship is one in which external criteria have become dissolved: the relationship exists solely for whatever rewards that relationship as such can deliver. In the context of the pure relationship, trust can be mobilised only by a process of mutual disclosure. Trust, in other words, can by definition no longer be anchored in criteria outside of the relationship itself – such as criteria of kinship, social duty or traditional obligation. Like self identity, with which

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it is closely intertwined, the pure relationship has to be reflexively controlled over the long term, against the backdrop of external transitions and transformations (Giddens 1991: 6) Intimate social relations are therefore inextricably linked to the wider social conditions that define modernity. Emotional intimacy, or openness and sincerity between friends or lovers, can be understood as providing both internal and external forms of authenticity. The people with whom we are intimate help shape identity and the ability to connect more widely with the abstract notion of trust, thus enabling us to function in the modern social world. This perspective on contemporary social conditions begins to shed light on two important and interconnected themes that link penal decision-making to the emotional and the emotional to the existential. As a combination of structural, cultural and political drivers in late modern society push the individual and the individual’s feelings to the foreground, so they are correspondingly pushed to the centre of penal decision-making. In a world in which everything is doubted and in which people’s lives are less and less governed by external structures and networks, the individual and the emotional become increasingly important as the unit through which authentic and legitimate decisions are made. Emotions thus become the basis of a new trust currency and emotional communication a crucial element in communicating both personal and cultural meaning and intent. Within this framework of understanding, theories of late modernity share some important themes with existentialism. To translate these ideas into existential concerns requires a shift in emphasis. Instead of focusing upon the social world or social conditions existentialism focuses on the individual and the individual’s experience of existence. Yet many of the themes central to existentialism can also be read through the lens of late modernity. Freedom, self-identity, anxiety and authenticity are all key concerns in existential writing and are all increasingly salient in late modern society. The breakdown of traditional forms of social bonds and networks leads to increasing levels of freedom to choose the type of lifestyle (or identity) one wishes. This breakdown of tradition is also the breakdown of prescriptive morality that dictates how individuals should live their lives. Since the late 1960s there has been an increasing pluralisation of lifestyle choices and social attitudes that now openly (or at least, more openly) tolerate a diverse range of behaviours, values and relations. Put in terms that Nietzsche (1883–5, 1886) or Sartre

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(1943) might use, levels of social conformity or public morality have declined leading to greater levels of freedom for the individual to choose the type of existence they wish to lead. For both Nietzsche and Sartre this would be considered a good thing that affords the individual the space to transcend above the social and moral strictures that inhibit the individual’s capacity to lead a full and authentic existence. However, as both Sartre’s (1943) and Giddens’ (1991) work alludes, such freedom provokes anxiety. As the individual is less tethered to a particular set of expectations, the freedom to decide which path to take becomes the source of existential anxiety – a consequence of no longer feeling confident about that nature of existence (or reality) and one’s place within it. It is this anxiety that forms the basis of the late modern quest for identity and its associated patterns of individualisation, reflexivity and insecurity. These thematics again resonate with the existential, though they do not have precisely the same meaning in existential thinking. Anxiety (or angst) is a central concern for existential thinkers such as Kierkegaard (1843, 1844) and Sartre (1938, 1943) and is viewed as the crucial emotion that underpins human existence. Anxiety for the existentialists is caused by the deep-seated realisation that we are responsible for our own decisions and that there is nothing governing these decisions beyond the conditions of our existence and our ability to choose between different courses of action. These choices or decisions lead to anxiety because we only ever have a partial understanding or knowledge about which is the correct path to take. As a consequence, all decisions require a ‘leap of faith’ as we cannot be certain whether they are the right ones and we must live with the responsibility for the choices we make. This is what Sartre (1943) meant when he stated that we are condemned to be free, that freedom and the responsibility that goes with it lead to anxiety. Thus for Sartre (1943), to live an authentic existence is to confront and accept this freedom and the anxiety that accompanies it. Only through such acceptance can the individual rise above social norms and begin to make decisions that are based on circumstances (facticity) and desire rather than social expectations (conformity). To achieve this authenticity in decision-making is to transcend our circumstances and use our conscious mind to make decisions that are not dictated or bound by our environment. For Sartre (1943) it is our consciousness and the ability to wield it over environment that distinguishes human beings from animals and affords us the freedom to make choices that then define our existence. These parallels between the conditions of late modernity and existentialism are beguiling. They talk to different concerns while utilising

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similar language to different ends, but there is a bridge between the two perspectives. This bridge is the individual’s search for an authentic existence. For Giddens (1991) this is tied to emotions as the basis for building trust and social bonds, and for existentialists like Sartre (1943) it is struggling to make self-aware decisions in terms of individual circumstances and preferences rather than simply conforming to external pressures. The quest for authenticity is thus rooted in the individual’s attempts to create a sense of identity through expressive decision-making. Instead of blindly following socially, culturally or morally prescribed pathways the individual seeks to assert a sense of control, or authorship over their existence. This resonates strongly with Stephen Lyng’s (1990) notion of edgework which explores why individuals engage in extreme sports in late modern society. ‘‘Edgework’ is linked to the individual’s need to overcome the ‘social’, bringing themselves to the very brink of no return. This has the effect of stripping back social and cultural constraints so that all that is left is the ‘residual self’ that is then capable of unconstrained spontaneous and creative action. It is in these moments that the individual achieves a heightened state of emotional clarity that celebrates the self’s ascendancy. Within the context of penal decision-making the individual and the emotional have been denied a seat at the table for a very long time. As society becomes more individualised and as the expressive and the emotional become more valourised criminal justice has also witnessed the gradual reintroduction of both back into the penal decision-making arena. To date this has been largely understood in instrumental or functional terms to do with meeting the needs of victims or seeking more humane and inclusive strategies for responding to crime. Yet, as has been discussed here, perhaps there are deeper structural, cultural and political forces at work which can explain this shift in a more profound way. If so, then the individual once more has a role to play in penal decision-making. Their feelings and experiences once more carry weight in terms of how justice should be done. Hence, while justice still remains conspicuously public in most regards it now also begins to take on a private dimension in terms of the individual’s authority to exercise their opinions and desires within the penal process. While this raises important procedural questions about fairness, due process and proportionality that have typically been the focus of criminological and socio-legal research (Ashworth 2002), it also raises as yet largely unconsidered existential questions about the individual’s new role in penal decision-making and how this role is both experienced and executed.

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Inauthentic justice and the subjugated self Emotions have been reintroduced into how ‘we do’ justice and punishment; but only some emotions and only in the pursuit of certain goals. At the heart of these skewed emotions is an ongoing distrust of private emotions in the delivery of justice. About 200 years ago we stopped punishing people in public. The spectacle of punishment was taken indoors and behind the prison walls. Part of the reason behind this was the threat to the legitimacy of the emerging nation-state. If the crowd publicly expressed their dissatisfaction with the punishment because it was either too lenient or not severe enough this could be interpreted as a challenge to the authority and integrity of the state. In contemporary society the conditions of late modernity have propelled public and political interest about crime and punishment to hitherto unknown levels. Fear and anger about crime run high and emotions find new resonance across society and within penal policy. Yet like our forbearers we remain suspicious and wary of private emotion and sentiment. In the context of the Enlightenment tradition and its concomitant critique of the brutalising and disproportionate ‘bloody code’ of corporeal and capital punishment the subjective and unreliable involvement of the crowd was replaced with objective principles and external criteria by which punishment should be administered. This in turn undermines the authenticity of any emotional expression as it is generated from a biased process rather than genuine feelings. To be clear, it is not that remorse, shame or forgiveness are unworthy sentiments but that unless freely expressed they cannot provide the authentic representation of self that has become so integral in late modern society. Unless expressions of defiance, pride or vengeance (or any other emotion for that matter) are equally valid, then participants are robbed of the opportunity to genuinely decide on what they feel or how to express themselves. If emotions are to be reintroduced into the penal system, then they must be given full vent if they are to be meaningful in terms of both authenticity and recovery from the consequences of crime. To put this in therapeutic terms: there are no right or wrong emotions, there are just emotions. Within this context Karstedt (2002) cites the return of shame and its associated restorative processes as an exemplar of this trend before considering the appropriateness and suitability of such strategies for penal legitimacy. She argues that emotions are rational responses to the unfairness and injustice of criminality, and feelings of anger, disgust,

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shame, compassion and so forth reflect our individual and shared moral values. From her wider analysis of emotion theory she concludes: Legal institutions are not based on a small number of basic emotions, but on different and contradictory ones. Processes of punishment are linked to feelings of disgust as well as being embedded in emotions of sympathy. Any efforts to bring one of these to the forefront, and make it the foundation of criminal justice procedures, will necessarily ignore the range of moral sentiments which are involved in the individual as well as the collective. (Karstedt 2002: 312) What this suggests is that while crime and punishment have become culturally loaded with emotional meaning, the penal process has only allowed for a particular form of emotional participation – namely one built around shame and forgiveness. This presents a dangerous divergence between public discourse and penal policy which threatens the system’s integrity (legitimacy) and its capacity to meaningfully respond to the late modern context in which criminality occurs (expressivity). For Karstedt (2002) this over-emphasis on shame seems to set a dangerous precedent whereby one emotion is set above the rest. Today private participation appears to have been reintroduced into criminal justice. The scaffold has been metaphorically rebuilt and the crowd reassembled. However, rather than take the chance that they might cheer or boo at the wrong moment someone is at the front with a large board telling everyone when to clap. The crowd must be educated to behave in the appropriate fashion to deliver the desired response. In other words, where emotion has been allowed to seep into penal decision-making it has been put to work in the service of the instrumental goals of public justice. The justification for private emotions in penal decision-making is therefore overwhelmingly couched in terms of improving how offenders are treated or meeting the needs of victims. Rarely, if ever, is the justification for the introduction of private feelings presented as a good thing in itself. For Smith (2008) this emerges out of a criminological and legal fixation with the technical and rational aspects of punishment. Built on the back of a Foucauldian concern for technologies of control and the exercise of power Smith (2008) argues the sociology of punishment has led to an impoverished understanding of punishment that ignores the sacred and divine, the performative and dramaturgical, the mythological

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and totemic. Drawing on the writings of Emile Durkheim (1893, 1915), Smith (2008) builds a competing set of analytical precepts that seek to reassert the importance of emotion and meaning back into understandings of the penal: With his commitment to vision of a routinized and rationalized culture under the control of experts, Foucault fails to come to terms with the unpredictable, rhizomic properties of semiosis and the flexible qualities of myth that make alternative, contending, plural narrations of penal process not just likely but inevitable. (Smith 2008: 178) Smith’s (2008) argument is therefore a refutation of Foucault’s (1977) Discipline and Punish thesis, which he argues has over-stated and overprioritised technologies of control at the expense of the sacred and mysterious cultural qualities invested in how we punish. As a consequence our understanding of the function and meaning of the penal process has been skewed towards the rational and technical and away from the expressive and emotional. Not only does this result in the depreciation of the cultural qualities of punishment, it also effectively relegates this aspect of punishment to a historical footnote. Viewed through either a late modern or existential lens this set of circumstances begins to raise some serious concerns about how the individual interprets and makes sense of their role and function within penal decision-making. How is authenticity to be achieved in an environment where the message is increasingly, ‘Your voice matters’, but then is quickly followed with, ‘providing you follow the set script’? If emotional openness and integrity is becoming increasingly important in late modern society is it not somewhat compromised if expressing certain thoughts or feelings is frowned upon? And how are authentic decisions made if either a particular outcome is required or expected? If there is social pressure for individuals to conform to particular instrumental strategies of control surely the authentic existential decision is to step outside of the morally prescribed and choose a more irrational or expressive declaration or judgement. Or alternatively, do people seek the comfort and security of conformity? If so, why does there appear to be so much fear and anger about crime? If the expectation is upon forgiveness and reconciliation then what happens if you wish to express different sentiments or if you want to see some form of pain or punishment inflicted that is not available or condoned? What happens to the

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meaning and relationship between the victim and offender in a penal process that remakes decisions as personal and subjective rather than as public and objective? It is these types of existential dilemma to which the title of this chapter alludes. What these kinds of question point towards is an under-theorised notion of the individual within penal decision-making. The relationship between introducing the individual into penal decision-making and the structure and logic of those decisions has yet to be fully considered. What appears to be the case is that the individual is expected to serve in the cause of long-standing conceptions of procedural justice. The dangerous implication of this is that the individual has been duped into providing a cultural justification for the continued use of an outmoded penal process. Resonating strongly with Foucault’s (1982) governmentality thesis the individual becomes, in effect, the mechanism by which the state exercises its power legitimately. This does not take seriously the cultural and political forces that have placed individual freedoms, responsibilities and emotions at the core of contemporary social conditions. It is here that existentialism can begin to play a meaningful role in considering the relationship between these forces and the individual’s experience of the penal process. In particular it would seem that existentialism can offer useful insights into the tension between freedom, conformity and the anxiety that accompanies these sorts of penal dilemmas.

Conclusion: The furies resurgent? If late modern society contains both cultural and political drivers that lead to individualisation and emotionalism, it follows that these thematics will begin to encroach into the penal system and penal decisionmaking. The beginning of this encroachment has been outlined as has the cultural and political conditions that explain why this is happening. The purpose of doing this has been to show that individual, or private, concerns have been reintroduced into penal decision-making. Yet these concerns are filtered through collective, or public, priorities that seek to harness the individual for instrumental goals. A hybrid system is born which seeks to accommodate both the public and private but which unintentionally begins to create a tension between the two as the logics of each increasingly come into conflict. It is this tension which remains unresolved and under-theorised. It is at this level that existential philosophy and its attention to how individuals make and experience decisions can prove useful. Does the penal system provide genuine opportunities

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for individuals to make authentic decisions that allow them to generate meaningful self-identity? Or is it, as has been hinted here, creating unacknowledged and irreconcilable obstacles to the creation of self-identity that fulfil neither the needs of justice nor the needs of the individual? The ascendance of reason over instinct and the banishment of private justice from the penal realm is dramaturgically illustrated in the trial of Orestes and subordination of emotions in the form of the Furies. Yet although this play reminds us of these important contours of justice it also contains hints at other features of justice that have arguably fallen by the wayside. The first and most obvious lesson is that this is a play – a cultural representation of the debate between different types of justice. It is performative and it is symbolic and was made to both educate and entertain the crowd in Athens. In itself the play reminds us of Smith’s (2008) point that justice and punishment cannot be simply reduced to ever more sophisticated techniques of control but are also shaped and interwoven by a wider tapestry of social and cultural significance that give both meaning and form to how justice is done. There are further clues within the play suggesting that although emotions are subordinated they are not denied entirely. Firstly, vengeance remains an option and is given a voice through the Furies at the trial of Orestes. This voice represents the passion of vengeance yet it can be reasoned with and is not simply concerned with vengeance to satiate bloodlust; it is also vengeance as a legitimate and certain expression of justice, of the balancing of scales and the deterrence of other crimes. Thus while vengeance and emotions are at war with reason and process they are not entirely incompatible with its goals. Secondly, vengeance is not simply shunned; it is bargained with and bought off with a place of honour and privilege in the life of the city of Athens. Vengeance and emotion are thus venerated and treated as sacred (not least because most of the central protagonists are deities). Thirdly, while vengeance is denied in favour of leniency part of the argument for this is that Orestes was himself engaged in an act of vengeance against his mother who had murdered his father. Vengeance itself is therefore seen as a form of mitigation for Orestes’ crime. What these slightly more subtle nuances within the play suggest is that while emotion is relegated below reason, this is not done without deliberation and compromise. Thus, it is not the Furies, or vengeance, per se that is resurgent but rather what they symbolise. The Furies represent subordinated emotions that are slowly bubbling back to the surface of the penal system, but more importantly they also represent the return of private concerns in penal decision-making. Whether this is a desirable circumstance and whether

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it can or should be sustained is clearly open to question. However, what is increasingly evident is that if emotions continue to seep back into penal decision-making, the pressures and tensions on both the system and the individual are likely to have consequences for the cultural and existential meaning of how and why we punish.

References Aeschylus (458 BC/1998) The Eumenides (translation by E. D. A. Morshead, Orange Street Press), downloadable at http://sparks.eserver.org/books/ eumenides.pdf. Accessed on 15th January 2011. A. Ashworth (2002) ‘Rights, Responsibilities and Restorative Justice’, British Journal of Criminology, vol. 43 (3): 578–95. Z. Bauman (1989) Modernity and the Holocaust (Ithaca, NY: Cornell University Press). C. Beccaria (1764/1986) On Crimes and Punishments (Indiana: Hackett Publishing Company). J. Bentham (1789/1996) The Collected Works of Jeremy Bentham: An Introduction to the Principles and Morals of Legislation (Oxford: Clarendon Press) (revised version of 1970 edition). E. Durkheim (1893/1964) The Division of Labour in Society (New York: The Free Press). E. Durkheim (1915/2008) The Elementary Forms of Religious Life (Oxford: Oxford Paperbacks). M. Foucault (1977) Discipline and Punish: The Birth of the Prison (London: Allen Lane). M. Foucault (1982) ‘The Subject and Power’, in H. L. Dreyfus and P. Rabinow (eds) Michel Foucault, Second Edition (Chicago: Chicago University Press). A. Freiberg (2001) ‘Affective versus Effective Justice: Instrumentalism and Emotionalism in Criminal Justice’, Punishment and Society, vol. 3 (2): 265–78. D. Garland (1996) ‘The Limits of the Sovereign State’, British Journal of Criminology, vol. 36 (4): 445–71. D. Garland (1997) ‘Governmentality and the Problem of Crime: Foucault, Criminology, Sociology’, Theoretical Criminology, 1 (2): 173–214. D. Garland (2000) ‘The Culture of High Crime Societies: Some Preconditions of Recent “law and order” Policies’, British Journal of Criminology, vol. 40 (3): 347–75. D. Garland (2001) The Culture of Control: Crime and Social Order in Contemporary Society (Oxford: Oxford University Press). D. Garland & P. Young (1983) ‘Towards a Social Analysis of Penality’, in D. Garland & P. Young (eds) The Power to Punish: Contemporary Penality and Social Analysis (London: Heinemann Educational Books). A. Giddens (1990) The Consequences of Modernity (Cambridge: Polity Press). A. Giddens (1991) Modernity and Self Identity: Self and Society in the Late Modern Age (Cambridge: Polity Press). S. Green (2007) ‘Restorative Justice and the Victims’ Movement’, in G. Johnstone and D. Van Ness (eds) A Handbook of Restorative Justice (Collumpton: Willan).

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S. Green (2008) ‘Discrimination and the Poor: Using Incentives and Privileges as a Framework for Anti-discriminatory Practice’, in S. Green, S. Feasey and E. Lancaster (eds) Addressing Offending Behaviour (Cullompton: Willan). G. Hughes (2007) The Politics of Crime and Community (Basingstoke: Palgrave Macmillan). L. Johnston and C. Shearing (2003) The Governance of Security: Explorations in Policing and Justice (London: Routledge). S. Karstedt (2002) ‘Emotions and Criminal Justice’, Theoretical Criminology, vol. 6 (3): 299–317. J. Katz (1988) Seductions of Crime: Moral and Sensual Attractions in doing Evil (New York: Basic Books). S. Kierkegaard (1843) Fear and Trembling (London: Penguin). S. Kierkegaard (1844) The Concept of Anxiety (Princeton: Princeton University Press). K. Laster and P. O’Malley (1996) ‘Sensitive New-Age Laws: The Reassertion of Emotionality in Law’, International Journal of the Sociology of Law, vol. 24 (1): 21–40. I. Loader and de Haan (2002) ‘On Emotions of Crime, Punishment and Social Control’, Theoretical Criminology, vol. 6 (3): 243–53. J. Locke (1690/1980) The Second Treatise of Government (Indianapolis: Hackett Publishing Company Inc.). R. I. Mawby and S. Walklate (1994) Critical Victimology (London: Sage). S. Lyng (1990) ‘Edgework: A Social Psychological Analysis of Voluntary Risk Taking’, The American Journal of Sociology, vol. 95 (4): 851–86. P. Miller and N. Rose (1990) ‘Governing Economic Life’, Economy and Society, 19 (1): 1–31. F. Nietzsche (1883–5/2003) Thus Spoke Zarathustra (London: Penguin). F. Nietzsche (1886/2003) Beyond Good and Evil (London: Penguin). P. O’Malley (1992) ‘Risk, Power and Crime Prevention’, Economy and Society, 21 (3): 253–75. P. O’Malley (1996) ‘Risk and Responsibility’, in A. Barry, T. Osborne and N. Rose (eds) Foucault and Political Reason: Liberalism, Neo-Liberalism and Rationalities of Government (London: UCL Press). P. O’Malley (2001) ‘Policing Crime Risks in the Neo-liberal Era’, in K. Stenson and R. R. Sullivan (eds) Crime, Risk and Justice: The Politics of Crime Control in Liberal Democracies (Collumpton: Willan). P. O’Malley (2004) Risk, Uncertainty and Government (London: Glasshouse). N. Rose (1996) ‘The Death of the Social? Re-configuring the Territory of Government’, Economy and Society, 25 (3): 327–56. J. J. Rousseau (1762/2008) The Social Contract (translated by Christopher Betts, Oxford: Oxford University Press). J.-P. Sartre (1938/2000) Nausea (London: Penguin). J.-P. Sartre (1943/2010) Being and Nothingness (London: Routledge). J.-P. Sartre (1981) Three Plays: Altona, Men without Shadows, The Flies (Harmondsworth: Penguin). J. Shapland, J. Willmore and P. Duff (1985) Victims of Crime in the Criminal Justice System (Aldershot: Gower). P. Smith (2008) Punishment and Culture (London: The University of Chicago Press). K. Stenson (1993) ‘Community Policing as a Governmental Technology’, Economy and Society, 22 (3): 373–89.

4 Total Institutions and the Last Human Freedom James Hardie-Bick

Introduction Shortly after the liberation of Paris in 1944 Jean-Paul Sartre declared that ‘We were never more free than during the German Occupation’ (1947: 498). He claimed that during the occupation ‘every French person had the free choice to be part of the resistance … or be an enemy’ (see Gerassi 2009: 122). For Sartre’s critics, this is just one of many examples that confirm Sartre’s exaggerated view of freedom, a freedom he believed to be total and indestructible, a freedom we cannot escape.1 This chapter explores Sartre’s views on freedom, examines the intellectual currents that undermined Sartre’s existentialism and suggests that the abrupt intellectual shift away from Sartre’s work has overlooked important aspects of his philosophy. Furthermore, it draws on empirical research on total institutions together with the personal accounts of writers who have reflected on their experiences of life within the German concentration camps of the Second World War. The aim is to consider Sartre’s notion of ‘ontological freedom’ and to critically assess Sartre’s claim that, regardless of the circumstance, individuals always have the potential to choose, adapt, interpret and give meaning to their lives.

A philosophy of freedom In the 1940s the literary and philosophical work of Sartre provided a new distinctive way of looking at the world. Sartre’s philosophy emphasised individual freedom in an essentially meaningless world. The publication of Sartre’s first novel Nausea ([1938] 1964) explored many of the phenomenological arguments that were fully addressed a few years later in his philosophical treatise Being and Nothingness ([1943] 1998). Many of these 85

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philosophical themes were further addressed in his popular novels such as The Age of Reason (2001), in his numerous plays including In Camera (1990), The Flies and Men Without Shadows (1973a) and through his short stories such as Childhood of a Leader and The Wall (1969). In all of these works Sartre’s characters face an array of existential dilemmas concerning personal and political commitment, responsibility, death, anxiety and freedom. Sartre’s characters are never constrained by their heredity or by their environment (see Barnes 1959). One of the central claims of Sartre’s philosophy is that, despite the conditions of our life, there are always choices and it is always possible to step back from ourselves and reflect upon the choices we continually make. Even under the Nazi occupation, where individual rights and liberties were severely restricted, Sartre argued that people still had to make a fundamental choice concerning whether to cooperate with or resist the occupying forces. Throughout his work Sartre explored our relation to the world, to ourselves and to one another. Much of his work focuses on the responsibility people have in a world without any permanent values. In Existentialism and Humanism (1973b) Sartre refers to one of his pupils who sought his advice during the Second World War. The pupil faced the difficult choice of either travelling to England to join the Free French Forces and fight fascism or staying at home with his mother. His brother had been killed in 1940 during the German offensive and he believed that moving to England would throw his mother into despair. He was also aware that if he joined the Free French Forces he could suffer the same fate as his brother: Consequently, he found himself confronted by two very different modes of action: the one concrete, immediate, but directed towards only one individual; and the other an action addressed to an end infinitely greater, a national collectivity, but for that very reason, ambiguous … he was hesitating between two kinds of morality; on the one side the morality of sympathy, of personal devotion and, on the other side, a morality of wider scope but of more debatable validity. He had to choose between those two. (Sartre 1973b: 35–6) Sartre goes on to argue that both the Christian doctrine and the Kantian ethic are of no assistance. He decides to provide his pupil with the following advice: You are free, therefore choose – that is to say, invent. No rule of general morality can show you what you ought to do: no signs are vouchsafed in this world. (1973b: 38)

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Here Sartre demonstrates that there are no easy solutions, no categorical imperative, no scriptures or doctrines to consult, no general ethic to guide and help people resolve their existential predicaments. In a world without objective values there are no excuses, no correct paths to follow to shade us from the burden of responsibility. We are responsible for creating and defining our own values. This is why Sartre argues that we are ‘condemned to be free’ (1973b: 34). We are condemned because, although we did not choose to be born, from the moment we are ‘thrown into the world’, we are responsible for everything we do. The doctrine that people always have the ability to choose, feel, think and reflect on their choices, regardless of their personal circumstances, is central to Sartre’s existentialism. For Sartre there is no human nature – ‘existence precedes essence’ – we literally choose who we intend to become and from our choices we become who we are. An awareness of our freedom and the terrifying anxiety this awareness produces is vividly explored in Sartre’s philosophy. Sartre is well known for analysing the subtle strategies people employ to evade responsibility and escape their freedom. The overwhelming burden of being fully responsible for our own actions and beliefs is often avoided by living in what Sartre terms ‘bad faith’. One example from Being and Nothingness (1998: 59) concerns a café waiter whose movements are ‘a little too precise, a little too rapid’, who bends forward ‘a little too eagerly’ and whose eyes ‘express an interest a little too solicitous for the order of the customer’. Sartre’s point is that he is ‘playing at being a café waiter’ and manages to deny his freedom by strongly identifying with a pre-existing role. The waiter mechanically conforms to the image of being a waiter that customers and other waiters expect from him. Another example is provided in Sartre’s short story Childhood of a Leader (1969) where the character Lucien attempts to escape his freedom by becoming an anti-Semite. Lucien denies his own freedom and the freedom of others by adopting a fascist ideology. Such examples demonstrate how, rather than being free, authentic human beings, people attempt to take refuge from the staggering responsibilities that freedom as free conscious subjects entails. In Being and Nothingness Sartre asserts the complete autonomy of individual subjectivity: a belief in total human freedom to the extent that we always remain free agents no matter what everyday material constraints we may be experiencing. Sartre systematically attacked the belief that objective structures can determine our behaviour. His notion that human beings are free explains why people all bear individual responsibility for their actions together in the world.

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The Death of the subject In Sociologism and Existentialism (1962) Tiryakian examines two approaches to understanding the individual and society. He identifies Sociologism with the work of Emile Durkheim (1951, 1964). Durkheim’s sociology focused on the impact of social structures and maintained that social reality is a reality sui generis. The existence of social facts and the functioning of society has little to do with the acts and intentions of individuals. The work of Sartre falls into the second approach that Tiryakian identifies, that of Existentialism. Aside from Sartre, this approach incorporates a diverse range of thinkers including Kierkegaard (1944), Marcel (1949) and Heidegger (1962). Rather than viewing individuals as being shaped by larger social structures, these thinkers focus on the creativity of the human subject and emphasise human agency. The debates between those who emphasise the importance of either social structures or human agency are certainly not new, and in Being and Nothingness Sartre directly addresses the determinists who argue against the ‘partisans of human freedom’ (1998: 482). Nevertheless, the early 1960s brought a new serge of structuralism which both directly and indirectly attacked and displaced Sartre’s existentialism. Despite the popularity of Sartre’s philosophy (see Cohen-Solal 1987; Cooper 1999), this ‘radical reformulation’ of Durkheimian social science (Soper 1986) undermined Sartre’s focus on individual freedom, choice and responsibility. The work of Ferdinand de Saussure had a huge influence on the new wave of structuralism. Rather than studying the subjective ways in which people use language, he argued that linguists should focus their attention on the formal system of language. Saussure believed that we live in a world where meanings and the social world are determined by the structure of language. Whereas Saussure was concerned with studying linguistic structures, structural Marxists such as Althusser (1970) concentrated their analysis on the underlying structures of society. Structural Marxists were concerned with identifying the structures that determined social and cultural phenomena and undermined the subject’s capacity for rational analysis and action. The once fashionable humanism of Sartre’s philosophy was vehemently criticised. Humanists who focused on the ability of human beings to act as responsible agents were now seen as completely naïve. Rather than viewing agents as responsible and rational beings, structuralists such as Lévi-Strauss (1966) attempted to eliminate the free and rational human subject and argued that the aim of the human sciences was to ‘dissolve man’. Althusser (1971) argued that

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the subject was an ideological ‘effect’ of social structures that determine our actions, thoughts and beliefs, while Foucault (1965) maintained that subjects are constituted by discourse. In the light of this new orthodoxy, Sartre’s existentialism was considered passé. The work of Sartre and other humanists who attributed rationality and autonomy to human beings were frequently criticised and the ‘death of the subject’ became the rallying cry of the structuralist and post-structuralist movement. Although the research interests of theorists such as Saussure, Althusser, Lévi-Strauss and Foucault are diverse, they are all concerned with the structures which regulate human experience and activity and ‘lie beyond the control of either individuals or social groups’ (Soper 1986: 97). According to one of his former students, Foucault claimed that it was Sartre and everything that Sartre represented that he intended to renounce (see Miller 2000: 38). Foucault’s structuralist work came to prominence in the 1960s and his work rejected the Sartrean notion of an autonomous meaning giving subject and instead viewed the subject as being constituted by ‘discursive practices’. In the 1970s Foucault moved away from a concern with epistemic systems to investigate the link between systems of knowledge and the practices of power (Ansell-Pearson 1995). He came to be critical of the structuralist approach for being silent on the issue of power, yet despite this intellectual shift he continued to view subjectivity as an ‘effect’ (Soper 1986). In Discipline and Punish (1991) one of his main concerns is the way disciplinary practices of power come to shape the modern soul by producing normalised subjects. In this work Foucault is interested in the period between 1757 and the 1830s, when the public torture of prisoners was replaced by controlling prisoners with rules and regulations. The torture, punishment and execution of prisoners was no longer a public display and punishment was transformed from the body to the mind. Foucault argues that we should understand power as essentially productive, producing new forms of knowledge and creating new forms of technologies to exert power over individuals. An interesting example Foucault discusses is the panopticon. The panopticon was Jeremy Bentham’s design for a new type of prison in which individual cells radiate out from a central tower. The structure allows officials the opportunity to observe the occupants and, as they are unaware exactly when they are being observed, the occupants become self-policing. But Foucault’s argument is not constrained to those living within the prison walls. According to Foucault the panopticon is a metaphor for the type of power relations effective in disciplinary societies and he argues that subjects are constituted by power and

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discipline. In disciplinary societies the individual subject is the product or effect of uninterrupted disciplinary processes which ‘subject our bodies, govern our gestures and dictate our behaviours’ (1980: 97). Foucault’s intention was to ‘create a history of the different modes by which, in our culture, human beings are made subjects’ (Foucault 1983: 208). Notwithstanding Foucault’s insightful and original analysis into how subjects are gradually and progressively constituted through a multiplicity of forces, energies, thoughts and desires, his argument remains problematic. Soper (1986) and Kruks (1990) offer a number of criticisms of Foucault beyond the scope of this chapter, but the following are directly relevant. If we are to take seriously Foucault’s denial of the autonomous subject and his specific claim that we are constituted subjects: [T]hen every form of resistance, every ‘freedom’ which resists and every ‘desire’ for liberation are themselves the effects of specific techniques of power. To this objection that if one is always ‘inside’ power there can be no ‘escape’ from it and thus no genuine resistance to it, Foucault, it would seem, has offered no very satisfactory reply. (Soper 1986: 138) Kruks makes a similar criticism of Foucault’s treatment of the subject.2 ‘How is it’ she asks ‘that observation can “induce” effects of power?’ Any discipline that is enforced by ‘continuous observation must presuppose a subjectivity which can be harnessed to disciplinary ends – but which is also free to resist them’ (Kruks 1990: 187). This is an important criticism as it implies that Foucault’s work rests upon a contradiction: There seems no way out for Foucault to explain how this non-material power he describes can take effect without the assumption that subjectivity remains constituting. Furthermore, Foucault also acknowledges that panopticism does not, in fact, routinely produce docility. The final effect of the prison generally is to produce delinquency. There are, of course, sociological explanations offered for this. But what is also implied, at the level of the individual, is active non-compliance, resistance. There is then a subterranean recognition in Discipline and Punish of an element of freedom, even in oppression. (Kruks 1990: 188) The aim of governance may be to produce docile subjects, but as Lippens (2009) states, human beings are not machine-like creatures. Regardless of their circumstances, human beings can assess their surroundings,

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contemplate their options, think about their future plans and reflect on the possible consequences before deciding on a particular course of action. Prisoners who are aware that they might be under surveillance may decide to conform, but they may equally decide to give the appearance that they are conforming and devise subtle strategies to ensure a convincing performance. They may decide not to conform and resist or they may remain indifferent to the surveillance. There are many options and strategies that individuals employ to construct and protect their sense of self (see Douglas & Johnson 1977; Kotarba & Fontana 1987). Goffman’s research on total institutions and Cohen and Taylor’s research on the experiences of imprisonment provide interesting examples of studies that have successfully managed to ‘penetrate the fronts that often hide the actions of human beings’ (Fontana 1980: 173). Their findings suggest that despite living in constrictive environments, human beings are not necessarily either passive or docile. As both studies demonstrate, inmates have a variety of creative strategies to escape being determined by the particular social and cultural contexts in which they are situated.

Total institutions Goffman’s (1991) research on total institutions enables a thorough understanding of how individuals behave in closed and tightly monitored environments. Goffman defines a total institution as A place of residence and work where a large number of like-situated individuals, cut off from wider society for an appreciable period of time, together lead an enclosed, formally administered round of life. (1991: xiii) This intentionally broad definition refers to environments where the time and space of the inmates can be controlled and monitored. Prisons, care homes, monasteries, military barracks, boarding schools and psychiatric hospitals are all appropriate examples. Goffman’s findings were informed by 12 months of ethnographic fieldwork he carried out at St Elizabeth’s Hospital in Washington DC between 1955 and 1956. Goffman used his sensitive observational skills to learn about how the social world of the psychiatric hospital was subjectively experienced by the inmates. By submitting himself to the company of the inmates and to the ‘daily round of petty contingencies to which they are subject’ (1991: 7), Goffman was able to offer a remarkable account of inmates’ day-to-day life.

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Whether the individual lives within prison walls or within the grounds of a boarding school, Goffman maintains that they will rely on similar types of coping strategies. These often subtle forms of defence are found whenever individuals are forced to live in highly structured, restrictive and monitored environments. Goffman describes the series of abasements, degradations and humiliations individuals are forced to endure and shows how the territories of the self are often violated. But even in strictly timetabled environments that provide little privacy, restrict movement, and exert control over individual possessions and appearance it is still possible to find behaviour that demonstrates personal autonomy. Even ‘where existence is cut to the bone’ Goffman shows how individuals can adapt and adopt various strategies in order to ‘flesh out their lives’ (1991: 268). He draws attention to what he terms ‘secondary adjustments’. These adjustments ‘allow inmates to obtain forbidden satisfactions or to obtain permitted ones by forbidden means’ (1991: 56) and provide the inmate with an important sense of ‘selfhood and personal autonomy beyond the grasp of the organisation’ (1991: 276). When taking a close look at life within restrictive total institutions it becomes clear that individuals employ various strategies to stand apart from the official role of the self expected by the institution. According to Goffman participants can: decline in some way to accept the official view of what they should be putting into and getting out of the organization and, behind this, of what sort of self and world they are to accept for themselves. Where enthusiasm is expected, there will be apathy; where loyalty, there will be disaffection; where attendance, absenteeism; where robustness, some kind of illness; where deeds are to be done, varieties of inactivity. We find a multitude of homely little histories, each in its way a movement of liberty. Whenever worlds are laid on, under-lives develop. (1991: 267) The study of underlife in total institutions and how individuals react to extreme and adverse circumstances was further examined in Cohen and Taylor’s (1972) research carried out at Durham Prison in the UK. Rather than concentrating on the prison as a social system (Sykes 1958) or describing the typical roles played by the prisoners, their study looked at the psychological effects of long-term imprisonment. Influenced by Victor Serge’s (1970) account of prison survival and resistance, Cohen and Taylor aimed to write a ‘handbook for psychological survival’ (1972: 10)

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and focused on prisoners’ experiences of time, trust, friendship, loneliness, work, privacy, aging and self-identity. They documented the claustrophobia experienced by inmates. The prisoners were constantly observed, even to the extent of being ‘watched during the performance of intimate toilet functions’ (1972: 81). Their possessions were searched and their visitors’ conversations overheard. There was no opportunity for solitude or intimacy and prisoners had to cope with their fears of deteriorating, becoming progressively uninterested in life, and turning into ‘zombies’ or ‘cabbages’. Cohen and Taylor’s informants were determined to avoid this kind of deterioration (also see Cohen & Taylor 1993) and were found to use two main strategies to protect and maintain their selfidentity. They could either engage in retreatism or decide to fight back (1972: 107). The typical prisoner who adopted the first strategy displayed the main characteristics of ‘situational withdrawal’ where the inmate ‘withdraws apparent attention from everything except events immediately around his body and sees these in a perspective not employed by others present’ (Goffman 1991: 61). Cohen and Taylor’s research also demonstrates five types of resistance used by the inmates: self-protecting; campaigning; escaping; striking; and confronting. These strategies, they argue, are not mutually exclusive and all of the strategies of resistance demonstrate that even inmates living in a high-security prison have the ability to fight back. While most of the types of resistance noted by Cohen and Taylor (writing letters and petitions, planning to escape, going on hunger strike, smearing excrement on the cell walls and generally refusing to abide by the prison rules) are self explanatory, the first strategy of self-protection is particularly important for our analysis. Self-protection can involve the type of secondary adjustments Goffman identified, but can also involve a blatant refusal to cooperate with the staff and a direct challenge to the rules of the prison. In addition, inmates protected themselves from the official definitions that labelled them as being vicious, depraved and evil. Cohen and Taylor found that inmates would often respond humorously to such labels, and their responses ranged from partial acceptance, through to amused detachment and total rejection. To answer the question of how it is possible for inmates to create enough ‘elbow room’ (Goffman 1991), or enough space to stand apart and humorously reflect on the dominant ways in which others label them, we need to understand that the ‘first protective device is self-consciousness itself’. As Cohen and Taylor recognise, even in the most extreme circumstances ‘one finds a reiteration of the need to make sense of one’s experience’

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(1972: 137). Our ability as self-conscious human beings to reflect, stand back, assess, contemplate and question can protect a sense of value and worth in the most hostile of environments that intentionally strip the inmate of all of their usual, taken-for-granted identifications. As Cohen and Taylor’s manual for psychological survival suggests, the first rule of any survival handbook should be: ‘understand what is happening to you’ (1972: 138).

Sartre’s ontology The research of Goffman and Cohen and Taylor on total institutions has shown how inmates can introduce a distance between themselves and the expectations of the institution. While Sartre’s theory of consciousness is absent from their discussion, there are connections that can be made. Sartre’s theory of freedom and responsibility and the absence of any fixed human nature is directly based on his theory of human consciousness. Sartre’s (1998) ontology makes a vital distinction between ‘being-in-itself ’ and ‘being-for-itself ’. Being-in-itself, or undifferentiated being, refers to all non-conscious objective reality – all that simply is. Rather than being dependent on something else for its existence, it is opaque, inert, uncreated and exists independently in itself without possibilities. The in-itself refers to being that ‘is what it is’ (1998: x1i) and is ‘never anything but what it is’ (1998: x1ii). The other type of being posited by Sartre, being-for-itself (self-consciousness beings), is defined as ‘being what it is not and not being what it is’ (1998: x1i). In being-in-itself there is no difference between its being and being what it is; in other words, there is no difference between its existence and its essence: a rock or a tree is literally ‘full of itself … There is not the slightest emptiness in being, not the tiniest crack through which nothingness might slip in’ (1998: 74). On the other hand, being-for-itself (or being of consciousness) has no fixed essence, no essential nature to determine behaviour, but rather is in a constant process of becoming. Central to this process of becoming is the issue of human freedom and how people are free to create, define and choose their own life projects. Following Husserl’s (1962) theory of intentionality, Sartre argues that ‘all consciousness is conscious of something’ (1998: xxvii). Without the something for consciousness to be conscious of there would be nothing. Consciousness has no content; it is a lack, an emptiness or nothingness. As Sartre states, ‘it is like a hole of being at the heart of being’ (1998: 617). This hole of being allows people to detach themselves from the world and question their own existence. Human beings have the power to nihilate being, which is why Sartre describes the for-itself as ‘nothing but the

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pure nihilation of the in-itself’ (1998: 617). Nothingness allows people to withdraw, to ‘nihilate being’ and stand back from themselves and their surroundings, and reflect upon the possibilities of being-in-the-world. As Sartre puts it, the for-itself is ‘a being such that in its being, its being is in question’ (1998: 74). It is only through the unconditioned ability of the for-itself to nihilate being that meaning is made possible in what would otherwise be an undifferentiated and meaningless world. For Sartre ‘Man is the being through whom nothingness comes to the world’ (1998: 24). Human reality is free precisely because of this nothingness ‘which is made to be at the heart of man and which forces human-reality to make itself instead of to be’ (1998: 440). No matter what circumstances face the individual, every situation has ‘infinite possibilities of choice’ (1998: 522): A particular crag, which manifests a profound resistance if I wish to displace it, will be on the contrary a valuable aid if I want to climb upon it in order to look over the countryside. In itself … it is neutral … Even if the crag is revealed as ‘too difficult to climb’ and we must give up the assent, let us note that the crag is revealed as such only because it was originally grasped as ‘climbable’; it is therefore our freedom which constitutes the limits which it will subsequently encounter. (1998: 482) Human beings are always free to choose their own ‘project’ in the world and Sartre insists that it is impossible to distinguish between freedom and human reality. Human freedoms are fundamentally indestructible. Regardless of the social conditions, ‘Man is free because he is not himself but presence to himself’ (1998: 440). As Sartre explains, ‘a being which is what it is can not be free’ (1998: 440) but the self will always have the power to nihilate, to detach itself and put itself outside and beyond its being-there to consider a range of possible choices. It is impossible to escape this freedom. Sartre maintains that there is ‘no privileged situation’ in which the ‘for-itself would be more free than in others’ (1998: 549). Sartre does acknowledge that freedom must act within material and historical circumstances it did not create. For example, we cannot choose to be born into a particular era, or into poverty or into wealth. Nevertheless, according to Sartre such contingencies cannot limit the freedom of the for-itself to create and give meaning to our life projects. Sartre claims that regardless of the circumstances, it is always possible to choose the meaning of a situation. A project is always possible. Examples can be found in Being and Nothingness and in Sartre’s novels and plays. In Iron in the Soul (1963)

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the character Mathieu, with a few other committed men, chooses to pick up a rifle and fires against the approaching Nazis from a church tower. Yet despite the ‘bullets flying around him’ and his ‘world going up in smoke’ Mathieu is still described as being ‘all powerful’ and ‘free’ (1963: 245). In his play Men without Shadows (1973a), French resistance fighters are tortured by Nazi collaborators. Even under such conditions the tortured fighters have the choice of whether to give information or remain silent. The character Sorbier decides to commit suicide by jumping out of a window rather than providing information about their group leader. Sorbier’s choice to jump can be seen as the ultimate affirmation of his freedom. Sartre’s often misunderstood claim that ‘the slave in chains is as free as his master’ (1998: 550) refers to the doctrine that human beings can never surrender their freedom. Under the most adverse and constraining conditions, we still have the irremovable choice to decide the meaning of our situations. As Sartre states, ‘We shall not say that a prisoner is always free to go out of prison, which would be absurd’; but we can say that the prisoner remains free to ‘learn the value of his project by undertaking some action’ (1998: 483–4). Even prisoners can create and sustain an active project in relation to their constraining situation.

Extreme situations Many of Sartre’s examples involve extreme scenarios in order to demonstrate how individuals always have the ability to choose. What is striking about reading the testimonies of those who have endured and survived the most brutal living conditions is how they often confirm and support Sartre’s arguments in relation to freedom. The personal testimonies of life inside concentration camps provided by writers such as Bettelheim (1991), Frankl (1978, 2004, 2010), Kogon (2006) and Levi (2009) are the most intensive and important accounts concerning physical and psychological survival. As Cohen and Taylor recognised, the testimonies of those few individuals who survived ‘are virtually bench marks on which other survival attempts in our time can be measured. These were situations which were perhaps the most extreme ever devised by man against man’ (1972: 54). Bettelheim wrote about his experiences at the German concentration camps of Dachau and Buchenwald from 1938 to 1939. He is careful to convey to his readers the extreme deprivation the prisoners faced: Prisoners were clothed, housed and fed in total inadequacy; they were exposed to heat, rain, and freezing temperatures for as long as

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seventeen hours a day, seven days a week. Despite extreme malnutrition, they had to perform hardest labour. Every single moment of their lives was strictly regulated and supervised. They had no privacy whatsoever, were never allowed to see a visitor, lawyer or minister … no prisoner was told why he was imprisoned, and never for how long. All of which may explain why I speak of them as persons finding themselves in an ‘extreme’ situation. (1991: 108–9) Upon entry to the concentration camps the inmates were stripped of the usual supports provided by the stable social arrangements of their everyday life. The prisoners’ personal identity was attacked and the realisation that they no longer had any of the rights and liberties they were previously entitled to produced a sense of ‘ontological insecurity’ (Yalom 1980). Inmates were denied autonomous control over their appearance and activities, their belongings and personal names were disregarded and institutional uniforms were issued (see Goffman 1991). Bettelheim documents the prisoners’ anxiety, panic and dread of being torn away from their friends and family, of being denied their occupational status and treated without the moral respect they had grown accustomed to. He also reveals the extraordinary physical and psychological abuse prisoners were subjected to. For many of the prisoners the worst kind of torture was experienced while being transported from the local prison to the camp. Bettelheim’s accounts of physical and psychological abuse of the prisoners is an extreme form of humiliating ‘status degradation ceremony’ (Goffman 1991) which intentionally broke down the prisoners resistance. Even if the journey was only a short distance, the transport slowed down in order to have enough time to break the prisoners. They were exposed to almost constant torture, being repeatedly kicked, whipped, shot, and wounded with bayonets; prisoners were even ordered to physically and verbally abuse other prisoners. This kind of abuse was interspersed with attempts to produce complete exhaustion, for example by making the prisoners stare into glaring lights. Any failure to obey orders or any attempt to help a fellow prisoner were swiftly punished by death. This kind of initiation lasted at least 12 hours and sometimes much longer, the intention being to traumatise the prisoners and break their resistance before they arrived at the camp. Aside from traumatising the prisoners, Bettelheim explains how the Gestapo used three other techniques to destroy the prisoners’ personal autonomy. The first method the SS relied on was to force prisoners into childlike dependency on the Gestapo. The second was to make prisoners

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‘give up their individuality and merge themselves into an amorphous mass’ (1991: 131). The third strategy involved destroying their ability to prepare and predict the future. Bettelheim provides harrowing examples to support his observations. In addition to the abuse from the SS, prisoners feared the brutality of other prisoners: The SS descended on prisoners like a destructive tornado that struck several times a day, and one lived in constant dread of them; but there were hours of respite in between. Prisoner foremen exerted pressure without letup; one felt it continuously – during the day at work, and all night in the barracks. (1991: 187) The behaviour of the SS, together with the prisoner foremen, pressured the prisoners to conform and to obey. The experiences of exhaustion, stress, hunger, cold, violence, confusion, intimidation and fear recorded by Bettelheim (1991), Frankl (2004), Kogon (2006) and Levi (2009) describe a living hell. Levi was deported to Auschwitz: It is not possible to sink lower than this; no human condition is more miserable than this, nor could it conceivably be so. Nothing belongs to us any more; they have taken away our clothes, our shoes, even our hair; if we speak, they will not listen to us, and if they listen, they will not understand. They will even take away our name; and if we want to keep it, we will have to find ourselves the strength to do so, to manage somehow so that behind the name something of us, of us as we were, still remains. (2009: 33) Prisoners who failed to challenge their abusers’ repeated accusations and statements – that they would never leave the camp alive and that there was no hope for them – became the ‘walking corpses’ (Bettelheim 1991: 151). In the camps these prisoners were referred to as ‘moslems’ (Muselmänner). They were unable to believe that they could assert any influence over their environment and became shadows of their former selves, the physically sick and emotionally exhausted stratum of prison society. As Levi observes, the Muselmänners were ‘the men of decay … they suffer and drag themselves along in an opaque intimate solitude, and even in solitude they die and disappear, without leaving a trace on anyone’s memory’ (Levi 2009: 95). Bettelheim comments on how his main aim in the camp was not to become a ‘walking corpse’. He intended

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to protect both his physical and moral existence in order to ‘survive, not as a shadow of the SS but as a man’ (1991: 147). A German prisoner, a communist in his fourth year at Dachau, made Bettelheim aware that despite the extreme conditions, he still had a fundamental choice: I arrived there in a sorry condition because of the experiences on the transport. I think that this man, by then an ‘old’ prisoner, decided that, given my condition, the chances of my surviving without help were slim. So when he noticed that I could not swallow food because of physical pain and psychological revulsion, he spoke to me out of his rich experience: ‘Listen you, make up your mind: do you want to live or do you want to die? If you don’t care, don’t eat the stuff. But if you want to live, there’s only one way: make up your mind to eat whenever and whatever you can, never mind how disgusting. Whenever you have a chance, defecate, so you’ll be sure your body works. And whenever you have a minute, don’t blabber, read by yourself or flop down and sleep.’ (1991: 147–8) Bettelheim soon realised how sound this advice had been (1991: 147–8). Despite the extreme deprivation, fear and stress that all prisoners experienced, it was possible for some of the prisoners to retain their humanity so that, if they did regain their liberty, they would be ‘approximately the same person’ as they were before (1991: 126). Bettelheim’s strategy involved occupying himself with questions that interested him. He studied his own behaviour and the behaviour of others, talking to prisoners and comparing impressions in order to try and make sense of his observations. This provided him with a sense of self-respect and helped him to endure life in the camps. Similar accounts of intellectual selfdefence were recorded by all of Bluhm’s (1948) informants. To survive in the camps meant ‘never giving in to the oppressor’: Those prisoners who blocked out neither heart nor reason, neither feelings nor perception, but kept informed of their inner attitudes even when they could hardly ever afford to act on them, those prisoners survived and came to understand the conditions they lived under. They also came to realise what they had not perceived before: that they still retained the last, if not the greatest, of the human freedoms: to choose their own attitude in any given circumstance. Prisoners who understood this fully, came to know that this, and only this, formed the crucial difference between retaining one’s humanity (and often

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life itself ) and accepting death as a human being (or perhaps physical death): whether one retained the freedom to choose autonomously one’s attitude to extreme conditions even when they seemed totally beyond one’s ability to influence them. (Bettelheim 1991: 158–9) Bettelheim cites one of the many horrific examples provided by Eugen Kogon’s experiences at Buchenwald (see Kogon 1996) to support his observations. An SS officer discovered that one of the prisoners waiting to enter the gas chamber was a former dancer and ordered her to dance for him. She obeyed and started to dance, gradually moving towards him until she was so close that she managed to seize his gun. She was able to shoot and kill the SS soldier before being shot and killed by the onlooking SS soldiers. Bettelheim cites this story to demonstrate that even in her final moments she managed to exercise her ‘last freedom’. This prisoner ‘threw off her real prison’: she was no longer just ‘a number, a nameless, depersonalised prisoner, but was the dancer she used to be’. She exercised a freedom that even the concentration camp could not take away from her – ‘to decide how one wishes to think and feel about the conditions of one’s life’ (1991: 265). Despite being threatened, attacked and condemned to death, the prisoners still possessed one power, ‘the power to refuse our consent’ (Levi 2009: 47). Victor Frankl (2004), a survivor of Dachau and Auschwitz, refers to the prisoners’ ability to exercise their last freedom: Everything can be taken from a man but one thing: the last of the human freedoms – to choose one’s attitude in any given set of circumstances, to choose one’s own way … Every day, every hour, offered the opportunity to make a decision, a decision which determined whether you would or would not submit to those powers which threatened to rob you of your very self, your inner freedom; which determined whether or not you would become the plaything of circumstance, renouncing freedom and dignity to become molded into the form of the typical inmate. (Frankl 2004: 75) Research on total institutions together with the personal testimonies and accounts of those who survived living in the most severe conditions can be seen to support Sartre’s argument: that despite even the most harsh social conditions, human beings always have the ability to choose their attitude towards their circumstances. Nevertheless, Anderson (1993)

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makes an important criticism of Sartre’s position, which is worth pursuing. If human freedom is as unlimited as Sartre suggests, then why should we be intolerant of oppressive living conditions? As Anderson states: Sartre’s views of freedom could lead to a quietistic or Stoical ethics. If human reality is freedom and human freedom is total, absolute, and unlimited, if all situations are equivalent in freedom, then there is no reason to change the concrete conditions in which humans live, even if they appear terribly oppressive. (1993: 25) If human beings are always free, then why should we aim to protect what human beings already have? Sartre’s position that freedom is without limits is a philosophical rather than an economic or political argument (see Gerassi 2009). This type of freedom is indestructible for Sartre. Frankl was able to comfort himself that his torturers had not driven him out of his mind, precisely because he could distance himself from himself and monitor his own behaviour. In concentration camps prisoners still have what Frankl calls their ‘ultimate freedom’. No matter how unpleasant a person’s situation is, they still have the freedom to take ‘one or another attitude’ towards their destiny (2010: 102). Even though we may be unable to change or escape what is causing our suffering, we can still choose our attitude towards the situation. Sartre argues that freedom is not something individuals can lose – I am my freedom. As Frankl states, ‘freedom is what we are’ (Frankl 2010: 102). Nevertheless, Sartre does seem to require a more detailed ontology to overcome Anderson’s reservations. In this respect, the work of Simone de Beauvoir (1976) has made an important contribution. Simone de Beauvoir’s (1976) work of existentialist ethics builds on Sartre’s ontological framework and overcomes some of the limitations of Sartre’s ontology. Far from being an obedient disciple of Sartre, Beauvoir’s philosophical novels and essays are increasingly being recognised for their originality (Arp 2001; Fullbrook & Fullbrook 1994; Simons 1999). In The Ethics of Ambiguity (1976) Beauvoir argues that there are two different types of freedom. She agrees with Sartre’s notion that subjectivity is indestructible, but she makes an important distinction between what she calls ‘natural’ freedom and ‘ethical’ freedom. As Arp (2001) suggests, these different types of freedom are better understood as ‘ontological’ and ‘moral’ freedom. Ontological freedom is the Sartrean position on freedom contained in Being and Nothingness that we have looked at in some detail. Beauvoir does accept this position,

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but she acknowledges that there are different ways of responding to one’s ontological freedom. ‘Moral’ freedom refers to the attitude one takes towards ontological freedom and involves recognising the freedom of others. Ontological freedom (which is not dependant on others) is transformed into moral freedom by being interested and concerned about increasing the freedom of others. Not everyone responds to extreme environments in the same way. There were some prisoners who ‘typified the character traits of camp inmates’ and succumbed to the ‘character-forming forces of the social environment’ by renouncing their freedom and dignity (Frankl 2010: 102). However, in the concentration camps there were other prisoners who still looked out for fellow inmates and attempted to help, encourage and advise them on how to protect themselves. The first-hand accounts provided by Bettelheim, Levi and Frankl all demonstrate how certain individuals in the camps showed tremendous courage by taking risks to help other prisoners. Frankl remembers those who walked through the huts to comfort others and who were even willing to give away their last piece of bread. According to Bettelheim there were some prisoners who used their positions with daring and unselfishness to better the lot of common prisoners. There were a few super kapos who successfully interfered with an SS private mistreating prisoners, but they were the exception, since their action called for extraordinary courage. (1991: 180) Although the majority of ‘SS men never wasted a minute of their free time in mistreating prisoners’ (1991: 242), Bettelheim writes of an SS guard who never made abusive anti-Semitic comments, and never reported or physically abused the prisoners. Despite the inherent dangers involved, there were a few SS guards who risked their own lives by helping prisoners without any personal reward. Frankl also writes about an SS man who ‘had secretly spent considerable sums of his own money at the drug store in the nearby village, purchasing medications for the camp inmates’. The prisoners hid this SS guard from the liberating American troops and informed the ‘commanding officer that they would deliver him only on condition that no harm would come to him’ (2000: 103). The prisoners who looked out for the welfare of others, along with the small number of SS guards who risked their lives to help the prisoners, demonstrate the importance of Beauvoir’s notion of

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‘moral’ freedom. Every person may originally be free, but not everyone acts morally. Frankl’s comments are particularly relevant: Man is ultimately self-determining. What he becomes – within the limits of endowment and environment – he has made out of himself. In the concentration camps, for example, in this living laboratory and on this testing ground, we watched and witnessed some of our comrades behave like swine while others behaved like saints. Man has both potentialities within himself; which one is actualised depends on decisions but not on conditions. (2004: 135) The behaviour of those in concentration camps, like any group of people, will be different. Some will show compassion and take risks to help their comrades while others will ‘behave like swine’ and become the prisoners’ worst enemy (see Bettelheim 1991). Beauvoir argues that it is possible to ‘will oneself free’ (1976: 25). Within Sartre’s ontological framework, this statement is contradictory. Sartre (1973b) argued that we should strive for freedom and recognise that our freedom depends on the freedom of others, but if we are already free, then how is it possible to strive for something that we already possess? To will oneself free only makes sense when we take into account Beauvoir’s distinction between ontological and moral freedom. Moral freedom involves acknowledging the freedom of others and also involves a commitment to increasing their freedom. Everyone has ontological freedom, but the actions of some means that their ontological freedom is transformed into moral freedom. As Arp’s (2001) sophisticated study of Beauvoir’s ethics has demonstrated, Beauvoir introduces a new conception of freedom into existentialism, a freedom that obliges one to resist those who try to capture the freedom of others and create more ‘opportunities for action for oneself and for others, instead of closing them off and remaining neutral to them’ (Arp 2001: 151). As Beauvoir states, to will oneself free is also to will others free and even in the most extreme circumstances, we have seen how such behaviour is possible.

Conclusion By taking a closer look and examining how individuals experience their everyday worlds in total institutions we soon realise that the subject can always find ways to challenge, oppose and resist behaviour that is both

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expected and encouraged. Even though the conditions of total institutions suggest that the inmates will act in a particular way, it is possible ‘to fight against the current’ (Levi 2009: 98). Equally, individuals may decide to conform to the dominant expectations surrounding how they should behave and treat others. As Sartre insisted, there are always choices. Even in the most hostile conditions where inmates could be threatened and besieged at any moment, inmates still made decisions about whether they would submit to the powers that attempted to mould them into a typical inmate. Bettelheim was surprised about how much prisoners in the camps could endure and suggests that ‘the influence of the environment on man remains a lesson we need to comprehend’ (1991: 108). Even in the most brutal conditions where individuals are treated as things, where they are ‘deprived of every right’ and ‘exposed to every insult’ (Levi 2009: 47) individuals are never fully conditioned or determined by their environment. Researching the underlife of total institutions is especially significant for counteracting the claims of those who deny human agency. The strategies highlighted by Goffman (1991) and Cohen and Taylor (1972), together with the personal accounts of surviving in extreme conditions, show how resourceful and creative individuals can be. In spite of living in such restrictive and hostile environments, the subject is not necessarily the victim or pawn of circumstances. The research findings and personal accounts discussed demonstrate the importance of Sartre’s undervalued work on freedom. In addition, this chapter suggests ways in which Beauvoir’s work has the potential to build upon and develop Sartre’s notion of ‘ontological freedom’. Her distinction between ‘ontological’ and ‘moral’ freedom can account for the different ways in which individuals respond to their ontological freedom and draws attention to how our moral freedom is intertwined with the freedom of others. Despite their different approaches, both Sartre and Beauvoir demonstrate that the subject is not a passive or docile ‘zombie-like’ creature (Lyman 2002). The subject is not the ‘cultural dope’ (Garfinkel 1967) that some social scientists suggest. Based directly on his experiences of the camps, Frankl warns of theories that make the dangerous and erroneous assumptions of ‘nothingbutness’ and ‘pan-determinism’. ‘Nothingbutness’ refers to the theory that ‘man is nothing but the result of biological, psychological and sociological conditions, or the product of heredity and environment’ (2004: 132). ‘Pan-determinism’ refers to any theory that disregards the individual’s ability to take a stand towards their situation.3 This is an important warning to all social scientists. As this chapter has shown,

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one of the main features of human existence is the ability to ‘rise up’, adapt and take a stand against ‘any conditions whatsoever’. It would seem that those who announced the ‘death of the subject’ have carried out a ‘premature burial’ (Lyman 2002). The experiences of everyday life in total institutions shows that even in the face of extreme danger, individuals can make plans and devise strategies. Even in the most limited environments individuals still have the ‘ultimate freedom’ to give some shape to their existence.

References L. Althusser (1970) For Marx (New York: Random House). L. Althusser (1971) Lenin and Philosophy (New York: Monthly Review Press). T. C. Anderson (1993) Sartre’s Two Ethics: From Authenticity to Integral Humanity (Chicago: Open Court). K. Ansell-Pearson (1995) ‘The Significance of Michel Foucault’s Reading of Nietzsche: Power, the Subject and Political Theory’, in P. R. Sedgwick (ed.) Nietzsche: A Critical Reader (Oxford, UK: Blackwell). K. Arp (2001) The Bonds of Freedom: Simone de Beauvoir’s Existentialist Ethics (Chicago: Open Court). H. E. Barnes (1959) Humanistic Existentialism: The Literature of Possibility (Lincoln: University of Nebraska Press). S. de Beauvoir (1976) The Ethics of Ambiguity (New York: Citadel Press). B. Bettelheim (1991) The Informed Heart: A Study of the Psychological Consequences of Living under Extreme Fear and Terror (Harmondsworth: Penguin). H. O. Bluhm (1948) ‘How did They Survive? Mechanisms of Defence in Nazi Concentration Camps’, American Journal of Psychotherapy, 2(1): 3–32. S. Cohen and L. Taylor (1972) Psychological Survival: The Experience of Long-Term Imprisonment (Harmondsworth: Penguin). S. Cohen and L. Taylor (1993) Escape Attempts: The Theory and Practice of Resistance to Everyday Life (London: Routledge). A. Cohen-Solal (1987) Sartre: A Life (London: Heinemann). D. Cooper (1999) Existentialism: A Reconstruction, 2nd edn. (Oxford: Blackwell Publishing). J. D. Douglas and J. M. Johnson (1977) Existential Sociology (New York: Cambridge). E. Durkheim (1951) Suicide (New York: Free Press). E. Durkheim (1964) The Rules of Sociological Method (New York: Free Press). A. Fontana (1980) ‘Toward a Complete Universe: Existential Sociology’, in J. Douglas (ed.) Introduction to the Sociologies of Everyday Life (Boston: Allyn and Bacon). M. Foucault (1965) Madness and Civilization (New York: Pantheon). M. Foucault (1980) Power/Knowledge: Selected Interviews and Other Writings, 1972–1977, C. Gordon (ed.), (New York: Pantheon). M. Foucault (1983) ‘The Subject and Power’, in H. L. Dreyfus and P. Rabinow (eds) Michel Foucault: Beyond Structuralism and Hermeneutics (Chicago: University of Chicago Press).

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M. Foucault (1991) Discipline and Punish (Harmondsworth: Penguin). V. E. Frankl (1978) The Unheard Cry for Meaning: Psychotherapy and Humanism (New York: Touchstone). V. E. Frankl (2000) Recollections: An Autobiography (New York: Basic Books). V. E. Frankl (2004) Man’s Search for Meaning (London: Rider Books). V. E. Frankl (2010) The Doctor and the Soul: From Psychotherapy to Logotherapy (London: Souvenir Press). K. Fullbrook and E. Fullbrook (1994) Simone de Beauvoir and Jean-Paul Sartre: The Remaking of a Twentieth-Century Legend (New York: Basic Books). H. Garfinkel (1967) Studies in Ethnomethodology (Englewood Cliffs, NJ: Prentice-Hall). J. Gerassi (2009) Talking with Sartre: Conversations and Debates (New Haven: Yale University Press). E. Goffman (1991) Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (Harmondsworth: Penguin). M. Heidegger (1962) Being and Time (New York: Harper & Row). E. Husserl (1962) Ideas: General Introduction to Pure Phenomenology (New York: Gibson). S. Kierkegaard (1944) The Concept of Dread (Princeton: Princeton University Press). E. Kogon (2006) The Theory and Practice of Hell: The German Concentrations Camps and the System Behind Them (New York: Farrar, Straus & Giroux). J. A. Kotarba and A. Fontana (1987) The Existential Self in Society (Chicago: The University of Chicago Press). S. Kruks (1990) Situation and Human Existence: Freedom, Subjectivity and Society (London: Unwin Hyman). P. Levi (2009) If this is a Man and The Truce (London: Abacus). C. Levi-Strauss (1966) The Savage Mind (Chicago, IL: University of Chicago Press). R. Lippens (2009) A Very Short, Fairly Reasonably Cheap Book About Studying Criminology (London: Sage). S. M. Lyman (2002) ‘Restoring the Self as Subject: Addressing the Question of Race’, in J. A. Kotarba and J. M. Johnson (eds) Postmodern Existential Sociology (Walnut Creek, CA: Altamira Press). G. Marcel (1949) Being and Having: An Existentialist Diary (New York: Harper & Brothers). J. Miller (2000) The Passion of Michel Foucault (Cambridge, MA: Harvard University Press). J.-P. Sartre (1947) ‘The Republic of Silence’, in A. J. Liebling (ed.) The Republic of Silence (New York: Harcourt, Brace, & Co.). J.-P. Sartre (1963) Iron in the Soul (London: Hamish Hamilton). J.-P. Sartre (1964) Nausea (New York: New Directions). J.-P. Sartre (1973a) Penguin Plays: Altona, Men without Shadows, The Flies (Harmondsworth: Penguin). J.-P. Sartre (1973b) Existentialism and Humanism (London: Methuen). J.-P. Sartre (1969) The Wall (New York: New Directions). J.-P. Sartre (1990) In Camera and Other Plays (Harmondsworth: Penguin). J.-P. Sartre (1998) Being and Nothingness: An Essay on Phenomenological Ontology (London: Routledge).

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J.-P. Sartre (2001) The Age of Reason (Harmondsworth: Penguin). V. Serge (1970) Men in Prison (London: Gollancz). M. A. Simons (1999) Beauvoir and The Second Sex: Feminism, Race, and the Origins of Existentialism (Lanham, MD: Rowman & Littlefield). K. Soper (1986) Humanism and Anti-Humanism (London: Hutchinson). G. Sykes (1958) The Society of Captives (Princeton: Princeton University Press). E. A. Tiryakian (1962) Sociologism and Existentialism (Englewood Cliffs, NJ: Prentice Hall). I. Yalom (1980) Existential Psychotherapy (New York: Basic Books).

Notes I would like to thank both Ronnie Lippens and Lauren Brooks for their comments on this chapter. 1. It should be noted that this chapter is primarily concerned with Sartre’s philosophy in Being and Nothingness. 2. Foucault did attempt to overcome this criticism in his later work. For an interesting account of Foucault’s intellectual trajectory, see Miller (2000). 3. After liberation Viktor Frankl reflected on his experiences of life in Dachau and Auschwitz to criticise classical psychoanalysis and inform his theory of Logotherapy, often referred to as The Third Viennese School of Psychotherapy. Logotherapy is a meaning-centered psychotherapy that encourages patients to focus on the personal meaning of their lives: ‘This is why I speak of a will to meaning in contrast to the pleasure principle (or, as we could also term it, the will to pleasure) on which Freudian psychoanalysis is centered, as well as in contrast to the will to power on which Adlerian psychology, using the term “striving for superiority,” is focused’ (2004: 104). Throughout his work Frankl was extremely critical of deterministic theories of human behaviour and argued that the gas chambers ‘were the ultimate consequence of the theory that man is nothing but the product of heredity and environment – or, as the Nazis liked to say, of “Blood and Soil”’ (Frankl 2010: 19).

5 Existential Predicaments and Constabulary Ethics Danny O’Rourke-Dicarlo and James Sheptycki

Introduction Existentialism is a philosophy that deals with authenticity, alienation, freedom and value, being and the transcendence of being, politics, history and engagement. The Constabulary Ethic is a situated practical ethic that is centrally political in that it involves policing: the use (or threat to use) coercive force in the maintenance of an already established social order. Since it is a sociological impossibility that a society – and especially one so populous as present world society and with such a complex division of labour – could exist without some form of ordering, and hence policing, the question arises: what can existential philosophy tell us about Constabulary Ethics? The question is an apt one because that austere doctrine engages with fundamental aspects of human alienation in an effort to transcend it and point the way to authentic freedom. In this essay ‘policing’ is defined, in terms the sociologist Egon Bittner described, as a social response to ‘something that ought not to be happening, and about which something ought to be done right now’ enabled by the capacity to muster coercive force in the resolution of such situations (Bittner 1970). The special existential circumstance of the constable lies at the juncture of the need to get something done and the ability to use force when needs must. The predicament of the constable is a peculiarly intense manifestation of the more general existentialist conundrum about how to reconcile the authentic freedom and choice of all human subjects. Limiting our discussion to the relationship between policing and human security (where human security implies fidelity to both law and empathy) we try to show how existentialism might contribute to ongoing debates regarding constabulary ethics. 108

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While we will utilise key themes and concepts from Sartre’s existential philosophy, our approach here is not one of exegesis. Our interest is to re-purpose aspects of Sartre’s investigations concerning human freedom, praxis and responsibility in order to illuminate some contradictory predicaments in contemporary policing. Specifically, we believe that Sartre’s existentialism can be helpful in assessing both the ethical possibilities and moral deficits of a public institution that uses authorised force (or the threat of force) to maintain the ‘conditions of freedom’. Some philosophical permutations of the Constabulary Ethic have already been addressed elsewhere (Sheptycki 2007, 2010). Here our aim is to extend this discussion by reference to existentialist thought. We think that one of the positive things about a Constabulary Ethic informed by existentialist ideas is that it points to a practical and situational system of norm construction that privileges individual responsibility.1 The individual is always responsible for what they do with law, not the other way around. We maintain that the standard for ethical decision-making must move past the usual normative approach of liberal ‘realism’ (that is, its faith in procedural process accountability). The austere sensibilities of existentialism may seem to many to be overly academic and impractical. Our immediate rejoinder is to say that process justice has demonstrably failed to deliver ethical policing and, some would argue, has actually become part of the problem since it provides a ‘smokescreen’ of correctness and seeming legitimacy. For this, if for no other reason, a philosophical detour into existentialist thinking can do no harm to the practically oriented constable, and might even help to change things for the better. It is well known that Sartre did not write an ethic and that what can be deduced of existentialist ethics must be got from his many philosophical and literary works. Writing in What is Literature? Sartre argued that ‘the writer, a free man addressing free men, has only one subject – freedom’ (quoted in Murdoch 1999, p. 98). In his most popular pamphlet, Existentialism and Humanism, the reader finds Sartre using the notion of a ‘kingdom of harmonizing ends’ wherein ‘human wills are to be united’ (ibid. p. 101). This appears to be a Kantian idea, a regulative ideal which posits: ‘I am responsible for the image of man in general which my behaviour suggests, and that my conditions of freedom are such that I can only will that all men must be free.’ Observation suggests that humans do not harmonise along these lines; otherwise there would be no constabulary to begin with. Sartrean notions do offer a kind of bench-mark against which to judge practical action and offer a starting point from which to explore the existentialist parameters of the Constabulary Ethic. Moreover, we want to test existentialism against constabulary practicality as much

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as we want to test policing against a situated ethic like Sartre proposes because that kind of reflexive thinking is precisely what is needed to come to terms with the practical dilemmas of what is being human. The discussion moves through a number of stages concerning freedom, anxiety and ethics, the practico-inert field of policing, totality and normativity, and the legitimacy of the policing institution to end, like all Sartrean existentialist discussions of praxis, by emphasing the responsibility of the individual agent. Along the way we also offer some sociological exemplars as a way of grounding the discussion for the practically minded. We begin by contextualising the debate in which policing and ethics currently takes place.

Beyond realism The discourse regarding constabulary ethics takes place against the backdrop of an increasingly phenomenologically complex and riskladen globalising world. Within this context policing is subject to the shifting operational demands related to domestic economic instability, international insecurity and transnational crime. Without delving into the multiple points of possible perceptions, convergence or causality, the net-effect of these apparently external pressures has been the continued, and continual, politicisation of the policing function. Caught between the conflicting and often contradictory objectives of community policing, crime prevention, crime control and national security, contemporary policing finds itself attempting to negotiate the paradoxical demands for increased punitiveness and democratic accountability. When viewed against the myriad of both domestic and global pressures, discussing the possibility of establishing a Constabulary Ethic that aims to address the proper relation between authentic decision-making, freedom and good policing seems both unrealistic and anachronistic. And yet, it just may be the case that the common acceptance of the ‘logic of security’ (indeed its prioritising) in both scholarly research and public policy comes at a time when a full examination of the normative or ethical dimensions of police work in relation to human security is most warranted. However, in an attempt to be ‘realistic’, liberal scholarship on policing has typically responded to the related problems of global and domestic insecurity by seeking to legally circumscribe the normative boundaries and practical engagements regarding the function of policing. For the liberal realist, policing must adapt and respond pragmatically to the ‘real threats’ associated with increasing domestic social fragmentation, the transnationalisation of ‘normal’ crime and the growing precariousness of


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national security in a post 9/11-globalising world. Here punitive, tactical and strategic conceptions of policing seem, if not morally defensible, at least understandable and acceptable within the existing safeguards of legal and constitutional provisions. This concept of policing is undergirded by particular beliefs about contemporary socio-political tensions. It contains a realpolitik world-view wherein notions of the social contract, social solidarity, sociability and ‘Society’ not generally derived from a Hobbesian view of legal subjectivity are counted as utopian. Accordingly, in the face of the overlapping and mutually reinforcing tensions of domestic, national and international ‘insecurity’, the regulated realm of ‘the social’ is increasingly defined not on the basis of beliefs or aspirations, but rather on the basis of the threats that arise spontaneously from our highly atomised post-modern societies (Brodeur 2010). A circumscribed, punitive and procedural conception of policing is thus a concession to necessity given the pragmatic goal of facilitating personal security and domestic comfort in the absence of any other collective aspirations. The upshot from this ‘realist’ perspective is that an adherence to procedural norms, underwritten and bolstered by existing constitutional techniques (but still operating in conjunction with the, by now, ubiquitous technologies of surveillance and control) are our best bet for fostering democratic police accountability and thus for attenuating the problem of arbitrary violence (Bayley 2005). Despite best wishes and professed intentions, the liberal view actually draws a veil over the problem of Constabulary Ethics because it does not address fundamental questions regarding normative aspirations and obligations beyond existing protocol. It is on this point, we believe, that it is necessary and useful that policing scholarship allow consideration of some ideas from existentialist thought.

Freedom, anxiety and ethics In existentialist philosophy freedom is understood to be both the ontological core of human existence and the source of our greatest anxieties. This is so because, caught between ‘being’ and ‘not being’, the subject is inevitably and always ‘self-making’; hence Sartre’s slogan ‘existence precedes essence’. In contrast to other things whose properties are fixed by the kind of entities they are (being-in-itself ), that which is essential to human beings is not fixed, but rather comes about by what the subject may make of him or herself (being-for-itself ). One’s identity is constituted neither by nature nor nurture, since to ‘exist’ as a human being is precisely to constitute an identity. Evidence of ‘freedom’ in this existential

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sense is to be found in a particular mood, namely that of anxiety (angst). Anxiety, which all people may experience, reveals a fundamental aspect of ‘the self’. It is a mood that pulls us out of the circuit of everyday life, where roles and projects are the usual (and safe) sources of personal meaning. Thus robbed of the possibility of ‘practical’ self-identification, angst teaches us that we do not coincide with anything we ‘factically’ are (for example, educator, constable, philosopher) and leaves us bare and angst-ridden. It is this uncomfortable, disorienting and dispossessing retreat into oneself-in-anxiety that yields the existential figure of ‘the outsider’ who sees through the hypocrisy of those who live their lives complacently identifying with their roles as though those roles perfectly defined them (Sartre 2007). Sartre (1992) argued that anxiety provides a glimpse of freedom since freedom is the dislocation of consciousness from its object, a fundamental negation (nihilation) by means of which consciousness can grasp its object without losing itself in it. In other words, to be conscious of something is to be conscious of not being it, a ‘not’ that arises in the basic structure of consciousness as being-for-itself. Its structure of nihilation precludes that consciousness can either be acted on or contained by things. Unnamed or named psychic forces, instincts and motives alike cannot therefore be understood as inhabiting consciousness, and thus should not be thought of as undermining freedom from within (inducing one to act in ways for which one is not responsible). Rather, they exist as matters for consciousness and are matters of choice. The self must either reject their claims or avow them. In existentialist philosophy, then, the ontological freedom of existence entails that determinism is simply an excuse (a kind of ‘bad faith’, more on which below), an excuse of the kind: ‘I could not help it, my genes made me do it’, or ‘… those are the orders I must carry out’, or ‘… that is company policy’. Through its structure of nihilation consciousness continuously escapes that which would define it (including its own past choices and behaviour) and, in Sartre’s words, we are ‘condemned to be free’. Angst, as the consciousness of freedom, is not something that human beings particularly welcome. Instead we usually seek stability and identity and we only adopt the language of freedom when it suits us (i.e. when actions can be represented by me as ‘free acts’ which exactly match the self I wish others to take me for). That we are ‘condemned to be free’ means that we can never be simply who we are, but rather are separated from ourselves by the nothingness of having to perpetually re-choose or re-commit ourselves to what we are and what we do. Characteristic of existentialist philosophy is the notion that people spend a great deal


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of their lives devising strategies for denying and evading the anguish of freedom. One of these strategies is ‘bad faith’; another is the ‘appeal to values’. Not wanting ever to be read as making such an appeal to values may be one reason why Sartre never completed any systematic treatment of ethics (although he often spoke of wanting to do so). Taking existentialism beyond Sartre, what we take from the above discussion is that any ethical or ‘authentic’ decision-making must be underpinned by the ultimate value of freedom, which necessarily implies both inter-subjectivity and reciprocity. This means, that in choosing, the ethical subject commits not only him or herself but also the whole of humanity. Thus in turn, the value created through an authentic exercise of freedom necessarily contains a universal dimension. Any authentic decision or course of action I make must be discernable for any other person ‘in my position’, as well as from the point of view of their own subjectivity. The connection of authentic choice to freedom means that ethical choices must not run counter to or negate the freedom of others. In general, a system of ethics informed by existential thought is not amenable to any singular form of virtue, deontology or consequentialism. If the behaviour in question and the decisions made by the subject are to have any fidelity to ‘authenticity’ and ‘freedom’ they ought to be made with a view to the particular circumstances of the event, the end chosen and a conscious appreciation of the ‘radicality’ of freedom.

The existential constable Accepting that brevity can never do complete justice to the complexity of existentialist philosophy, we have thus far tried to establish the point that a practical and workable understanding of ethical action can be devolved from Sartre’s ideas. In this section we want to begin to make this applicable to the life of the constable. From an existentialist perspective, an authentic decision is one that consistently attempts to reconcile ‘facticity’ and ‘transcendence’ but also consciously appreciates the practical impossibility of such an endeavour. If such a view is not to collapse into unintelligibility or disappear in a puff of dialectical smoke, the notions of ‘facticity’ and ‘transcendence’ should be further elucidated. At the risk of oversimplification, these correlates can be equated with, on the one hand, the attitude of the third-person theoretical observer and, on the other, the attitude of the first-person practical agent. Facticity includes all properties that an outside observer (the third-person) may establish about one’s self: things like ‘natural properties’ (height, weight,

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skin hue); ‘sociological facts’ (class, gender, nationality); internal psychic properties (obsessive, anal-retentive, inhibited); historical facts (past actions, family background) and so on. We are not usually aware of facticity in this third-person way, but it is manifest in the burden we feel of ‘having to be’. When we do not adopt a third-person and objectifying stance towards ourselves, any such aspects of facticity easily appear to determine ‘who I am’. As we have already shown, from an existentialist point of view this is an error, but not because any such aspects of our being are not real, but because the kind of being that I subjectively am cannot be defined in factual (third-person) terms. Elements of facticity imputed to me do not belong to me in the same way that the colour of a dog belongs to a dog, since such facts have always already been interpreted by me. Though third-person observation can identify class, gender or skin colour, the instant that perspective defines them as mine it must also contend with the distinctive character I possess. My existence (the kind of person I am) is also determined by the stance I take towards my facticity, and that is what existential philosophers call ‘transcendence’. Who I am depends on what I make of my facticity that occurs to me in a way that is impossible for that which is merely an entity. While other entities exist ‘in themselves’ and ‘are what they are’, the human being is also ‘for itself’ – it thus cannot be definable by any of its determinations. Being human is ‘what it is not and is not what it is’ (Sartre 1992, p. 112). In the midst of these ontological circumlocutions, existentialism describes the perspective of engaged agency in terms of ‘choice’ and this is sometimes criticised as a limitation. This argument suggests that the (police) agent may well choose a course of action at the conclusion of a process of deliberation, but there seems to be no choice involved when the ‘red mist’ comes down (Waddington 1991, p. 177–8). Then the constable lashes out at a teaming crowd, or uses her taser in blind reaction to a situation. This kind of argument is very unhelpful (not least to police themselves) in understanding the existential predicament of the constable. The self, including that of the constable, is an embodied beingin-the-world who chooses in a context where there are others doing the same thing and in a world that has always already been there. In short, action is situated both socially and historically and any choices made by active agents, be they constables or common folk, ‘makes up the world’. Thus, in Charles Taylor’s (1985, p. 45) turn of phrase human beings are ‘self-interpreting animals’ where interpretation constitutes the interpreter, but also – through the practical engagement by myriad individual social actors with the world of social actors in general – effectively makes up the world as well as the people in it (Hacking 1986).


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The existential concept of ‘bad faith’ points to an instance when the subject seeks refuge from the necessity to ‘invent’ by privileging either facticity or transcendance; a procedural approach to fact dismisses possible contingency while a transcendentally subjective approach denies the reality of the social field where actions are understood. Given the fundamental division of the human situation into facticity and transcendence, bad faith or inauthenticity can assume two principal forms: one that ignores the factical dimension of every situation (‘I can do anything by just wishing it’) and the other that denies the freedom or transcendence component (‘I can’t do anything about it’). The latter is a prevalent form of self-deception but the former is common to people who lack a sense of the real in their lives. Since the existential predicament of the constable always already involves ‘something that ought not to be happening, about which somebody had better do something now’, it offers a wonderfully hard test of the practicality of existentialism. In abstract terms, authentic intentional action implies a demand for freedom but also engenders a reciprocal appeal for mutual recognition. For Sartre, practical action demands intelligibility from a perspective grounded in the mutually reinforcing values of freedom and reciprocity. It is from this perspective of freedom, action and reciprocity that existentialist thought is useful in conceptualising constabulary ethics. A Constabulary Ethic informed by existential considerations would thus incorporate a normative perspective (containing a universal dimension) alongside an ‘interpretative-diagnostic perspective’ that is directed to concrete circumstances. In conjunction with, but not reducible to, effective protocol and procedure, the process of norm construction would require that the constable approaches the event (fact) in need of police ‘intervention’ with a view to the ‘possible’, the ‘actual’ and (most importantly) the intelligibility of the action’s ‘meaning’. Here norms are to be understood as possibilities (never to be fully realised or made into a rigid system of commands or rules) that need to be reconciled with concrete action with a view to how that action is to be understood. It follows that the universality of norms and the inherent particularity of concrete events demand not just ‘choice’, in the last instance, but a choice that is both intelligible and meaningful from an inter-subjective position. Additionally, how the constable’s actions are to be understood is of primary importance to each actor thinking from both the first and third person points of view. The attempt to reconcile a normative perspective in a concrete action, while also being mindful of the complexity of existing social meanings, is only a starting point for ethical reflection and empathetic police action.

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The choices made in the constable’s engagement with an event will always take place within a complex universe of competing and not necessarily complementary demands. For this kind of agent, the radicality of freedom demands that one’s relation to any event be subject to consistent invention and renewal. This means that despite the existence of imposed or projected hierarchies of meaning, the practical field (where decisions are made) is always open to be re-ordered. For the constable, this requires addressing the event’s specificities with the aim of changing the nature of the event while avoiding the misguided and impractical temptation to change the people involved. For the constable authentic decision-making holds a concomitant responsibility for choices made. Authenticity is drawn into question when the officer approaches a given situation or event through a mediating abstraction (a reliance on linguistic and conceptual presuppositions) or if he sees it as a technical problem (something to be mastered). The choice the constable makes when confronting any situation requiring intervention (i.e. where the officer encounters the subjects and objects of the world) will always be made on the horns of a dilemma. In effect, to intervene in a situation relying on presuppositions, rules and procedures is to essentially withdraw from the really real of the situation, thereby undermining both the potential for free inventiveness and the dignity of the other. On the other hand, the officer cannot act as if he or she is a subject like any other (i.e. by disregarding the subject position of the constable); they have to do something. From an existentialist perspective, while the constable’s choices are limited, they are available. When confronting a potentially dangerous situation or engaging in conflict with the end goal of attenuating it, the first question that ought to be addressed is, ‘how can I help?’ The answer to that question is limited (and informed) by an abstract appreciation of the various subject positions the officer holds and the demands (sometimes contradictory) each position entails. Again, this is the officer as both subject and citizen with a duty to ‘lift up’ who intervenes in a situation that ought not to be happening. And yet, to fall back on one or the other subject position is a kind of self-deception, which is potentially quite dangerous, given the officer’s legally authorised power to use force. The constable must orientate to a new subject position, one that assumes that a simple consideration of what connects the two is available. This amounts to a reflective attitude that we will call the ‘Existential Constable’. While an existentialist ethic precludes the possibility of prescribing behaviour in advance, it is perhaps useful to assume a few basic tenets


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formulated in the negative, that is, what the Existential Constable (a ‘generalized citizen’ with extra-ordinary powers) ought not to do. A constable can act in bad faith if, in confronting a situation, that officer (a) appeals to individual powerlessness: ‘What can I do about it?’ (b) appeals to personal blamelessness: ‘I did not create the conditions that led up to this situation, therefore I have very little personal investment in its outcome’ (outside of procedural responsibilities); (c) disperses responsibility: ‘First and foremost, I have a duty to follow protocol and procedure’; (d) appeals to helplessness: ‘I used force because I could not do otherwise.’ In existentialist thinking, subjects formulate essential truth out of their own actions by subjectively assigning meaning to their experiences in the process of creating it. That said, and as already made evident, the Existential Constable’s subject position (as a generalised citizen and human being) is markedly different from that which may be experienced by the ordinary citizen. That is because the Existential Constable’s decision to act must be made from the generalised citizen’s ‘totality’ (the constable’s facticity and transcendence) and also within the ‘totality of policing’ itself. While Sartre’s concept of authentic choice and obligation can be instructive, these considerations need to be further elaborated though an examination of already existing social institutions in relation to human agency. Such consideration is obviously important in confronting the practicality of the notion the Constabulary Ethic. What we need now is an additional existentialist idea. Here, Sartre’s concept of the ‘practico-inert’ is useful in retrieving both an understanding of the normative ambitions inherent to policing as a social institution while also pointing toward a renewed discussion of a constabulary practice that resists institutional and professional ‘bad faith’.

The practico-inert As a field experienced both subjectively and collectively through the historical development of social relations, organisations and institutions, the practico-inert represents a macro-historical version of the existential tension first formulated at a subjective level in Being and Nothingness (1993). While Sartre consistently stressed individual ethical responsibility over structural causation, the concept of the practico-inert represents an appreciation for the ‘facticity’ of existing social conditions and institutions amid the conditions of freedom that no one can ever be entirely separated from. The practico-inert refers to how, and in what organisational forms, people relate to one another in civil society. The concept is developed

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in the Critique of Dialectical Reason (2004). It refers to a set of institutional arrangements whose existence, for better or worse, is the result of collective agency. For Sartre, our plans, aspirations, accidents, adjustments and collective attempts to direct and steer the contradictions of modern life are all imprinted in our pre-existing social institutions. The social institution is thus depicted as an objective tool or framework that has been fashioned by conscious human action for particular purposes or ends. One of the implications of the practico-inert is that an institution’s existence and our acceptance of it tell us very little about its origins, responsibilities, continued purpose or why we have an obligation to adhere to its authority. Moreover, the value or meaning of this ‘worked-over’ material is never definitive or self-evident but the problem remains that these ‘tools’ inevitably take on alien and reified forms which exhibit tendencies of inauthenticity and unfreedom. Consequently, the practico-inert captures the process through which social institutions redirect conscious action thereby obscuring any connection those institutions have to a fluid, lived social reality, democratic commitments or to their own historical make-up (as a series of former decisions). The practico-inert is then similar to Marx’s concept of alienation in that, for both Marx and Sartre, alienation can be thought of as a surrender of control or a separation of the agent from the conditions of meaningful agency. The quandary, as Sartre sees it, remains that the social institution (a result of praxis) itself becomes an alien power over those responsible (inside and out) for its existence and direction. These institutions, whose necessity cannot be assumed and whose general function ought to be questioned as a matter of practical reform, exhibit ‘system tendencies’ that establish their separation or differentiation from civil society and the project of securing its well-being. So, while these system tendencies allow for the development of an institution’s semiautonomous self-governance, they also signal an institution’s growing remoteness from civil society and contribute therefore to deficits in collective self-determination. Elaborated in the field of policing action, the critical appreciation of the alienation of the practico-inert institutional field points straight to the weakness of process justice. The practico-inert is a process whereby the ‘worked-over matter’ becomes inhibiting and ‘self-directing’, that is, the institution or organisation begins to appear as an ‘external’ force that is distanced from its own practical purposes or ends. The meaning, purpose and past actions inscribed in the institution begin to reflect back on its agents, resulting in a type of inertia or enmity toward the construction of new meanings. So, where the fluid activity of individuals and groups is understood as


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‘dialectical,’ the practico-inert field remains ‘anti-dialectical’ in that it indefinitely resists the actions and intentions of its authors, functionaries and subjects. In Sartrean existentialism then, this institutionalised bad faith is a resistance to particularity, specificity and freedom. This is where Sartre left the matter. While he professed a kind of scepticism regarding the value of existing institutions, opting in favour of a revolutionary stance against their perceived domination of human relations, Sartre’s reverence for upheaval must be tempered. In the case of those institutions that are constitutive of the ‘freedoms’ of democratic society and which aim to ensure human security and rights, we infer that our obligation toward them stems from a reciprocal relationship related to that institution’s purposive activities (activities that can be assessed against the normative aspirations of dignity, collective self-determination and self-government). The legitimacy of democratic institutions relies on their continued relationship with our own freedom. In the case of policing, the institution’s existence and legitimacy are inextricably tied to these abstract, non-codified regulatory and normative ideals. In turn, much like our repurposing of Sartre’s concept of authentic choice, the notion of the practico-inert illuminates tensions that lie at the heart of policing and testifies to the relevance of existentialist thought in developing a Constabulary Ethic. Specifically, the concept helps us appreciate those forces that distort the normative ambitions of the policing function. Given the monopoly the police have over socially sanctioned violence, in conjunction with that institution’s susceptibility to politicisation, investigating the ‘practico-inert’ features of the policing function takes on added significance. In the case of policing, institutional inertia not only involves a distancing of policing from the needs of civil society, its remoteness leaves the institution vulnerable to the penetration of an ‘instrumental rationality’ under the banner of a one-dimensional understanding of crime control and/or crisis intervention. The clearly recognisable result of this institutional-inertia is the increasingly punitive vision of contemporary policing. Of course, the central problem remains that when generally held notions about policing are reduced to a special coercive function of crime control and conflict resolution we tend to lose sight of the integral connection between freedom, policing, democratic civil society and the normative claims inherent in the acquisition and use of power. Tested against its own institutional standard and values (e.g. to ‘serve and protect’) policing is held to a standard greater than that of its role in an ‘economy of violence’. Contrary to existentialist ethics, the Constabulary Ethic must eventually yield up some normative standard that

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provides guidance for practical action. However, reducing the function or role of policing to officially sanctioned violence that, in turn, contains violence and is itself restrained by the rule of law, is both descriptively misleading and, from a normative perspective, unhelpful. If all of this seems too abstract (we suspect that it is, not least to those men and women of practical action who choose to call themselves constables) then it would do to emphasise that the alienation of contemporary policing from the social basis upon which it rests has exacerbated perceptions of danger on all sides. Perceptions have consequences, in this case a selffulfilling prophecy that can only make matters worse (i.e. more dangerous) for the constables themselves.

Totality, normativity and policing According to John Lea, in Crime and Modernity (2002), the politicisation of policing and the accompanying ‘punitive shift’ (whereby whole communities are treated as criminal and the police serve purposes related to a suspect ‘security’ logic), is a symptom of the changes associated with global capitalism leading to a legitimacy crisis in democratic governance everywhere. Eschewing a mechanical and reductionist approach to historical materialism, Lea’s nuanced analysis highlights the historical development of policing as coeval with the rise of capitalism and also with that of the ‘rule of law’, the discourse of human rights and the security (stabilisation) of civil society. The punitive turn, Lea argues, thus signals a dangerous rolling back of the actual governing responsibilities the institution owes to civil society. Providing for a dialectical understanding of the policing function not altogether antithetical to liberal theories of policing, Lea suggests that the police are one component of a process that co-ordinates the management of conflict and the expansion of norms associated with citizenship. The police are understood as one module in a fragile system of horizontal governance that is formed through a complex interaction between the state, the community, the victim and offender. The goal of this relationship is the development of a minimal type of social cohesion achieved by marginalising crime and/or crisis. In the terms we apply here, this dynamic relationship finds civil society handing over the management and regulation of conflict to the constabulary, which in turn takes an active role in supporting the functioning and legitimacy of the entire governmental system of which it is a part. The authority and legitimacy of the institution hangs on this normative ambition which anchors it, appropriately, in civil society.


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For Lea, the discourse of human security is nested within the project of modernity and, like that project, remains incomplete and susceptible to retrenchment and revision. In turn, since in its own terms liberal democratic policing is an institution that is inseparable from civil-society, the constabulary must be open to ‘intentional’ democratic design, reversibility and reform. It follows that the ‘intelligibility’ of the institution is intrinsically connected to both the observable facts regarding the policing function and to the general citizenry’s judgment regarding the institution’s claim to authority, with the latter superseding cultural norms internal to the institution and existing procedure. What Lea’s analysis suggests to us is that the institution of policing is a result of a ‘totality’ that is expressed in its history and facticity, right down to the practical choices and intentional behaviour (in bad faith or not) of those current officers who occupy its posts. In effect, the simpler and more abstract our understanding of the policing function, the less that institution is comprehended as a relation among ‘other things’. So, to comprehend policing in its totality is to bring our understanding closer to the reality of the subject matter; the concrete materiality of liberal policing is pre-defined by the normative aspirations of democratic control and freedom. As discussed previously, the officer holds many subject positions at once. Each is a part of the totality of policing. The constable as officer must exhibit the requisite virtues of a ‘component part’ that belongs to a hierarchical organisation – obedience and coordination. At this level the constable carries a prescribed formal obligation to the institution’s codes of conduct, and levels of internal jurisdiction/rank which, as evidenced above, are all conditioned by a normative commitment to a community’s safety and well-being. At the level of totality, the officer’s existence as an autonomous self-directing being (a citizen) is actively intermeshed with his or her procedural obligations and the history and function of the institution. This intersects in the day-to-day where the officer must confront the exigencies of community life.

Grounding the existential constable The constables themselves, practical men and women of action, inevitably find it difficult to engage in philosophical reflection at this level of abstraction and so a practical example might be helpful. The world of contemporary policing is rife with ready case studies, but for the sake of brevity one case must stand for all. We choose the tasering of Robert Dziekanski in Vancouver International Airport on 14 October, 2007 by

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four Royal Canadian Mounted Police (RCMP) officers as an example of overlapping moments of bad faith. Here we find officers initially overreacting with force to a perceived threat, robotically applying strategic crisis training, collectively participating in single-minded, hyper-masculine ‘group think,’ and finally retreating behind the ‘thin blue line’ to the practico-inert field of policing habits and excuses. The story was reported in meticulous detail in British Columbia, but received next to no coverage outside of the province. We summarise what is already a summation of very complex details and inevitably in the process important things get missed out. Here we seek not the whole truth, for that is certainly incompatible with the need to summarise, but to convey enough of the agreed facts to arrive at the essential truth of the situation as it was lived out by the people concerned (for greater detail see Brodeur 2010). The Braidwood Inquiry, headed by a retired court-of-appeal judge and established by the British Columbia Provincial Government, eventually determined the large body of recognised ‘facts’ of the case. Among many things, the final report determined that the four officers deployed their weapons multiple times within 25 seconds of the encounter with Dziekanski resulting in his death. The long-running news story about the incident itself, the inquiry and the long aftermath unfolded over a period of several years. This revealed to the public that the RCMP members misrepresented facts on multiple occasions, both in an effort to make the agency look good and to cover up poor actions. The four officers presented testimony that was directly contradicted by video evidence recorded by a member of the public. The RCMP impounded the video recording and attempted to suppress public knowledge of its existence. The member of the public who made the recording recovered the evidence via a privately sought court order and released it to the commercial media (for a fee). The officers involved initially testified to the inquiry that three Mounties present on the scene used reasonable force against a person who was apparently wildly out of control, a danger to himself and to the public. Their accounts downplayed the degree of force used and exaggerated the degree of danger posed by Dziekanski. The video showed four Mounties using taser weapons and batons on him only a short while after making initial contact, and without any discernable effort to engage him in a positive manner. Five taser rounds were officially counted as being fired and the video evidence revealed that, after Dziekanski finished writhing and screaming, the RCMP Corporal in charge checked for a pulse. Finding none, the officers attending the scene did not provide CPR treatment or take any substantive action to protect life. When paramedics arrived at the scene 15 minutes later Robert Dziekanski was pronounced dead.


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Taser International, the company that supplies the weapons to Canadian policing agencies, implies in its advertisements for its products that they are ‘non-lethal’ and has vigorously defended that view in multiple court settings, including the Braidwood Inquiry. The company tends to deny that its weaponry has the potential to kill. In the case of Dziekanski, they blamed the death on antecedent factors (alcohol). Elected politicians in Canada – at least those in a position to actually influence policing practice – have voiced support for the acquisition and deployment of these weapons and have generally exploited ‘toughon-crime’ rhetoric in an evidently successful political strategy (they keep getting re-elected). In February 2009 the Government of Canada went so far as to unilaterally suspend its mutual legal assistance treaty with Poland in order to block Poland’s own investigation into the death of Mr Dziekanski. The long running legal inquiry into the incident resulted in almost no consequences for the RCMP as an organisation or the officers involved. Invited to apologise during oral testimony, one officer declined to do so when given the opportunity by examining counsel; another later (unsuccessfully) countersued the Canadian Broadcasting Corporation (CBC) for personal defamation because it had published details of the incident, the inquiry and the video evidence.2 In speaking to the public, official spokespersons for the RCMP disingenuously and continuously denied wrongdoing by the organisation and its members. While the RCMP deputy commissioner for the Pacific region eventually read a formal apology to the mother of the deceased on 1 April 2010 (sic), at Vancouver International Airport in front of local and national news media, the content of political rhetoric in Canada continued to contain strong measures of punitive discourse throughout the period of the inquiry and afterwards; indeed, government ministers still often speak of the need for law enforcement officers to be ‘well equipped’ for the job. Robert Dziekanski was a Polish construction worker and miner attempting to move to Canada to join his mother in her life there. He had arrived at Vancouver International Airport two hours late and, having filled in immigration forms (with considerable help from officials since he did not speak English), had wandered around the ‘secure’ baggage claim area feeling lost and bewildered, and not fully understanding that he could not leave the Customs Hall because his paperwork was, as yet, incomplete. Agitated and confused, not long after midnight, and nearly 12 hours after he was supposed to have met his mother in the arrivals hall, Robert Dziekanski had created enough fuss to warrant the attendance of police. Since she was not permitted to access the secure area, his mother asked

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Airport Information for help in locating her son but was told that he had probably missed his flight and she ought to go home (which she did at about 10 pm – approximately eight hours after she had expected to greet her son). Understanding her 40-year-old son’s confused and anguished demands to be let go, she wept visibly during the inquiry when the video was shown. Justice Braidwood, in his long-awaited report, released on Friday 18 June 2010, said that the unfortunate incident was basically a problem of a few bad apples in an otherwise fine barrel: ‘This tragic case is at its heart a story of shameful conduct by a few officers. It ought not to reflect unfairly on the many thousands of RCMP and other police officers who have, through years of public service, protected our communities and earned a well-deserved reputation for doing so.’ Since the tasering of Robert Dziekanski, numerous other examples of excessive use of police force have come to light in Canada. For example, on Friday, 7 January 2011, a privately shot video by a citizen-observer showed an RCMP officer kicking 51-year-old Buddy Tavares in the head during an arrest. In November 2011 a judge released a portion of surveillance video from the holding cells of a police station in Ottawa showing 27-year-old Stacy Bonds being forced to the floor and forcibly strip-searched by four police officers while in custody. In all of these instances the outside observer could easily conclude that the police’s use of force was unnecessary and excessive in the circumstances, a conclusion only reinforced as other details of the incidents became known. From these more recent incidents, the outside observer would deduce that nothing has changed as a result of the lessons learned from the Dziekanski inquiry and that the unwarranted use of police force has gone unchecked in Canada and remains all too common. This event, and all similar ‘security’ related police interventions that involve a violent yet strategic ‘over-reaction,’ represent, in existential terms, the complete abdication of personal responsibility, authentic choice, inter-subjective intelligibility and thus the requisite considerations of a situated Constabulary Ethic. The Dziekanski affair is misrepresented if reduced to an isolated incident involving poor decision-making or a momentary lapse of sound judgment on the part of a ‘few rotten apples’. As evidenced by the lack of sustained media interest, the deflection of moral responsibility on the part of the officers in question and the RCMP in general, alongside the official external responses to the perceived ‘mishap,’ the Dziekanski case represents both the extent to which a situated practical Constabulary Ethic remains underdeveloped and wanting, It also evidences the concomitant presence of a punitive


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instrumental logic that has worked its way into the malleable executive function of contemporary policing.

Conclusion It does not take a philosopher to point out that, from start to finish, the example of the tasering of Robert Dziekanski exhibits multiple acts of bad faith by all of the official actors concerned. Given the continuing problems of excessive use of police force, the process justice provided by the Braidwood Inquiry does little to assuage doubts about the fidelity of policing to the ideals of human freedom. Perhaps then, our detour into existentialist philosophy has done nothing more than create a Rube Goldberg Machine of philosophical ideas. That would arguably be the case if the problem was simply one of language. When the modern concept of ‘police’ was first articulated sometime in the middle of the 17th century it was understood to encompass the entire art of government – that is, the successful management of populations and territory for the sake of general welfare. At its inception, the ‘science of policing’ was not simply understood in the contemporary sense as mere criminal law enforcement, but as a social practice intended to lift up the ‘health of the social body’ (Pasquino 1991). Were the practico-intert field of policing to recover this broader sense of ‘regulating the state of prosperity’, rather than being reduced to a concern with enforcement, perhaps then contemporary policing would be one step more proximate to the existential ideal. Taking this view, were the definition of policing to change then perhaps all would be well. It might be comforting to be able to attribute the difficulties of lifting people out of misery not to the amenable world or to our corrigible selves, but to some peculiarity of language. ‘The limits of my language are the limits of my world’, according to Wittgenstein; however, in Sartrean terms, when we face ‘the incommunicable’ we face the ‘source of all violence’ (Murdoch 1999, pp. 68–70). So the problem might have something to do with language and how we communicate the task of policing. Nevertheless, the Existential Constable’s response to the condition of unfreedom is not the linguistic soft shoe shuffle, it is always practical action. Given the situation at hand, how can the constable help? Policing is needed because too many things go wrong: emergencies happen, people act and react in unpredictable and sometimes violent ways to the vicissitudes of everyday life. In professional policing circles there is discussion and debate about the morality of police intervention

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and there are many advocates of different ethical ‘doctrines’. The existentialist viewpoint turns responsibility onto the individual agent. No one can justify their action or inaction on the basis of written rules and doctrine since to do so would be to act in bad faith. Authentic action is the result of conscious choice by conscious human actors. The constable finds her or himself at the sharp end of conflict-ridden situations as a matter of course every day. This is, of course, frightening but it need not always be a pretext to act violently and use force. From the subject position of ‘citizen in uniform’, whose real interest is to help maintain the conditions of freedom for all concerned, there are many other possibilities besides enforcement. One of the animating concerns giving impetus to the idea of a Constabulary Ethic is that it is possible to influence the conduct of policing agents of all stripes for the better by providing a more sophisticated understanding of what is good policing (Sheptycki 2010). The existentialist idea is to affect the institutionalised subculture of policing (the practico-intert in policing) by returning to the actors who ‘make it up’ a sense of personal responsibility for their conditions of unfreedom and for the unfreedom that the practico-inert in policing enforces in the world. For the constable is no different to any other human being – we are all responsible through our actions for ‘making up’ our world and it is that which gives rise to the horizon of meaning in which we operate. Given the overriding and compelling practical concerns of situated police action, it might be argued, the traditional interests of the philosopher (which are to reflect systematically about the human condition and thereby seek to extend and deepen the self-awareness of human kind) are overshadowed by the need for practical action. We argue that it is precisely because of the responsibilities entailed in the office of the constable that such reflection is of utmost utility. The existentially aware police officer is much more likely to foster peace and prosperous social order than a mere uniform acting in bad faith. Taken together, Sartre’s concepts of subjectivity, the intelligibility of action and the practico-inert all point to a radical system of ethics conducive to the establishment of a radical form of Constabulary Ethic. What Sartre’s existentialism offers to the discourse of Constabulary Ethics is a way of thinking about engagement, practical action and decision-making that resists hypostatising values while also avoiding the equally harmful allure of political realism. To a great degree, an ethical orientation that prioritizes a ‘lived-reality’ draws a firm distinction between the actuality of uncertainty and the concomitant ideological trappings of moral certitude and radical scepticism. So, to employ


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radical ethics is to be continuously inclined to critically rethink the relation between subjects, subjects and institutions and, more generally, the uneasy relation between morality as an aspiration (that can never be fulfilled) and concrete particularity. It is in conformity with this orientation that ‘intelligible actions’ can be invented from the point of view of the lone officer, the policing function in general and the third-party observer. Far from suggesting the revolutionary gesture of jettisoning the police institution in toto, Sartre’s existentialism points to practical standards by which to assess and critique the successes and failures of those very institutions that pretend to uphold and secure the values of human freedom and thereby strive to do more than merely return us to our anguish.

References D. Bayley (2005) Changing the Guard: Developing Democratic Police Abroad (Oxford: Oxford University Press). E. Bittner (1970) The Functions of Police in Modern Society (Washington DC: National Institute of Mental Health). J.-P. Brodeur (2010) The Policing Web (Oxford: Oxford University Press). I. Hacking (1986) ‘Making up People’ in T. Heller, M. Sosna and D. E. Wellbery (eds) Reconstructing Individualism: Autonomy, Individuality, and the Self in Western Thought (Stanford: Stanford University Press), pp. 222–36. J. Lea (2002) Crime and Modernity: Continuities in Left Realist Criminology (London: Sage Publications). I. Murdoch (1999) Sartre: Romantic Rationalist (New York: Vintage). P. Pasquino (1991) ‘Theatricum Politicum: The Genealogy of Capital – Police and the State of Prosperity’, in G. Burchell, C. Gordon and P. Miller (eds) The Foucault Effect: Studies in Governmentality with Two Lectures by and an Interview with Michel Foucault (Chicago: University of Chicago Press). J.-P. Sartre (1992) Truth and Existence, translated by Adrian van den Hoven (Chicago: University of Chicago Press). J.-P. Sartre (1993) Being and Nothingness (New York: Washington Square Press). J.-P. Sartre (2007) Existentialism is a Humanism (New Haven: Yale University Press). J.-P. Sartre (2004) Critique of Dialectical Reason, Volume I (London: Verso). J. Sheptycki (2007) ‘The Constabulary Ethic and the Transnational Condition’, in A. Goldsmith and J. Sheptycki (eds) Crafting Transnational Policing: Police Capacity Building and Global Policing Reform (Oxford: Hart), pp. 31–77. J. Sheptycki (2010) ‘The Constabulary Ethic Reconsidered’, in F. Lemieux (ed.) International Police Co-operation: Emerging Issues, Theory and Practice (Cullompton, UK: Willan Press), pp. 298–319. C. Taylor (1985) Philosophical Papers I: Human Agency and Language (Cambridge, UK: Cambridge University Press). P. A. J. Waddington (1991) The Strong Arm of the Law: Armed and Public Order Policing (Oxford: Oxford University Press).

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Notes 1. The word ‘privilege’ is used deliberately. Derived from the Latin privus (individual) and lex (law), for us the term connotes an acknowledgement that law is always its practical interpretation by the subjective actor. 2. Neal Hall, Vancouver Sun, Nov. 3, 2009: ‘Mountie who Tasered Robert Dziekanski files libel lawsuit against CBC.’

6 Heidegger, Restorative Justice and Desistance: A Phenomenological Perspective David Polizzi

Introduction The restorative process, which ultimately must include the potential for the desistance from subsequent criminal activity, becomes predicated upon the relationship between community, victim and offender. Though rarely discussed as complementary criminological concepts, restorative justice and desistance evoke a similar triangulated institutional and cultural relationship, which seeks to address a variety of wrongs resulting from the criminal act. However, it is often assumed that the offender is exclusively responsible for the success of the restorative process, which often overlooks other co-occurring social realities that directly influence the outcome of this encounter. Whether it is the process of restorative justice proper or the process by which an individual desists from subsequent criminal behaviour, these restorative possibilities do not occur in a social vacuum and are often profoundly influenced by a variety of social relations and socially constructed meanings concerning the existence and presence of crime and criminal behaviour (Arrigo, Milovanovic & Schehr 2005; Arrigo & Milovanovic 2009; Polizzi 2007; Quinney 2000a, 2000b). Yet in spite of these rather obvious social factors, or socially constructed conceptualisations, the perpetrator of the criminal act is expected to carry all of the requisite responsibility for not only ‘making right’ but also ‘making good’ (Maruna 2001; Zehr 1985). The restorative process must not only focus upon the specifics of criminal victimisation, but also be able to appropriately adjudicate or at the very least appreciate, the ways in which existing cultural and social structures contribute to the existence of crime and criminal behaviour (Arrigo, Milovanovic & Schehr 2005; Pavlich 2005). The desire or ability to ‘make 129

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right’ must reflect more than the metaphorical attempt of simply turning back the clock, so to speak, to that point prior to the criminal event. If the intent to make things right is to be realised, this process must also include the ability to explore a variety of meaning-generating processes, that have helped to contribute to the end result of crime and criminal victimisation. If the end result of the restorative process is to provide support for the possibility of desistance from subsequent criminal behaviour then this process most also take into account and recognise the way in which desistance also reflects a different way of being-in-the-world, a different phenomenological engagement with the world that in turn is predicated upon one’s ability to be how others are allowed to be. However, such transformational possibility can be thwarted when the social context refuses to recognise the legitimacy of such change. Traditionally, the study and definition of crime generally emerges from individually or socially derived factors or structures, which then serve as the explanatory foundation from which to conceptualise the existence of crime. However, such theoretical formulations of criminality are predicated upon either the omnipotent presence of free will or the enslaving grip of an all-encompassing determinism, which either elevates the power of human consciousness to unrealistic heights or reduces it to that of an artifact of these processes and systems of controls. Such a dichotomous understanding of human existence fails to recognise that we are determined by a variety of factors outside of our immediate control, yet in spite of this we also retain the ability to choose and to articulate a sense of agency (Crewe 2010; Heidegger 1996; Merleau-Ponty 2002; Polizzi 2010). The process of restorative justice and the experience of desistance take place within a context of overlapping social meanings that continually influence the outcome of these encounters. As such, the very presence of the offender in either the process of restorative justice or in the specific attempt to desist from subsequent criminal behaviour has already been culturally constructed prior to any attempt to make right or make good. Each of these events unfolds within a predetermined set of socially and institutionally inscribed meanings that construct not only the meaning of the criminal act, but the very existence of the perpetrator as well (Pavlich 2005). The ability or willingness of the individual to make right or make good is constantly challenged by the prevailing social contexts that may confront, restrict and flatly deny the possibility for human choice. When placed within the context of Heidegger’s existentialphenomenology, the encounter between offender and the restorative

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process is removed from any dichotomous formulation of human existence and rather becomes the focal point from which human experience encounters the limits of its own potentiality. For Heidegger, the potentiality of human being is predicated upon the ‘thrown’ quality of human existence, which must take into account the ways in which social context influences or determines the meaning of being. When involved in the restorative process, the offender must not only attempt to make sense of their own experience, but also recognise the ways in which this adjudicative process not only defines existence, but greatly influences or determines what will be legitimised and what will not. The possibility for restorative transformation, then, is reflected not only by the desire for change on the part of the individual, but it must also include the willingness of a variety of social contexts to permit that change to occur. This chapter will first attempt to describe Heidegger’s theoretical conceptualisation for being-in-the-world and the care structure, which he outlines in his classic text Being and Time. The discussion will then move on to a description of the various formulations of restorative justice and desistance with each section concluding with a re-formulation of these concepts from the perspective of Heidegger’s existential-phenomenology. By situating the restorative process within the context of an existentialphenomenological formulation, the possibility and perhaps even the responsibility for change now becomes predicated upon the co-constituted construction of the meaning of human experience. The process of restorative justice and the potential for desistance provides a powerful background by which to explore the potentiality for the transformation of being-in-the-world-as-offender relative to the dictates of the ‘theyself’ of the criminal justice system. This discussion will begin with Heidegger’s concept of being-in-the-world, the care structure and the they-self.

Heidegger’s existential-phenomenology Being-in-the-world, the they-self and the structure of care Heidegger (1996), in his classic text Being and Time, explores the meaning of being and its relationship to what he identifies as the they-self. Being-in-the-world or Dasein represents that point from which human existence encounters the world and takes up its own projects (Heidegger 1996; Sheehan 2007). However, because being-in-the-world is primarily conceptualised as a being-with-others, the concern I have for my own existence, includes a concern for others who take up the possibilities for being in more or less the same way. As such, being-in-the-world or

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Dasein is characterised as a temporal existence that is an open possibility for being that is also limited by the specific realities this type of being must confront (Spinelli 2005; Zimmerman 1981). Therefore, as temporal beings we are limited by the inevitability of our own deaths, but remain open to this possibility of becoming as we pursue our life projects. Fundamental to this structure of human being is what Heidegger has identified as care or the care structure (Heidegger 1996; Zimmerman 1981). Care represents the way in which human being seeks to remain open to its own potentiality to be and the being of others (Heidegger 1996). Care represents the ontological character of being-in-the-world and is comprised of three elements: existence, facticity and falling or falling prey (Blattner 2005; Heidegger 1996; Mills 2003; Zimmerman 1981). Zimmerman (1981) describes these three ontological aspects of being-inthe-world in the following way: In existing, I am usually out ahead of myself planning and preparing. As factical, I am thrown into a particular situation and endowed with limited possibilities. As falling, I am usually concealing the truth by becoming absorbed in worldly affairs. (p. 65) Zimmerman (1981) adds that each of these elements of care reflects the temporal dimension of being-in-the-world. Existence, which is viewed as an open potentiality, reflects the future, whereas facticity reflects the past as this relates to the limits imposed on human being and falling, the current condition of being-in-the-world. The temporal dimension of being-in-the-world, then, structures and unifies the various elements of care and makes them possible. As such, existence is that aspect of being-in-the-world that is ahead of itself, always already situated within a world and reaching toward the possibilities of its future (Zimmerman 1981). However, this future is not limitless and must address the factical or thrown aspects of its existence, which are limited by a variety of historical, social and cultural characteristics that constantly define the meaning of being and the possibilities for its existence. Fallenness or falling prey reveals the way in which being-inthe-world is dependent upon and taken in by the world and its meanings (Zimmerman 1981). Heidegger (1996), in describing the structure of care, makes the following observation or clarification: Care not only characterises existentiality, abstracted from facticity and falling prey, but encompasses the unity of these determinations

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of being. Nor does care mean primarily and exclusively an isolated attitude of the ego to itself. … Care cannot mean a special attitude toward the self, because the self is already characterised ontologically as being-ahead-of-itself; but in this determination the other two structural moments of care, already-being-in … and being-togetherwith, are also posited. (p. 180) Taken in this context, Heidegger clearly describes the fundamentally social character of being-in-the-world as a being-with and being-in (Dreyfus 1995; Gelven 1989; Heidegger 1996; Zimmerman 1981). Existence and the meaning of human being unfold from a specific point of reference within a social world that defines the possibilities for that existence. As such, human existence is never the sole author of the meaning of being and must always take into account the ways in which culture, history, and social context help to determine what it means to be within a variety of social relationships. Because being-in-the-world (or Dasein) is always a being-in-the-world-with-others, it is taken in by these others, ‘ … and entrenches their power’ (Heidegger 1996, p. 118). To be taken in by this being-with implies a covering over of being-in-the-world that allows itself to be made subservient to others and lost in the averageness of daily existence (Heidegger 1996). ‘The others, whom one designates as such in order to cover over one’s own essential belonging to them, are those who are there initially and for the most part in everyday being-with-oneanother’ (Heidegger 1996, p. 118). Heidegger has described this everyday being-with as the they-self. Heidegger (1996) describes the they-self in the following way: In its being, the they is essentially concerned with averageness. Thus, the they maintains itself factically in the averageness of what is proper, what is allowed, and what is not. Of what is granted success and what is not. This averageness, which prescribes what can and may be ventured, watches over every exception which thrusts itself to the fore. (p. 119) As such, the they-self is seen as that which levels down the possibilities for being, and determines the ways in which Dasein and the world will be interpreted (Gelven 1989; Heidegger 1996). It is through this process of publicness or everydayness that the they-self establishes the meaning of everyday existence and by so doing disburdens being-in-the-world

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from this responsibility (Dreyfus 1995; Gelven 1989; Heidegger 1996). Rather than challenge what ‘they say, being-in-the-world allows itself to get lost in this being-with and accepts as valid what ‘they’ say the truth of existence is or can be. From the context of restorative justice or the desistance from crime, it is the they-self of the criminal justice system that determines what will be granted success and what will not. In the case of the individual who is being-with this manifestation of the they-self, their very existence is questioned and covered over by the way in which being-in-the-world is levelled down by what ‘they say’. The ability of the criminally-involved individual to be something other then what the they-self prescribes, becomes taken in by this levelling down of being and is refused the possibility to be as others are allowed to be. Though we will return to a more specific and thorough exploration of being-in-the-world and the they-self as it relates to restorative justice and desistance below, a more general example of this process may be helpful. The Autobiography of Malcolm X provides a powerful example in this discussion. It will be recalled that Malcolm Little almost immediately finds himself situated between two very different manifestations of the theyself. On the one hand, Malcolm was born into a Garveyite family, who provided him with a positive meaning for ‘blackness’ that found itself in a constant struggle for meaning within the larger social narrative of anti-black racism (Gillespie 2010; Malcolm X 1965; Polizzi 2003). These overlapping or layered manifestations of the they-self provided very different possibilities for black-being-in-the-world insofar as each provided a different meaning for ‘blackness’, and therefore provided very different parameters for what would be allowed and what would not (Polizzi 2003, 2007, 2010). As one journeys through the pages of the Autobiography, one can witness a variety of manifestations of the they-self that either confront or confirm the possibility for Malcolm’s being-in-the-world. The possibilities for a more open being-with seem to emerge in those moments when Malcolm is being-with a manifestation of the they-self that is willing to grant the possibility of success to black-being-in-the-world (Polizzi 2003). He is better able to confront the debilitating influences of the racist theyself, when he is taken in by the they-self represented by the Nation of Islam. Malcolm’s possibility or potential-to-be becomes liberated by this new being-with that no longer constrains his possibility to be in the same way and doesn’t define his existence as a ‘problem’ (Dubois 1990). Tragically, however, Malcolm’s life comes to a sudden end when he transgresses the “authority” of the Nation and the they-self represented by the

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Honorable Elijah Muhammad (Clegg 2010; DeCaro 1996; Goldman 1979; Malcolm X 1965; Polizzi 2003). What was once a liberating possibility for being-in-the-world now becomes a trap that demands retribution for Malcolm’s supposed infidelity. Regardless of the liberating influence that this alternative manifestation of the they-self provided, the possibilities for existence are still determined by what they (Elijah Muhammad and the Nation of Islam) will allow and what they will not. We will now move to a discussion of Heidegger’s notion of thrownness. What does it mean to be thrown? The phenomenology of social existence Taken in the most general sense, thrownness or being thrown describes the basic quality or ontological characteristic of being-in-the-world, that is, human being always finds itself thrown within a specific social context. As such, being-in-the-world is always situated within a specific social world or ontic manifestation of being-in that includes historical, cultural and familial possibilities which help to define the meaning of being (Heidegger 2008, 1996). Though being-in-the-world is always concerned with its own existence, this concern is never isolated from the world and always unfolds within these larger social meanings that are not under its direct control. Being-in-the-world as offender within the restorative process implies a specific type of thrownness that not only defines the specifics of the criminal act, but also the very meaning for that existence, which has transgressed law. The possibility of desistance unfolds within the very same meaning-generating process that determines the possibilities for being and decides upon what will be valued and what will not. To be-in-the-world other than as criminal requires the recognition that this transition or transformation of beingin and being-with will be allowed and viewed as legitimate. Though this possibility for being is not completely determined by the dictates of the they-self, it does play a significant role concerning the way in which the potential for desistance is taken up and made meaningful within lived experience. To be thrown, therefore, implies for Heidegger that human existence is defined by the specific cultural meanings provided to being-in-theworld that emerge and are generated by the way in which I lose myself in my being-in and being-with-others (Heidegger 2008, 1996). I am thrown within a specific family history, which helps to answer the question of who I am. However, the question cannot be answered solely from this frame of reference; one must also include those aspects of social existence that impose a variety of meanings that are external

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to this specific meaning-generating process, yet are fundamental to an existence that is described as being-in-the-world-with-others. The answer to the question concerning who I am, therefore, unfolds as a dynamic artifact of my being-in-the-world-with-others that not only reflects the care of my own existence, but also the specific ways in which I am taken in by my world. Being-in-the-world as gay or lesbian, as criminal or ex-offender, as fundamentalist religious believer or as agnostic, as racist or raced, as patient or clinician, as revolutionary, as father or mother, as husband or wife, as son or daughter and so on, all emerge from a very specific point of engagement within a specific social world, configured by a multilayered manifestation(s) of the they-self (Polizzi 2003) that helps to determine and define the meaning and possibility for human existence. Though the ontological character of human being is always thrown, or is always a being-in, this does not imply that all human beings will be able to take up the possibilities for their existence in the same manner, or will be allowed the same possibilities for being that others are allowed. Thrownness represents for Heidegger an entanglement of Dasein or being-in-the-world that is viewed as an ontologically neutral characteristic of human existence (Heidegger 1996). However, it is equally true that to be thrown must also imply that my being-with-others may restrict my possibilities for being or seek to objectify the very meaning of that existence. As Heidegger (1996) describes, [i]nauthenticity does not mean anything like no-longer-being-in-theworld, but rather it constitutes precisely a distinctive kind of beingin-the-world which is completely taken in by the world and the Mitda-sein of the others in the they. (p. 164) At its most mundane, inauthentic being-in-the-world allows for us to be taken in by the world and allows us to lose ourselves in our care of the world. As such, this type of being-in-world reflects a positive possibility for being-in and being-with that describes for Heidegger the basic ontological characteristic of human existence (Heidegger 2008, 1996). However, this description for being-in-the-world must also include a type of being-with that is so taken in by the world and the ‘others of the they-self’ (Heidegger 1996, p. 164) that it becomes objectified by this process. Being-in-the-world as a deficient being-with denies my ability to lose myself in the world and forces me to stand out in such a way that

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I am overly determined by how they say I should or can be (Heidegger 1996; Natanson 1986; Polizzi 2007; Schultz 1967, 1970). Such a standing-out is manifested in a variety of ways and is exemplified through the way in which gender, ethnicity, socio-economic class, political persuasion or religious affiliation and belief are constructed and defined within this specific process of being-in and being-with. The degree to which these possibilities are forced to stand out in a deficient way, will greatly determine the degrees to which human existence will be able to pursue its own possibilities-to-be. When contextualised within the restorative process, this possibilityto-be is confronted by a being-in and being-with that is conflated into the criminal act itself, whereby the meaning of the act comes to define the ontological character of the individual. When constructed in this way, the individual remains trapped within a being-with that defines the possibilities for being exclusively as a ‘being-in-the-world-as-criminal’. The possibility for individual transformation, if such a possibility is even allowed, will always remain tainted by this objectified being-with that is rarely allowed to recede to the background. Being-in-the-world, therefore, loses its ability to be a being-away-from-itself, insofar as the potentiality for its future has been foreclosed by its entanglement with the they-self of the criminal system. We will now move to a discussion of restorative justice.

Whose restoration? Which justice? Defining the restorative process Brief history of restorative justice At its inception, restorative justice was seen as representing a paradigmatic shift away from more traditional theories of justice whose focus was exclusively concerned with retribution and the punishment of criminal behaviour. As such, restorative justice sought to provide an alternative vision for the process of criminal adjudication that was more focused upon the relational damage incurred by crime and criminal activity. One of the earliest definitions for this theory of justice was provided by Eglash in 1977. In his conceptualisation of the restorative process, Eglash stated that restorative justice ‘ … focuses on restoring the harmful effects of these actions, and actively involves all parties in the criminal process’ (Gavrielides 2008, p. 166). In 1985, Howard Zehr defined restorative justice as an alternative theory of justice predicated upon the need and desire to heal the ill-effects of crime and criminal behaviour rather than punish the perpetrators of these

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actions (Gavrielides 2008; McCold & Wachtel 2002; Shapland et al. 2006; Van Ness 2002). However, Gavrielides (2008) maintains that this ‘paradigmatic alternative’ was challenged in 1989 by the more pragmatic languaging of the restorative process represented by the work of Braithwaite and his influential text Crime, Shame and Reintegration. In this work, Braithwaite introduces a new conceptualisation of the restorative process that is viewed as complementary to traditional criminal justice practice. Gavrielides (2008) argues that the current debate within restorative justice reflects the tension that has arisen between these two competing theoretical approaches – tension which has made it difficult to formulate and define a description or meaning for restorative justice that is acceptable to both camps. In its most general sense, then, restorative justice seeks to bring together victim, offender and community in an attempt to humanise the painful experience of the criminal act and help all those involved to overcome its lingering effects (Arrigo, Milovanovic & Schehr 2005; Burnett 2005; Polizzi 2008; Strang 2002; Zehr 1985, 1997). Though specific disagreements certainly exist between the two competing conceptualisations of this process, the basic theoretical triangulation of offender, victim and community remains intact (Gavrielides 2008; McDowell & Whitehead 2009). From this perspective, the criminal act is conceptualised as a personal event which unfolds between perpetrator and victim within the context of a specific community. Bazemore and Erbe (2004), in an attempt to provide greater theoretical clarity to this process, identify three core principles which inform the practice of restorative justice: ‘repairing harm, stakeholder involvement and the transformation of community and government roles’ (pp. 29/30). Bazemore and Erbe define ‘repairing harm’ as the most important principle of the restorative process. Restorative justice responses to intervention therefore begin with a focus on identifying, and then repairing; the damage caused by the actions of offenders and are driven in each case by the needs of these primary stakeholders in the justice process. (Bazemore & Erbe 2004, p. 31) The second principle identified by Bazemore and Erbe, stakeholder involvement, remains a somewhat contested concept within restorative justice (Gavrielides 2008). Bazemore and Erbe (2004) define it as those individuals directly and most immediately impacted by the criminal act. The purpose of this principle is to help balance the focus of the

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restorative process by inclusively recognising those voices not normally included in this conversation. The third core principle in restorative justice stems from the conviction that there are limits on the role of government in the response to crime and trouble, and from the parallel view that communities have an essential role to play in this response. (Bazemore & Erbe 2004, p. 35) Taken in turn, the principles of healing harm, stakeholder involvement and transformation of community and government roles and relationships, help to shape a specific profile of the restorative process that seeks to address the ill-effects of crime. However, these conceptualising principles are theoretically limited by their failure to explore thoroughly the basic assumptions upon which these specific formulations depend. A great deal of critical attention has been focused on the way in which harm, stakeholder and community are defined (Arrigo, Milovanovic & Schehr 2005; Acorn 2004; Pavlich 2004, 2005; Polizzi 2008; Walgrave 2002) by the restorative process, with specific emphasis on what is left unexplored. Harm, stakeholder and community all evoke a variety of social constructions that defy easy conceptualisation. Each of these guiding principles for the restorative process emerges from very specific and often competing social perspectives that cannot be easily ignored or quickly resolved. Restore to what? The obvious question that emerges from any close reading of the restorative process is: what exactly is restored? Whether our focus is on the triangulated relationship between offender, victim and community or upon the core principles of the restorative process, identified as healing harm, stakeholder involvement and community and governmental transformation, the question remains unanswered, or at the very least is an answer that is incomplete. If the purpose of the restorative process is to heal the harm caused by the criminal act, how is this conceptualisation of harm defined? At its most obvious, such a definition must include those factors most directly related to the criminal act itself. Harm will be defined by the degree to which the actions of the perpetrator have injured the victim and community. The possibility for healing within the restorative process, therefore, is achieved by the degree to which the extent of this harm has been recognised by the offender (Bazemore & Erbe 2004; Gerkin 2009; Johnstone & Van Ness 2007;

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Roche 2003; Shapland et al. 2006; Strang 2002; Umbreit 1994; Zehr 1997). However, such a formulation is unable to address the contextual realities that help to construct the possibilities for crime, which are foundational to the criminal act and therefore must be included in any legitimate process of healing harm (Polizzi 2008). For example, how does this process address the harm experienced by the perpetrator of the criminal act? If the healing of harm is to be an inclusive process, it must reach well beyond and behind the criminal act. Quinney’s (2000) observation, ‘What is important in the study of crime is everything that happens before the crime’ (p. 21), nicely identifies this concern. If the healing of harm demands that we explore what has taken place prior to the act of crime, it therefore becomes necessary that we also address those specific experiences in the perpetrator’s history that have led him or her to that criminal result. To do otherwise, implies that criminal behaviour is the artifact of a simplistically constructed maniacal ‘rational actor’, who chooses predation over law-abiding behaviour and is peculiarly immune to the influencing effects of any antecedent conditions or experiences – factors that may help to provide a more in-depth understanding of the criminal act (Polizzi 2008). This more exclusive understanding of harm, which has traditionally been the focus of the restorative process, may be able to recognise the harm imposed by the immediate criminal act, but must remain silent concerning those conditions, experiences or social structures which help to perpetuate the construction of crime. Victim harm, then, becomes an irresolvable event insofar as the conditions that helped to create the circumstances concerning a specific act of victimisation are allowed to continue more or less unabated by the restorative process. Though it is certainly potentially true that this specific victim will not be victimised again by the same perpetrator, this restorative process is completely powerless to redress those dynamics which help to create this perpetrator-victim dyad in the first place. In the absence of an ability to remediate this problem, the healing of harm can only address the immediate reality of harm evoked by the criminal act; it can never adequately conceptualise other manifestations of harm that help to make criminal victimisation possible (Arrigo, Milovanovic & Schehr 2005; Pavlich 2005). We will now move on to the concepts of stakeholder and community, where some of the very same dynamics are also present. The goal of healing harm has direct implications for the concepts of stakeholders and community. Given that both of these concepts are predicated upon the traditional belief that the healing of harm is solely situated within the context of offender behaviour, each of these formulations

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tend to support a result that in some way validates this underlying conceptualisation of the restorative process (Braithwaite 1989/1997; Shapland et al. 2006). Stakeholders are those immediately harmed or in some way affected by the criminal act, and are subsequently permitted to share with the offenderthe effect that the criminal event has had on their personal experience subsequent to that encounter (Bazemore & Erbe, 2004; Gavrielides 2008; Gerkin 2009; Strang 2002). Gerkin (2009) has argued that the stakeholder perspective represents such an imbalance of power that very little is actually restored. Given that the perpetrator is required to bear the total burden of responsibility for the criminal act and therefore, by implication, the conditions by which the possibilities for crime are created, there is very little room for any legitimate participation on the part of the offender that does not adhere to these very strict parameters (Gerkin 2009; Pavlich 2005). Stakeholders, through their involvement, help to reinforce the socially constructed limits imposed by the restorative process as this relates to the definition of harm. By remaining faithful to what they say about the criminal act and the way they describe the responsibility for the resolution of the harm that it has evoked, stakeholders, intentionally or otherwise, collude with this process by legitimising what they will allow this offender to be. Such possibilities for being unfold within communities that may to some degree hold a level of responsibility for the existence of crime that has now become the sole purview of the specific offending individual. The re-unification with community, a goal that is so central to the restorative process, fails to take into account the ways in which communities may also help to contribute to subsequent criminal behaviour (Pavlich 2004). Bazemore & Erbe (2004), in their desire to emphasise the important role played by community, seem to fail to recognise how these very same constructs can be fundamental to the process of crime creation. The toxic influence of tragically pathological and highly destructive family dynamics and community relationships often become foundational to subsequent criminal behaviour that cannot be overlooked or conveniently ignored (Polizzi 2008). How we construct the meaning of the process of re-unification seems central to resolving this concern. Therefore, what is the relationship between returning offender and community in the restorative process? Stated another way, how does the social meaning of offender and criminal act take on relevance in the process of community re-unification? What appears most central to answering this question is the way in which the individual offender is constructed by the community or specific social contexts. If the offender and his or her offence are seen as

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something separate from that community, then his or her presence will continue to be viewed as that of a social contagion that forever remains a threat to that community even when not actually ‘criminogenically symptomatic’. As such, the offending individual is held to bear the sole responsibility for the social meaning of these acts that remain oddly situated outside of the social context from which they initially emerged (Arrigo, Milovanovic & Schehr 2005; Pavlich 2004, 2005). Taken from a phenomenological perspective, the relationship between offender and the restorative principles of harm, stakeholders and community are made meaningful through the specific engagement between individual experience and social context, between being-in-the-worldas-criminal and being’s relationship to the they-self. Human experience, regardless of its specific lived-meaning, always finds itself thrown into a being-in and being-with that not only defines the meaning of being, but is always situated within a specific encounter with the they-self seeking to identify what will be allowed and what will not. We will now move to a discussion of restorative justice from the perspective of Heidegger’s existential-phenomenology. Toward a phenomenology of restorative justice Taken from the vantage point of Heidegger’s existential-phenomenology, the processes situated within the practice of criminal justice proper, represent a specific type of thrownness that is defined by the technicalities of the they-self of the criminal justice system. Within this context, being-in-the-world is defined by the criminal act, which tends to cover over all other possibilities for this type of being-with that have not been specifically validated by this manifestation of the they-self. It is the theyself of the criminal justice system that adjudicates social wrongs and provides punishment to those who have transgressed the law. Included in this process is the way in which being-in-the-world is taken over by the dictates of they-self and is no longer allowed to be as others are allowed to be. Within this more general manifestation of the they-self of the criminal justice system exist other competing variations on what this or that means, which may be allowed to be heard, as long as what they say does not threaten the established order. However, from time to time more powerful manifestations of the they-self do emerge and since they have the potential for competing with these more established meanings they must therefore be addressed. Restorative justice represents such a challenge. The initial formulation of restorative justice, as an alternative theory of justice, sought to challenge existing theoretical assumptions and practices

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related to the construction and adjudication of criminal behaviour. Seen from the vantage point of existential-phenomenology, restorative justice emerges as a competing manifestation of the they-self that sought to provide a re-conceptualisation of the adjudicative project, which, in turn, attempted to re-direct the discourse of this process away from attitudes and practices solely defined by images of retribution and punishment. As such, this alternative adjudicative they-self provided different definitional parameters concerning the meaning of being-in-the-world-ascriminal, and as a result, provided a different possibility for how this type of being-in-the-world would be defined by this process. As such, restorative justice and the restorative process it seeks to evoke, represent a competing hermeneutic that seeks to re-member the possibility of crime as an individual act engaged within a specific and co-constituting social context that refuses to construct crime as an isolated event. An example of this new possibility for being is described by Caputo (1987): ‘Entities can appear only insofar as a certain horizon of Being has already been laid out for them in advance’ (p. 61). The possibility for being-in-the-world, reflected in the restorative project, seeks to liberate the meaning of being-criminal from its overly or exclusively pejorative construction, which seeks to conflate the act of crime within the existence of the offender. This hermeneutic move attempts to redefine the horizonal possibilities for being-in-the-world and by so doing, seeks to reclaim what the punitive they-self seeks to cover over. Through its more inclusive understanding or interpretation of crime construction, the restorative process helps to relieve the criminal individual from carrying the total burden of responsibility for the criminal act. As an example of a phenomenological hermeneutic, restorative justice is focused upon both recovery and violence. Recovery in the sense that the restorative process seeks to recover or retrieve that which is lost by traditionally retributive interpretations of justice, and violent insofar as ‘recovery cannot proceed except by clearing away the superficial and commonplace understanding of things which systematically obscures our view and subverts the understanding’ (Caputo 1987, p. 64). Though restorative justice does employ a type of hermeneutic violence in its attempt to clear away the superficial and commonplace understandings of criminal justice, the certainty of this process can never be taken for granted. Caputo (1987) warns that we must be able to differentiate between violence that is totally restorative and violence that is arbitrary and self-serving. Furthermore, this destruction cannot simply declare its independence of the traditional concepts and proceed in the naïve belief that

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it has thereby won its freedom. Every radical attempt to begin again is subverted by an inherited framework of concepts – concepts that keep working their way back into the deconstruction. (Caputo 1987, p. 62) The subversion, to which Caputo alludes, is equally present in the theory and practice of the restorative process. As was stated above, restorative justice continues to be conflicted by this question of identity: does it represent a paradigmatic shift away from more traditional approaches to criminal justice theory and practice or is it better described by its ‘pragmatic turn’, which seems to represent an attempt to find legitimacy within the more traditional confines of adjudicative justice (Braithwaite 1989; Gavrielides 2008; Gerkin 2009; Strang 2002)? The initial emergence of the restorative theory of justice, sought to claim its independence from more traditionally retributive practices whose sole focus seemed to ignore the human and relational realities of crime and criminal behaviour. However, as Caputo maintains, such a declaration does not necessarily guarantee that freedom will follow. Such a reality appears to be recognised in restorative justice’s ‘pragmatic turn’ instigated by Braithwaite (1989), insofar as he and others failed to accept the viability of a theory of justice that sought to either replace existing adjudicative practices or to exist outside of those practices altogether (Gavrielides 2008). What Braithwaite’s observation evokes phenomenologically, is the way in which the adjudicative they-self refused to allow this competing view of justice to be granted success (Heidegger 1996). Taken from this perspective, it is the adjudicative they-self that determines what will be allowed and what will not, thereby effectively limiting the paradigmatic challenge posed by this competing theory of justice. Practically speaking, the ‘pragmatic turn’, which emerged from within restorative justice, came to the conclusion that the possibility for a paradigmatic transformation of traditional criminal justice practice would be most effective if it occurred from within the existing system of justice (Gavrielides 2008). Though each of these competing approaches of the restorative process remains vulnerable to the subversion related to inherited concepts, the pragmatic revision of this approach is probably more susceptible to such a result. As this pragmatic conceptualisation of restorative justice attempts to work within the existing structure of traditional legal practice, it threatens to be co-opted by the carefully watched-over demands of the adjudicative they-self. Such a concern is particularly salient to a Heideggerian formulation of the restorative process, given the propensity for being-in-the-world

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to fall prey to what they say. However, such an interaction also creates the opportunity by which to subvert the constructive power of the adjudicative they-self from within this discourse; and by so doing, it begins to clear away – albeit at a much slower pace – the superficial and commonplace understandings of traditional legal praxis. But no strategy is guaranteed success, and the possibility to be subverted by the they-self remains an open-ended possibility that simply never goes away, regardless of where one stands relative to the restorative process. An example of this possibility is reflected by Bazemore and Walgrave (Gavrielides 2008), who view the practice of restorative justice as both coercive and voluntary. Though they attempt to qualify the degree of cohesion that should be allowed in this process, they realistically refuse to deny its presence. Like most relational possibilities, we are subverted and subvert and the relationships constructed by the restorative process are no less indicative of this fact of being-with and being-in. Central to this co-constituting process is the role of punishment. Should restorative justice be seen as an alternative punishment or is it an alternative to punishment (Bazemore & Erbe 2004; Daly 1999; Gavrielides 2008)? The answer to the question concerning the place of punishment within restorative justice practice firmly defines the relationship that restorative justice has and will continue to have with the traditional adjudicative they-self. As Pavlich (2005) and others (Arrigo, Milovanovic & Schehr 2005; Gerkin 2009) maintain, most pragmatic approaches to restorative justice often fall prey to these more traditional systems of power and end up perpetrating some of the very practices that this theoretical approach sought to end. On the other hand, those that seek to conceptualise restorative justice as an alternative to punishment may be able to do so at the margins of this process, but have little immediate influence on the way in which crime and criminal behaviour are more generally constructed. The resolution of this obvious dilemma lies at the centre of the debate currently unfolding within restorative justice. Being-in-the-world-as-offender elicits a variety of social meanings that must be explored and not immediately taken for granted as unassailable social truth. In its most extreme manifestation, the offender is robbed of the possibility to be as others are allowed to be and is now dominated by what they say. Such an observation is not intended to absolve the individual from all responsibility for his or her actions, a strategy which, ironically enough, would approximate another manifestation of the objectification of being. Rather, it intends to liberate the possibilities for being-with that remain covered and unrealised. Such a hermeneutic demands a critical deconstruction – Abbau – of these more

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traditional understandings of being-with-as-offender, so as to discover what is possible. Caputo (1987) continues by stating: Abbau means a dismantling or undoing of a surface apparatus which has been allowed to build up over an ordinary experience – a dismantling not in order to level but in order to retrieve. Its function then is positive, to break through the encrusted in order to recover the living experience, which has grown old and stiff. (p. 64) Restorative justice seeks to dismantle the surface apparatus of traditional criminal justice practice, but seems to leave unanswered that which is to be retrieved. The encrusted layers of social existence cover over the offender’s very ability to be other than what they allow and is often transformed into an objectified spectacle of the criminal justice process. Within this interaction, the culpability of social context and social experience is ignored and then redefined as an artifact of individual choice, leaving only the crime of personal irresponsibility to be judged. Though the personal responsibility of the offender is a necessary and requisite demand, it is not the only thing that must be retrieved from the restorative process. In its desire to level down or dismantle all aspects of the criminal act that do not directly implicate the offender, the adjudicated they-self continually covers over those possibilities of lived-experience that do not directly validate this stance. In its attempt to retrieve the offender from the criminal justice process, it fails to sufficiently explore the way in which personal responsibility for the criminal act can often cover over aspects of lived-experience that must be similarly implicated if a legitimate restoration is to be achieved. We will now move to a discussion of the history and phenomenology of desistance.

The phenomenology of desistance: The re-claiming of the meaning of being A brief history of desistance The concept of desistance (perhaps better stated as the possibility that the concept of desistance seems to represent), in its relation to subsequent criminal behaviour, has been a topic of scholarly reflection since the very inception of criminology. The main focus of this debate has centred upon whether or not the criminally inclined individual has the dispositional capacity to permanently desist from subsequent criminal

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behaviour (Lilly, Cullen & Ball 2002; Maruna 2001; Piquero 2004). Much of this scholarly effort and reflection has been predicated upon theoretical conclusions that construct the act of criminal behaviour as an ontological inevitability, thereby rendering the possibility for desistance unlikely (Glaser 1964; Hirschi & Gottfredson 1983). Ironically enough, competing theoretical perspectives, which evidence very little agreement concerning the nature or meaning of crime, often shared similar conclusions relative to the possibility for desistance. Though differing formulations of this process varied relative to rates and frequency of subsequent criminal behaviour, their conclusions reflected more or less the same result: once a criminal, always a criminal. Matza (1964) sought to challenge this recognised inevitability of criminality and was able to ‘ … illustrate how this widespread phenomenon of the desistance from crime contradicts the majority of sociological and psychological theories of criminal behaviour’ (Maruna 2001, p. 20). More recent theoretical formulations concerning the process of desistance have focused upon the relationship between subjectivity, social circumstance and criminal behaviour and the way in which narratives of change reflect the transformation of the ‘criminal’ self (Gadd & Farrall 2004; Giordano, Cernkovich & Rudolph 2002; LeBel, Burnett, Maruna & Bushway 2008; Maruna 2001, 2004; Massoglia & Uggen 2007; Patnernoster & Bushway 2009; Presser 2009; Sampson & Laub 1993; Vaughan, 2007). Taken in this context, the process of desistance and the possibility for self-transformation become knowable through the way in which individual offenders construct the meaning of their lived-experience as criminal. Such a formulation of desistance requires a refocusing of the literature away from methodological approaches that seek to ‘ … disaggregate data about individuals into variables that can be used to make generalisations about “the typical case” … ’ (Gadd & Farrall 2004). As Gadd and Farrall (2004) argue, such approaches ‘ … are of limited value when one is aiming to make sense of phenomena that are partly biographically contingent’ (p. 131). When criminal activity and desistance are viewed from this perspective, the meaning of crime is believed to emerge from the ‘psychosocial interface’ between existing social structures and practices and subjective human agency (Gadd & Farrall 2004). Such a biographical or autobiographical grounding of the construction of criminal experience helps to reframe the meaning of crime as well as reframe our understanding of the process or phenomenology of desistance. No longer viewed solely from the perspective of the aggregated criminal subject or criminal rational

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actor, criminal behaviour now becomes situated within a co-constituted intervolvement with the world (Merleau-Ponty 2002) that by definition must implicate both sides of this process. Being-in-the-world-as-other-than-offender: Toward a phenomenology of desistance When taken up from the perspective of existential-phenomenology, the experience or phenomenology of desistance emerges for being-in-theworld as another way or possibility of articulating what it means to be. In its most general sense, the phenomenology of desistance implies a different involvement with the social world that is not predicated upon a being-in or being-with as criminal (Maruna 2001; Polizzi 2010; Polizzi & Maruna 2010). It implies a transformation for human being that seeks to remove itself from an entanglement with those manifestations of the they-self that seek to overly determine what will be allowed and what will not. The desire or willingness to desist from crime requires a different engagement with, or freeing from, two competing manifestations of the they-self that can greatly complicate this process of subjective transformation: the they-self of criminality and the societal they-self that continues to construct the individual as criminal. Rather than being merely a rational choice relative to the continuation of criminal involvement, desistance represents a fundamental change in being-in-the-world’s ability to be away from itself as other than criminal (Maruna 2001, 2004; Paternoster & Bushway 2009; Presser 2009). As I move away from my criminal projects, other possibilities emerge that free being from this overly-determined relationship to the world. As a result, the possibilities for being-in and being-with are transformed as well, or at the very least, are lived in a much less restricted way. Though the realities of economic, social and psychological marginalisation may continue to exist, this new possibility for being becomes open to other strategies by which to confront these obstacles (Polizzi 2007, 2010). An example of this transformative process may be helpful in clarifying this idea: a former client began his treatment for substance abuse by retelling the following story. I was walking in my old neighborhood and I watched as this young girl sold her ass for some drugs. When I sold, I saw hundreds of these types of transactions and was involved in some myself. But this time something was different that I can’t explain. I didn’t see her as a trick or customer, I saw her as an addict who was selling herself to support her habit. I saw her as a human being and though I was not

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responsible for her addiction, I was responsible for other women like her and decided that I would never sell drugs again. His experience reflects not only the ‘turning’ of being-in-the-world, but also reveals the way in which others now appear to him – they are no longer merely a means to an end, and are no longer wrapped in the bad faith of what is said about addicts. Now he recognises her all-too-human suffering and his responsibility to his own understanding of what this experience means to him. His relationship to the criminal they-self begins to recede in his attempt to retrieve those aspects of self that have been covered over by drug use and his involvement in the illicit sale of crack cocaine. But it is also important to note that his remorse does not emerge relative to some epiphany related to his need to obey the law; rather, it unfolds through a spontaneous being-with that demands a different type of meaning or construction of the other and his responsibility to her and all that she comes to represent for him. It is certainly true enough that he did not attempt to intervene and prevent this transaction from going ahead, given the obvious dangers, but neither did he allow it to be defined in the way the criminal they-self normally allows. The very fact that he is able to recognise the humanity of this woman allows him to question every other meaning that these types of actions construct and which were formerly held as valid or true. By breaking through the ‘surface apparatus’ (Caputo 1987) of this experience, this individual was able to retrieve and recognise what the transaction of illegal drugs attempts to successfully cover over: the humanity of the individual trapped by the grip of addiction. However, such an experience also begins the possibility for being-in-the-world to retrieve its own humanity that has become equally as encrusted and weighted down by the surface apparatus of dealing drugs. An example of this re-emerging or retrieval of being was witnessed with this same client within the context of the therapeutic frame where the client described a recent dream. His dream helped to configure the direction of therapy and came to represent the beginning stage of this transformation. The dream began in a downtown urban area at high noon. Two groups of individuals converged on each other and a fight seemed likely. One group of men was dressed in a way that appeared consistent with the client’s view of the ‘drug dealer’. ‘They were all dressed in black, wore dark glasses, had on long leather trench coats, looked really tough and were ready for a fight.’ The other group was more conventional in appearance and seemed to reflect for the client friends of his with normal jobs. He was positioned directly between the two, with each hand in direct

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contact with one of the individuals from the competing groups. And so the dream ended. The dream clearly reflects the conflict which has now emerged between competing possibilities for being-with and being-in. From the perspective of the dream, we see this pending struggle unfold between competing social identities that the ‘dream ego’ is attempting to keep apart. But the dream also reflects the obvious struggle taking place ‘within’ the dreamer and his relationship to these different possibilities for being-in-the-world. His ability to desist from subsequent criminal activity demanded that he resolve this conflict. Though much of the desistance literature reflects a similar necessity (Giordano et al. 2002; Paternoster & Bushway 2009; Vaughan 2007), it all too often reduces this very complex phenomenology into simplistic conceptual formulations related to changes in thinking or cognitively-driven changes in identity. Such transformations demand a total transformation of being that requires the individual to take up the world in a much different way; such a transformation does not necessarily require that the individual construct all that has followed as negative, only that he or she currently wishes to engage with the world in a way that reflects a different type of being-in-the-world. However, such personal transformations are never guaranteed and must reflect some recognition by the larger social they-self that such possibilities will be allowed. Because the fundamental nature of human being is socially situated for Heidegger, any transformation of being must also posit the ways in which social existence may help or hinder this retrieval of being. Stated more simply, desistance is a social possibility that takes place within a very specific set of social contexts that may or may not recognise the legitimacy of this transformation (Bracken, Deane & Morrissette 2009; LeBel et al. 2008; Maruna 2001; Ulmer & Spencer 1999). The ability for an individual to turn away from subsequent criminal involvement includes not only the cognitive re-formulation of the meaning of self or personal identity (Paternoster & Bushway 2009; Vaughan 2007) but also the recognition by the social they-self that such a transformation will be allowed and legitimised. An individual may very well be intentionally driven by a desire to desist from crime or desist from drug use, but such a realisation is rarely sufficient to bring such a turn in being to fruition. It also appears questionable, based upon my clinical experience, to conclude that desistance can occur only after one’s past behaviour has been completely repudiated and de-legitimised. Such conclusions naïvely overlook the power of social experience and reflect a process for change that is problematically isolated within the cognitive constructs

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of the individual; they also appear to be overly influenced by socially constructed beliefs concerning the meaning of crime that are not necessarily relatable to the experience of the offender. Desistance or the possibility of desistance must represent a fundamental transformation of the meaning of being that is in some way supported within the livedexperience of the individual and the social contexts from which these experiences occur. ‘Not only must a person accept conventional society in order to go straight, but conventional society must accept the person as well’ (Maruna 2001, p. 155). However, this co-constituted process of ‘redemption’ will also be involved through the way in which the meaning for conventional society is constructed and defined. For example, the transformation witnessed in the Autobiography of Malcolm X represents such a co-constituted transformation of the meaning of being-in-the-world-as-black. The acceptance of conventional society is reflected in Malcolm’s embrace of the Nation of Islam and the competing manifestation of the they-self that the theology of Elijah Muhammad came to represent within the black community (Polizzi 2003, 2007, 2010). It could easily be argued that Malcolm’s redemption takes place in spite of his continued alienation from more widely accepted social convention. What does change, of course, is that he is provided with a different meaning for black-beingin-the-world, which had been covered by the experience of anti-black racism. In much the same way, the experience of desistance calls forth a different possibility for being that still finds itself situated within a variety of socially constructed processes that may or may not allow this transformation to occur. Crime or the experience of crime is the surface apparatus, which seeks to isolate being-in-the-world by turning it away from the possibility of a different future. Whether this covering over is evoked by individual being or by its specific relationship to the they-self, the result remains more or less the same: being becomes reified as an objectified reflection of a static social object of meaning (Bracken et al. 2009; LeBel et al. 2008; Maruna 2001; Polizzi 2003, 2007; Polizzi & Maruna 2010). Desistance, however, comes to represent that moment when the criminally inclined individual becomes open to the possibility of beingin-the-world as something other than criminal. Taken phenomenologically, the process of desistance becomes a hermeneutic dismantling of the surface apparatus of criminal behaviour that seeks to retrieve the possibility for being something other than shadow. ‘The recovery of the meaning of Dasein, and ultimately of Being itself, cannot be affected without deconstructive violence, even as deconstructive violence is not

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to be undertaken except in the service of a positive program of retrieval’ (Caputo 1987, p. 65).

Closing comments If restorative justice represents the beginning of the restorative process, then the experience of desistance is its culminating event. In either case, what unfolds is the way in which being-in-the-world is defined by its relationship to a variety of manifestations of the they-self. Crime and the experience of crime, in all of its various permutations, in the end still represents a type of social relationship that begins well before the immediate act of criminal victimisation has occurred and lingers in a variety of ways well after the act has concluded. Taken from the vantage point of existential-phenomenology, the experience of crime becomes an encrusted hermeneutic event that reveals as much as it covers over about both the individual perpetrator and the social contexts from which these acts emerge. In our desire to retrieve that which is covered over by these encrusted surfaces of meaning, we must remain theoretically and practically vigilant to those concepts, attitudes and beliefs ‘ … that keep working their way back into the deconstruction’ (Caputo 1987, p. 64).

References A. Acorn (2004) Compulsory Compassion: A Critique of Restorative Justice (Vancouver and Toronto, Canada: University of British Columbia Press). B. Arrigo, D. Milovanovic and C. Schehr (2005) The French Connection in Criminology: Rediscovering Crime, Law, and Social Change (Albany, NY: SUNY Press). B. Arrigo and D. Milovanovic (2009) Revolution in Penology: Rethinking the Society of Captives. (Lanham, MD: Rowman & Littlefield). G. Bazemore and G. Erbe (2004) ‘Reintegration and Restorative Justice: Towards a Theory and Practice of Informal Social Control and Support’, in S. Maruna and R. Immarigeon (eds) After Crime and Punishment: Pathway: to Offender Reintegration (Cullompton, UK: Willan Publishing), pp. 27–56. W. Blattner (2005) ‘Temporality’, in H. Dreyfus and M. Wrathall (eds) A Companion to Heidegger (Oxford, UK: Blackwell Publishing), pp. 312–24. D. C. Bracken, L. Deane and L. Morrissette (2009) ‘Desistance and Social Marginalization’, Theoretical Criminology, vol. 13 (1): 61–78; 136204806 DOI: 10.1177/1362480608100173. J. Braithwaite (1989/1997) Crime, Shame and Reintegration (Cambridge, UK: Cambridge University Press). R. Burnett (2005) ‘To Reoffend or not to Reoffend? The Ambivalence of Convicted Property Offenders’, in S. Maruna and R. Immarigeon (eds) After Crime

David Polizzi 153 and Punishment: Pathways to Offender Reintegration (Cullompton, UK: Willan Publishing), pp. 152–80. J. Caputo (1987) Radical Hermeneutics: Repetition, Deconstruction, and the Hermeneutic Project (Bloomington and Indianapolis, IN: Indiana University Press). C. Clegg (2010) ‘Malcolm X and Elijah Muhammad’, in R. Terrill (ed.) The Cambridge Companion to Malcolm X (Cambridge, UK: Cambridge University Press), pp. 10–25. D. Crewe (2010) ‘Power: The Supposed Definitions Revisited’, Journal of Theoretical and Philosophical Criminology, vol. 2 (2): 22–68. K. Daly (1999) ‘Does Punishment have a Place in Restorative Justice’, paper presented to The Australian and New Zealand Society of Criminology Annual Conference, Perth, February. L. A. DeCaro (1996) On the Side of my People: A Religious Life of Malcolm X (New York, NY: New York University Press). H. L. Dreyfus (1995) Being-in-the-World: A Commentary on Heidegger’s Being and Time, Division 1 (Cambridge, MA: MIT Press). W. E. B. Du Bois (1990) The Souls of Black Folk (New York, NY: Vintage Books). D. Gadd and S. Farrall (2004) ‘Criminal Careers, Desistance and Subjectivity: Interpreting Men’s Narratives of Change’, Theoretical Criminology, vol. 8 (2): 123–56. T. Gavrielides (2008) ‘Restorative Justice – The Perplexing Concept: Conceptual Fault-lines and Power Battles Within the Restorative Justice Movement’, Criminology & Criminal Justice, vol. 8 (2): 165–83. M. Gelven (1989) A Commentary on Heidegger’s Being and Time (Dekalb, IL: Northern Illinois University Press). P. M. Gerkin (2009) ‘Participation in Victim – Offender Mediation’, Criminal Justice Review, vol. 34 (2): 226–47. P. Giordano, S. A. Cernkovich and J. Rudolph (2002) ‘Gender, Crime, and Desistance: Toward a Theory of Cognitive Transformation’, American Journal of Sociology, vol. 107 (4): 990–1064. A. Gillespie (2010) ‘Autobiography and Identity: Malcolm X as Author and Hero’, in R. Terrill (ed.) The Cambridge Companion to Malcolm X (Cambridge, UK: Cambridge University Press), pp. 26–38. D. Glaser (1964) Effectiveness of a Prison and Parole System (Indianapolis, IN: Bobbs-Merrill). P. Goldman (1979) The Death and Life of Malcolm X (New York, NY: Harper & Row Publishers, Inc.). M. Heidegger (1996) Being and Time, translated by J. Stambaugh (Albany, NY: SUNY Press). M. Heidegger (2008) Ontology – The Hermeneutics of Facticity Translated by J. van Buren (Bloomington and Indianapolis, IN: Indiana University Press). T. Hirschi and M. Gottfredson (1983) ‘Age and the Explanation of Crime’, American Journal of Sociology, 89: 553–84. G. Johnstone and D. W. Van Ness (2007) ‘The Meaning of Restorative Justice’, in G. Johnstone and D. Van Ness (eds) Handbook of Restorative Justice (Cullompton, Devon, UK: Willan Publishing), pp. 5–23. T. LeBel, R. Burnett, S. Maruna and S. Bushway (2008) ‘The “chicken and egg” of Subjective and Social Factors in Desistance from Crime’, European Journal of Criminology, vol. 5 (2): 131–59.

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J. R. Lilly, F. T. Cullen and R. A. Ball (2002) Criminological Theory: Context and Consequences 3rd edn (Thousand Oaks, CA: Sage Publications). Malcolm X. (1965) The Autobiography of Malcolm X (New York, NY: Ballantine Books). S. Maruna (2001) Making Good: How Ex-convicts Reform and Rebuild their Lives (Washington, DC: American Psychological Association). S. Maruna (2004) ‘Desistance from Crime and Explanatory Style: A New Direction in the Psychology of Reform’, Journal of Contemporary Criminal Justice, vol. 20 (2): 184–200. M. Massoglia and C. Uggen (2007) ‘Subjective Desistance and Transition to Adulthood’, Journal of Contemporary Criminal Justice, vol. 23 (1): 90–103. D. Matza (1964) Delinquency and Drift (New York, NY: Wiley). P. McCold and T. Wachtel (2002) ‘Restorative Justice Theory Validation’, in E. Weitekamp and H.-J. Kerner (eds) Restorative Justice: Theoretical Foundations (Cullompton, Devon, UK: Willan Publishing), pp. 110–42. L. A. McDowell and J. T. Whitehead (2009) ‘Varieties of Restorative Justice: Therapeutic Interventions in Context’, in D. Polizzi and M. Braswell (eds) Transforming Corrections: Humanistic Approaches to Corrections and Offender Treatment (Durham, NC: Carolina Academic Press), pp. 149–70. M. Merleau-Ponty (2002) The Phenomenology of Perception 2nd edn (London, New York: Routledge). J. Mills (2003) ‘A Phenomenology of Becoming’, in R. Frie (ed) Understanding Experience: Psychotherapy and Postmodernism (London, UK, New York, NY: Routledge), pp. 116–36. M. Natanson (1986) Anonymity: A Study in the Philosophy of Alfred Schutz (Bloomington and Indianapolis, IN: Indiana University Press). R. Paternoster and S. Bushway (2009) ‘Desistance and the ‘feared self’: Toward an Identity Theory of Criminal Desistance’, Journal of Criminal Law & Criminology, vol. 99 (4): 1103–56. G. Pavlich (2005) Governing Paradoxes of Restorative Justice (London, UK: Greenhouse Press). G. Pavlich. (2004) ‘What are the Dangers as well as the Promises of Community Involvement?’, in H. Zehr and B. Toews (eds) Critical Issues in Restorative Justice (Monsey, NY & Cullompton, Devon, UK: Willan Publishing), pp. 173–83. A. R. Piquero (2004) ‘Somewhere Between Persistence and Desistance: The Intermittency of Criminal Careers’, in S. Maruna and R. Immarigeon (eds) After Crime and Punishment: Pathways to Offender Reintegration (Cullomptom, Devon, UK: Willan Publishing), pp. 27–56. D. Polizzi (2003) The Experience of Antiblack Racism: A PhenomenologicalHermeneutic of the Autobiography of Malcolm X. Available from UMI Dissertation Services (UMI No. 3069293). D. Polizzi. (2007) ‘The Social Construction of Race and Crime: The Image of the Black Offender’, International Journal of Restorative Justice, vol. 3 (1) 6–20. D. Polizzi. (2008) ‘Restore to What? Restorative Justice and the Social Construction of the Offender’, International Journal of Restorative Justice, vol. 4 (2): 80–99. D. Polizzi (2010) ‘Agnew’s General Strain Theory Reconsidered: A Phenomenological Perspective’, International Journal of Offender Therapy and Comparative Criminology (DOI: 10.1177/0306624X10380846).

David Polizzi 155 D. Polizzi and S. Maruna (2010) ‘In Search of the Human in the Shadows of Correctional Practice: A Theoretical Reflection’, Journal of Theoretical and Philosophical Criminology, vol. 2 (2): 158–97. L. Presser (2009) ‘The Narratives of Offenders’, Theoretical Criminology, vol. 13 (2): 177–200. R. Quinney (2000a) ‘Social Humanism and the Problem of Crime: Thinking about Erich Fromm in the Development of Critical/Peacemaking Criminology’, in K. Anderson and R. Quinney (eds) Erich Fromm and Critical Criminology: Beyond the Punitive Society (Chicago, IL: University of Chicago Press), pp. 21–30. R. Quinney (2000b) Bearing Witness to Crime and Social Justice (Albany, NY: SUNY Press). D. Roche (2003) Accountability in Restorative Justice (Oxford, UK: Oxford University Press). R. Sampson and J. Laub (1993) Crime in the Making (London: Harvard University Press). A. Schutz (1967) The Phenomenology of the Social World translated by G. Walsh and F. Lehnert (Evanston, IL: Northwestern University Press). A. Schutz (1970) On Phenomenology and Social Relations (Chicago, IL: University of Chicago Press). J. Shapland, A. Atkinson, H. Atkinson, E. Colledge, J. Dignan, M. Howes, J. Johnstone, G. Robinson and A. Sorsby (2006) ‘Situating Restorative Justice Within Criminal Justice’, Theoretical Criminology, vol 10 (4): 505–32. T. Sheehan (2007) ‘Dasein’, in H. Dreyfus and M. Wrathall (eds) A Companion to Heidegger (Oxford, UK: Blackwell Publishing), pp. 193–213. E. Spinelli (2005) The Interpreted World: An Introduction to Phenomenological Psychology (London, UK, Thousand Oaks, US: Sage Publication). H. Strang (2002) Repair or Revenge: Victims and Restorative Justice (Oxford, UK: Clarendon Press). J. Ulmer and W. Spencer (1999) ‘The Contributions of an Interactionist Approach to Research and Theory on Criminal Careers’, Theoretical Criminology, vol. 3 (1): 95–124. M. S. Umbreit (1994) Victim Meets Offender: The Impact of Restorative Justice and Mediation (Monsey, NY: Criminal Justice Press). D. W. Van Ness (2002) ‘The Shape of Things to Come: A Framework for Thinking about a Restorative Justice System’, in E. Weitekamp and H.-J. Kerner (eds) Restorative Justice: Theoretical Foundations (Cullompton, UK: Willan Publishing), pp. 1–20. B. Vaughan (2007) ‘The Internal Narrative of Desistance’, British Journal of Criminology, vol. 47: 390–404. L. Walgrave (2002) ‘From Community to Dominion: In Search of Social Values for Restorative Justice’, in E. Weitekamp and H.-J. Kerner (eds) Restorative Justice: Theoretical Foundations (Cullompton, UK: Willan Publishing), pp. 1–20. H. Zehr (1985) ‘Retributive Justice, Restorative Justice’, New Perspectives on Crime and Justice Issue #4 (Akron, PA: Mennonite Central Committee Office of Criminal Justice). H. Zehr (1997) ‘Restorative Justice: The Concept’, Corrections Today, 59: 68–70. M. Zimmerman (1981) Eclipse of the Self: The Development of Heidegger’s Concept of Authenticity (Athens, OH: University of Ohio Press).

7 Crime, Harm and Responsibility Don Crewe

We are all guilty of all and for all men before all, and I more than the others.1 Dostoevsky (Brothers Karamazov)

Introduction Recent events in the world of banking have brought afresh to our attention a perennial problem in criminology: namely the nature of the criminological object. I have written elsewhere that criminology is paradoxically unable to state the nature of its object until it has completed its study into whatever that object might be (Crewe 2010a). The now famous claim by Michael and Adler (1933), who suggest that crime is no more nor less than that which is defined as such in law, prevents criminology from including in its conception of its object of study those egregious behaviours of, for example, investment bankers, the owners of the Herald of Free Enterprise, the traders of Enron, the owners of the Bhopal chemical plant and so on. That is, concentration on acts that are in contravention of the criminal code precludes study of behaviours which, while legal, clearly cause considerable harm. The workers of Enron, for example, broke no laws when they effectively robbed hospitals of their electricity supply (Elkind & McLean 2003). This has led to calls for criminology to define its object in terms of the magnitude of harm a particular problematic behaviour brings about. This has, by and large, become a call that divides criminology into two relatively secure camps: those for whom crime cannot be defined in any way other than as infraction of the law, and those for whom such an approach is to fail in one’s duty to speak truth to power. However, what follows is not a standard critique of 156

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what prima facie seems to connect criminology with genuine notions of justice. The critique that follows suggests that the ‘harm’ perspective is guilty of the same flaws as the ‘crime’ perspective (at least in part). This paper suggests that this critique leaves us asking the question: ‘which acts are worthy of condemnation?’ The study of ethics provides us with this answer by negation in that it provides the answer to the question ‘what is to be done?’ Thus it is apposite for us to turn to ethical accounts in our attempt to identify the proper object of criminological inquiry. Criminology is fundamentally, ineluctably, bound up with ethics, even vouchsafing those for whom ethics is no more than a back-covering exercise belonging to the design of data collection methods, or those engaged in inculcating best practice in criminal justice practitioners. The assertion that criminology is a science and should thus be value free is, in itself a value-laden statement, and thus the object of ethical inquiry. It says that criminology should eschew all values except those of science and the market (for the market, like science, is also claimed to be value free). But the market and science have this value: ‘I have no values’; and such a value must be examined along with other values in our attempts to answer the question: ‘What is to be done?’ Also ineluctably bound up with ethics is the body of thought loosely classified as existentialism, for existentialism is the kind of thought that emerges when the answer to the question ‘what is to be done?’ arises from engagement with the question ‘what is it to be (alongside others in the world)?’ The vast majority of Heidegger’s work, for example, is bound up with the questions of ‘being’ and ‘doing’, where the grounds for our doing rest in our way of being or ‘presencing’ (See Prauss 1999 and Schürman 1990 [1987]). The characteristic concerns of existentialism that have to do with the recognition of the ultimate futility of our actions arise out of the joint consideration of these two questions. I will begin by outlining some problems with the notion of crime (as identified by ‘black letter law’) as the proper object of criminological study and indicating some ways in which it has been claimed that a ‘harm’ perspective might alleviate those problems. I will indicate some conventional problems with the harm perspective and suggest that an engagement with the study of ethics through the work of existentialists may provide answers to questions concerning the proper object of criminological study. Having identified problems with using a standard existential account as a tool for identifying the criminological object, I engage with the work of existentialist Emmanuel Levinas in a way that further undermines the ‘crime’, ‘harm’, or conventional existential

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responsibility models and proposes a radical rethinking of the criminological project.

From crime to harm It has become evident to many that as a concept and as a ‘social fact’ (Durkheim 1982 [1938]) crime is a social, legal, and political construct. It is the product of power. It is the product of the power of those with the capacity to organise and effect criminalising processes. Despite this realisation, criminology has turned away from understandings of these socio-political processes to concentrate on an empiricist positivism driven by the political and financial interests of its backers (Van Swaaningen 1997). This failure to, or indeed determination not to, deal fully with questions of motivation on the part of classicists, or of constraint on the part of positivists, demands that the question of the object of criminology’s study be brought under scrutiny. As Hulsman points out, ‘[c]rime has no ontological reality. Crime is not the object but the product of criminal policy’ (1986: 71). In this circumstance, it becomes evident that the heterogeneity of events that come to be subsumed under the concept ‘crime’ means that it is of little or no use as a taxonomical device. It is rather like positing a phylum chordata, including in the classification jellyfish or arachnids, and then attempting to explain by examination of the jellyfish, the properties of the notochord. This failure to define crime in any meaningful way presents us with a field of study that does not know what its object is, merely what it is called. In this epistemological vacuum, economically oriented policymakers find such questions easy to dismiss as mere navel-gazing, and encourage therefore, a taken-for-granted view of the nature of crime, and thus a more instrumentally politically and economically defined role for the study of criminology. Such an agenda readily prevents (or at least discourages) criminology from investigating events that may be regarded as crimes of war or of economics, for example. Hence a myth is perpetuated that an homogenous body of events and an homogenous body of people constitute crime and criminals; and thus, despite the true social and political contingency of the definition of such events, a myth is also perpetuated that crime and criminals are something or someone different to me, by which difference I may define myself (I may be very similar to him in many ways – particularly my rationality – but I don’t do that!) Moreover, if crime and criminals are of an homogenous nature, if the future is always like the past, then crime and criminals can be prevented through prediction.

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Such concerns are all well and good, Left Realists would claim, but crime is a real and unpleasant phenomenon that produces victims. Of course not all crimes produce the same degree of victimisation and the degree of harm is not reflected in the vigour with which any particular behaviour is prosecuted (Hulsman 1986). It has been argued – and this is at the heart of the ‘controlling mind’ problem with corporate prosecutions – that the intention of the (so-called) murderer, is different from the Enron worker, or the Union Carbide executive at Bhopal in that the ‘murderer’ intends to kill someone specific whereas the Enron worker or the Union Carbide executive does not intend harm to anyone in particular, albeit that he is fully aware that his behaviour would cause serious harm to some unknown people. Privileging the concept crime over that of harm perpetuates an injustice where one of these intentions is an infraction of the law and thus worthy of punishment, while the other is merely an infraction of regulations and not (Reiman 1998). The latter, however, frequently inflicts more harm than the former. This inequity arises from the (largely) self-perpetuating assembling processes of cultures and societies (Crewe 2009, 2010a) where the power to criminalise and the power to avoid criminalisation tend to reside together, and where the motivation for identification of what is criminal and what is not rests in the shared stories that people tell about belonging to one or another cultural unit2: the ways in which cultures make their meanings compossible. This understanding is of great importance because it means that those who read this last statement and agree with me, begin to assemble just such a cultural unit by agreeing to behave (think) in ways that rely on taking what I have said to be true.

The problem with harm The harm perspective requires a definition of harm’s essential qualities. According to Hillyard and Tombs (2007) such harms might include physical harms, financial/economic harms, and social harms. The attempt here is to define a set of harms, or to indulge in the process of defining a set of harms that do not merely derive their essence from the law. Such attempts to define harm reveal that harm is no more readily definable than crime. Those who have the power to define crime, currently define crime; those who would have the power to define harm would be those who define harm. They are powerful because they can do this, not because of any other essential feature of them as ‘powerful people’ (Crewe 2010b). The definition of harm, therefore, is every

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bit as much in the gift of power as is the definition of crime. The only thing that would change is that perhaps, a different group of powerful would be doing the defining – criminologists like Hillyard and Tombs, perhaps. The processes of definition are just as tyrannical – just as open to the interests of the self-serving. Hillyard and Tombs suggest that this problem is overcome because a harm approach would take account of ‘people’s own expressions … rather than [events] preordained by a state’ (ibid. 17). This quite simply ignores the fact that this is what a representative democracy is supposed to do, voters are expected to make their views known concerning the problems that beset them, the values that govern their lives, and what harms they consider most damaging. Contemporarily the public in the UK persist in a belief in ever-rising crime rates despite considerable evidence that suggests that victimisation rates are currently among the lowest recorded (Travis 2008). Moreover, a belief that states that the public would be better able to rule their lives if they were just consulted ignores the persistent claim that there exist in society processes akin to false consciousness.3 Simply asking people what things they consider harmful would in no way remove the power of politicians or the media to shape the agenda. Power resides with the powerful – simply changing the question doesn’t change that. The harm perspective, at this level at least (and I don’t mean to be too rigorous here), simply replaces the tyranny of homo economicus with the tyranny of homo criminologicus.

Existentialist ethics and responsibility If, as I suggest above, resorting to defining problematic situations as harmful rather than criminal fails to address the problem that justice in the real world is in the gift of power, it is imperative for criminology that it look elsewhere for a foundation of its object. The study of ethics has for thousands of years laid claim to various means of ascertaining in an impartial way what constitutes the good life: what is to be done to promote the good. If we wish to gain some knowledge concerning what would be the appropriate object of study for criminology, we may turn to the study of ethics to find by negation ‘what ought to be avoided: what behaviours should not be done’ (and other associated questions). One of the ways of addressing such a question – so that our answer has some solid foundation – is to ground our investigation in what it is to be (in the world), and the body of thought that does this is existentialism. That is, our claims concerning ‘what is to be done’ (or, by negation what should be avoided) are grounded in the claims provided by the study of

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fundamental attributes of human existence; and so it is to this body of thought that I now turn. Much of what is written by existentialists concerns the freedom of the subject to create his own world through ‘authentic behaviour’. According to Sartre, for example, we cannot choose to be free; we are ‘condemned to be free’ (1967: 631); indeed, more accurately, we are not free to choose not to be free. Sartre distinguishes between ‘being-initself’ and ‘being-for-itself’. Being-in-itself is concrete, unchanging and unaware; being-for-itself is reflexive and aware of its own consciousness. Because the for-itself is defined by its realisation that it is axiomatically separated from the in-itself (we know this because the for-itself can perceive the in-itself and can see that it is different – it is present-to the in-itself, not identical to it), Sartre believes that the nature of intersubjectivity stems from the ‘look’ of the other that defines me in terms of his difference from me. That is, I am taken away from that state of being that is meaningful for me (the subject-position) and cast as that which is meaningful for the other: I am objectified. As Sartre puts it, he is cast as French through the loathing of a German, or as Jewish through another’s anti-Semitism. This means that whereas the phenomenological position of Heidegger, say, from Husserl, has it that we have self-identity – we are that entity that can represent itself to itself as an object – for Sartre, the capacity to take a perspective on ourselves, or however others might objectify us, means that we are different to ourselves. That is, we are free precisely because we are not selves but are a presence-to-self – the negation of self. We are thus axiomatically free, as we are free of ourselves and our situation. Freedom is the very nature of man – we have no choice other than to be free; even if someone holds a gun to our heads, the choice of what to do is ours, according to Sartre’s view. Freedom in existentialist accounts is ineluctably bound up with making choices about the world: what is to be valued, what is to be done, what it is to be authentic. From Nietzsche and Kierkegaard through Heidegger, any thought that one may live by any imposed morality is an illusion, and to be free of this illusion the subject must recognise ‘his total isolation [h]e is wholly responsible for creating his own world, in living the way he does’ (Warnock 1967: 54). The problem with this for the current discussion lies not so much with existentialist thought itself but with others’ reaction to some of its claims. Populist policy-makers tend to express a view of responsibility that is simplistic: one that is limited to our responsibility for ourselves to others, and their responsibility for themselves to us. We might call this mere responsibility. Warnock (1967) suggests to us that ‘[i]t seems that to be attracted by [any ethical

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claims of ] Existentialism is to be attracted by a mood’ (p: 57). While this may not have been Sartre’s or Heidegger’s intention I suspect that what attracts many in criminological and criminal justice policy-making circles to this mood is the capacity, via its reliance on responsibility for one’s own actions, to apportion blame to those who inflict harm and to satisfy political demands for retribution and revenge. Holding the other responsible for his own actions towards us – for his harming of us – is not as straightforward as it seems. Our act of calling him to his responsibility ignores our responsibility to innocents. When we bring our persecutor to account for his harming of us, we fail in our responsibility to innocents in that we choose – by failure to observe our responsibility to them – to do harm to those innocents associated with him such as his children and his family. Such acts are not contrary to law but they do increase the amount of harm done in the world. These actions, justified by reference to mere responsibility, that would be adopted by a harm model of the criminological object are negative in that model. Moreover, in prosecuting him in his failure to observe our irrefusable call to him not to harm us, we ignore our responsibility to him in virtue of his irrefusable call not to harm him and others. Significantly, in relation to important themes of this paper, as with the crime model of the criminological object, in the harm model the offender is also constituted (objectified) in the juridical said4 not in his own being. This is so because my act of calling him to his responsibility to me constitutes him through my mediation of him through my intentional representation of him to my-self. Radically, therefore, the responsibility of which we speak here – mere responsibility – is not his, it is mine: I impose upon him a debt to which he did not agree (albeit that he may have expected me to do this). I turn now to an account of existential ethics that founds this rather extraordinary claim.

From mere responsibility to universal responsibility My criticism of the dichotomy set up between crime and harm suggests that both of these modes of conceiving of the object of criminological study postulate an object – The Other – that is constituted in the juridical said: the question of who constitutes that object is merely one of jurisdiction and a question that bedevils all nomoi.5 I suggested that an answer to the question concerning the proper object of criminological study might be found by answering the question ‘what is to be done?’ such that the object of criminological study would be those behaviours that ‘should not be done’ – those behaviours that are to be avoided.

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I addressed this issue through an adumbration of what we might loosely term an existential ethic. We were left with the suggestion that the ‘what should be avoided’ is thought by some to be constituted by the other in his failure to be responsible for his own acts: responsibility for himself in virtue of his freedom. It is conventionally taken that this also produces a responsibility in him to me for the harm he has caused me, whereas, as I have suggested, this is in reality a debt that I impose upon him without any consent of his. This view, it seems to me, fails adequately to describe either human freedom or human responsibility; moreover, it fails again to produce an account of justice in that it fails to observe the negative principle6 and in that it cannot provide an account of commensurability between harmful acts and the responses they attract. These problems arise from a fundamental flaw, in the conception by conventional existentialism, of the other. I turn now to an account of human existence that corrects these flaws, namely that of Emmanuel Levinas. This account provides an ethic of responsibility and freedom, and I will suggest a radical ground for reconceiving the object of criminological study – indeed, nothing short of a dissolving of the entire crimino-logical project. Transcendence, justice, and the radically other Levinas sets out an ethic that is fundamentally, radically different to earlier existentialists’ view of the world. In Levinas’ world there is always something beyond what we are now; there is always something better or at least different that we can be. Whatever this is transcends what we now are. The problem arises that everything we perceive is the product of our intentional states of mind and thus, everything that we perceive or do is based on some attribute that belongs already to me: it is part of that totality that is me. Levinas observes that to break free of this totality and thus to transcend it, we must become aware of something entirely other that pierces our horizon in a way that is irrefusable and radically new. This is the radically other, and our engagement with it is the fundamental orientation of humans’ existence. It is to this idea that I now turn. A fundamental claim of conventional existentialism is that existence precedes essence. This claim is manifest in Heidegger, for example, in that Dasein is not in possession of essential attributes that bring about a particular kind of existence in the world, but that a particular kind of being-in-the-world (with others) generates certain features, such as care and potentiality, that are universal in Dasein. This fundamental ontological position places humans in a world of others. In a move that was later to be elaborated by Deleuze in Difference and Repetition (1994 [1968]) Levinas suggests that

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this Heideggerian conception of being, far from presenting a conception of Dasein in a world of others, collapses into a view that reduces all others to the totality of ‘the same’ (Levinas 1988 [1947]). Because, as intentional subjects, we represent to ourselves objects within the world, all others in our intellection are mediated, conceptualised and thematised by us. This means that everything that I can conceive of the other as being in his being is immanent in my intentional experience of myself – the other reduces to that ‘same’ totality which is me. This, in Levinas’ terms constitutes a negation of the other. This kind of other is merely immanent in me rather than a being that counts as such – my constitution of him is tyrannical. Moreover, it produces serious problems for any view (such as that of Heidegger, for example) that takes human being to be constituted in its relation with others-in-the-world, since it cannot identify these others as beings that count as such, but merely elements of that totality that is me. Many of the criticisms of Levinas’ work rest on a failure to appreciate this separation of the radically other (exteriority) from the merely different (interiority); hence, it is to Levinas’ construal of ‘the other that counts as such’ – the radically or absolutely other – that I now turn. Levinas is particularly interested in the problems of transcendence as set against immanence: that exteriority that transcends the interiority of totality. In his relationship with Heidegger as pupil and critic, he identifies Heidegger’s concern with transcendence of the facticity or given of the world. Heidegger says that we experience ‘thrown projection’ (1996 [1926] passim). We are thrown into the world and we project ourselves into the future; that is, we ‘cross over’ into possibilities. Transcendence is … the primordial constitution of the subjectivity of a subject. The subject transcends qua subject; it would not be a subject if it did not transcend. … This means that dasein does not sort of exist and then occasionally achieve a crossing over outside itself, but existence originally means to cross over. Dasein is itself the passage across. And this implies that transcendence is not just one possible comportment (among others) of dasein toward other beings, but is the basic constitution of its being, on the basis of which Dasein can at all relate to beings in the first place. (Heidegger 1984:165) Levinas’ suggestion in On Escape (2003 [1935]) is that transcendence is bound up with our struggle to escape (cross over) from the facticity of a world of meanings that are not of our own making. This escape is not an escape from being, however; neither does it invoke a Heideggerian

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authenticity nor a ‘they-self’ that it would necessarily stand over against. It translates ‘the horror of a certain definition of our being but not (the horror) of being as such’ (op. cit.: 53). It represents the desire to escape certain ‘degrading types of servitude’ (ibid.) imposed upon us by the facticity of the world and our own materiality (such as a Sartrean nausea, for example). Most powerfully, the need for escape is the ‘need to get out of oneself, that is, to break the most radical and unalterably binding of chains, the fact that the I is oneself ’ (op. cit.: 55). Transcendence becomes bound up with all that is ‘beyond’: that of which we can conceive that is better or greater than us is beyond (transcends) us; that which is beyond (transcends) our possible conceiving is infinite.7 Levinas is keen to conceive of a way of expressing a relationship with the other that transcends reduction to the same. This is an-Other with whom I have a relationship that forms prior to any concept of my own that I form of her. In Time and the Other Levinas asks, ‘How can a being enter into relation with the other without allowing its very self to be crushed by the other?’ (Levinas 1987a [1947]). How can there exist (and how can I know of any existence of) any other that exists without my thematisation or conceptualisation of them, since to know, or know of them is to thematise them, and so to thematise or conceptualise them is to negate them in their being and to create of them with me a totality? Levinas’ answer is that to speak of an irreducible singular other who faces me is to posit a model of the ‘absolute other’ or another who ‘counts as such’. The other is not only known, he is greeted [salué ]. He is not only named, but also invoked. … I not only think of what he is for me, but also and simultaneously, and even before, I am for him. I do not only know something, I am also part of society. … What one says, the content communicated, is possible only thanks to the face-to-face relationship in which the Other counts as an interlocutor prior even to being known. (Levinas 1990 [1963]) This figure of the absolute other or Other, because she transcends me absolutely becomes ‘the infinite, the transcendent’ (Levinas 1969 [1961]: 49). While his continual avoidance of thematisation in the text provides some difficulty, Levinas’ purpose becomes clear when he associates this absolute other with freedom and justice. Levinas specifically contradicts the Sartrean view of freedom: ‘[e]xistence is not condemned to freedom, but judged and invested as a freedom’ (1993 [1957]: 117). Conventional existentialist freedom consists in the acts of comprehension

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and representation that the self indulges in as it turns its constitution of the other to the purpose of constructing the totality of itself, that is, the process of authenticity. Conventional existential freedom to constitute one’s authentic self as found in Heidegger, for example, is thus fundamentally unjust: it is tyrannical in its relation with others. Justice, however, consists in a fundamental ethical relation with the radically other that exists entirely free of my cognition or thematisation of her. Indeed, it is the relationship with the Other, that stands entirely outside my ‘use’ of her as a means (in the Kantian sense) to thematise my own self or totality, that presents me with the possibility of transcending myself. Since she is entirely beyond my-self, she introduces to my horizon something entirely, radically new that is irrecusable. Hence, transcendence in its relation to the Other becomes in Levinas the fundamental social phenomenon, the foundation of ethics, and thus of the possibility of justice. This relation to the absolute other is described in Freedom and Command (Levinas 1987b [1957]) as a ‘direct relationship … which puts us in contact with a being that is not simply uncovered, but divested of its form, of its categories, a being becoming naked, an unqualified substance breaking through its form and presenting a face’. I turn then to this concept of Levinas’ which derives ineluctably from the concept of the absolute other – The Face.8 Singularity, ethics, and The Face Philosophers create concepts (Deleuze & Guattari 1994). This is true of Levinas and his concept of The Face. The Face is not merely that which we use to help us identify other people, it is a concept that Levinas creates that is emblematic of that which escapes all thematisation or categorisation: in other words, it is emblematic of the ‘absolute other’. It is emblematic of that which transcends me absolutely and pierces my horizon as something radically new: of that which exists beyond and before any possible comprehension or knowledge, or intellection that is mine. It is emblematic of that singular Other that ‘counts as such’. The Face is emblematic of the transcendence of thought by thought. Referring to Descartes’ notion of the infinite, Levinas designates this transcendence of transcendence as the ‘welcome of the face’ (1969:197). ‘The first revelation of the other, presupposed in all the other relations with him does not consist in grasping him in his negative resistance … but I respond to his expression, his revelation’ (ibid.). Levinas also points out that ‘[t]he face is not of the order of the seen, it is not an object, but it is he whose appearing … is also an appeal or an imperative given to [my] responsibility: to encounter a face is straightaway [d’emblée] to hear

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a demand …’ (Levinas 2001:48). The face’s existence, precognitively and before even our awareness of it, means that it carries with it the fundamental command ‘you shall not commit murder’ (1969:199). The infinite paralyses power by its infinite resistance to murder, which, firm and insurmountable, gleams in the face of the Other, in the total nudity of his defenceless eyes, in the nudity of the absolute openness of the Transcendent. There is here a relation not with a very great resistance, but with something absolutely other: the resistance of what has no resistance – the ethical resistance. (Ibid.) This call of the Transcendent, of the absolute Other, that I should not murder him – this resistance – is not a ‘real’ resistance, since if it were ‘real’ – as opposed to an ‘ethical’ call – we would have to represent that call to ourselves (as part of the process of our intellection of it) and thus constitute it in the interiority of our being; in other words, it would cease to be transcendent. Hence is established in the relationship with the face, a precognitive responsibility that is irrecusable because it is virtual: because it exists outside of everything that we can think or be or desire. Of course, we all know of people who say things such as ‘Not my problem, mate!’ and we know of people that do kill, but this is simply to deny a responsibility that is originarily theirs. The person who says, ‘It’s not my responsibility’, does not eradicate a responsibility, nor does he reflect a genuine absence of responsibility; indeed, his response is evidence of a response to an irrecusable, pre-existing responsibility: he merely refuses to accept his part in it. There is, however a problem (there are of course several) with responsibility thus conceived. Freedom requires the capacity to do otherwise. Responsibility in Totality and Infinity is irrecusable. Irrecusability denies that freedom. Hence irrecusability and responsibility must be mutually exclusive: we cannot be responsible if we are not free to be responsible. Levinas circumvents this problem by invoking another new concept, substitutability, which has the effect of making all responsibility mine. In this next section I will attempt to unravel this difficult idea. From mere responsibility to absolute responsibility The reading of Levinas’ notion of infinite responsibility in Otherwise than Being: or Beyond Essence (1998 [1974]) is highly problematic, not least because of a ‘changement d’ordre de grandeur’ (Rolland 2006:16 Cited in Perpich 2008: 109) between the two major texts Totality and Infinity

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and Otherwise than Being. A significant shift occurs for example, from the former, where the subject is referred to as a ‘host’ (Levinas 1969:299) welcoming the advent of the Other, to the latter, where the subject is referred to as a ‘hostage’, (1998 [1974]: 112) a captive of the Other. ‘I am obliged without this obligation having begun in me, as though an order slipped into my consciousness like a thief …’ (1998 [1974]: 13 my emphasis). Furthermore, in an attempt to avoid the tyranny, the violence of the ‘said’ Levinas resorts to what Ricoeur has called ‘verbal terrorism’ (1997:26 Cited in Perpich 2008: 119). The difficulty of the text results in commentators providing several theses concerning the meaning of Otherwise than Being. The elements of this text that I attempt to unravel here and the reading of Otherwise than Being that I bring to this paper is dictated by the task to which I wish to put Levinas’ thought: namely to addressing the problem of the appropriate object of study of criminology. The aspect of Levinas’ thought that is important here is the notion of infinite responsibility, which he arrives at by developing the concept substitutability or the principle of substitution. To this concept I now turn. We have established that the Other, in Levinas, approaches us through The Face. The Face makes demands of us even before we are aware of its existence. This must be so because it is radically Other. These demands, therefore, must be indeclinable because, for us to refuse them we would have to be aware of them and then the tyranny of our own interiority would capture these demands and collapse them into that totality – the same – which is me. The relation to this responsibility, then, is a part of what I am. ‘[T]o be an I means then not to be able to escape responsibility as if the whole edifice of creation rested on my shoulders’ (Levinas 1987c [1972]). The questioning, interlocutory nature of this responsibility binds the I ‘to the Other in a unique and incomparable way’ (Levinas 1996a [1962]: 17). The face opens the primordial discourse whose first word is obligation, which no ‘interiority’ permits avoiding. It is that discourse that obliges entering into discourse, the commencement of discourse rationalism prays for, a ‘force’ that convinces even ‘the people who do not wish to listen’ [Plato, Republic: 327b] and thus founds the true universality of reason. (Levinas 1969 [1961]: 201) Hence, false rationalities (that which is to be avoided – untruth, injustice) are constituted by failure to respond to the absolute otherness of The Face, while genuine rationalities (‘what is to be done’) are

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constituted in the answer to the obligation to the absolute Other represented by The Face. Because The Face pierces my horizon in this unique and indeclinable way, I am not only primordially responsible for the Other emblematised in this manner but I am responsible to them for myself ‘under their gaze’ (Hutchens 2006: 22). Because I am placed under this demanding gaze, I am not an autonomous free agent; moreover, if this responsibility is not chosen freely, I cannot be free to pass it on to anyone else: no one else can be substituted for my obligation to the Other. This is Levinas’ principle of substitution. Moreover, if I imagine myself as placing myself in the other’s shoes, I have substituted myself for him, but my absolutely indeclinable responsibility to him means that this process cannot be reversed: I can never require him to put himself in my shoes. I have mentioned in passing in the previous paragraph, two vectors of responsibility: responsibility for myself and responsibility to the Other. We may identify (inter alia) a third vector: responsibility for the other. In a rather telling passage Primo Levi describes the day when the Russians came to liberate Auschwitz. They did not greet us, nor did they smile; they seemed oppressed not only by compassion but by a confused restraint, which sealed their lips and bound their eyes to the funeral scene. It was the shame we knew so well, the shame that drowned us after the selections, and every time we had to watch or submit to, some outrage: the shame … that the just man experiences at another man’s crime; the feeling of guilt that such a crime should exist, that it should have been introduced irrevocably into the world of things that exist and that his will for good should have proved too weak or null, and should not have availed in defence. (Levi 1987 [1963]) In Levinasian terms this means that not only is one responsible to the other for oneself, but one is responsible for the other. We may readily say when thinking of the horrors of Auschwitz, ‘We must not let this happen again.’ To say this reveals our own responsibility for the atrocity – and indeed, radically, since one can say this even if one’s parents or grandparents were murdered at Auschwitz, it becomes clear that I am responsible even for the actions, against me, of my persecutors (see Levinas 1996b [1968]: 94). This means, of course, that I become responsible for everyone else’s responsibility: my responsibility can be substituted for theirs. However, we must remember that I cannot substitute anyone

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else’s responsibility for mine, hence ‘I am responsible for all before all, and I more than all the others.’ I always have one responsibility over. My response to The Face of the Other is one of infinite responsibility founded in a radical passivity to him. We should be clear, however, that this absolute responsibility is not equivalent in any way to a deontological ought or a moral should. Nonetheless, neither should it be assumed that it is in some way a mere orientation towards the Good. While it certainly involves a conscious and constant recognition of my responsibility to all and for all, Levinas is also clear that it must involve concrete efforts to alleviate the other’s suffering (1998 [1974]: 12). In positing a subject whose Good is constituted in the infinite and unachievable, Levinas posits a being whose ‘very subjectivity consists in its expiation for the other’ (Perpich 2008: 120). This is not an expiation of others’ wrong-doing – as in the relationship with Christ in Christianity, for example – but signifies that my relation with the Other precedes my relationship with myself (Levinas 1998 [1975]: 119).

Conclusion Having said all this about Levinas’ views it is now appropriate that we take a look at what this means for criminology and its object. Some of the relative merits (or otherwise) of the two vectors of the standard criminological argument ‘crime’ and ‘harm’ as conventionally conceived have been rehearsed above. However, in the light of the Levinasian account presented above we must also observe the following. Both the ‘crime’ model and the ‘harm’ model constitute modes of thematisation. They seek to rationalise difference and subsume it under one or other of these categories. The inclusion of the object in these categories is part of the ordering and assembling of the categories themselves (taxonomical essentialism). Violence is therefore done to the object of this process in the tyranny that reduces his ‘otherness-that-counts-as-such’ to the arbitrary totality of law or of ‘harm’. The only difference between these two models is who is doing the violence. The harm perspective simply replaces the tyranny of homo economicus/politicus with the tyranny of homo criminologicus. Responsibility in Levinasian terms is entirely antithetical to Law conventionally conceived. Law reduces to the said, the congealed, the perpetually other-negating said: responsibility can only exist in the saying – the perpetual and continual establishment of the transcendent. Should we accept that we cannot rely upon either the category crime or harm to provide the object of criminological study, I suggested that we might wish to examine ethical accounts to ascertain ‘what is to be

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done?’ And by extension and negation, identify the object of criminological study as those behaviours that are to be avoided. I outlined the conventional ethical picture that we may draw from existentialists and offered some conventional objections. In the light of the view from Levinas we might also say the following. Responsibility thus derived from conventional existentialist accounts of what it is to be authentic leaves us being merely responsible for those acts of which we are guilty, and as such it becomes available for use as a deontological justification for criminal sanctions with all the attendant problems of commensurability and harm to innocents. However, responsibility derived from a Levinasian point of view leaves us being guilty of that for which we are responsible, and in the face of universal responsibility, any criminalisation either by defining crimes or defining harms casts me as universally guilty. If I am responsible for all in all then I am called ethically to be guilty of all in all, and that means any criminalisation or attribution of harm that I undertake casts me as guilty or at least responsible for that harmful act: I am called to recognise my own responsibility in and for all harms. Hence, our, or anyone else’s definition of the quality of acts as the criterion by which we separate ourselves, our behaviour, our values and our ethic from that of others – to define others as others – is futile, since we are all implicated in all acts of all people. This is true whether we subscribe to an othering by ‘crime’ or an othering by ‘harms’. If I attribute to the other responsibility for an act that harms me in some way I constitute him in my own being as one who has done harm: I impose upon him a debt that issues solely from my being – my perception of what constitutes harm – and not from any quality of his being anOther that counts as such. Moreover in the situation where I call him to responsibility for conspiracy or planning a crime I impose upon him a debt that can only be described as virtual but that still must be paid in law. However, we have seen from Levinas that this other must exist qua being beyond our intellection (comprehension); we are brought to comprehend the other qua being only a posteriori and we must deal with him as entirely other to us: that is, not constituted by our being in any way. If we truly recognise our responsibility for the Other in this way then we significantly reduce the potential for harm and the ‘to be avoided’, particularly by reducing the escalation of harm that conventional criminological or political belief in the other’s responsibility for himself and to us perpetuates. The conclusion that we must draw from this is that any attempt to identify the object of criminological study as an-Other fails to honour our responsibility to that other and constitutes a tyranny that does

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violence to her as an-Other that counts as such. Attempts to identify the criminological object, and thus criminology as conceived of as a study with an object that is human, must be dissolved because it, in itself, contributes to the kind of harms it claims to be investigating.

Notes 1. Guilt is not used here in its common usage but in the sense used by Dostoevsky in The Brothers Karamazov, about which Levinas has this to say, ‘I am responsible for the Other without waiting for his reciprocity … Reciprocity is his affair … It is I who support all, [ … as in] that sentence in Dostoevsky: “We are all guilty of all and for all men before all, and I more than the others.” This is not owing to such or such a guilt which is really mine, or to offences that I would have committed; but because I am responsible for a total responsibility, which answers for all the others and for all in the others, even for their responsibility. I always have one responsibility more than the others’ (Levinas 1985: 98–9 see also Vinokurov 2003). 2. I wish to distance myself here from any function, fixity, or plenitude that the word ‘unit’ may connote. 3. While Marx’s concept ‘false consciousness’ is not as fashionable as it has been, writers continue to assert the existence in society of phenomena like it. See for example Augoustinos 1999. 4. The Saying and the Said. Levinas’ ethic is the antithesis of the said. The said is conjugated as a verbal sign, it is final and immobile: it is the negation of transcendence. The saying, in contrast, is the vehicle of expression of being, transcendence, and ethics. However, contrary to expectation, the saying is not brought to a halt by the said or subsumed into it, but rather elaborates a new ‘saying that must be unsaid’ (1998 [1974]: 7). The result is a continually evolving transcendent that will not collapse into any totality of meaning. 5. Loosely laws. The importance of this term is that it originates in the Greek nòmos (the manner of dispensing justice) and nomós (that which is dispensed). The feature of law to which I refer is that it is dispensed. It is imposed upon the other without regard for him as a being who counts as such, and thus is a negation of him in his being. 6. We may not punish the innocent, or in a different formulation, harmful acts directed at the innocent do not constitute punishment. 7. This construction of Levinas’ leads to a major criticism concerning a claimed theologism in Levinas’ writing, in that, it is claimed by critics, this infinite must be God (see, for example, Janicaud, 1991). While there is no scope in this paper to examine all the criticisms levelled at Levinas’ work. it is worthy of note that Levinas denies that he intends this infinite to represent God or indeed, that there is any theological foundation in any of the positions that he advances. For a thorough exploration of Levinas’ ethics including an examination of many of the stock criticisms of his work, see Perpich (2008). 8. Hereon in I capitalise The Face when I refer to Levinas’ concept to distinguish it from a mere face.

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References M. Augoustinos (1999) ‘Ideology, False Consciousness and Psychology’, Theory & Psychology, 9 (3): 295–312. D. J. Crewe (2009) ‘Beyond Agency and Structure: Methodological Considerations for Researching the use of Restrictive Physical Intervention against Children in Jail’, Journal of Theoretical and Philosophical Criminology, 1 (2): 1–32. D. J. Crewe (2010a) ‘Assemblage Theory and the Future for Criminology’, in R. Lippens and P. Van Calster (eds) New Directions for Criminology: Notes from Outside the Field (Antwerp: Maklu). D. J. Crewe (2010b) ‘Power: The Supposed Definitions Revisited’, Journal of Theoretical and Philosophical Criminology, 2 (2): 22–68. G. Deleuze (1994) [1968] Difference & Repetition, translated by P. Patton (New York: Columbia University Press). G. Deleuze & F. Guattari (1994) What is Philosophy? Translated by. G. Burchell and H. Tomlinson (London. Verso). E. Durkheim (1982) [1938] The Rules of Sociological Method, translated by W. D. Halls (New York: Free Press). P. Elkind and B. McLean (2003) The Smartest Guys in the Room (London: Viking). M. Heidegger (1984) [1928] The Metaphysical Foundations of Logic, translated by M. Heim (Bloomington: Indiana University Press). M. Heidegger (1996) [1926] Being and Time, translated by J. Macquarrie and E. Robinson (Oxford: Blackwell). P. Hillyard and S. Tombs (2007) ‘From “crime” to social harm?’, Crime Law and Social Change, 48: 9–25. L. Hulsman (1986) ‘Critical Criminology and the Concept of Crime’, Contemporary Crises, 10 (1): 63–80. B. C. Hutchens (2006) Levinas: A Guide for the Perplexed (New York: Continuum). D. Janicaud (1991) ‘Phenomenology and the Theological Turn’, in D. Janicaud, J.-F. Courtine, J.-L. Chretien, M. Henry, J.-L. Marion and P. Ricoeur 2001, Phenomenology and the Theological Turn: the French Debate (New York: Fordham University Press). P. Levi (1987) [1963] ‘The Truce’, in P. Levi, If This is a Man and The Truce (Harmondsworth: Abacus Sphere Penguin). E. Levinas (1969) [1961] Totality and Infinity: An Essay on Exteriority, translated by A. Lingis (Pittsburgh: Duquesne University Press). E. Levinas (1987a) [1947] Time and the Other, translated by A. Lingis (Pittsburgh: Duquesne University Press). E. Levinas (1987b) [1957] ‘Freedom and Command’, in A. Lingis (trans.) Collected Philosophical Papers of Emmanuel Levinas Phaenomenologica 100. (The Hague: Martinus Nijhoff ). E. Levinas (1987c) [1972] ‘Meaning and Sense’, in A. Lingis (trans.) Collected Philosophical Papers of Emmanuel Levinas Phaenomenologica 100. (The Hague: Martinus Nijhoff ). E. Levinas (1988) [1947] Existence and Existents, translated by A. Lingis (Dordrecht: Kleuwer). E. Levinas (1990) [1963] Difficult Freedom: Essays on Judaism translated by S. Hand (Baltimore: Johns Hopkins University Press).

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E. Levinas (1993) [1957] ‘Philosophy and the Idea of the Infinite’, translated by A. Lingis in A. Peperzak (ed.) To the Other: An Introduction to the Philosophy of Emmanuel Levinas (West Lafayette: Perdue University Press). E. Levinas (1996a) [1962] ‘Transcendence and Height’, in A. T. Peperzak, S. Critchley and R. Bernasconi (eds) Emmanuel Levinas: Basic Philosophical Writings (Bloomington: Indiana University Press). E. Levinas (1996b) [1968] ‘Substitution’, in A. T. Peperzak, S. Critchley and R. Bernasconi (eds) Emmanuel Levinas: Basic Philosophical Writings (Bloomington: Indiana University Press). E. Levinas (1998) [1974] Otherwise than Being: Or Beyond Essence translated by A. Lingis (Pitsburg: Duquesne University Press). E. Levinas (2001) Is it Righteous to be? Interviews with Emmanuel Levinas, (ed.) J. Robbins (Stanford CA: Stanford University Press). E. Levinas (2003) [1935] On Escape, translated by B. Bergo (Stanford, CA: Stanford University Press). J. Michael and J. M. Adler (1933) Crime, Law and Social Science (Glen Ridge, NJ: Patterson Smith). D. Perpich (2008) The Ethics of Emmanuel Levinas (Stanford CA: Stanford University Press). G. Prauss (1999) [1977] Knowing and Doing in Heidegger’s Being and Time, translated by G. Steiner and J. Turner (New York: Humanity Books). J. Reiman (1998) The Rich get Richer and the Poor get Prison: Ideology, Class and Criminal Justice (Boston: Alyn & Bacon). J.-P. Sartre (1967) [1957] Being and Nothingness, translated by H. E. Barnes (London: Methuen). R. Schürman (1990) [1987] Heidegger on Being and Acting: From Principles to Anarchy, translated by C. Gross (Bloomington: Indiana University Press). A. Travis (2008) ‘We think Crime is Rising: But is it?’, Guardian Thursday 23rd October. R. Van Swaaningen (1997) Critical Criminology: Visions from Europe (London: Sage). V. Vinokurov (2003) ‘Levinas’s Dostoevsky: A response to “Dostoevsky’s Derrida”’, Common Knowledge, 9 (2): 318–40. M. Warnock (1967) Existentialist Ethics (London: Macmillan).

8 Mystical Sovereignty and the Emergence of Control Society Ronnie Lippens

Introduction: What is control society? In one of his more popular and accessible essays, ‘Postscript on Control Societies’ (1995, pp. 177–82), the late French philosopher Gilles Deleuze, reflecting on Foucault’s later work, sketched the evolution, in late modernity, from disciplinary societies to control societies. Whereas the former were characterised by the emergence and reproduction of what Deleuze called order words that is, codes that embodied, and helped construct a particular order, the latter now tend to abandon all desire for, and all will to structured order. In post-disciplinary societies the issue no longer is the construction and maintenance of a particular order (e.g. through discipline) but the control – through the deployment and circulation of mere passwords – of situations. Situations are local, or localised. They are singular. The mere control of situations does not require order words. On the contrary, order words – and the resulting construction of order, or orders that supersede local situations – are to be avoided at all cost. Indeed, order words simply block off the proliferation of singular situations, each controlled by their own, singular passwords. Order words break up, wash over and actually, in their very attempt to universalise, destroy local, singular situations and their local, singular passwords. In control societies there is no longer any need for the construction and maintenance of a particular, supposedly ‘universal’, order. What is needed here is the mere control of situations, as and when they emerge and develop. Passwords, not order words, are needed in control societies. Passwords regulate and control the modalities of access to situations. Passwords vary from situation to situation. ‘Control’, in control societies, is a matter of unrelenting, indeed relentless modulation. In his book on the neo-tribal outlook of late modernity, Michel Maffesoli (1996) gave 175

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an illustration of such modulation. In the late modern age, Maffesoli claims, situations are neo-tribal, that is, individuals shed their individual self by joining tribal gatherings where, in mute non-communication, they share particular consumptive experiences. Each of those gatherings is coded, if you wish, by the particulars – aesthetic as well as affective – of the consumptive and indeed often hedonistic experience in question. Access to neo-tribal gatherings is regulated and controlled by the application and circulation of passwords (Deleuze might have said) that organise collective consumptive experience there and then, in that particular location. Neo-tribal codes and passwords change, or modulate incessantly. Gatherings take place and break up incessantly. Individuals join them and leave them at whim. There is, in neo-tribal late modernity, no overarching code that structures the application and circulation of codes and passwords, apart from, of course, the code that says, ‘Lose yourself in mute consumption!’ Even if the latter is to some extent an overarching or universalising code, it is one that has little, if any, effect on the particularities of the relentlessly proliferating codes and passwords in everemerging and dissipating neo-tribal gatherings. The consumerist code of late modernity serves no other aim than consumptive experience, that is, the consumption of the here and the now. This code is no longer geared towards the construction of (a) future (see also Hall et al. 2008). The consumption of sheer life in the very second of the present is the only issue at stake here. The regulation and control of access to such experiences is the only thing that matters. No longer is the eye fixed on a horizon of possible futures. No longer then is it necessary to really communicate with others. Real communication is communication about, and towards change. The mute sharing of consumptive experience in the split second of the present suffices. Let us be clear. The late modern code of neo-tribal consumerism is only one mode of what Deleuze called post-disciplinary control society. In control society modes of control – like codes and passwords – proliferate, dissipate, disassemble and re-assemble unrelentingly, unfettered by an overarching code (whether legal, moral, aesthetic, biological, physical, or other) that would otherwise have structured or funnelled them. Put differently, control society is another name for a particular form of life. A form of life (the term has Nietzschean antecedents) is a more or less coherent constellation of practices, experiences and operational ‘logics’. One could call it a ‘way of life’, although the word ‘form’ might be more appropriate to hint at its ever-ongoing formation and modulation. The aim of this chapter is to explore the form of life that is control society and provide a brief outline of its origins. Those origins, it will be argued below, are to be

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found not so much in what authors have come to name ‘late modernity’ (roughly, the period of global and local destabilisation since the early 1970s) as in the immediate post-war period. The focus, in that era, on indeterminacy, on radical freedom and choice – exemplified by the emergence, in those days, of existentialism – is as much part of the form of life of control society as is the idea, and practice, of modulated, unstructured, situational but nevertheless rampant control. Both dimensions are inextricably intertwined in control society. Both are not just two sides of the same coin. The word ‘sides’ suggests difference. Both are aspects of the very same form of life. Before I go into some depth on this matter, allow me to paint the outlines of this form of life with very broad brush strokes. At the heart of control society dwells a desire for, and will to, the capacity for radically responsive choice. Here, ‘radically responsive’ means the capacity – however imaginary, however illusory this capacity – to choose in utter, complete freedom. One can only choose in a radically responsive manner if one has the capacity and of course also the ability, to make choices that are unconstrained by any code (legal, moral, aesthetic, biological, physical, and so on) whatsoever. If one were constrained by a particular code (for example, the code that says ‘the future should be such or so’, or the code that says ‘greed is good’, or the one that holds ‘love thy neighbour’, or the law that says ‘you need a warrant’, or ‘you are your DNA’, or ‘gravity shall pull you down’), any choice made would be less than radically responsive. The choice made would have been pre-determined, pre-structured by a particular code. This desire for, and will to radical responsiveness, is the desire for, and will to radical sovereignty. Radical sovereignty harbours a desire and a will (however imaginary, however illusory) to flee, and to remain free, from all code. Such sovereignty expresses a deep and radical – and as we shall see, also paradoxical – refusal to submit to code, any code. However, this desire for and will to absolute sovereignty generate, indeed spout, a dizzying number of controls in an equally bewildering number of localised situations. Let me explain. First, the imaginary and illusory flight from code into sovereignty is, in itself, a form of control. Control here could be read as the desired and willed capacity to choose in unfettered, sovereign ways. Control here appears as choice, or at least as the potential or capacity (however imaginary, however illusory) to choose in radical freedom, to choose beyond all code. Secondly, the aspiring radical sovereign, in his search for the full and complete potential of choice – that is, in his flight from all code – tends to encounter code everywhere, anywhere. Those codes, encountered in as many locations and in as many situations as an un-structured, un-funnelled postdisciplinary odyssey allows, need to be controlled; that is, their circulation,

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as well as the access to particular situations and locations need to be regulated and controlled by … codes (‘passwords’, Deleuze would specify). In an earlier, disciplinary age, an attempt might have been made to transform, modify, indeed discipline the codes encountered, and have them subsumed under an overarching, transcendent code (e.g. ‘construct an orderly, civilized future’). Control society only requires their radically responsive control. Control society, as a form of life, does not know controllers from controlled in any seriously foundational way. Control is a situational, local matter. Control is the form of life that manifests itself in localised situations where sovereign, radically responsive choice (however imaginary, however illusory) underpins practices, experiences, and operational ‘logics’ of regulation and access. Aspiring sovereigns, we are all controllers. Choosers in imaginary radical freedom, we all are controlled. It is our form of life. Again, let us be clear. The above does not mean to suggest that the form of life called ‘control society’ is monolithic. A form of life never emerges pure. It does so in quite messy processes of hybridisation whereby fragments in its own constellation coagulate with or end up in juxtapositions with fragments of other forms of life which each emerge and eventually dissipate in similar fashion. However much ‘control society’ they may have been, the immediate post-war era and subsequent late modernity were never only that. However, the focus in this chapter is on ‘control society’ as a paradoxical form of life. Before I get to the work of teasing out the intricacies of this paradoxical form of life, first allow me a slightly philosophical intermezzo. I will use this intermezzo to explain what I believe is the process whereby forms of life come about. This explanation combines – rather tortuously, some might say – insights gleaned from what are often deemed to be irreconcilable perspectives, that is, vitalism (‘a form of life is just life’) and existentialism (‘a form of life is chosen life’). This intermezzo will also, I hope, provide materials that should shed an introductory light on the particular features of the form of life, i.e. ‘control society’, which emerged in the immediate aftermath of the Second World War. Indeed, saying that ‘control society’ is about the desire for and will to absolute sovereignty boils down to saying that it is the desire for and the will to preserve (however imaginary and illusory this aim) the full potential for absolute choice– that is, the full potential for the control over emergence.

A new form of life: Philosophical intermezzo One could ask oneself, ‘How do forms of life emerge?’ One set of answers to that question may go under the name of vitalism. This is a strand of

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thought that stretches from Baruch de Spinoza’s work on the infinite immanence of life, as expounded in his Ethics (published originally in 1677), to Gilles Deleuze and Félix Guattari’s work on intensive assemblage and emergence (for example, 1972 and 1980), passing via Friedrich Nietzsche’s views on life as becoming (e.g. Nietzsche 1908), and Henri Bergson’s work on what he calls ‘duration’ (Bergson 1911, published originally in 1907). Bergson forms the lynchpin between Spinoza and (to some extent) Nietzsche, on the one hand, and late-twentieth-century Deleuzoguattarism on the other. Let us have a closer look at Bergson’s work. According to Bergson, in his Creative Evolution (originally 1907), life has its unstoppable momentum. This momentum, or ‘élan vital’, is actually a force which bursts forth. It has nothing static or passive about it. The élan vital is incessantly moving forth. This ‘bursting forth’ is marked by what Bergson terms ‘duration’. This notion captures a number of ideas. The élan vital, in its incessant movement, accumulates all memory of its unrelenting movement. That memory stretches into infinity. The infinity of life thus survives in the duration of the élan vital. The élan vital is indivisible movement. The ‘bursting forth’ of the élan vital is indivisible. At each point of its movement, at each of the locations of its impact on matter, the force of the élan vital is indivisible: all of its memory, stretching from and into infinity, is accumulated and present – at least as pure potential – in each of those moments, or locations. As such there are no ‘moments’. There are no locations. The one moment (e.g. nanosecond X) of the élan vital is indistinguishable from the next (e.g. nanosecond ⌾⫹1). The one location (e.g. Y) is never absolutely separable from any other (e.g. P, Z, G). The élan vital is pure duration, that is, it is pure movement. It is infinity moving, ‘bursting forth’, in matter. Infinity is indivisible. Duration is indivisible. The élan vital is indivisible. He who distinguishes one moment (e.g. nanosecond X) from another, or one location (e.g. location Y) from the next, in the pure movement of the élan vital’s infinitely incessant duration, should be aware of this: it’s only a distinction. It will have failed to grasp the nature of the élan vital. The nature of the élan vital could never be grasped by making distinctions. Any ‘distinction’ made is itself a mere effect or mode – local and locked in a nanosecond – of the infinite duration whence it enigmatically came and which it remains connected with (rhizomatically, Deleuze and Guattari would later claim). The distinctions made in this contribution at hand – and indeed in Bergson’s work itself – could never grasp the duration of the élan vital, nor could the distinctions that bubble up in the reader’s consciousness when they read these very lines. The infinite is indivisible. Only experience could give us some clues as to the infinite of duration (but more on that below). Not more than

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a few clues though: ‘experience’ is merely experience of the scattered, fragmented effects or manifestations, in the sphere of the extensive, of the indivisible infinity called duration. The élan vital, in ‘bursting forth’, creates, and creates incessantly. This process of creation, says Bergson, is probably not all that straightforward (this point was later to be expanded on by Deleuze and Guattari; see also Murray, 2007). The infinite mists of duration form an inorganic flow of immanent energies, or intensities. Out of this mass of mere intensities – it is a mass of pure potential – the élan vital – bursting forth as ever – generates, in the sphere of the virtual, assemblages of such intensities. These assemblages hold a number of possibilities (e.g. possible ways of seeing things, of saying things, of doing things, and so on). These virtual assemblages form the plinth out of which particular forms of life will emerge. Still bursting forth in all its infinite duration the élan vital will unrelentingly continue to traverse matter – the world not of the intensive, but of the extensive – and, in the process, actualise some of the possibilities held in the virtual assemblage of emergence. This process of actualisation (that is, emergence as movement from the intensive virtual into the actually extensive) will stretch and deform those possibilities. The latter will change in their contact with the extensive of matter. But traces of the virtual will make it into the sphere of the extensive. There they will appear as manifestations of an ever-evolving and changing form of life. At particular points this evolution and these changes will express creative transformations that are so significant as to warrant the use of words such as ‘new’. The new, in other words, emerges in and through the infinite duration of the élan vital. Human life is life. The élan vital, in human life, generates and transforms particular forms of life: human forms of life. In one of his later works, Les Deux Sources de la Morale et de la Réligion (1932), Bergson is at pains to analyse how in human being, indeed in human beings, the élan vital strikes gaps, or distance – incessantly so – between, on the one hand, experience of that which is, and, on the other, that which is not (e.g. that which might be, or could have been). This gap, or distance, is, in human being, filled up constantly with ‘fabulation’. In other words, human being is the location in life, or the mode of life, where the élan vital strikes gaps of imagination. Human beings have the capacity to imagine that which is not (the élan vital generates this capacity), as well as the capacity to fill up this gap with ‘fabulation’. Both the imagination of what is not, and the fabulation that fills up, are actually two aspects of one and the same movement of the élan vital. The ‘fabulation’ which Bergson writes about takes the shape of images. Images bridge the gap, in human being, between

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the experience of what is, and the imagination of what is not, what might be, or what might have been. This ‘bridging’ function makes images ‘technological’. As technologies, images also harbour a ‘code’ (e.g. a scientific code, a moral code, a religious code, and so on). In the immediate aftermath, for instance, of a sudden tremor of the earth the élan vital strikes a gap of imagination, and simultaneously generates an image, that is, a coded fabulation that bridges the gap (e.g. ‘the gods are disappointed in us, sinners’, or ‘pressures in this geological fault line have reached their maximum threshold’). None of those codes (or fabulated images) is able to fully capture the duration of the experiences in question, nor the events on which they are based. They are mere distinctions. It’s only a matter of time before the élan vital, bursting forth relentlessly, will strike yet another gap, and generate yet another creative bout of imagination-cumfabulation. Here, at this point, Bergson adds a new insight. The generation of the new, he writes, takes place – in human being – on two levels. For most of the time the travels of the élan vital through matter generate only superficial newness in the sphere of the extensive. That means that extensive materials get to be dismantled and re-assembled within the bounds (however loose and porous those bounds may be) of their virtual possibilities. However, sometimes (not too often though), real, genuine newness emerges. That happens when the élan vital dismantles and re-assembles intensities on the inorganic plane of life, thus generating new virtual forms of life, or new possibilities of life. The creation of genuine newness takes place on the level of the virtual, or indeed, even beyond that: on the plane of immanent life itself. But here is the crux of the matter: in human being such genuine newness can only be generated at particular locations. Bergson calls such locations ‘genius’. Genius harbours a particular kind of intelligence. This is not the intelligence that, reflecting upon experience by making use of the scattered fabulated divisions in consciousness, could never achieve anything more than the rearranging of extensive materials (the latter would then of course also include other fabulated divisions). The intelligence of ‘genius’, on the contrary, is intelligence that knows how to move beyond the merely extensive, and beyond the divisions of mere conceptual, fragmented, divisional thought. Genius is the location where the élan vital has deposited the capacity to move beyond the restrictive codes and images of human imagination and fabulation. Such a movement implies a capacity to distance oneself from code, from image, from fabulation, and to dive, as it were, into the realm of the virtual, and even beyond that, into the sheer immanence of life. On that plane of immanence (which, again, is a topic that was, much

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later, explored by Deleuze and Guattari), ‘genius’, de-coded, free from code, functions as a mere conduit for immanent intensities to make contact, coagulate, hybridise, and ultimately, form new virtual possibilities of life. In other words, ‘genius’ is the location through which genuinely new forms of human life emerge, or could emerge. The genuinely new in human life emerges at a distance, far away from code, far away from the coded territories of social arrangements in the sphere of the extensive. The creation of genuinely new forms of human life can only come about, claims Bergson, when genius mystically (Bergson’s word) abandons all code, and makes direct contact with, or collapses into duration – the infinite multiplicity of the élan vital – itself. Let us now briefly explore another collection of answers to the question ‘How do forms of life emerge?’ The vitalist answer to this question, as we have seen, sounds much like, ‘Through the bursting forth of the élan vital in the sphere of the intensive, away from all divided and dividing code.’ Existentialism, Sartre’s in particular (for example, 1943 and 1960), tends to answer the above question as follows: ‘New forms of life emerge through choice. Choice made in utter and complete freedom.’ Now, to be clear, Sartre’s use of the word choice in his reading of human existence (human existence is that which comes about through choice, conscious choice) is not what sets him apart from vitalism. In his Creative Evolution (1907) Bergson himself used words such as ‘choice’ and ‘consciousness’. According to Bergson the élan vital itself works through choice and consciousness. The primordial cell, swerving in the prehistoric ocean, floating among a variety of sources of energy, makes choices. It has consciousness. One finds consciousness wherever and whenever choice is a necessity. And it was a necessity even in the primordial bio-soup. The ‘choice’ and ‘consciousness’ mentioned by existentialists though are of a different kind. However infinitely multiple duration may be, in human being (better, in human existence) it (if duration must be) has generated locations of nothingness (as Sartre calls it), which it keeps hitting incessantly in further bouts of ‘bursting forth’. Human subjectivity is built, or formed, around such spaces of nothingness. At the heart of the human subject one finds a kernel of nothingness. The boundary between this kernel of nothingness and the infinite vastness of indivisible duration is, in human existence and in human subjects, clear and neatly drawn. In one of his earliest existentialist works, that is, his posthumously published (1983) ‘phony war’ diary Les Carnets de la Drôle de Guerre [originally 1939–40], Sartre is very adamant and superbly clear (transl. RL): ‘This Nothingness resides in the fact that the movements [“les mobiles”: moving bodies, but also: motives, RL] that would incline to the realisation of the possible are always separated

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from this possible by a hiatus of negation and nothingness [néant]’. On the topic of ‘les mobiles’ (one could argue that this notion refers to duration), he goes on: ‘There never is contact between the mobiles withheld [that is, in any projecting forth of the “for-itself” towards the future] and the possible thus projected’. ‘At the heart of consciousness’, Sartre continues, ‘there is a gap in the chain between mobiles and act’, and it is this gap, he concludes, ‘which leaves us with no excuse for our actions’ (all quotations 1983, p. 168). We are, always and inevitably, utterly and completely responsible for the choices we make in that gap of forwardthrusting negation. The workings of the élan vital may have origins that stretch infinitely in the vastness of duration, but once it reaches the human subject (qua subject) it (that is, the élan vital) has to cross a clear boundary beyond which it scatters and fragments in nothingness. The heart of the human subject, nothingness, provides it (i.e. the subject) with the capacity to reflect, in utter, radical freedom from duration, upon its experiences. Similarly, it makes choices in utter and radical freedom. In nothingness, that is, in the radical freedom from duration, it has the capacity to choose the form of its existence out of the materials cast on its shores by the élan vital. ‘Reflection’ is the process whereby fragments and aspects, scattered by and in nothingness, are disassembled and reassembled. In Bergson’s (and later also Deleuze and Guattari’s) vitalism such rearrangements could never generate anything substantially new (only mysticism could). In vitalist philosophy the subject is a mere effect of the infinitely vast and multiple élan vital. The subject, says Deleuze in his sympathetic critique of Foucault’s later work on subjectification (Deleuze, 1988, pp. 94–123), is a mere fold of and in the infinite Outside (a fold in duration, Bergson would have said). In Sartre’s existentialism the genuine transformation of a form of life into something new requires the intervention of a reflecting subject. And reflection presupposes the emptiness of a reflecting chamber at the heart of human subjectivity. In Sartre’s existentialism, the ‘fold’ of the subject is, at its core, empty. There, in that emptiness, it is freedom that underpins the combination and recombination of reflected fragments and aspects of infinite duration which scatter as soon as they cross the boundary of the empty heart of human being. The new, in human existence, is assembled here. New forms of human life – the negation of what is – are chosen here. They do not simply emerge in a pre-reflective realm of mere intensities, and even if they did, such processes of intensive and virtual emergence could never have any significant effect since they must pass through the nothingness of human subjectivity; and it is precisely in that nothingness that the processes of pre-reflective emergence scatter in fragments and aspects.

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Both strands of thought have for decades been diametrically opposed on the issue of becoming. Whether one adheres to the one or to the other is probably largely a matter of faith. In his critique of Deleuzoguattarism (1997) and in his earlier magnum opus, Being and Event (1988), the French philosopher Alain Badiou seems to provide an elegant solution to this seemingly unbridgeable opposition (even though his goal was not to build this particular bridge). The ground of being, claims Badiou, is the void. Even those who believe in the infinity of duration should accept the void. They in particular should, for infinity presupposes the void. Without the notion of the void, one could not even think of infinity. If there were no void, infinity would be full and complete (it would be too easy to ‘count as one’ such a finite infinity) and would then cease to exist as infinity. The void is the source of becoming. It makes emergence possible. The location of absolute indeterminacy, the void generates ‘events’, that is, the sudden inexplicable emergence of the new. Each ‘event’ includes, within the sudden presentation of itself, the void. This void-inthe-event allows for human subjectivity (which itself includes the void) to ‘intervene’: that is, to select and ‘count as one’ particular sets of elements within the presentation of the event, and to select – and indeed even to create – particular ways of seeing, ways of speaking about, and ways of dealing with those elements. New forms of life (which would then constitute events in their own right) may emerge in such processes whereby ‘events’ and ‘interventions’ bring about the new. Alain Badiou’s void could stand in for Bergson’s gaps and distances (i.e. those struck by the élan vital) and for Sartre’s negating nothingness. In the remainder of this contribution I will focus on one such event-cum-intervention and the emergence of a new form of life therein. This form of life emerged within the scope of the ‘interventions’ made during the aftermath of the ‘event’ of the Second World War. One could argue that the élan vital, from the void in its rhizomatic depths, produced both the event and the interventions through the reflections that took place in the empty chambers of its subjectivities.

Mystical sovereignty as a form of life The immediate post-war era seems to have been marked by a deep tension. On the one hand the traumatic experience of the event ‘World War II’ prompted the desire for, or will to the new. This is the desire for, and the will to creation. This is the desire for, and will to creatively fabulate (Bergson, if you wish) new code. On the other hand, the very trauma of the war and the totalitarianisms which fuelled it underpinned

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a drift away from anything that even vaguely resembled rigid code, or indeed code as such. This tension also appeared under a different guise. The flight from code, on the one hand, led some to begin to imagine the total abandonment of coded subjectivity in an attempt to directly access creative forces on what could be called – following Deleuze and Guattari – the plane of immanence. This is a desire for mystical creativity (to use Bergson’s terminology). But, on the other hand, this flight from code was also, and simultaneously so, part and parcel of a movement towards a will to absolute, utter control. This is a will to absolute sovereignty, that is, to a sovereignty that wills the capacity to existentially choose in utter freedom, with all potential, whether or not spent in the making of choices, somehow remaining fully intact, at any time, anywhere. This new form of life, shot through with tension, might perhaps be called mystical sovereignty. Don Crewe has recently (2010) argued how power equates to and therefore resides in the potential of, or in the ‘can’ of assemblages. The power of aspiring late-modern mystical sovereigns resides, rather, in the potential of, or the ‘can’ of the outside of anything that would dare to present itself as an assemblage. It could be argued that the desire for, and will to mystical sovereignty became manifest first in works of art such as Jackson Pollock’s abstract expressionist paintings (Lippens 2011a, but see also Lippens 2010 and 2011b). What interests us here though is how this new form of life gave rise to what Gilles Deleuze was to call, much later, ‘control society’. The immediate post-war climate seems to have been sustained by a mood away from code, first from totalitarian code, but soon from all code that would threaten the capacity of subjects to exercise total control (however imaginary, however illusory this desire, or this will) over one’s circumstances and conditions. ‘Total control’ here refers to the capacity to choose utterly responsively, at any time, everywhere, anywhere, with all potential left intact after choices are made. The ‘responsive’ element in total, responsive control in turn refers to the immediate or immanent codelessness (i.e. the strived for, or hoped for codelessness) of choice. A choice that is captured by, or sustained by a particular code, whichever the nature of this code, will be less than totally responsive. Total responsiveness is immediate responsiveness. It is responsiveness that is unhampered, unmediated by code. Total responsiveness is responsiveness that does not depend, in any way whatsoever, on constraints that somehow limit the pure potential which the choosing self considers (or fabulates) to be at its disposal. Total responsiveness is responsiveness that refuses to accept a loss of pure potential with any of the choices it makes.

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The post-war desire for, or will to a capacity for utter, radically responsive choice, also harbours a desire for, or a will to creation. Indeed, the war and its totalitarian underpinnings were nothing if not the stifling of creative energy. However, any capacity for radical responsive choice will not allow for creativity that leads to the construction of a code, or a constellation of codes that in turn would then restrict totally responsive choice, restricting or depleting in the process the reservoir of pure potential which the self imagines to be at its sovereign disposal. The desire for and will to total control, that is, to total responsiveness, is a desire or a will that has arrived beyond construction. It no longer accepts the need for construction. Construction implies that one accepts, or lives with code. Code is essential in constructive societies. It is code, or a constellation of codes, which guide or steer the process of construction. This code says: ‘Live your life such and so, accept this or that code, live with such or so constraints, so that the goal of construction may be achieved.’ In constructive societies choices are somehow pre-structured, captured and guided by code. Choices, under constructive conditions, are mediated by code, and are therefore bound to be less than totally responsive. They are bounded by future, by a code that was or is fabulated to bridge a gap between a particular imagined ‘is’ to another imagined ‘ought’ or ‘should’. And that, at least to those who aspire to achieve total control (i.e. the capacity for total, unmediated, responsive choice) is unacceptable. The post-constructive self no longer accepts any form of codification. It sees no need to codify other selves. It sees no point in disciplining others. And it certainly won’t stand for the codification of its own self. It will not allow its own self to be disciplined. The post-constructive self has abandoned all interest in codification. It has even abandoned communication. Why would the post-constructive self be interested in the coded activity par excellence, that is, communication? Why communicate? With whom? Communicate to achieve what? Future? The post-constructive self has no longer any need for ‘future’. As we put it earlier in this contribution, the mute sharing of experience in the very moment of the here and now will suffice. The post-constructive self has lost all interest in what might be, or what should be. It has arrived ‘beyond history’ (to remind us of Fukuyama 1989). It has become nature; fully responsive nature. The only kind of intervention the post-constructive self will tolerate is the responsive, immediate, un-mediated control of situations. The word ‘intervention’ may also be read here in the sense given to the word by Alain Badiou (see above), that is, a decision to read and deal with the ‘event’ of the war, and its aftermath, in particular ways. Control here is not about codification. It is about acquiring and maintaining a capacity

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to decide, choose and intervene totally responsively. Nothing less than total responsiveness, and the capacity to choose otherwise, always, anywhere, everywhere, are acceptable. To be clear, the post-war era did see the emergence of what might be called a constructive (and therefore constrictive) society. It often took the shape of welfare societies. However, as soon as that constructive effort dissipated (shortly after 1970), the original desire for and will to absolute responsive choice burst forth. The form of life that emerged in the immediate aftermath of the war, that is, the one that rests on the desire for and will to codeless, responsive sovereignty, may have been an impossible dream, if only because codeless, responsive sovereignty – quite paradoxically so – rests upon a firm code that says, ‘You will be dependent on the coded exclusion of all rigid, unresponsive code.’ It did however surface, albeit partially, in scattered fragments and aspects, becoming manifest e.g. in neo-liberal deregulation; in an emerging consumer society and the imagined ‘freedom’ of choice therein; in what Guy Debord (1967) once called the ‘society of the spectacle’ (i.e. the non-communicative consumption of circulating commodity-image); in ‘neo-tribal’ consumerism, as described by Michel Maffesoli, whom we mentioned earlier (i.e. the non-communicative, mute sharing of Dionysian hedonistic experience); in ecology and conservationism (i.e. the coded exclusion of code from supposedly pure, un-coded and hence totally responsive nature); in edgework (i.e. the attempt at gaining total control in what is assumed to be an un-coded yet controlled risk zone); in precautionary governance (i.e. the coded attempt at excluding all code perceived to be rigid and thus presenting a risk to sovereign control); and so on. Let us have a closer look at both edgework and precaution. The post-constructive form of life is not an inherently risk-averse one. Indeed, risk is often sought after, exploited or even created for the purpose of practising responsive control as choice. Authors such as Stephen Lyng (2004, see also Lyng et al. 2009) have been able to show how much in what we now know as edgework (i.e. voluntary risk-seeking behaviour such as base-jumping, high-speed motorcycling, bare knuckle fighting, Ray Mears type of jungle survival experience, and so on), particularly since about the 1970s, is precisely about the search for a completely code-free natural zone where the edgeworker then hopes to be able to build up his or her capacity, ability and skills of responsive control. In edgework, Lyng claims, the aim is to immerse the ‘contingent body’ into sheer nature with an eye on mobilising the embodied capacities, abilities and skills of responsiveness that are lurking in an un-coded, un-colonised ‘lifeworld’ (Lyng follows Jürgen Habermas here). In a recent paper on

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edgework (as represented in the 1991 cult classic film Point Break) Karl Palmås (2009) uses Bergson to describe edgework. Edgeworkers, he claims, don’t just struggle with the elements. ‘Fleeing the Law’ (Palmås’ words) while immersing themselves head on in the physical law of nature, they move beyond the actual, and develop a sense for that which is emerging in the virtual, and, even beyond that, on the plane of pure intensity. Another way of putting this is to say, with Palmås, that edgeworkers attempt (however imaginary or illusory this attempt) to directly access what Bergson, in his book Creative Evolution, termed ‘duration’, that is, the infinite multiplicity of incessant, indivisible becoming. This is the mystical move Bergson wrote about. Duration exceeds all consciously produced code. It cannot be grasped by any code produced by consciousness which is destined to merely choose, select, code, and draw boundaries that are constantly overflowed by the infinite multiplicity of becoming. In attempting to dive into pure duration, one might say, the edgeworker also flees from the code that divides up time into past, present, and future. In duration there is only multiplicity, pure potential and becoming. The dive into duration is a dive into pure, un-coded potential. It is a dive fit for a post-constructive age. No, this form of life is not necessarily risk averse. As long as the self believes it has the capacity to control any possible risk through responsive choice, risky situations are even welcomed. Assuming to be swerving in total freedom on the plane of pure intensities, un-coded and codeless, the edgeworker has (or so he supposes) wrestled himself free from all law, from all code. He lives a life of pure immanence (Deleuze and Guattari would have said). He is, mystically, sovereign. Or is he? To be totally sovereign, to be in total control, one should have the capacity to make utterly responsive choices. One should have the capacity to choose. But whoever says ‘chooser’, says ‘self’. To choose implies a self – a singular self – that makes the choice. And whoever says ‘self’, says ‘coded’. A self is a collection of codes. At least to some extent it is. In order to be able to choose in absolute sovereignty, one needs to be, or have a self. But having or being a ‘self’ precludes the capacity, or potential for absolute, utter responsive choice. A self could never be absolutely sovereign. One might argue that it is here, at this point, that existentialism deploys the more appropriate metaphor to describe human existence and human being. Existentialism holds that ‘nothingness’ dwells at the heart of human existence and being. Badiou (although no existentialist) would use the word ‘void’ – albeit that he locates the void at the heart of all being. From an existentialist point of view, total, immediate, un-coded responsiveness – if ever there is such a thing – would be found not so

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much during a mystical retreat from law and code into the sheer infinite multiplicity of ‘duration’, but rather in the void or nothingness of the empty reflecting chamber of human being itself. A void, or nothingness, is un-coded and codeless by definition. To be absolutely sovereign is to be (in) nothingness; it is to be void. That, however, is probably only cold comfort to aspiring mystical sovereigns. In the empty un-coded heart of human being, there is nothingness. There is only sheer indeterminacy there. But nothingness and indeterminacy cannot make responsive choices. You would still need a self to do that. This leaves the aspiring mystical sovereign in an impasse: in order to be an absolute sovereign, one needs to abandon all hope for absolute sovereignty; but abandoning it will of course prevent anything even remotely resembling total responsiveness from occurring. However, things are even more complicated than that. The desire for and will to absolute sovereignty almost inexorably leads – paradoxically so – to extreme precaution. Whereas in a constructive age codes were accepted (or at least tolerated) and risk was tolerated (as long as its harmful consequences were somehow dealt with, and as long as risk served its constructive purpose), the post-constructive self, in its search for absolute sovereignty, can no longer live with even the slightest whiff of uncertainty. This statement should be qualified: the post-constructive aspiring sovereign self can no longer accept even the mere possibility of mishap which would undercut or diminish its sovereign, full potential for utter responsiveness. Indeed, as we saw earlier, risk that promises to augment this potential (e.g. well-chosen, well-controlled edgework) is welcomed. But here is the tragedy of aspiring sovereigns: in their search for absolute responsiveness, they encounter, imagine, or fabulate threats to their potential for absolute responsiveness everywhere. The aspiring sovereign notices potential hindrances and restrictions everywhere. Those must then be blocked off, coded away, neutralised, destroyed, and, if possible, prevented from even emerging altogether. The aspiring absolute sovereign, in trying to protect his form of life, is bound to resort to draconian precautionary measures and interventions in a bid to safeguard his mystical potential and his capacity for total control through totally responsive choice (however imaginary, however illusory this capacity). It is often only a matter of time before the paradox will become blatantly clear: the safeguarding of sovereign potential rests upon the precautionary blocking off, and indeed elimination even, of potential. Not that the sudden realisation of this paradox should then often prompt a more relaxed attitude and resulting interventions. In a post-constructive age, the drive to absolute sovereignty is, more often than not, radically absolute. It tends

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to lead to ever-widening bouts of precautionary intervention whereby previous precautionary measures in turn end up being sucked into the precautionary maelstrom (see e.g. Pieterman 2008). The dominant form of life in the post-war post-constructive age, mystical sovereignty, has thus spawned the conditions of its own destruction. Both – that is, mystical sovereignty and the pervasive precautionary culture it has spawned – are aspects of one and the same form of life. This form of life, then, is shot through with sheer agony.

Conclusion: The existential agony of control society In one of his books on ‘liquid modernity’, The Art of Life, Zygmunt Bauman (2008) analyses how, in desperately trying to achieve happiness through consumption, the late modern consumerist self is swung incessantly from one mirage of happiness to another. All choices made during the supposedly artful life of the consumer are only ever so many roads to disappointment, if not disillusionment. There is a deep sense of agony in consumer societies. Forced to choose the assemblage of one’s self, and forced to do so artfully and creatively, the consumerist self is bound to find itself in a quandary. Any supposedly creative choice that promises the self to bring happiness only detaches the self from its moorings, casting it adrift in an ocean of uncertainty. Any choice made by the consumerist self, however, is bound to lead to the creation of new moorings which, in turn, will undermine all sense of happiness. Indeed, the call of happiness is a call that comes not from where or what one is, but from elsewhere, from the beyond of what one is. There is, in consumer societies, no code that says: ‘Here you be well and happy.’ The ‘dominant code’ in consumer societies merely shouts: ‘Consume!’ (see again Hall et al. 2008). If you listen carefully, it sounds, between the lines, like: ‘Consume everything. Consume even your own self!’ This is a recipe (a code, if you wish) for eternal agony. But the agony of consumer societies has much deeper roots. Of course one might argue that this agony is part and parcel of the human condition itself. If Bergson’s notion of the ‘élan vital’ is anything to go by, then the distances or gaps which the élan vital strikes unrelentingly and relentlessly in human being and in human beings, will drag the latter into endless bouts of imagined hope and fabulated disappointment. But whether or not this endless tragedy is part and parcel of human being itself (as a Nietzsche would have claimed), it is only at particular historical conjunctures that this tragedy, that is, the tragic agony of human being, surfaces fully in experience and consciousness. It emerged with

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full force in the immediate aftermath of the Second World War. It was existentialism that managed to express this sense of agony most aptly. Existentialists such as Sartre realised that submission to law, or submission to code, is, always and unavoidably, chosen submission. The self can, at any time, under any circumstance, choose not to submit. The self is built around ineradicable indeterminacy. The self is radically free. It is radically free to make its ‘original choice’, that is, its fundamental ‘life project’, as Sartre called it in his Being and Nothingness. It is radically free to modify its life project, or throw it overboard and choose another one. At any time. Anywhere. Everywhere. The self can always choose to flee particular law, or code. It can always refuse to codify and be codified in particular ways. And that freedom is indeed ineradicable. But here is the tragedy: in choosing its life project, that is, in fleeing a particular constellation of law and code, the self is bound to fail in sheer paradox. The move away from the particularity of law and code will guide, steer, and colour the construction, in flight as it were, of the life project. That which is not chosen, that which is being fled from, that which one refuses to submit to, continues to keep a firm grip on the process of flight. But the paradox is ever deeper that that. In the very process of flight from code, or, if you wish, in the very process whereby the life project is chosen, or modified, the self submits to another code. It constructs its life project, or modifies it, around a new code on which it will depend. In an age in which the self must be ‘authentic’ (to use existentialist terminology) – or, in other words, sovereign – this terribly tragic and inescapable paradox of human being fuels perpetual agony. In choosing, the choosing self acquires and simultaneously loses its sovereignty. Sartre’s nothingness, Badiou’s void, Bergson’s gaps: none of those could ever be filled up with a code that cements happiness into a self’s permanently stable ‘in-itself’. That which was not chosen will not go away. It remains present, in the infinite expanse of duration (says Bergson), forming both the condition of possibility and the condition of impossibility of any choice emerging. All choice is absurd choice. All sovereign choice is absurd sovereign choice. Every piece of chosen happiness precludes others. Every single attempt to close the void of indeterminacy – any such attempt could only be choice – keeps it open. Human life, claimed Albert Camus (who always resisted the label of ‘existentialist’, it should be noted in passing), is a labour of Sisyphus (Camus 1942). One way of living with this agonising tragedy is to look it squarely in the face, and just … live with it, that is, accept its inevitability, and carry on with trying to live as creative a life as possible. That is Nietzsche’s and Camus’ route. But in a post-constructive age, in an age of aspiring

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sovereigns, it is very hard to accept anything. It is very hard for them to accept even the physical and biological exigencies of human life. They do, however, have a solution of sorts at their disposal. They could always choose to cut up or partition life in temporary, localised zones or ‘situations’, and then choose to regulate and control life in each of those zones by circulating particular codes or ‘passwords’. Those will have been chosen in all imagined, fabulated sovereignty. And they will last only for as long as the situation endures – aspiring sovereigns would never accept a ‘password’ growing into an ‘order word’. They would never accept the emergence of a proper, rigid code. The form of life in which this solution is predominant, Deleuze hints, is called ‘control society’.

Acknowledgements The author wishes to thank Lieve Gies at University of Leicester and Don Crewe at Leeds Metropolitan University for comments on some of the topics expounded here in this chapter. To the participants in a seminar organised in December 2010 on the topic of this chapter at Artevelde University College (Ghent, Belgium), who all contributed significantly to the discussion of the ideas in it: many thanks. Allow me to mention, in particular, Raf Debaene (‘les mobiles’), Peter Colle, Marc De Kesel, Joost Bonte, Denoix Kerger, Robert Crivit, Bart Van Hoorebeeck, Gudrun VandeWalle, and Pascal Tuteleers. Thanks also to Steve Hall at Northumbria University who suddenly mentioned Alain Badiou’s work during a conversation we were having about sovereignty. It made me think. I very much valued the discussions I had with James HardieBick. If it hadn’t been for those discussions this collection at hand might never have actualised at all. All remaining errors are the author’s. Thanks also to Springer Publications for allowing me to use here two short passages from my paper on ‘Jackson Pollock’s Flight from Law and Code: Notes on the Dawn of Control Society’.

References A. Badiou (2007) (1988) Being and Event (London: Continuum). A. Badiou (2000) [1997] Deleuze: The Clamor of Being (Minneapolis: University of Minnesota Press). Z. Bauman (2008) The Art of Life (Cambridge: Polity). H. Bergson (2009) [1911] Creative Evolution (New York: Henry Holt and Champaign, IL: Book Jungle). H. Bergson (1932) Les Deux Sources de la Morale et de la Réligion (Paris: Presses Universitaires de France).

Ronnie Lippens 193 A. Camus (1999) [1942] Le Mythe de Sisyphe (Paris: Gallimard). D. Crewe (2010) ‘Power: The Supposed Definitions Revisited’, Journal of Theoretical and Philosophical Criminology, 2 (2): 22–68. G. Debord (1967) La Société du Spectacle (Paris: Buchet-Chastel). G. Deleuze (1988) Foucault (London: Athlone). G. Deleuze (1995) ‘Postscript on Control Societies’, in G. Deleuze (ed.) Negotiations (New York: Columbia University Press), pp. 177–82. G. Deleuze and F. Guattari (1972) Anti-Oedipe (Paris: Editions de Minuit). G. Deleuze and F. Guattari (1980) Mille Plateaux (Paris: Editions de Minuit). F. Fukuyama (1989) ‘The End of History’, The National Interest, 16 (Summer): 3–16. S. Hall, S. Winlow and C. Ancrum (2008) Criminal Identities and Consumer Culture: Crime, Exclusion and the New Culture of Narcissism (Collumpton: Willan). R. Lippens (2010) ‘Law, Code and Late Modern Governance in Prophetic Painting: Notes on Jackson Pollock, Mark Rothko and Gilles Deleuze’, in J. Broekman and A. Wagner (eds) Prospects of Legal Semiotics (Dordrecht: Springer Publications). R. Lippens (2011a) ‘Jackson Pollock’s Flight from Law and Code. Notes on the Dawn of Control Society’, International Journal for the Semiotics of Law, 24 (1): 117–38. R. Lippens (2011b) ‘Law, Code and Governance in Prophetic Painting. Notes on Early, High, and Late Modern Forms of Life and Governance’, in A. Wagner and R. Sherwin (eds) Law, Culture, and Visual Studies (4 vols) (Dordrecht: Springer Publications). S. Lyng (2004) ‘Crime, Edgework and Corporeal Transaction’, Theoretical Criminology, 8 (3): 359–75. S. Lyng, R. Matthews and W. J. Miller (2009) ‘Existentialism, Edgework, and the Contingent Body: Exploring the Criminological Implications of Ultimate Fighting’, in R. Lippens and D. Crewe (eds) Existentialist Criminology (London: Routledge). M. Maffesoli (1996) The Time of the Tribes (London: Sage). J. Murray (2007) ‘Deleuze & Guattari’s Intensive & Pragmatic Semiotic of Emergent Law’, International Journal for the Semiotics of Law, 20: 7–32. F. Nietzsche (1999) [1908] Ecce Homo (London: Penguin). K. Palmås (2009) ‘Bodies without Bodhis’, posted at www.eurozine.com. R. Pieterman (2008) De Voorzorgcultuur. Streven naar Veiligheid in een Wereld vol Risico en Onzekerheid (Den Haag: Boom Juridische Uitgevers). J.-P. Sartre (1960) Questions de Méthode (Paris: Gallimard). J.-P. Sartre (1983) [1939–40] Les Carnets de la Drôle de Guerre (Paris: Gallimard). J.-P. Sartre (2003) [1943] Being and Nothingness (London: Routledge). B. de Spinoza (1996) [1677] Ethics (London: Penguin).

Index Abbau 145–6 absolute other, the 166–7 absolute sovereignty 188–90 abstract humanism 7, 42–3 accountability 109; policing 111 action heroes 30 Adler, J. M. 156 advanced liberalism 69–70 Aeschylus, The Oresteia 7, 63–6, 82 Age of Reason 61 alienation 108, 118 Althusser, L. 11, 43, 53, 88–9 ambiguity 40–1 Anderson, E. 28 Anderson, T. C. 100–1 anguish 39 anthropocentrism 7, 43 anxiety 12, 25; and freedom 76, 112 appearance 38 Archaeology of Knowledge (Foucault) 47 Arp, K. 101, 103 Art of Life, The (Bauman) 190 Ashworth, P. 21, 21–2 Asylums (Goffman) 21 Auschwitz 98, 107n3, 169 authentic existence 76 authenticity 8, 32, 43, 76–7, 113, 191; in penal decision-making 80–1; and policing 126 Autobiography of Malcolm X, The 9, 134–5, 151 autonomy 87 bad faith 6, 8–9, 15, 18–20, 22, 33, 39, 87, 113, 115, 125 badass, power of the 28–9 Badiou, A. 186, 188, 191; Being and Event 184 Bauman, Z. 62; The Art of Life 190 Bazemore, G. 138–9, 145 Beauvoir, S. de 11; The Ethics of Ambiguity 101–2; on freedom 8, 101–3, 104

Beccaria, Cesare 61 Beck, U. 12 Beck-Gernsheim, E. 12 becoming 3, 4, 179, 184 Behaviour in Public Places (Goffman) 26 being 9, 17–18, 37–8, 94, 111, 149, 184 Being and Event (Badiou) 184 Being and Nothingness (Sartre) 6, 9, 13, 37–40, 85, 87, 88, 95, 117, 191; Goffman on 16–17; patterns of bad faith 19; phenomenological ontology 17–18 Being and Time (Heidegger) 131, 131–4 being-for-itself 17, 38–40, 94, 111–12, 161 being-in-itself 17, 20, 38–40, 94–5, 111, 161 being-in-the-world 41, 131; as-criminal 137, 142, 143; as-offender 9, 131, 145–6; as-other-than-offender 148–52; and care 132–3; and desistance 130; Heidegger on 131–4; Malcolm X 134–5; with others 133, 136, 163; and restorative justice 134, 142–6; and social existence 135–7; temporal dimension 132 being-with 131, 133–7, 136–7, 142, 145–6, 148–50 Bentham, Jeremy 61, 89–90 Bergson, H. 10, 11, 184, 185, 190, 191; Creative Evolution 179–84, 182, 188; Les Deux Sources de la Morale et de la Réligion 180–2 Bettelheim, B. 96–100, 102–3 Bhopal 156, 159 biographies 12 Birth of Biopolitics, The (Foucault) 58 Bittner, E. 108 Bluhm, H. O. 99–100

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Index Bonds, Stacy 124 Braidwood Inquiry, the 122, 123, 124 Braithwaite, J. 138, 144 Buchenwald 96–100 bystander intervention 15 Camus, A. 12, 191 capitalism 61 Caputo, J. 143, 143–4, 146 care structure, the 132–3 Cartesian dualism 45–6 change, and choice 4 chaos theory 3 Chicago School 30 Childhood of a Leader (Sartre) 87 choice 1–2, 8, 9, 12, 177; and absolute sovereignty 188–90; authentic 113; and change 4; and codes 191; and consciousness 3–4; Constabulary Ethic and 116–17; under constructive conditions 186; and criminological reflection 4–5; exercise of 70; extreme situations 96–103; intentional 5; and new forms of life 182–3; pluralization of 75–6; radically responsive 177–8, 186; reflective agony of 6; Sartre on 18, 86, 95–6, 104, 182–3; sovereign 10, 191 civic responsibility 71 civil society 66–7, 71, 118, 120–1 codes 177–8, 181–2, 184–5, 186, 189, 191, 192 Cohen, S. 91, 92–4, 96, 104 communication 176 community, and restorative justice 139, 140–2 compassion 102–3 complexity theory 3 concentration camps 8, 85, 96–103, 107n3, 169 conduct 56, 57–8 conducts 38, 41 conformity 76 consciousness 1–2, 5, 104–5, 112; and choice 3–4; Foucault and 46; and intentional action 2; and

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new forms of life 182–3; Sartre and 17–18, 38, 94–6, 183 conservationism 187 Constabulary Ethic 9, 108–27; and bad faith 115; choice and 116–17; decision-making 116; the Existential Constable 113–17, 121–5, 125; facticity and 113–15; and freedom 111–13; liberal scholarship on 110–11; need for 126; normative standard 119–20; perspectives 115; practical example 121–5; radical 126–7; and responsibility 109, 116, 126; Sartre’s contribution to 126–7; and subject position 117; usefulness of the practico-inert 117, 117–20 Constitutive Criminology (Henry & Milovanovic) 3 constructive societies 186–7 consumer society 187 consumerism 176–7 consumerist self, the 190 consumption: achieving happiness through 190; action of 31 contingency 3, 5 control 175–6, 178; total 186–7, 188–9 control society 10–11, 175–8; control in 175–6, 178; existential agony of 190–2; form of life 176–8; and mystical sovereignty 184–90; radically responsive choice in 177–8 controlling mind problem 159 corporate prosecutions 159 Creative Evolution (Bergson) 179–84, 182, 188 creativity, mystical 185 Crewe, D. 9–10, 156–72, 185 crime 9–10; definition 156, 158, 159; and governmentality 71–2; perspective 156–7, 158–9, 170–2; rational choice models 30; responses to 15; as a social fact 158; as transcendence 29–31; transnational 110 Crime, Shame and Reintegration (Braithwaite) 138 Crime and Modernity (Lea) 120–1 crime control 69–70

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Index

crime prevention, and governmentality 72 criminal action, attraction of 30 criminal justice 63; emotionalisation of 66–9; private participation 78–81; and reason 61; role of the individual 77; they-self 142; thrownness 142; vengeance 63–6 criminalisation 171 criminality 130, 146–7 criminals, responsibility 129 criminogenic situation, the 69–70 criminological reflection: and choice 4–5; and existentialism 4–6 criminology: crime perspective 156–7, 158–9, 170–2; and ethics 157, 161–2; harm perspective 156–7, 159, 170–2; preventative turn 70; values 157 Critique of Dialectical Reason (Sartre) 9, 13, 118 Dachau 96–100, 107n3 Dasein 131–4, 163 de Haan 67 Debord, G. 187 decision making, authentic 76–7 Decker, S. H. 31 Deleuze, G. 11, 176, 178, 179, 180, 182, 183, 185, 188, 192; Difference and Repetition 163; ‘Postscript on Control Societies’ 175 Deleuzoguattarism 3 Descartes, R. 45–6, 166 desistance 129, 130, 152; context 130; existential-phenomenology 148–52; history of 146–8; of Malcolm X 151; process of 150–2; redemption 151; and restorative justice 152; retrieval of being 149–50; social contexts for 150; and the they-self 148; and thrownness 135; transformative process 148–9 detachment 94–5 de-traditionalisation 12 Difference and Repetition (Deleuze) 163 disciplinary societies 175

Discipline and Punish (Foucault) 47–52, 58, 80, 89–90 discourse, Foucault on 49, 53–4 discourse analysis 50 Dits et Écrits (Foucault) 42–5, 46, 47, 47–52, 52–3 dramaturgy 24–6, 32 Durkheim, E. 16, 80, 88 Dziekanski, Robert 121–5 ecology 187 edgework 29–30, 187, 187–8, 189 élan vital 179–80, 190 emotional expression 78 emotionalism 81 emotions 78–9; social interaction and 74–5 Encounters (Goffman) 26 engagement 9 Enlightenment, the 61, 67 Enron 156, 159 equivocation 40–1 Erbe, G. 138–9 essence 1 ethics 109–10, 113. see also Constabulary Ethic; and criminology 157, 161–2; and existentialism 157, 161–2; Foucault on 56–7; and governmentality 56–7; Levinas and 172n4; radical 126–7 Ethics (Spinoza) 179 Ethics of Ambiguity, The (Beauvoir) 101–12 existence 5; Merleau-Ponty and 40–2; Sartre and 37–40 existential agony, of control society 190–2 Existential Constable, the 113–17, 121–5, 125 existentialism 1–4, 10, 11–13, 62–3, 88; and criminological reflection 4–6; and ethics 157, 161–2; Foucault’s critique of 7, 42–5; and freedom 161–2; and new forms of life 182–4; and submission 191 Existentialism and Humanism (Sartre) 86–7, 109

Index existential-phenomenology 9, 130–1, 131–5; of desistance 148–52; of restorative justice 142–6 experience, Foucault and 47–52 fabulation 180–1, 190, 192 Face, The 166–7, 168–9 face-work 15, 27, 32 facticity 113–15 fairness 66 false consciousness 172n3 false rationalities 168 Farrall, S. 147 Ferrell, J. 29–30, 30 Flies, The (Sartre) 64 force, use of 9, 119, 121–5 Foucault, M. 6–7, 11, 36–7, 42–58; analytical strategies 50–2; archaeology 49–50; Archaeology of Knowledge 47; The Birth of Biopolitics 58; Collège de France lecture 49; and conduct 56, 57–8; and consciousness 46; and the constitution of the subject 89–90; critique of existentialism 7, 42–5; definitions of power 55; denial of ontological objectivity 45–6; Discipline and Punish 47, 58, 80, 89–90; on discourse 49, 53–4; Dits et Écrits 42–5, 46, 47, 47–52, 52–3; epistemological position 45–7; and ethics 56–7; and experience 47–52; and freedom 44–5; genealogy 50–1; and governance 54–7, 57–8; and government 36; governmentality 70–1, 81; History of Sexuality 36–7, 53; history of subjectivity 52; and interpretation 51; modes of subjectivation 52–4; and power 44–5, 50, 52, 53, 54–6, 89–90; and self-direction 44, 56; self-practices 47–8, 50; social-constructivism 46–7; statements 48–9; truth games 37 Frankl, V. E. 96, 98, 100, 101, 102, 103, 104, 104–5, 107n3 freedom 8, 10, 12, 33; and anxiety 76, 112; Beauvoir on 8,

197

101–3, 104; and choice 2, 113; and Constabulary Ethic 111–13; and ethics 56–7; evidence for 111–12; and existentialism 161–2; fleeing 20; Foucault and 44–5; individual 85–7; last 100; Levinas on 165–6; Merleau-Ponty and 42; moral 102–3, 104; ontological 101–2, 103, 104; prisoners 96; radical 4, 10, 177, 183; Sartre on 8, 17–18, 85, 85–7, 95, 100–1, 103, 161; total 101; ultimate 101, 105 Freedom and Command (Levinas) 166 Freiberg, A. 69 Gadd, D. 147 gambling 29–30 Garland, D. 67–8, 69, 69–70, 71, 72–3 Garot, R. 28 Gavrielides, T. 138 genius 181–2 genuine rationalities 169 Gestapo, the 97–8 Giddens, A. 8, 73–5, 77 global-risk society 12 Goffman, E. 6, 11, 15–17, 20–33, 91; action of consumption 31; Asylums 21; Behaviour in Public Places 26; on Being and Nothingness 16–17; comparison with Sartre 16–17, 31–3; dramaturgical model 24–6, 32; Encounters 26; on gambling 29–30; and identity 21–2, 22–3, 25; influence 15–16, 24; influences 16–17; Interaction Ritual 26, 29; methodology 22; moral career notion 23; The Presentation of Self in Everyday Life 6, 16–17, 20–1, 21–2; on public behaviour 26–9; Relations in Public 26; and risk-taking 29–31; and total institutions 91–2, 93, 104; use of Sartre 21–2; ‘Where the Action Is’ 29–31 government, Foucault and 36 government authorities 71

198

Index

governmentality 70–2, 81; and ethics 56–7 Greece, Ancient, punishment in 63–6 Green, S. 7–8, 61–83 Guattari, F. 11, 179, 180, 182, 185, 188 guilt, Levinas on 172n1 Habermas, J. 187 habit 42 Hadfield, P. 6, 15–33 happiness, through consumption 190 Hardie-Bick, J. 1–13, 15–33, 85–105 harm 138–9; attribution of 171; definition 141, 159–60; healing 139–40; perspective 156–7, 159, 170–2 Harrer, S. 51 Hegel, G. 16 Heidegger, M. 9, 11, 12, 16, 88, 150, 157, 161, 163, 164, 166; Being and Time 131, 131–4; on being-in-theworld 131–4; and care 132–3; existential-phenomenology 130–1, 131–5, 142–6; and human existence 131, 131–3; on inauthenticity 136; on social existence 135–7; the they-self 133–4, 136; and thrownness 135–7; on transcendence 164 Herald of Free Enterprise 156 Hillyard, P. 159–60 historical facts 114 History of Sexuality (Foucault) 36–7, 53 Hughes, E. 16, 70 Hulsman, L. 158 human agency 88 human existence: and choice 3–4; and existentialism 1–4; and indeterminacy 3; and thrownness 136 human reality 18 human security 108 human subjectivity 11 Husserl, E. 16, 17, 46, 49, 94, 161 Hutchens, B. C. 169 identity: construction of 15, 22–3, 77, 111; Goffman and 21–2, 22–3, 25; law of 38–9, 44; negotiation

of 28; self 73–4, 93, 161; social 22, 23, 33; status degradation 97–8 identity markers 23 immanence 181–2, 188, 188–9 impression management 16, 25–6, 32–3 imprisonment: experiences of 91; survival strategies 92–4 inauthenticity. See bad faith incivilities 26 indeterminacy 1, 2, 3, 5, 11, 18, 184 individual subjectivity, autonomy of 87 individualisation 12, 52–3, 81 infinite, the 166–7 infinite responsibility 10, 167–70 insecurity 73, 111 institutional arrangements, Sartre on 117–20 institutionalisation, resisting 23–4 intelligible actions 127 intentionality 2, 94 Interaction Ritual (Goffman) 26, 29 interaction rituals 24 internal psychic properties 114 intersubjectivity 161 intimacy 73–5 intuition 26 Iron in the Soul (Sartre) 95–6 Jay, M. 48 Johnston, L. 70 judgement, and reason 61–3 jurisdiction 162 justice 82, 166; see also restorative justice; and choice 4–5; as cultural process 73; due process 25; emotionalisation of 66–9; and power 161; private dimension 72–7; retrospective 68; state administration of 67; for victims 67 Kant, I. 36, 49, 109 Karstedt, S. 68, 78–9 Katz, J. 28–9, 74; The Seductions of Crime 30 Kierkegaard, S. 13, 76, 88, 161 knowledge 61 Kogon, E. 96, 98, 100 Kruks, S. 90

Index Laster, K. 69 law, rule of 66–7 Lea, J. 120–1 Les Carnets de la Drôle de Guerre (Sartre) 182–3 Les Deux Sources de la Morale et de la Réligion (Bergson) 180–4 Levi, P. 96, 98, 102, 104, 169 Levinas, E. 10, 11, 157–8, 163, 163–72; concept of The Face 166–7, 168–9; On Escape 164–5; ethic 172n4; on freedom 165–6; Freedom and Command 166; on guilt 172n1; and obligation 168; Otherwise than Being 168; principle of substitution 168–70; on responsibility 167, 167–70, 170–2; theologism 172n7; Time and the Other 165; Totality and Infinity 167, 168; and transcendence 163–6 Lévi-Strauss, C. 88 liberal realism 109, 110–11 life, form of: and choice 182–3; and consciousness 182–3; control society 176–7; emergence of new 178–84; existentialism and 182–4; and the flight from codes 184–5; sovereignty and 184–90 life, partitioning 192 life projects 191 lifestyle choices 75–6 Lippens, R. 1–13, 90–1, 175–92 liquid modernity 190 Loader, I. 67 Locke, John 61, 66 Lofland, J. 16, 21 Logotherapy 107n3 Lyng, S. 30, 77, 187–8 Macquarrie, J. 23 Maffesoli, M. 175–6, 187 Malcolm X. 134–5, 151 Marcel, G. H. 13, 88 Maruna, S. 147 Marx, K. 42, 118, 172n3 Marxism 13 Matza, D. 147 meaning, emergence of 41–2

199

Men without Shadows (Sartre) 96 Merleau-Ponty, M. 7, 11, 37, 47; comparison with Sartre 41; and existence 40–2; and freedom 42; and meaning 41–2; and objective thought 40–1; sedimentation 41, 42 Messner, C. 6–7, 36–58 Michael, J. 156 Miller, P. 71 Moat, Raoul 33 modernity 3, 5–6, 61, 67, 73–5, 77 Modernity and the Holocaust (Bauman) 62 Montaigne, M. de 50 moral career 23 moral transcendence 30 morality 161 Morin, E. 56 mystical creativity 185 mystical sovereignty 184–90 national security 111 natural properties 113–14 Nausea (Sartre) 85 neo-liberalism 7, 72, 187 neo-tribal situations 175–6, 187 new, the, generation of 181–2 Nietzsche, F. 13, 76, 161, 176, 179, 190 nihilation 94–5, 112 nodal activity 6 nomoi 162, 172n5 norms 115 nothingbutness 104 nothingness 2, 182–3, 188–9 notoriety 30, 32–3 objective thought 40–1 obligations 26, 168 offenders: being-in-the-world as 145–6; and community 141–2 O’Malley, P. 69, 71, 72 On Crimes and Punishments (Beccaria) 61 On Escape (Levinas) 164–5 ontological objectivity, Foucault’s denial of 45–6 openness 1 order, construction of 175

200

Index

order words 175 Oresteia, The (Aeschylus) 7, 63–6, 82 O’Rourke, D. 8–9, 108–27 Other, the 162–3, 165–6, 169–70, 171–2; absolute 166–7; radical 163–4 Otherwise than Being 168 Otherwise than Being (Levinas) 168 pan-determinism 104–5 panopticon, the 89–90 passwords 175–6, 178, 192 Pavlich, G. 145 penal decision-making 7–8, 11, 61–83; adaptation 63; advanced liberalism and 69–70; authenticity in 80–1; context 61–3; emotional participation 78–9; emotionalisation of 66–9; governmentality 70–2, 81; private dimension 72–7; private participation 78–81; and reason 61–3; responsibilisation 69–72; role of the individual 77, 81; social relations and 72–7; vengeance 63–6; and victims 67 performing self, the 15, 32, 33 Perpich, D. 170 personal meaning 107n3 personal space 27 phenomenological ontology 6, 7, 15, 17–18, 21–2 Point Break (film) 188 policing 8–9, 108–27; accountability 111; and authentic action 126; authority 120–1; and choice 116–17; communicating 125; context 110; definition 108, 125; development of 125; the Existential Constable 113–17, 121–5, 125; facticity and 113–15; institutional standard and values 119–20; institutional-inertia 119; legitimacy 120; liberal scholarship on 110–11; morality of intervention 125–6; need for 125; norms 115; practical example 121–5; practico-inert features 119–20; realpolitik 111; and responsibility 126;

responsibility for 70, 71; totality of 121; use of force 119, 121–5 Polizzi, D. 9, 129–52 Pollock, J. 185 post-constructive self, the 186–7 post-disciplinary societies 175, 176 postmodernism 3, 62–3 ‘Postscript on Control Societies’ (Deleuze) 175 post-structuralism 2 potential 180 power: and the definition of harm 159–60; definitions of 55; disciplinary practices of 89–90; Foucault and 44–5, 50, 52, 53, 54–6, 89–90; governmental mode of 53; and justice 161; and mystical sovereignty 185; orienting force of 56; relations of 52, 54–5, 89–90; structure of 55–6 practico-inert, the 9, 117, 117–20, 126 praxis 42, 44–5, 110, 118 presence to itself 39–40 Presentation of Self in Everyday Life, The (Goffman) 6, 20–1, 21–2; Being and Nothingness quotations 16–17 Principles of Morals and Legislation, The (Bentham) 61 prison: claustrophobia 93; survival strategies 92–4, 104 prisoners: experience of claustrophobia 93; freedom 96; resistance 91, 93–4; status degradation 97–8; surveillance of 89–91; survival strategies 99–100, 104 public behaviour, Goffman on 26 public morality 76 punishment: in Ancient Greece 63–6; and reason 61; and restorative justice 145; sociology of 79–80; spectacle of 78, 89; and vengeance 63–6 pure relationship 73–5 Quinney, R. 140 radical sovereignty 177–8 rational choice models 30

Index rationalities 168–9 reason: ascendance of 82; and judgement 61–3; and vengeance 65–6 redemption 151 reflection 1, 5, 94, 183 reflective action 5–6 reflective agony 6 reflective modernity 5–6 reflexive modernity 5 Relations in Public (Goffman) 26 remorse 64 reputation 33 respectfulness 26 responsibility 8, 9, 10, 12, 64, 109, 146, 149; absolute 169–70; civic 71; and Constabulary Ethic 116, 126; individual 72; infinite 10, 167–9; Levinas on 167, 167–70, 170–2; mere 161–2; for the other 169–70; perpetrators 129, 141, 142, 143; Sartre and 18, 86–7, 117; universal 162–3, 171 restorative justice 9, 129–31, 152; and the adjudicative they-self 144–5, 146; and being-in-the-world 134, 142–6; and community 139, 140–2; context 130; definition 137–8, 139; and desistance 152; existential-phenomenology of 142–6; goals 139–42; healing harm 139–40; history of 137–9; pragmatic turn 144; principles of 138–9; and punishment 145; purpose 139; and recovery 143; stakeholders 138–9, 140–1; and the they-self 134; and violence 143–4 restorative process, the 129–31, 152; and existential-phenomenology 143; goals 139–42; healing harm 139–40; responsibility for 129; re-unification with community 141–2 retribution 64–5, 66, 67 retrospective justice 68 ‘R.I.P. Raoul Moat’ (Facebook page) 33 risk-taking 16, 29–31, 187–8, 189–90 ritual honour 30, 33 ritual order 24, 31

201

roles: conforming to 20; performance 21 Rose, N. 71 Rousseau, J.-J. 66 Royal Canadian Mounted Police 122–5 rudeness 27 Sartre, J.-P. 6, 8, 10, 11, 12–13, 15–22, 42, 49, 77, 88; account of authenticity 43; and anxiety 76, 112; bad faith 6, 8–9, 15, 18–20, 22, 33, 39, 87; and being 37–9; Being and Nothingness 6, 9, 13, 16–17, 19, 37–40, 85, 87, 88, 95, 117, 191; Childhood of a Leader 87; on choice 1, 18, 86, 95–6, 104, 182–3; comparison with Goffman 16–17, 31–3; comparison with Merleau-Ponty 41; conducts 38, 41; and consciousness 17–18, 38, 94–6, 183; contribution to Constabulary Ethic 126–7; Critique of Dialectical Reason 9, 13, 118; and ethics 109–10, 113; and existence 37–40; Existentialism and Humanism 86–7, 109; The Flies 64; Foucault’s critique of 42–5; on freedom 8, 17–18, 85, 85–7, 95, 100–11, 103, 161; Goffman’s use of 21–2; and human nature 87; influences 16; on institutional arrangements 117–20; Iron in the Soul 95–6; Law of Identity 38–9, 44; Les Carnets de la Drôle de Guerre 182–3; Men without Shadows 96; Nausea 85; and new forms of life 182–3; on nothingness 2, 182–3; phenomenological ontology 6, 7, 15, 17–18, 21–2; and power 44–5; the practico-inert 9, 117–20, 126; presence to itself 39–40; and responsibility 18, 86–7, 117; and submission 191; What is Literature? 109 Saussure, F. de 88 Second Treatise of Government (Locke) 61

202

Index

Second World War 62, 85, 184, 184–5, 186, 191 sedimentation 41, 42 Seductions of Crime, The (Katz) 30 self 112; authentic 73–4, 166, 191; consumerist 190; criminal 147; life projects 191; presentation of 16, 20–2; sovereign 191; totality of 166 self-constitution 53 self-deception 115 self-determination 103 self-direction 44, 56 self-identity 73–4, 93, 161 self-protection 93–4 self-transformation 147 Serge, Victor 92 shame 78–9 Shearing, C. 70 Sheptycki, J. 8–9, 108–27 Simmel, G. 16 situational impropriety 28–9 situational withdrawal 93 Smith, P. 79–80, 82 social actors 21–2 social approval 31 social attitudes 75–6 social bonds, breakdown of 75–6 social conformity 76 social contract, the 66–7 social existence, Heidegger on 135–7 social harm 9–10 social identities 22, 23, 33 social institutions 117–20; legitimacy 119 social networking websites 32–3 social reality 118 social relations 15; dramaturgical model 24–6; and emotion 74–5; intimate 73–5; penal decisionmaking and 72–7 social structure 88 society of the spectacle, the 187 sociological criminology 24 sociological facts 114 Sociologism 88 Sociologism and Existentialism (Tiryakian) 88 Socrates 61

Solomon, R. C. 13 Soper, K. 90 sovereign choice 10 sovereign potential, safeguarding of 189–90 sovereignty: absolute 188–90; and choice 191; fabulated 192; mystical 184–90; and power 185; radical 177–8; responsive 187; and self 191 Spinoza, B. de, Ethics 179 SS, the 97–8, 102–3 status degradation 97–8 Stenson, K. 71 strangers, human interaction between 26–9 street crime 28–9 street persona 28 street wisdom 28–9 structuralism 2, 88–9 subjection 52–3 subjectivation, modes of 52–4 subjectivity 44; history of 52; new forms of 55 subject-object-problem, the 45–6 submission 191 substitutability 167, 168–70 surface apparatus, breaking through 149 surveillance 89–91 system tendencies 118 Tavares, Buddy 124 Taylor, C. 114 Taylor, L. 91, 92–4, 96, 104 theoretical humanism 43 they-self, the 9, 133–4, 136, 142, 142–3, 165; adjudicative 144–5, 146; criminal 149; and desistance 148; Malcolm X 134–5; and restorative justice 134; social 150 thought 40–1 thrownness 23, 135–7, 142 Time and the Other (Levinas) 165 Tiryakian, E. A. 88 Tombs, S. 159–60 total institutions 8, 85, 91, 91–4, 103–5; compassion in 102–3; definition 91;

Index extreme situations 96–103; life in 91–2; self-protection 93–4; situational withdrawal 93; status degradation 97–8; survival strategies 91–4, 99–100, 104; underlife 91, 104 totalitarianism 184, 186 totality 163, 166 Totality and Infinity (Levinas) 167 tradition, breakdown of 75–6 transcendence 16, 113, 114, 115; crime as 29–31; Heidegger on 164; Levinas and 163–6; moral 30; and the need for escape 164–5; of transcendence 166 trials, dramaturgical model 24–6 truth games 37 underlife 91–2, 104 Union Carbide 159 universal order 175 values 87; criminology 157 Vancouver International Airport, tazer incident 9, 121–5 vengeance 63–6, 82; and reason 65–6

203

victim impact statements 68 victimisation 68, 129, 140, 152, 159 victims: harm 140; marginalization of 67; power of 68; significance of 67–8 Victim’s Commissioners 68 violence 159; and restorative justice 143–4 virtual assemblages 180 vitalism 10, 178–84 void, the 1–2, 3, 184, 188–9, 191 Walgrave, L. 145 walking corpses 98–9 Warnock, M. 19, 20, 161–2 Weber, M. 55 welfare state 5, 71 What is Literature? (Sartre) 109 ‘Where the Action Is’ (Goffman) 29–31 Wittgenstein, L. 125 Wright, R.T. 31 Young, J. 30 Young, P. 72–3 Zehr, H. 137–8 Zimmerman, M. 132

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