A Provocative Essay on Law and Order

Recently, Jacobin, a new radical left journal, published an essay by Mike Konczal of the Roosevelt Institute on how the pro-market right came to embrace mass incarceration, which draws heavily on the work of the normative political theorist Bernard Harcourt. There are many passages that conservatives will find objectionable, e.g., it is built around the idea that there is an intrinsic connection between conservatism, hierarchy, and violence. And  Konczal doesn’t give due regard, apart from a brief and somewhat dismissive reference in the opening paragraphs of the essay, to the conservative turn against mass incarceration, the subject of a forthcoming essay by Johns Hopkins political scientist Steven Teles and David Dagan. But like the best critical theory, it provides a valuable lens through which to interrogate our biases and received understandings, e.g.:

One way to understand how governments govern is to examine the ideal subject they work upon. Historically, in the United States, these subjects have ranged from the landowning farmers of the early Republic to the freedmen of the nineteenth century. The “war on crime” turns the ideal subject of governance from the industrial worker of the New Deal into two opposed figures: the potential criminal and the potential victim in need of redress.

The neoconservative and neoliberal worldviews described above can be seen as reactions against the New Deal order. The government as manager of regulatory and service agencies in the New Deal, judged by its ability to provide mass prosperity, becomes an agent of order intent on policing activities and people beyond the realm of market logic. And, crucially, government policy is seen to be legitimate only when it follows the logic of framing problems as analogous to crime and crime control.

The sociologist Loïc Wacquant has described the new government rationality associated with these intellectual revolutions as a “centaur state.” The state governs with “a liberal head mounted upon an authoritarian body.”–laissez-faire for those at the top, but “brutally paternalistic and punitive downstream.”

The neoliberal vision of economic regulation involves, at most, providing economic incentives for those at the top and, to use the popular term of behavioral economics, “nudging” people against their behavioral quirks towards optimal behavior inside “choice architectures.” Policy might, for example, subtly encourage long-term savings decisions and discourage poor nutrition choices. Other than fixing these quirks, the government should get out of the way of the free market.

The regime for the poor and those within the criminal justice system is both policed and punitive and–in accordance with behavior that exists outside natural, market ordered society–heavily regulated and ordered by the state. Welfare and aid programs become a disciplinary mechanism for the working poor, with government monitoring and sanctioning taking an increasing role in guiding behavior.

This passage strikes me as very insightful, and it sheds light on a number of recent debates, many of which did not take on a left-right configuration, e.g., the transpartisan uproar over New York city’s “soda ban” and the regulation of the body. In the next sentence, interestingly, Konczal cites the work of the late William Stuntz, who spent much of his last few years documenting the scale of mass incarceration and its impact on U.S. society. What he doesn’t mention is that Stuntz was a conservative evangelical, who wrote a brilliant article for the Weekly Standard making “the case for a police surge” as a strategy for reducing mass incarceration. This wasn’t essential information for the purposes of the essay, but it does add a complicating dimension. 

Konczal’s deeper objection, as I understand it, is to what Zygmunt Bauman called “the gardening state,” which, like a gardener, uses its power to manage undesirable elements, to exclude, to segregate, etc. He contrasts this vision against one in which an inclusive state provides free, high-quality public services to all: 

More broadly, policy has been re-designed to be concerned with “moral hazard.” Everything from health care mandates to laws surrounding mortgage and student debts are less about providing goods broadly to citizens than making sure nobody is shirking or behaving irresponsibly. Managing crime also becomes the best justification for advancing other, especially right-wing, policy agendas. Pro-life efforts to create “personhood” status for zygotes have failed, but efforts to create a special class of crimes against pregnant women have experienced major successes. Managers have shifted from using high “efficiency” wages in order to get the best work out of their employees to surveillance and security techniques. And those techniques, from widespread drug testing to monitoring against “time theft,” borrow their urgency from the language of crime.

As recently as the 1960s there was a wave of literature arguing that the prison was becoming obsolete. Now the prison stands as a key mechanism for how the government has dealt with its own powers, and this has reconfigured the role of government. The law-and-order movement invokes a radically different role of the state in relation to its citizens than the one of the post-New Deal era. Though an incomplete project, the New Deal had a model of the state as a guarantor of economic security and freedom. Now the state primarily interacts with society as a maintainer of order. For those hoping to rebuild freedom through the state, finding a new vision of how government works needs to be at the front of the agenda.

The notion of “the work-ethic state,” in which public policy is used to cultivate bourgeois norms in poor and vulnerable populations, is to Konczal deeply suspect. Interesting, it is also suspect to right-libertarians like Charles Murray, who believe that this paternalistic, discretionary approach is actually far too ambitious given the limitations of states as instruments designed to nurture and discipline. 

One of my core suspicions is that normative diversity, i.e., the fact that different people belonging to different communities have different beliefs regarding their relationship to the state, has significant implications for the social democratic project. That is, when all citizens see the state as the vehicle of their own aspirations and agendas, they behave in ways that sustain and foster solidaristic norms that the state can use to its ends. But when large numbers of citizens do not see the state as a reflection of their sensibilities — migrants who embrace a different set of solidaristic norms that are focused on kinship networks, people in historically marginalized populations who are suspicious of state power in many domains, freethinkers who feel relatively untethered to neighborhoods and kinship networks, etc. — society-wide solidaristic norms that undergird redistribution, etc., grow weaker. There are a number of possible reactions to this kind of normative diversity: we can decide that a well-functioning and genuinely inclusive state can cause normative diversity to melt away; or we can embrace a “thinner” state that is less dependent on thick solidaristic norms, and that is thus able to better accommodate normative diversity. This latter view doesn’t imply that the state shouldn’t be well-functioning or genuinely inclusive. That should always be a goal. Rather, it is rooted in greater humility regarding the possibility of “turning back the clock” on normative diversity and in greater skepticism regarding what the state can and cannot accomplish. 

Reihan Salam — Reihan Salam is executive editor of National Review and a National Review Institute policy fellow.

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