‘Contractual Governance’ of Deviant Behaviour

Publication Date01 Dec 2003
AuthorAdam Crawford
DOIhttp://doi.org/10.1111/j.1467-6478.2003.00267.x
JOURNAL OF LAW AND SOCIETY
VOLUME 30, NUMBER 4, DECEMBER 2003
ISSN: 0263-323X, pp. 479±505
`Contractual Governance' of Deviant Behaviour
Adam Crawford*
This paper seeks to analyse and make sense of the growing role and
implications of forms of `contractual governance' that are emerging in
diverse fields of social life and public policy in England and Wales,
both within and beyond criminal justice. Collectively, these modes of
control mimic and deploy `contracts'and `agreement'in the regulation
of deviant conduct and disorderly behaviour. The rise of contractual
governance is explored against the background of a crisis in penal
modernism and the challenge o f crime prevention. Contra ctual
governance in a number of fields is outlined and discussed, including
home-school agreements in education; acceptable behaviour contracts
and introductory tenancies in social housing; restrictive covenants in
private residential neighbourhoods; domestic security and private
residential patrols and youth offender contracts. It will be argued that,
in these contexts, contracts seek to induce conformity and order
through modes of governing the future that depart significantly from
traditional modes of policing and that recast social obligations in
forms of parochial control.
The modern technological world is, par excellence, one founded on contract.
Specialisation and exchange run rampant. Constant planning is presupposed.
Exercise of choice is endemic . . . Power and its exercise are everywhere. Far
from being dead, contract has swept the world ± as a pessimist might say ± like
the plague.
1
The modern state is being transformed. The horizons of state authority are
increasingly being brought into question along with its capacity to guarantee
479
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*Centre for Criminal Justice Studies, Law School, University of Leeds, 18
Lyddon Terrace, Leeds LS2 9JT, England
This paper was first presented as an Inaugural Lecture at the University of Leeds, 15
October 2002. It has benefited from comments by and discussion with John Braithwaite,
Susan Flint, Stuart Lister, David Nelken, Tim Newburn, Clifford Shearing, and Peter
Vincent-Jones. In addition, I would like to acknowledge the constructive comments of the
three anonymous reviewers.
1 I. Macneil, The New Social Contract (1980) 71.
order. In this context, it may not be particularly surprising that the ultimate
symbol of state sovereignty ± the penal sanction ± itself is in crisis; being
excavated, supplanted, and supplemented by more fragmented and plural
forms of control. I wish to argue that across a wide range of areas of social
life, from housing and education to community safety and into criminal
justice processes themselves, the contractual form looms large. Contractual
governance, as metaphor and instrument, represents a pre-eminent form of
social regulation in today's individualistic consumer age. In this light, the
`new social contract' (to use Macneil's phraseology) may be less the
Hobbesian compact by which society (at the level of the nation state) is
united but, rather, consists of a complex mesh of `parochial contracts' into
which people are embedded and across which people pass in their everyday
encounters and interactions. Often they do so without ever realizing it. These
`parochial contracts' constitute the regulatory framework for the diverse
`zones of governance' that, through loose chains and interlaced networks,
constitute contemporary social order.
The rise of `governance through contracts' is intimately bound up with
transformations in the capacity and competency of the modern state.
Successive governments have fostered the disaggregation of `purchaser' and
`provider' roles, and sponsored subcontracting and the introduction of quasi-
markets.
2
Here, autonomy, freedom, and choice have become the totems of
the modern age. The contemporary political fervour for contracting out state
functions and the devolution of state activities to the commercial, private,
and volu ntary se ctors ha s reache d parts pr evious ly deeme d to be
inconceivable, notably in the field of criminal justice. This privatization
and voluntarization of state functions and activities has been accompanied by
the rise of new regulatory institutions, mentalities, and techniques. The new
regulatory state of `less government but more governance' is quintessentially
one in which governance operates through a maze of contracts. Osborne and
Gaebler's prescription for governments to `steer more but row less' is being
realized not by hands on a tiller but by contracts and their monitoring
through forms of performance measurement.
3
Direct command and control
are being substituted by forms of `regulated self-regulation'. In this,
governance is no longer just the province of the state. Private forms of
governance are more likely to be founded on contractual rather than social
obligations.
My interest in this paper is only partly concerned with the direct
contracting out of state activities and the forms of regulation used to
facilitate this new relationship between state, market, and civil society. I
wish to focus upon the broader rise of contract-like instruments and the
manner in which `regulated self-regulation' informs the way in which
480
2 C. Hood, `A Public Management for all Seasons?' (1991) 69 Public Administration
3±19.
3 D. Osborne and T. Gaebler, Reinventing Government (1992).
ßBlackwell Publishing Ltd 2003

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