Crime in a Convict Republic
| Published date | 01 January 2001 |
| DOI | http://doi.org/10.1111/1468-2230.00307 |
| Date | 01 January 2001 |
Crime in a Convict Republic
John Braithwaite*
‘I t is much easier to extirpate than to amend Mankind.’
Sir William Blackstone
Five stages in the history of regulation are derived from the literature as a
starting framework for this essay. These stages are outlined in the first section.
This five-stage model is then confronted and revised in light of the neglected case
of the Australian penal colony. It is juxtaposed throughout the paper with the
history of the regulation of crime in the US. Australian convict society is found to
be brutal yet forgiving. We conclude that surprisingly high levels of procedural
justice and reintegration in Australian convict society drive down crime rates at
a remarkable rate in the nineteenth century. In contrast American slave society is
characterised by procedural injustice, exclusion and stigmatisation, which
delivers high crime rates. Following Heimer and Staffen’s theory, reintegration
and procedural fairness are found to arise in conditions where the powerful are
dependent on the deviant.
1
Acute labour shortage is the basis of a reintegrative
assignment system for Australian convicts to work in the free community. While
convicts change Australia in very Australian ways, we find that many of these
developments are not uniquely Australian and so a revision of the five-phase
model is proposed. The revision also implies that Foucault’s distinction between
governing the body versus governing the soul (corporal/capital punishment
versus the penitentiary) is less central than exclusion versus inclusion
(banishment versus restorative justice) to understanding all stages of the history
of regulation.
A Perspective on the History of Regulation
The historical vision of criminologists, sociologists and philosophers of
punishment alike is impoverished at this point in history. Mainstream thinkers
have limited ways of comprehending core problems of theft and violence beyond
prescribing the right dose of imprisonment. The most important alternative current,
dominated by Michel Foucault’s Discipline and Punish, is very much a ‘history of
the present’ in the way the rise of the penitentiary is read as the enduring central
question rather than a phase!2Rusche and Kirchheimer provided a Marxist history
of punishment that was ignored for its first three decades of existence, enjoyed an
honoured place in curricula for little more than a decade, only to be ignored again
with the passing of Marxism’s intellectual heyday.3
ßThe Modern Law Review Limited 2001 (MLR 64:1, January). Published by Blackwell Publishers,
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*Australian National University.
1 Carol A. Heimer and Lisa R. Straffen, ‘Interdependence and Reintegrative Social Control: Labelling
and Reforming ‘‘Inappropriate’’ Parents in Neonatal Intensive Care Units’ (1995) 60 American
Sociological Review 635–654.
2 Michel Foucault, Discipline and Punish; The Birth of the Prison, translated by Alan Sheridan
(London: Allen Lane, 1977).
3 G. Rusche and O. Kirchheimer, Punishment and Social Structure (New York: Columbia University
Press, 1939).
Part of my intellectual agenda is to de-centre the penitentiary, and indeed
punishment, in the history of regulation. In doing so, there is an important place for
Rusche and Kirchheimer’s materialist analysis,4for the disciplinary analysis of
Discipline and Punish, and for the governmentality of the late Foucault as well.
Rather standard readings of the sociology of punishment literature are combined
to identify a core Western sequence in the history of regulation with five stages:
1. A pre-state stage when restorative justice and banishment are dominant;
2. A weak state stage where corporal and capital punishment dominate;
3. A strong state stage where professional police and penitentiaries dominate;
4. A Keynesian welfare state stage where new therapeutic professions such as
social work colonise what becomes probation-prison-parole; and
5. A contemporarily evolving new regulatory state phase of community and
corporate policing (with a revived restorative justice).
The first stage in this history of regulatory institutions is a pre-state period lasting
to about the 12th century in many European societies. This is the stage currently
attracting much attention in the writing of restorative justice scholars.5According
to Weitekamp, until the 12th century restorative justice (participatory dialogue
oriented to healing rather than hurting) was the dominant form of regulation in pre-
state societies, banishment and capital punishment significant back-ups to it.6For
many parts of Europe local predominantly kin-based restorative justice dominates
the king’s punitive justice for four or more centuries beyond the 12th century, for
example in Scotland.7Like all divides in the posited sequence, there is much
variation in the overlapping of boundaries. Beyond the West, for example in
Africa, local restorative justice remains more important than state punishment until
and even throughout the 20th century.
The second stage is the period of weak Western states, from 12th to 18th
centuries in much of Europe. Weak kings crush indigenous restorative traditions
and inflict ever more horrible physical punishments on the bodies of their subjects.
It was Michel Foucault who identified this stage and distinguished it from the third
stage. Foucault perceptively sees physical punishment as the king inscribing his
power on the bodies of subjects, signifying the awe of his rule by highly public
forms of humiliation of those who defy it.8These spectacles occur on the scaffold,
at the flogging post, the stocks and through branding, for example. Crime is no
longer committed against victims:
[C]rime signified an attack upon the sovereign, since the law represented and embodied the
sovereign’s will. Punishment is thus an act of vengeance, justified by the sovereign’s right to
make war on his or her enemies and conducted in appropriately warlike terms. In keeping
with the military sources of this sovereign power, justice is a manifestation of armed
violence, an exercise in terror intended to remind the populace of the unrestrained power
behind the law. The body of the condemned here becomes a screen upon which sovereign
4ibid.
5 Daniel Van Ness and Karen Heetderks Strong, Restoring Justice (Cincinnati: Anderson, 1997).
6 E. Weitekamp, ‘The History of Restorative Justice’ in Gordon Bazemore and Lode Walgrave (eds),
Restorative Juvenile Justice (Monsey, NY: Criminal Justice Press, 1999).
7 Robert E. Mackay, ‘The Resuscitation of Assythment? Reparation and the Scottish Criminal’ (1992) 3
Juridicial Review 242–55; Jenny Wormwald, ‘Bloodfeud, Kindred and Government in Early Modern
Scotland’ (1980) 87 Past and Present 54–97; Ian D. Whyte, Scotland Before the Industrial Revolution
(London: Longman, 1995) 217.
8 See also Pieter Spierenburg, The Spectacle of Suffering: Executions and the Evolution of Repression,
from a Preindustrial Metropolis to the European Experience (Cambridge: Cambridge University
Press, 1984).
The Modern Law Review [Vol. 64
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power is projected, or more precisely a flesh upon which the marks of power can be visibly
engraved.9
But there is more to the story than Foucault’s way of seeing it. Weak kings actively
wanted to crush indigenous informal justice because there was political power in
centralising prerogatives of mercy into their own hands, more so when punishment
was awesome. Hence the demise of restorative justice and the rise of corporal and
capital punishment reflect conscious tactics by weak princes to prevent the
disintegration of their centralising projects. Foucault sees a shift away from this
mode of exercising power between about 1750 and 1820, though Spierenburg’s
subsequent work shows a more gradual abandonment of spectacles of corporal
punishment in Europe between 1600 and the early twentieth century.10
The third stage is the rise of a strong central state which pursues consistency in
the administration of punishment. For most of Europe this occurs throughout the
nineteenth century. Oliver MacDonagh’s history of the Passenger Acts is the
seminal study of the centralising Victorian administrative state.11 British
hegemony makes Britain the central site of a shift in the nature of regulation
which rapidly globalises. Most importantly, its London and Irish models of a
professionalised quasi-military police come to be utterly globalised. Peel is rightly
seen as a pivotal figure, investing in police to increase the certainty of punishment
while reducing its severity by eliminating capital punishment for most offences and
replacing it with transportation. At the same time, his government embraces a
debate on the future of another Benthamite move – the penitentiary. Beccaria and
Bentham are justifiably seen as the central theorists of this third stage, though John
Howard was the actor with practical influence in his own time.
Foucault seems mistaken to see the shift from the second to the third stages as
the decisive modern penal shift. Garland shows for England that there is a late
Victorian and Edwardian shift to an individualised, indeterminate, rehabilitative
regime that rejects consistent Benthamite calibration of deterrence.12 This is our
fourth stage. In English prisons, this was more or less complete by World War I. It
is part of a wider shift that gathers momentum throughout the first three quarters of
the twentieth century – the rise of the welfare state with its therapeutic professions
and the centralised Keynesian regulatory state. In some important ways the welfare
state actually rises earlier in Bismarck’s Germany and in colonies that are
wealthier than Britain itself – New Zealand and Australia.13 The centralising
regulatory project of the nation state that begins with the Passenger Acts ends with
Keynes (and partly at the hands of Keynes).
Keynes is the most influential author of the Bretton Woods agreements. These
render states as much objects as subjects of regulation at the hands of institutions
such as the IMF, the World Bank and the GATT. At Havana in 1948 agreement is
also reached for Keynes’s international antitrust agency (the ITO). But national
sovereignty fights back to pre-empt this regulator of states. Even so, as Chandler’s
work shows, the modelling of US antitrust regulation paradoxically fosters the
global growth of massive multi-divisional corporations (as the alternative to
9 David Garland, Punishment and Modern Society: A Study in Social Theory (Chicago: University of
Chicago Press, 1990) 140.
10 Foucault, n 2 above; Spierenburg, n 8 above; Garland, n 9 above, 158.
11 Oliver MacDonagh, A Pattern of Government Growth, 1800–1860 (London: MacGibbon and Kee,
1961).
12 David Garland, Punishment and Welfare: a History of Penal Strategies (Aldershot: Gower, 1985).
13 Note the causal connection discussed later between transportation and the exceptionally early rise of
the welfare state in Tasmania.
January 2001] Crime in a Convict Republic
ßThe Modern Law Review Limited 2001 13
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