Governance through Publicity: Anti‐social Behaviour Orders, Young People, and the Problematization of the Right to Anonymity
| Author | Neil Cobb |
| Date | 01 September 2007 |
| Published date | 01 September 2007 |
| DOI | http://doi.org/10.1111/j.1467-6478.2007.00396.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 34, NUMBER 3, SEPTEMBER 2007
ISSN: 0263-323X, pp. 342±73
Governance through Publicity: Anti-social Behaviour
Orders, Young People, and the Problematization
of the Right to Anonymity
Neil Cobb*
Since the early twentieth century, young people under eighteen involved
in legal proceedings have been granted a degree of protection from the
glare of media publicity. One controversial consequence of recent
reforms of the anti-social behaviour order (ASBO), however, is the
incremental reduction in the anonymity rights available to those subject
to the mechanism, together with calls by the Home Office for details of
such individuals to be publicized as a matter of course. Numerous
commentators have criticized the government accordingly for re-
instating the draconian practice of `naming and shaming'. This paper
contends that these developments can be usefully analysed through the
lens of Foucault's work on state governance. It explores, in particular,
how challenges to the right reflect both the fall of anonymity and the
rise of publicity in the governance of what I term `ASBO subjects',
together with the communities in which they live, under `advanced
liberal' rule.
INTRODUCTION
In his later writing, Michel Foucault examines the various and complex ways
in which power is exercised in society. Political rationalities, as Foucault
explains, are ways of rendering reality knowable for the purpose of govern-
ance. Contemporary state governance, he suggests, consists of a triangle of
342
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9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* Law Department, University of Durham, 50 North Bailey, Durham DH1
3ET, England
n.a.cobb@durham.ac.uk
I would like to thank Erika Rackley, Clare McGlynn, and Simon McGurk for all their
help and encouragement, and the two anonymous referees for their extremely useful
comments on an earlier draft. The usual disclaimers apply.
such rationalities; sovereignty, discipline, and government,
1
which together
he terms `governmentality'. Early sovereign technologies entailed the use of
repressive force by the state, in an effort to establish and maintain effective
control over geographical territory, exemplified by the spectacle of the
public execution. Of greater interest to Foucault, however, are the complex
modern forms of governance, exacted through a combination of disciplinary
and governmental technologies, operating not simply repressively but
productively, designed to strengthen the state by improving the very soul
of the subject. Discipline, on the one hand, entails the production of docile
and cooperative individuals (through processes of surveillance, classifica-
tion, and normalization) and populations (through processes of bio-power).
Government, on the other, reflects more recent attempts by the state to
exercise power `from a distance' by encouraging individuals to engage
independently in their own self-governance, and the governance of others, in
line with its own objectives.
An Anglo-Saxon neo-Foucauldian school has developed the concept of
governmentality, applying it to the operation of power within the modern
liberal democratic state. Nikolas Rose, in particular, maps the genealogy of
contemporary Western liberal democracies using three political rationalities:
classical, social, and advanced liberalism.
2
Rose equates advanced liberal
rule with the role of neo-liberalism in the `death of the social', deploying the
concept of government to explain the harnessing (or `responsibilization'
3
)of
a variety of statutory, voluntary, and commercial actors and organizations in
place of the centralized disciplinary techniques of state welfare. He explores,
in particular, the rise of what he terms `ethopolitics', by which individuals
are encouraged to continually work on themselves ethically to secure the
well-being of themselves and their dependents. As he explains:
If discipline individualizes and normalizes, and biopower collectivizes and
socializes, ethopolitics concerns itself with the self-techniques by which
human beings should judge themselves and act upon themselves to make
themselves better than they are.
4
Of particular importance for Rose, as we shall see, is the role of `community'
as both ethopolitical target and process, increasingly implicated in the state's
governmental strategies.
5
Neo-Foucauldian theorists continue to explore the apparent rise of
advanced liberal forms of governance within the specific field of crime
343
1M.Foucault, `Governmentality' in The Foucault Effect: Studies in Governmentality,
eds. G. Burchell, C. Gordon, and P. Miller, (1991).
2N.Rose, Powers of Freedom: Reframing Political Thought (1999).
3D.Garland, The Culture of Control: Crime and Social Order in Contemporary
Society (2001) 124±7.
4N.Rose, `Community, citizenship and the Third Way' in Citizenship and Cultural
Policy,eds. D. Meredyth and G. Minson (2001) 18.
5N.Rose, `The death of the social? Refiguring the territory of government' (1996) 25
Economy and Society 327, at 331±7.
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School
control,
6
including recent analysis of youth justice policy under New
Labour.
7
Similarly, I want to examine the various ways in which advanced
liberal rule seeks to govern through both agents of crime control and young
offenders themselves within the particular (constructed) field of `anti-social
behaviour'.
8
At the heart of government initiatives in this area is the anti-
social behaviour order (ASBO); a civil order directed towards the prevention
of future anti-social behaviour through the deterrent effect of criminal
sanction on breach.
9
Recently, the government has challenged the right to
anonymity of those (predominantly young) people targeted by the ASBO ±
what I term `ASBO subjects' ± by encouraging greater use of publicity by
local agencies while simultaneously reducing the legal rights protecting
children from publicity under the 1933 Children and Young Persons Act
(`the 1933 Act'). In this paper, I suggest that the rise of the `naming and
shaming' of the ASBO subject can be usefully explained in terms of the
complex and contradictory governmental mentalities and technologies of the
advanced liberal state.
In so doing, I acknowledge from the outset criticisms that the tendency to
equate advanced liberal forms of rule with the governmental techniques of
344
6K.Stenson and A. Edwards, `Rethinking crime control in advanced liberal govern-
ment' in Crime, Risk and Justice,eds. K. Stenson and R.R. Sullivan (2001); K.
Stenson, `Crime control, social policy and liberalism' in Rethinking Social Policy,
eds. G. Lewis, S. Gewirtz, and J. Clarke (2000); N. Rose, `Government and control'
(2000) 40 Brit. J. of Crim. 321; D. Garland, `Governmentality and the problem of
crime: Foucault, criminology, sociology' (1997) 1 Theoretical Criminology 173.
7B.Vaughan, `The governance of youth: disorder and dependence?' (2000) 9 Social
and Legal Studies 347; R. Smith, `Foucault's law: the Crime and Disorder Act
1998' (2000) 1(2) Youth Justice 17; J. Muncie and G. Hughes, `Modes of youth
governance: political rationalities, criminalization and resistance' in Youth Justice:
Critical Readings,eds. J. Muncie, G. Hughes, and E. McLaughlin, (2002).
8For a general introduction to the government's `Respect' agenda, see E. Burney,
Making People Behave: Anti-social Behaviour, Politics and Policy (2005). For a
recent governmental analysis, see J. Flint and J. Nixon, `Governing neighbours:
anti-social behaviour orders and new forms of regulating conduct in the UK' (2006)
43 Urban Studies 939.
9Crime and Disorder Act (CDA) 1998, s. 1. The ASBO has received almost universal
criticism from academic commentators. Criticisms focus upon both the legal and
criminological implications of the order. Criminological assessments note the high
breach rate, bringing many young people prematurely within the criminal justice
system, together with the failure to tackle the underlying causes of anti-social
behaviour: E. Burney, `Talking tough, acting coy: what happened to the anti-social
behaviour order?' (2002) 41 The Howard J. 469; P. Squires with D. Stephen,
`Rethinking ASBOs' (2005) 25 Critical Social Policy 517. Legal criticisms highlight
the hybrid nature of the order, allowing an individual to be brought within the ambit
of the criminal law without the benefit of the procedural legal protections granted to
criminal defendants, and the breadth and vagueness of the definition of anti-social
behaviour: S. MacDonald, `A Suicidal Woman, Roaming Pigs and a Noisy
Trampolinist: Refining the ASBO's Definition of ``Anti-Social Behaviour''' (2006)
69 Modern Law Rev. 183.
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