‘In This Interregnum’
| Author | Alan Norrie,Henrique Carvalho |
| Published date | 01 December 2017 |
| Date | 01 December 2017 |
| DOI | 10.1177/0964663917726839 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2017, Vol. 26(6) 716–734
‘In This Interregnum’:
ª The Author(s) 2017
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DOI: 10.1177/0964663917726839
the Critique of Criminal
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Justice
Henrique Carvalho and Alan Norrie
University of Warwick, United Kingdom
Abstract
In this article, we offer a critical examination of the long and rich history of criminal
justice scholarship in the pages of Social and Legal Studies. We do so by identifying and
exploring a dialectical tension in such scholarship, between the recognition of the role of
criminal justice as an instrument of violence, exclusion and control on the one hand and
the effort to seek, through or perhaps beyond the critique of criminal justice, an
emancipatory project. We explore this tension by examining four areas in scholarship:
popular justice, social control and governmentality, gender and sexuality and transitional
justice. Relating forms of critique to the historical development of a unipolar political
world order from the time of the journal’s inception, we argue that the criminal justice
scholarship in Social and Legal Studies positions it, like the world it describes, in a sort of
‘interregnum’. This is a place where the tension between the two poles of emancipation
and control is evident but shows few signs of resolution. Each of the four themes displays
a different critical perspective, one that reflects a different response to living in a world
where legal, social and political emancipation struggles against the weight and direction of
history. Critique nonetheless reflects on criminal justice to reaffirm the need for
emancipatory change and consider how it may be achieved.
Keywords
Criminal justice, dialectics, emancipation, gender and sexuality, popular justice, Social
and Legal Studies, social control, transitional justice
Corresponding author:
Henrique Carvalho, Warwick Law School, University of Warwick, Coventry CV4 7AL, United Kingdom.
Email: h.carvalho@warwick.ac.uk
Carvalho and Norrie
717
the old is dying and the new cannot be born; in this interregnum a great variety of morbid
symptoms appear (Gramsci, 1971/1999: 556).
Four Critical Themes
The area of crime, criminal law and criminal justice has been central to the scholarship of
Social and Legal Studies. Over the course of the last 25 years, something like 185 articles
related to criminal justice issues have been published in the journal, covering a wide
range of topics. Over the period, one could list the relationship between popular justice
and legal justice; criminal justice and sexual politics (law and gender violence, homo-
phobia, sexual abuse and sex offenders); crime and gender more generally (abortion,
rape and domestic violence); criminal process (policing, prosecution, courts, sentencing,
children and youth); law, punishment and control; the nature and problems of corporate
crime; crime and governmentality (dangerousness); criminal law and the use and abuse
of drugs; international criminal justice; criminal justice, race and racism; and crime and
the ‘war on terror’. In recent issues, problems such as human trafficking, ‘crimmigra-
tion’, cybercrime and issues concerning transitional justice reflect current concerns.
In general terms, one might say that the preoccupation of writers has been the social
contextualization of criminal justice problems through a variety of theoretical and crit-
ical methods. In line with contextualization, papers often assume particularly historical
and comparative methodologies as well as detailed empirical work employing diverse
and often innovative research methods. The reach of the journal towards historians and
scholars working to compare criminal justice contexts, or to provide case studies of
different national and cultural frameworks, has been noteworthy. Broadly, the journal’s
critical perspectives are brought out within the range of topics, and the particular meth-
ods deployed. With regard to topics, emphasis is placed on how law operates as a mode
of social control, often in ways that are hidden behind the stated goals and purposes of
criminal justice systems. Law is seen broadly as a form of governmentality, and insofar
as liberal criminal justice officially presents itself as representing a sphere of liberties,
the truth of law as a means of repression through the forms of freedom is an important
theme.
In brief, the journal has deployed various ‘hermeneutics of suspicion’ to interrogate
law’s claims and self-understanding. There is however often an underlying reflection on
or implication of an emancipatory kind. If the critic can show how law works formally to
express freedom and in practice or substance to repress it, and can show the mechanisms
that produce these relations of form and substance, then we are closer to understanding
how repression works, what might be the negative conditions for its possibility and what
might be the conditions that need to be removed for it to stop. Law may also contain a
utopian promise of something better that might come into being. Forms of control that
operate behind our backs, abstract universalizations of freedom which ignore and repress
concrete freedom, wilful discriminations that ground violation and all these set against
the backdrop of historical and particular social contexts that generate these modes of
control; all point to different possibilities and different worlds in which lives could be
lived differently. The very symbols of freedom expressed formally mark a space where
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Social & Legal Studies 26(6)
substantive freedoms might emerge. This legal tension between repression and emanci-
pation is particularly acute in criminal justice, where the liberal promise of individual
freedom and responsibility is directly pitted against the coercive violence of political
authority and the structural inequalities underpinning the problem of crime. The rich
scholarship in Social and Legal Studies displays a tradition of critical and rigorous
engagement with the resulting tensions.
No doubt, however, we glimpse the future ‘through a glass, darkly’. Taking our line
from Antonio Gramsci, the discourse of authors in the criminal justice area might be
seen as charting an interregnum between an old (the broken promise of the liberal
Enlightenment) and a new (a world that is emancipated across a variety of social
registers), generating a variety of morbid symptoms in the dystopic present. Some
might view such a characterization as overly critical of the role and forms of law,
while others might see it as overly generous. Some might find it idealistic. None-
theless, we think that a view of criminal justice as placed in a confused and confusing
historical world where things are not what they seem, where circumstances are bad and
in need of emancipatory change, where such change is latent and potential but not easy
to achieve and indeed where things may be getting worse: such a view or set of views
might be summarized as the overall position of criminal justice scholarship in Social
and Legal Studies.
We have picked out four themes which elaborate this suggestion and indicate the
direction of travel in the journal’s criminal justice scholarship. The first special issue
published by the journal was on the theme of popular justice, and we see that as emble-
matic both of the period in which the journal appeared, and of the journal’s underlying
commitment to a scholarship of emancipation. At the same time, we note the limits of the
popular justice approach and the failure of the debate to sustain itself over the period of
the journal’s lifetime. In the 1980s, the negative counterpart of popular justice’s eman-
cipatory promise was ‘authoritarian populism’ as a mechanism for re-securing social
control under changing social and economic conditions. If the latter appears to be
winning out today, it is all the more important to hold onto the significance of the earlier
phenomenon at least as a reminder of how the sociolegal criminal justice problematic has
been and can be different. Popular justice, in the journal’s beginning, is therefore our first
theme.
Fast forwarding to the fourth theme, we identify transitional justice as an area that
has featured in the journal in recent times. If popular justice reflected a world in which
the power and domination associated with law was opposed to a popular counter-
power, transitional justice often appears as the means whereby the problems of power
and social conflict are resolved by law, either in terms of international criminal justice
or through other justice-related processes. There is indeed a transitional justice ‘indus-
try’ out there, working to bring about change narrowly in the direction of liberal
democracy, neo-liberal economy and the rule of law. Yet, the processes that produce
these changes are often nuanced and difficult, for the transitions that must occur are
ones which have to reflect the struggles of the past, the inherently violative nature of
the previous social order and the social and political limits imposed on change. Transi-
tional justice accordingly reflects both controlling and emancipatory impulses, and if it
seeks to ‘restore’ something, it is not always clear what that should be. If it seeks to
Carvalho and Norrie
719
reconcile the past, the present and the future, the terms of that reconciliation need to be
understood. Alternative futures may be present in the transitional process. In that
regard, transitional justice as a recent...
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