Reward, Law and Power: Toward a Jurisprudence of the Carrot*
| Author | Arie Freiberg |
| Published date | 01 June 1986 |
| Date | 01 June 1986 |
| DOI | http://doi.org/10.1177/000486908601900203 |
AUST &NZ
JOURNAL
OF CRIMINOLOGY (June 1986) 19 (91-113) 91
REWARD, LAW AND POWER: TOWARD A JURISPRUDENCE
OF THE CARROT*
Arie Freibergr
Abstract
Positive sanctions play an important but underestimated role in societal
regulation. This article examines reward in political and legal theory and explores
the conceptual and practical dimensions of reward in the civil and criminal law. It
argues that the mechanisms and ideology of reward have facilitated state
intervention into private and corporate activity, delayed or denied due process and
maintained social inequality. Possible changes in the nature of social control, from
punishments to institutionalized rewards through the welfare state, are observed
and the implications of such a change for sanction theory are discussed.
Introduction
The province of reward is the last asylum of arbitrary power Bentham, 1825:93
The negative sanction has long been acentral feature of conceptualizations of
law, power and the state. Hobbes (1651), Austin (1955), Weber (1954) and Kelsen
(1941) have all regarded legitimated coercion as that which distinguishes the state
from other forms of social organization. The stick and not the carrot has symbolized
governance.
The continuing emphasis upon coercion and upon the penal aspects of the law has
obscured the subtle but pervasive role played by positive sanctions in societal
regulation. The pre-occupation with punitive models of sanctions has clouded our
ability to perceive recent major changes in the nature of social control which have
seen allocational sanctions, based on the power to regulate access to scarce
resources, increasingly replace criminal sanctions as the major force of modern
government (Kreimer, 1984:1295).
This article is a preliminary exploration of the role of positive sanctions in law and
of their use as a mode of power. I hope to demonstrate, through an examination of
the conceptual and practical dimensions of reward in the civil and criminal law, how
the mechanisms and ideology of reward can be used (and have been used) to
consolidate and expand state power. Three major aspects of this process are
highlighted. The first is how, under the guise of benevolence or assistance, the state
has been allowed to penetrate into the lives and activities of individuals and
corporations. Secondly, how the provision of adequate legal protections of liberty
and property has been prevented or delayed by the perpetuation of out-dated
concepts of "privilege", "grace" and "favour", and thirdly how economic and social
inequality has been maintained by the differential distribution of the types and
amount of reward.
*This article was delivered as a paper at the Third Australian Law and Society Conference, Canberra,
December 1985.
tFaculty of Law, Monash University. Melbourne Vic.
92 AFREIBERG (1986) 19
ANZJ
Crim
Reward and Punishment
"Reward", or gain, benefit, advantage, inducement, positive incentive, or
indulgence can encompass anything from material goods to spiritual values. It is
used here in a general sense to denote the bestowal of benefits in consideration of
some act or service done or expected to be done or, in some cases, to be refrained
from. As with all polarities, reward and punishment can be best understood as
points on a continuum. Although in most cases the beneficial or pleasurable may
readily be distinguished from the harmful or painful there are problematic cases. A
perennial but crucial issue is whether the withholding of a reward can be considered
to be a negative sanction (Gibbs, 1966:155; Tapper, 1965:278; Humphrey, 1945:198
Kreimer, 1984:1324). The posited case is where a pattern of reward comes to be
regarded as a right, despite a contrary intention in the grantor. Can a withdrawal
of the benefit in these circumstances be regarded as a deprivation? Giddens has no
doubt: "[I]nducements offering some definite rewards in exchange for compliance
always offer the possibility of being transformed into negative sanctions; the
withholding of a reward represents apunishment and represents a definite form of
coercion" (in Wrong, 1979:80). A variation of this problem iswhere a benefit widely
available to the population is denied to one individual or group. Similarly
problematic are those situations where a person adopts a course of conduct to avoid
apenalty, or where repeated punishments are discontinued and the discontinuance
is perceived as a benefit by the recipient.
The efficacy of the system of reward and punishment is premised upon there
being a congruence between the perceptions of the person giving the reward or
punishment on the one hand, and the person receiving them, on the other. The
assumption that that congruence exists is not always warranted. For example, the
introduction into penal law of a whole array of therapeutic techniques, community
corrections, half-way houses and educative measures has eroded the distinctions
between coercion and persuasion, between treatment and punishment (Cohen,
1979; Aubert, 1983:31). Rehabilitative philosophies of sanctions which assume a
non-punitive intent on behalf or the actor have disregarded the fact that the object
of the action may not share that perception (Gibbs, 1966:147; Friedman, 1969:240).
Social welfare administrators have been reluctant to acknowledge that social benefit
recipients may regard conditions attached to benefits ascoercive while an increasing
proportion of the population is coming to view the "benefits" of compulsory
education with some scepticism.
These problems are not mere linguistic conundrums. The way they are resolved
determines their possible legal status, the way they will be perceived by the grantor,
the grantee and by persons who potentially hold either of these statuses.
Reward and Power
Power is an elusive concept. All social relations can be viewed as power relations
(Wrong, 1979:148) and the range of words used to signify power relations -
influence, authority, control, persuasion, might, force, coercion,
manipulation-
to name but a few, testifies to both the breadth of the concept and the endemic
disagreement as to its meaning (Dahl, 1968:15). Definitions are value-laden and
these assumptions, open or unacknowledged, "pre-determine the range of
...
empirical application" (Lukes, 1974:26).
The preponderance of definitions of power have emphasized the negative
aspects. Power is too often equated with the ability to overcome resistance through
the use of negative sanctions. Lasswell and Kaplan (1950:76; see also Dahl, 1968:32;
wrong, 1?79:21) for example, argue that
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