Second‐chance Punitivism and the Contractual Governance of Crime and Incivility: New Labour, Old Hobbes
| DOI | http://doi.org/10.1111/j.1467-6478.2008.00436.x |
| Published date | 01 June 2008 |
| Author | Simon Mackenzie |
| Date | 01 June 2008 |
JOURNAL OF LAW AND SOCIETY
VOLUME 35, NUMBER 2, JUNE 2008
ISSN: 0263-323X, pp. 214±39
Second-chance Punitivism and the Contractual Governance
of Crime and Incivility: New Labour, Old Hobbes
Simon Mackenzie*
The growing application of mechanisms of contractual governance to
behaviour that breaches social norms, rather than the criminal law,
appears to represent an ethopolitical concern with delinquent self-
reform through the activation of technologies of the self. In fact, there
is little empirical evidence that the contractual governance of incivility
leads to such self-reform. Beneath the ideology of contractual agree-
ment to observe social norms lies what this paper calls a `second-
chance punitivism' which operates to crystallize behavioural elements
of the Hobbesian social contract, after breach, into a more specific
form. The responsibilizing and individualizing properties of this form
of contractual governance set the moral-ideological platform for a
retributive punitivism, when the rational agents it creates fail to live up
to their image, and are taken to have wasted their `second chance'.
INTRODUCTION
Surely it is not unreasonable to say to someone that if they enter into an
agreement they should stick to it? . . . Society is built on a contract. There are
rights, yes, but there are responsibilities too.
1
The idea that society is built on a contract ± social contract theory ± suggests,
depending on its exponent, either that we do or should live as if we all had
contracted to form a society. In this paper I address the phenomenon
identified as an emerging contractual governance of crime and incivility in
Britain (hereafter referred to by shorthand as `contractual governance'
although of course that term would otherwise have considerably broader
214
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*The Scottish Centre for Crime and Justice Research, Florentine House, 53
Hillhead Street, University of Glasgow, Glasgow G12 8QF, Scotland
s.mackenzie@lbss.gla.ac.uk
1 A. Darling, letter in the Guardian,24June 2000, 21, my emphasis.
import).
2
I argue that this phenomenon represents an equivocation by the
state between `contract' and `social contract'. The elision of these terms and
the ideas they embody is central to understanding widely-observed trends in
British criminal justice which intensified during the last Conservative
administrations (1979±1997), continued through Tony Blair's New Labour
administration (1997±2007), and show all signs of continuing under Gordon
Brown's Labour leadership.
3
These trends, all of which are well-known and
will be further elaborated in the course of the discussion, can be summarized
as net-widening, mesh-thinning, the rise of the new penology, a heightened
ethopolitical discourse, and a new punitiveness.
Briefly summarized, my argument is that:
(i) there is an equivocation between contractual governance and social
contract theory in policy discourse;
(ii) the, generally unspecified, brand of social contract theory espoused in
supposed legitimation of contractual governance ± broadly, in the New
Labour administratio n, a mix of communitari an and contractual
references ± finds little affinity with contractual governance as
practised;
(iii) Hobbesian social contractarianism is a better fit as a philosophical
explanation of the impetus behind contractual governance;
(iv) contractual governance can be seen as a political respecification of the
Hobbesian contract in bespoke terms, between individual and state;
(v) the respecification has a disproportionately burdensome effect on the
disadvantaged; and
(vi) this disproportionate effect, in terms of which contractual governance
becomes an expansion of the `new punitivism', is the result of the
responsibilizing practices of contractual governance, which create
suitable recipients for punishment rather than seriously engaging with
the more difficult task of assisting contractually governed subjects with
practices of self-reform.
215
2 `Contractual governance' in this sense means governing deviant behaviour through
contractual and quasi-contractual mechanisms: A. Crawford, ```Contractual
Governance'' of Deviant Behaviour' (2003) 30 J. of Law and Society 479±505.
3 The Public Order Act 1986 has been taken elsewhere as `an appropriate baseline for
discussion of contemporary offence regulation', that is, a milestone in the
development of the contemporary trends in the regulation of offensive behaviour
discussed here: E. Burney, ```No Spitting'': Regulation of Offensive Behaviour in
England and Wales' in Incivilities: Regulating Offensive Behaviour, eds. A. von
Hirsch and A.P. Simester (2006).
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
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