Vol. 32 No. 4 (April 2022) pp. 36-42 JUDGE & PUNISH: THE PENAL STATE ON TRIAL, by Geoffroy de Lagasnerie. Palo Alto: Stanford University Press, 2018. pp.210. Hardcover $25.00. ISBN: 978-1-503-60578-7.
Reviewed by Malcolm M. Feeley. Jurisprudence and Social Policy Program. School of Law. University of California at Berkeley. Email: mfeeley@law.berkeley.edu.
The author, French sociologist Geoffroy de Lagasnerie, begins his book saying he planned to undertake an ethnography of French criminal trials. But, he abandoned the project because upon reflection, he realized that ethnography tells us nothing we do not already know. However, before he gets on with his new project, he offers some insights from his aborted ethnography: French judges are not very bright, court-appointed psychologists are egocentric, the trial process is an empty ritual, and thousands of those charged with crimes each year are found not guilty. But above all, he asserts that ethnography is not good social science; like political theory, legal theory, and psychology, it has little to offer in the study of society. Indeed, it is not sociology at all. Sociology is the effort to understand the parts in light of the whole, and no other human sciences do this. Certainly not ethnography.
In the process of elaborating on this truth in the first part of his book, the author dismisses Kant, Rousseau, and Habermas, and with barely a comment, discards Hannah Arendt and Max Weber to the trash bin in a few scattered paragraphs. He then rambles on about Durkheim’s theory of legal evolution, without noting that it has been discredited by ethnologists. Having done this, he goes on to make what he appears to regard as an important original observation: law is socially constructed and shaped by power. Having made this pronouncement, he then suddenly shifts focus, and summarily convicts and banishes French sociologist, Didier Fassin, without trial and indeed without leveling any real charges other than for having committed the offense of ethnography. However, there is no real way to get a sense of de Lagasnerie’s views on Dassin, or any other writers and subjects he mentions, since there is no sustained discussion of anyone’s work, and there is no index to be able to double check.
There is, however, a lot of first person singular; plumage is fluffed repeatedly as if to inform the reader, “I have the truth.” So, what is this blinding truth that the author encounters on his way to Damascus to commit ethnography? What does de Lagasnerie’s new and reformulated project reveal? It is not unusual for ethnographers to abandon their initial ideas and premises once they gain their bearings in the field. But, they usually do so because they have stumbled upon other more compelling issues that demand their attention. Here, however, the shift is more dramatic. The author has an epiphany; ethnography is worthless, indeed less than worthless in that it obscures reality, supports the status quo, and ignores the social.
De Lagasnerie tells us that he now wants to reflect on sociology and the nature of the penal state, instead of pedestrian truisms of ethnography. The author appears to have discovered this insight almost alone, and without the help of Victor Hugo, Charles Dickens, E.P. Thompson, Antonio Gramsci, Althusser, Rusche and Kirchheimer, David Garland, let alone Karl Marx and the voluminous literature on law and social control in his wake. Nor does he seem to consider Niklas Luhmann’s insight that law is an essential fact and all-pervasive part of the social condition.
The author discovers that law is socially constructed and that it mystifies both the state and power, and in doing so, obscures the pervasiveness of violence promulgated by the penal state through law. He goes on to inform us that law’s violence is successful for two reasons. First, it rests upon a fetish that tries to legitimize the state, when in fact the so-called law is nothing more than a person or collection of people who point a gun at someone, and say, “give.” Second, the violence of law is mediated through palliative language; it is individualized, and meted out in small doses, so that it is rendered largely invisible. This is an important insight worthy of sustained attention by political sociologists, but it is also one that has been worked and reworked by Marx and his many followers for close to two hundred years. In like mind, the author instructs us that we must not say the state “arrests,” but “abducts;” that it does not “imprison” but “wrongfully detains,” does not “sentence to death” but “kills,” does not “fine” but “robs.” Again, social critics from Marx to Pashukanis to today’s “conflict theorists” have made careers elaborating on such points. Also, it is worth noting that de Lagasnerie does not avoid the law here as he hopes to; each term in each set of contrasting pairs he offers is a legal construct. One cannot so easily escape the law, as Luhmann reminds us.
This book is something of an autobiography framed around an epiphany brought about by the author’s encounter with the late Robert Cover’s famous essay, VIOLENCE AND THE WORD. Since I regularly assign Cover’s article to my undergraduate students, I was excited to see what a French sociologist would pick up on it. However, I was disappointed. Cover was not addressing sociologists when he wrote his polemic. Rather, he was responding to English literature professor James B. White’s book, THE LEGAL IMAGINATION, and the writings of legal philosophers. White proposes to treat legal language in the common law world as an on-going conversation in which judges continuously rephrase the law in light of different facts, circumstances, and community expectations. This is done all the while trying to tell themselves and each other “what the law really means” and to show that their new meanings are not inconsistent with previous meanings, only an extension of prior meaning. One can see why such an approach could drive a socially sensitive scholar to distraction. After all, the great scholars of jurisprudence place coercion at the center of their concept of law. In contrast White’s judges, legal scholars, and legal philosophers, believing that the law is a benign normative ordering, have scrubbed the emphasis on brute force out of their discourse on law. Cover’s eruption over this misrepresentation was long overdue. His work is certainly important, but it is an antidote to the ethereal language and analysis of law professors and legal philosophers. This is an important audience, and his work has had a significant impact on the legal academy. His insight has been incorporated into the work of Critical Legal Studies, Feminist Jurisprudence, and Critical Race Theory, as well as other legal scholars who reflect on the differential impact of the law on various groups and communities.
However, among social scientists, Cover’s article has been met with a yawn! With a few exceptions, his work has had little impact. Indeed, it is not widely read. The simple reason is that the insight Cover offers is well-known, indeed taken for granted among most social scientists who study law and society. What was Marx writing about if not how the law is used to mask class, obscure violence, fragment groups, concentrate wealth, and atomize individuals, all the while weakening some subjects, and empowering still others? Indeed, the entire Marxist tradition, as well as its tamer American version that came to be known as “conflict sociology”, has emphasized law’s violence. Most studies of the American criminal justice system take all this as a given.
Yet, the peacock struts around the courtyard as if he has discovered a profound truth, or at least has discovered Cover who had discovered that truth. Yet, even here, de Lagasnerie fundamentally misreads Cover. Far from rejecting the law, as does de Lagasnerie, Cover loved the law, and dedicated himself to teaching it. He was not even a member of the critical legal studies movement of his time, which set about to demystify the law and uncover its unsavory features. Rather, he delivered his powerful polemic to his colleagues and to law students in order to remind us of one modest, but important point: however grand its rhetoric, law ultimately rests upon a field of pain and suffering. Law is a two edged sword; for all its value, it depends on violence. Cover reminds us that even as we embrace it and its ideals, always use law sparingly. Think before you act: before calling the police, filing a civil suit, making an arrest, coming to a verdict, issuing a judgment. When you seek or impose a legal liability on someone, look that person in the eye, speak directly, and acknowledge his or her dignity even as you impose violence on them. Always envision yourself in the place of the losing party before you pronounce victory.
Cover did not trash the law; he thought of it as a glorious institution. He did not even offer much in the way of law reform. Rather, he insisted that lawyers and judges be aware of the often camouflaged consequences of their actions that are hidden beneath grand rhetoric. Cover’s self-imposed mission is important, but its goal was to reduce hypocrisy. He sought to deflate the obscure language his colleagues and the legal profession used too casually. He laid bare its implications. He insisted that those who invoke the law confront the consequences of their actions, and that the wielders of the law acknowledge the persons behind the masks of the law, and to be sparing with the use of its inevitable violence.
In his misguided understanding of Cover, de Lagasnerie proposes to decenter the state in the criminal process. He argues suspects arrested for crimes be subjected to a holistic assessment of their social situations. Only through this, he maintains, can reasonable solutions be found. He gives several examples from his experiences watching courts in action. He illustrates this by reference to some of his ethnographic work. A group of homeless men get into a dispute, and one of them dies as a result of a fatal wound. Another is found to have struck the blow. The author asks why should the state insist that one of these unfortunate individuals be singled out for severe punishment, when it may have been little more than chance as to who had the knife, who was involved in the melee, who struck the fatal blow, and who was killed.
Another of his conundrums examines “small fish” in a terrorist organization who unsuccessfully try to detonate a bomb. They try a second time, but again fail. Why, he wonders, is the state so offended by this action when it caused no harm to anyone? I think I see why. According to his ethnographic account, these people were serious in their intent, sophisticated enough to set their plan into action, and indeed made great effort to carry it out. Their failure was a fluke. If they had been successful, several people would have been killed. The author is troubled because the terrorists were convicted and sentenced severely. He derides the formalism and rhetoric about terrorism that was embraced by the prosecutors, experts, and judges in this case. I can certainly imagine there was a lot of over the top rhetoric, but the defendants’ activities, as he describes them, were serious, and but for a fluke might have caused a number of deaths. Here, I would have liked him to wrestle with the law of attempts, rather than simply calling for holistic assessments.
More generally, I would have liked to have seen more ethnographic reporting not just of courtroom trials, but of the several stages of the criminal process that unfold from arrest to final disposition. To the extent de Lagasnerie does draw on ethnographic research, it appears that he looks only at trials in assizes, which are usually not so much trials as they are glorified sentence hearings. An ethnographic study that would focus on decision making junctures from arrest to disposition and sentencing would more than likely reveal that vast numbers of arrests are dismissed, downgraded, and treated more leniently than the law mandates because of considerations of the very sort of social factors the author advocates. While I am certain that this would not satisfy him, nevertheless pointing it out would have strengthened his case. He might have revealed that a great many cases are shunted out of the criminal process for reasons he approves of, and shown that this is often due to the type of holistic assessment that the author approves of. However, focusing on trials at assizes ignores the various forms of leniency and acts of substantive justice that take place at the numerous earlier and less visible stages in the process.
De Lagasnerie is not alone in this oversight. Researchers on criminal courts everywhere tend to ignore the cases that are shunted out of the courts, or are downgraded early on in the process. Not enough ethnography focuses on how and why this occurs, and why only some crimes are constructed as very serious crimes. Those few who focus on this sorting process often dismiss these adjustments as accommodations to the pressure of heavy caseloads, police and prosecutorial errors, or prejudices of various types. Good ethnography can tell us what other factors contribute to this winnowing effect. Certainly, this occurs in big cities and small towns in the United States and elsewhere, and there is no reason to believe it is not present in France as well. But, for this, we need subtle ethnographic work.
The author abandons ethnography because it tells us little that we do not already know, and reorients his concerns to what he thinks we need to know, and know without recourse to legal concepts in order to assess people who cause problems for us (e.g. the knife wielding assailant and the failed bomb makers he describes). Fair enough, but there is a veritable library of research on the criminal process that advocates and reports on just such efforts. Had he examined some of this work, he might have been able to develop his thinking beyond the simple assertion stage. For instance, the Soviet legal philosopher, E.V. Pashukanis, argued that law, including criminal law and the violence attached to it, were forms of bourgeois capitalist exploitation that should be abolished, and be replaced by an administrative process based on assessments of the social situation and the whole person. While law did not evaporate as expected in the Soviet Union, “administration” used to replace law was put into practice in many areas including the criminal process. There is good literature both on Pashukanis, and the consequences of holistic administrative justice in the Soviet Union. Similarly, Inga Markowitz has conducted detailed archival research on holistic approaches by courts in East Germany before the fall of the Berlin Wall, and found much to commend them. And of course, juvenile courts throughout the Western world and no doubt elsewhere are organized to engage in a holistic assessment of the whole person before coming to a decision that is in the best interests of the child. In short, the author’s proposal is not as novel as his discussion suggests, and he would have been well advised to examine the works of those who have explored it at length, and then build on them.
Similarly, he might have reflected on the work of Hannah Arendt and others who wrote in response to their experiences of violence unconstrained by law. Law may entail violence, but it can also constrain behavior and even state use of violence. The Hobbesian dilemma is worth pondering, even if one thinks he got it wrong. In this sense, the author woefully misunderstands and misconstrues the work of Robert Cover.
The author does not make his claim tabula rasa. In addition to Cover, de Lagasnerie is inspired by Norwegian criminologist Nils Christie’s (1977) famous article, CONFLICTS AS PROPERTY, and University of Chicago Professor, Gary Becker’s (1968) economic approach to crime, both of which propose to treat crimes similar to torts or contracts, disputes between private parties. Christie argues that when the state takes over the resolution of conflicts, it deprives the victim of the opportunity to engage in her own dispute with the accused, and resolve matters in ways satisfactory to her or better yet both of the parties. Similarly, Becker sees crime as a private matter, and that a victim is nothing more than an involuntary creditor. Becker’s solution is to pursue damages and make the victim whole again.
Drawing inspiration from both scholars, the author proposes that in a sense we privatize crime and treat crimes like torts or contracts, where victims can be made whole again by requiring offenders to pay damages. The state should not be involved and not escalate matters by imposing an unnecessary tax on offenders beyond what they must surrender as recompense to their victims. There is something to be said of this approach, and indeed there is a vast literature on it. For instance, in Japan rape cases are often settled out of court with a payment made to the victim or the vicim’s family. And, this was the late Jeffrey Epstein’s preferred way of dealing with such allegations. However, I doubt that if expanded, I would be seen as a welcome reform in most Western societies. However, numerous ethnographic studies of the criminal process have identified interpersonal relations between the accused and victims as a factor that leads officials to drop charges entirely, reduce them to misdemeanors and otherwise treat them as “technical” crimes, as opposed to “real” crimes. Similarly, the well-studied movement for restorative justice has explored these and related issues as well. De Lagasnerie writes in a vacuum.
Cover’s essay (1986), VIOLENCE AND THE WORLD, makes one big point—law rests on a field of pain and suffering--and then explores its many implications for legal practice and legal scholarship. But, so too do Christie’s and Becker’s ideas on privatization also require reliance on violence, violence to compel appearances, violence when trying to collect damages. Privatization neither avoids the law, nor the violence of the law. Ethnographies of collection agencies, small claims courts, housing evictions, and the challenge of collecting awards for damages not covered by insurance all attest to this. Consider, for example, a reviewer might assert that an author is a fool, and be sued for damages under liberal French libel law. This suit would be considered a private matter, but if the author is awarded damages, it is because the state has defined the law, has power to make a judgment, and then has power to enforce it. The law's violence is everywhere, and not only in the penal state. Indeed, the old fashioned penal state has the virtue, as Foucault reminds us, of being up-front and direct. This does not negate the author’s very real concern about piling on sanctions and overblown rhetoric, but more reflection on law’s violence might in fact allow the author to see his path more clearly.
More generally, however, there are also power differentials in tort law, which is the author’s preferred mode of dealing with crimes. The title of Marc Galanter’s famous article WHY THE “HAVES” COME OUT AHEAD proclaims this point. So too does Jeffrey Reiman’s (2013) widely used textbook, THE RICH GET RICHER AND THE POOR GET PRISON. Similarly, some time ago, Richard Abel once drew our attention to a survey sponsored by insurance companies, which found that eighty five percent of those who had a firm basis for filing a torts claim do not do so. This is probably not so different from the proportion of people who fail to report being victims of crimes. To some extent, this may be good public policy; “lumping it” by those affected by accidents or petty crimes or crimes among acquaintances may be the wisest choice in a great many situations. But, in both instances, the distribution is affected by class: high income people are more likely to seek redress than those with lower income. Furthermore, accidents are accidents, and crimes are intentional. For some, this is a crucial difference.
My concern here is not to reject Christie’s, or Becker’s, or de Lagasnerie’s ideas. Rather, it is to point out that their ideas are not so new, and that such ideas have generated considerable attention over the years. They raise a multiplicity of problems, and any serious scholar attracted to them should be familiar with these concerns, and address them at length. De Lagasnerie appears to think he is writing on a clean slate.
In conclusion, it appears to me that the author is doing little more than rediscovering the wheel. As such, I’m not sure who the audience is for this book. Sociologists who know nothing about crime? But then, presuming they know something about Marx and conflict sociology, they know a lot about the use of law to create institutions of privilege, violence and law, and violence in general. Is he writing for legal scholars? Perhaps. But, they are likely to appreciate the variety of functions served by law, and like Bob Cover, not be so quick to dismiss law out of hand, even as it entails violence. Still, the book is encouraging. The author is engaged with interesting ideas. As they say, a little bit of knowledge is a dangerous thing. But, it is also a first step. If de Lagasnerie keeps at it, eventually he may have something to say.
REFERENCES:
Becker, Gary. CRIME AND PUNISHMENT: AN ECONOMIC APPROACH. Journal of Political Economy 76(1968) 169-217.
Christie, Nils. CONFLICTS AS PROPERTY. The British Journal of Criminology 17(1977) 1-16.
Cover, Robert. VIOLENCE AND THE WORLD. Yale Law Journal 95(1986)1601-1629.
Galanter, Marc. WHY THE “HAVES” COME OUT AHEAD: SPECULATIONS ON THE LIMITS OF LEGAL CHANGE. Law & Society Review 9(1974) 95-160.
Reiman, Jeffry. 10th ed., THE RICH GET RICHER AND THE POOR GET PRISON. New York: Routledge, 2013.
© Copyright 2021 by author, Malcom Feeley.
