L'etat continue

Whether the state really has become more moderate therefore depends on the extent civil society regulates itself. If civil society's (self-)disciplinary efforts in fact have left the state with less enforc­ing to do, then perhaps it really has been rolled back.

Cultures have made use of formal and informal controls to differ­ent extents. To sting, shame punishments require buy-in to shared standards. A communitarian society can enforce norms by threaten­ing to ostracize offenders. An individualistic one relies more heavily on the state and its coercive apparatus.⁹² Nor has every society been able to impose the same degree of informal social control. Immi­grant societies, with few shared values or traditions, have struggled to institute broad risk- and cost-sharing social policies, compared to the more easily achieved solidarities of nations that—at the moment of forming their welfare states—were more ethnically and religiously homogenous.⁹³ The citizens of multicultural, immigrant nations, especially if their welfare policies do not shore up the tra­ditional institutions of socialization, are less likely to agree on com­mon social norms than the inhabitants of countries governed by what the Germans call a Leitkultur, a dominant cultural ethos.⁹⁴ Multiculturalism's fissures have come to strain countries whose poli­cies once could assume a certain behavioral uniformity.

Within any given culture, the balance between formal and infor­mal control has also shifted back and forth historically. Inculcated behavioral norms sometimes weaken or reverse. Increasing urban­ization has drained small, tight-knit communities with their every­day mechanisms of socialization. The recent rise of antivaccination movements has undermined once widely adopted, socially benefi­cial conduct, prompting authorities to reinforce formal obligations— subjecting children to the needle before enrolling them in school.⁹⁶ For a brief moment in the 1960s, the West seemed to relax informal control, lessening behavioral regulation.⁹⁷ Individual civil rights were enhanced, conventional proprieties disregarded. Hedonistic behavior—sexual, emotional, drug-related—spread into even the middle classes. Were an older work ethic and norms of social con­trol more generally unwinding?

Perhaps behavioral control did briefly relax during the 1960s and 1970s. Nonetheless, looking back half a century later, the continuities impress more than the ruptures. Despite some loosening in matters sexual and possibly also on inebriation, social self-regulation seems as strict today as ever. The shift from blue- to white-collar jobs, from pro­duction to service, demands ever firmer self-discipline. Ill-educated working-class men, smarting at their inability to master new jobs, supply the shock troops of today's populist movements. Educational requirements and demands have ratcheted steadily skyward. The universities where the sixty-eighters lazily turned on, tuned in, and dropped out now expect Stakhanovite hyperaccomplishment. Even adolescents have lengthy CVs. Far from relaxing, informal controls have arguably strengthened in the past half century. Jerry Rubin, for example, went from Yippie to yuppie. He led Berkeley protests in the 1960s, taunted brokers by throwing dollar bills onto the New York Stock Exchange floor, and was tried as part of the Chicago Seven after riots at the Democratic National Convention in 1968.

Informal social control and formal law have counterintuitively increased in tandem. As society has become more complicated and less homogeneous, increasingly rift by social, religious, ethnic, and other multicultural divides, control has shifted. Formal imposition has arguably made a comeback, supplementing informal socializa­tion. A neoretributionist wave of penal policy has hit some nations, with more people imprisoned. And police numbers have grown across the world, with vast private forces now enhancing the official.

But, more important and less expected, new laws and novel kinds of regulations have expanded the state's reach into our lives, indeed our minds. Even as we exert more self-control, and even as the engines of informal socialization turn more swiftly, we also have more overt law—not just regulatory but penal too. More and different behav­iors have been criminalized. Thoughts and intentions have increas­ingly become actionable. Even when multiple laws merely duplicate prohibitions, the state has arrogated to itself unprecedented powers through charge stacking—that is, targeting the same behavior via multiple avenues of prosecution.⁹⁸ Prosecutors have gained greater leverage to insist on plea bargains—effectively coercing defendants into pleading guilty, increasing the court system's throughput, and sparing themselves work. The charge that overcriminalization is now a problem has come from both Left and Right.⁹⁹

Following Tocqueville, Foucault argued that modern regimes sought to change citizens' souls and did not just require correct out­ward behavior. These two thinkers focused on prisoners and men­tal patients, those pitiful, deviant marginals who bore the brunt of society's disapproval and discipline.

Setting itself ever more tasks and motivated by the best of inten­tions, the modern state willy-nilly became a bigger part of the every­day. Modern life, it seemed, required more law. New technologies of course demanded new regulation, but the state was also asked to do more. We have more immigration law than ever before, not because we have more immigration than in, say, the late nineteenth cen­tury but because citizens expect the state to regulate it. Preserving the environment, ensuring workplace health and safety, protecting women from abuse, minorities from discrimination, children from predation, and consumers from fraud: all have become state tasks. Environmental legislation alone now makes up 15 percent of US federal regulations.¹⁰⁰ That would have surprised the early modern state. And the development of inchoate law in effect quadrupled the range of possible offenses, as planning, conspiring, and intend­ing crimes were added to the acts themselves.

As the law expanded to an ever broader array of both overt and covert behaviors, more citizens became potential offenders— defendants who had just not yet been caught, the sword of Damocles ever pendant over them. As more actions became crimes, more citi­zens became criminals.

Seeking to make life safer, healthier, and happier, US lawmakers have at one time or another prohibited hat pins of certain lengths, the public eating of reptiles, masked balls, hats at theatrical perfor­mances, and hotel sheets less than nine feet in length. In the 1880s, James Bryce, British ambassador to the United States, followed in the footsteps of Tocqueville's earlier travels throughout the country and reported wryly on the state-level regulations governing every conceivable topic. His irony extended not just to how it was forbid­den to send annoying letters or employ the color-blind on trains but also to what we might consider sensible, indeed prescient, measures: requiring doctors and dentists to be licensed, obliging buildings taller than a certain height to have fireproof staircases, and prohib­iting hotels and insurance companies from discriminating against Blacks and Jews. All such measures, he seemed to think, were wildly beyond anything at home in Britain.¹⁰³ Already in 1900, long before our own era's tsunami of new legislation, an observer imagined Dracon and Solon, the Greek legislators whose names live on in their codes, shaking their heads in bemusement at the panoply of laws governing the lives of modern Americans: punished for jumping off trains in motion, sleeping in bakeries, killing partridges out of season, failing to report infants' infected eyes, serving margarine in prisons, riding horses on the sidewalks of unincorporated villages, and so forth in all their eccentric glory.¹⁰⁴

In sum, across the past several centuries, civil society has grown evermore orderly and regulated, but the state has also continued to expand in parallel.

Once-tolerated behaviors have evermore become law's object. Although we might smile at the painstakingly officious and metic­ulous Polizei regulations of the eighteenth century, much of their intent remains in effect. Modern microregulation is often adminis­tered through regulatory law rather than through the penal code, but it is enforced more effectively. Use of inebriants is subject to law, even as some are exempted from statute's attention—as most recently with marijuana. Of course, states have regulated consumption for centuries, but rarely on today's scale. America's war on drugs—heir to similar battles against alcohol—has formalized behavioral con­trol as it massively applies semi-militarized state force against deeply engrained and widespread behaviors. Drug-using Americans, espe­cially ethnic minorities, were sent to prison ten times as often in the late 1990s as a decade earlier.¹⁰⁷

Even sartorial regulations—seemingly pointless in the era of spandex worn in public—remain with us. East Germany outlawed long hair on men and short skirts on women. The Chinese use their digital panopticon surveillance to harass old folks who wear paja­mas in public. But liberal democracies, too, intervene. Until 1937, a Yonkers ordinance prohibited appearing in public in “other than customary street attire.” More recently, municipalities have forbid­den baggy pants, the wearing of baseball caps backward, certain col­ors associated with gang membership, as well as ceremonial daggers borne by Sikhs. Japanese schools have required brown-haired pupils to dye their hair black to fit in. France and Denmark have banned burqas and other face coverings.¹⁰⁸ And the quickest way to end up in detention almost anywhere is to strip in public—or even in pri­vate if one is publicly visible.¹⁰⁹

At the same time, as noted, citizens are more self-controlled than in the past. Cultural conservatives often lament that we are losing our sense of humor, by which they mean that we are no longer per­mitted to mock or sneer at the downtrodden and vulnerable. This change testifies to the success of shifting informal standards: “Mean jokes go out of style because civilization moves on.”¹¹⁰ Old coots may lament being reprimanded for telling Polish or mother-in-law jokes. But few would desire a return to the early twentieth century, when victims of discrimination often turned to libel or defamation law to protect themselves against “accusations” that we no lon­ger regard as calumnious. In those days, it was considered a libel or slander per se (one that was actionable even without causing harm) to be called Black and, later, Communist or homosexual.¹¹¹ Similarly those called Jewish who did not consider themselves such could and did sue for having been vilified.¹¹²

Society exerts all manner of restraint on us. Foucauldians are right to have emphasized that. But the expected corollary—that overt, formal, statutory control ceded pride of place to the new disciplin­ary regime—rings false. As we have seen, along with the growth of informal social discipline, the state has also vastly expanded its formal regulatory powers. It passes new laws on a massive scale, sharpens existing ones, and intervenes ever deeper into civil soci­ety. As has often been pointed out, new laws proliferate, while old ones remain. Accretion of old and disused statutes explains only in part the mushrooming quantity of law. The US Congress has created fifty new crimes annually for the past several decades, the US states some forty.¹¹³ Of the federal criminal provisions put on the books since the American Civil War, a calculation in 1998 put the figure enacted since 1970 at an astonishing 40 percent.¹¹⁴ Brit­ain instituted seventy immigration offenses over the entire twen­tieth century. A further eighty-four arrived in the first decade of the following millennium. The twelve years after 1979 saw half of all Chinese laws on public security enacted.¹¹⁵ Add to this the way courts have expansively interpreted these burgeoning laws, further extending the state's reach.¹¹⁶

Policing has also expanded accordingly. The state once took as its primary function the protection against external enemies. Today, internal adversaries are considered equally important. The man­power allotted to policing once paled in comparison to the armed forces. Today it has largely pulled even, and that counts just official police. Add in private policing, and the point is hammered home. The first national police force, the French marechaussee from the 1760s, had 3,000 men, the French army 400,000.¹¹⁷ Today the US military has more than a million active personnel. Official policing institutions have somewhat less than a million, and there are about a million and a half police if the private forces are added in.¹¹⁸ In Britain, the military has 192,000 personnel, and the official police force has 150,000 or 381,000 if private security forces are counted, too, bringing it to twice the size of the military.¹¹⁹

As the number of laws and potential crimes increased, the the­oretical chances of the average citizen crossing the line has also multiplied. “The vehicle code gives me fifteen hundred reasons to pull you over,” as one California highway patrolman put it.¹²⁰ No one disputes that the poor are punished disproportionately or that white-collar offenses are often treated lightly.¹²¹ But the law has also taken aim at behaviors that were once not criminal at all. Today's good burghers, whose forebears might rarely have encountered the police, now often will—at least in theory. Citizens did not become more evil, but as the arena of illegality extended, they were likelier than ever to offend. We thus face an apparent paradox. Did expand­ing and deepening the law's reach mean that more citizens became potential criminals? The expansion of drug laws has fueled Ameri­ca's jail boom. Many current white-collar crimes were once legal or at least ignored. Bankers are now perp-walked to prison. Could it be that the civilizing process actually increased criminality?

Writing in 1902, Arthur Cleveland Hall welcomed the growth of convictions and imprisonment as signs of civilization and progress. As society became more complex and sophisticated, he thought, it required more laws. Since that, in turn, forbade more actions, society necessarily pushed more people beyond the pale. But the nature of crime changed. The number of archaic, primitive crimes committed—assault, mayhem, homicide—declined. The number of new, more genteel offenses—fraud, forgery—increased.¹²²

How true that may be is hard to measure. Conviction rates have increased, though not in all nations.¹²³ Today, proportionately twice as many Americans have spent time in jail than half a century ago.¹²⁴ Almost twice the percentage of Britons were in jail in 2008 compared to in 1900.¹²5 Since more citizens have likely violated the law than we can ever pursue, the decision of who is a criminal now rests less with legislators than with the police and prosecutors.¹²⁶ Contacts between authorities and citizens that lead neither to arrest nor conviction yet serve a broader sense of enforcement have increased. Being stopped by police has become the most common form of citizen contact with criminal justice. Zero-tolerance polic­ing has consigned a whole new class of petty misdemeanants to a system of official chicanery and invasive social control that stops short of conviction and incarceration.¹²⁷

But to know whether the average citizen is more likely to be arrested and convicted, we need to know about recidivism, too. Are some people being convicted multiple times even as more people avoid entanglement altogether? In the United States, three-quarters of federal state prisoners released in 2005 were arrested again within five years.¹²⁸ What we do know is that even though the possibilities of offending have mushroomed, the overwhelming majority of citi­zens pass their lives without seriously confronting the law. Prison populations have skyrocketed, but over a lifetime “only” 5 percent of Americans will spend time in jail.¹²⁹ Given the exceptionally high incarceration rates in the United States, far fewer people go to prison almost anywhere else in the world. Though Hall's extrapola­tion was logical, more laws would have led to more criminals only if average citizens did not adjust their behavior in tune with the ever- wider web of potential ensnarlments. Exercising even greater self­control, they may have fallen no more afoul of the law than they did earlier—even as the law expanded to dig more potential pitfalls. If so, then the law spurred further efforts at self-control by defining the parameters of the acceptable ever more precisely.

By contrast, those least adept at self-control were likely to have had difficulty navigating the ever-narrower roads of legality. In theory, more citizens could offend since there was more to offend against. But they may not have. A small minority, however, has been caught in the unforgiving forcefield between expanding formal prohibi­tions and ever-higher demands on personal restraint. Society seems increasingly to have bisected: the majority self-regulated, only rarely encountering the business end of authority. Meanwhile, a smallish group of outsiders, downtrodden, and unfortunates bore the law's full brunt. For them, law became the last remaining engine of social­ization. Law enforcement targeted racial and class outsiders, foreign­ers, the mentally ill, drug addicts, and others who violated society's increasingly numerous and elaborate norms, insufficiently reined in by informal guidance. Even when these outsiders were not convicted or locked up, a persistent barrage of petty violations (subway free- loading, marijuana use, and knife possession) sought to identify and control them.¹³⁰

The world over, prisons are filled with ethnic and national out­siders. The story of America's jails is well known. The prison boom of the late twentieth century has not made inmates more represen­tative of society as a whole. Quite the opposite, most prisoners are Black and Latino men. In Europe, racial minorities are even more overrepresented behind bars. In the United States, Blacks are rep­resented six times disproportionately in the prison population. In Britain, it is seven times. It is twelve times for Aborigines in Austra­lia, and sixteen times for Afro-Caribbeans in Canada.¹³¹ In the US foreign nationals are underrepresented in prison—only 6 percent. Across Western Europe, however, foreigners often make up a large fraction and sometimes the majority of prisoners.¹³² In North Rhine Westphalia, Romanians are arrested at forty-four times the rate of Germans and jailed twenty-one times as often.¹³³ Seventy percent of the Swiss prison population is foreign born, 45 percent in Aus­tria, and 30 percent in Germany.¹³⁴ Banishment is added to lockup, and foreign prisoners in Europe are often expelled once their sen­tences are over—frequently to “homes” they have never actually lived in.¹³⁵

Even as the state has grown relentlessly—with only few setbacks— over the past five thousand years, humans still dream of life without it. That law would eventually become unnecessary has been a fond illusion. The ancient Chinese expected law to vanish—Confucians because right living would become second nature, Legalists because punishments would be so cruel that no one would dare transgress.¹³⁶ In the fourth century, Augustine regarded the state as a necessar­ily coercive relationship between authority and humans, whose evil nature required subjugation, so it would be unnecessary in para­dise.¹³⁷ Utopians have long hoped for communities held together by common sympathy and purpose, with no need for law.¹³⁸ Anar­chists definitionally shunned the law when outlining their ideal futures. Like today's neoliberals, Proudhon imagined that contract

would substitute for it. Indeed, neoliberals aim to limit the state's task to fighting crime, thus leaving markets free to arrange most other social relations.¹³⁹

Marx and especially Friedrich Engels argued that after a proletar­ian dictatorship, when new rulers made use of old-regime power, the state would wither away. Absent private property, social contradic­tions would dissipate, and so, too, would the state. We all recognize the naivete of this messianic expectation that law and policing would vanish as capitalism's social tensions evaporated under socialism's warm sun. Stalin certainly made short shrift of such yearnings. The illusion of doing without law was condemned, and socialist legality was declared statute's highest form, rigorously enforced.¹⁴⁰ Nonethe­less, in the West today a related assumption remains widespread— the Foucauldian conviction that modernity shifts social control from state to society. These theorists insist that despite the illusion of liberalization, power remains, but it has moved from the state's heavy, centralized authority to subtle, diffuse, dispersed forms of dis­cipline within society's institutions. The law has been expelled.¹⁴¹

Has no one recognized the continuing importance of the law? History has not been kind to Durkheim's understanding of why offending is sanctioned. He argued that society punishes crime not to revenge itself or to deter future offenses but ritually to express its communal ties, to reaffirm the unity of law-abiders against trans­gressors. The point of punishment was to influence not the offender but honest citizens, thus rallying the troops. In his early writings, Durkheim defined crime as acts that most people agree are trans­gressions, ones that offend the “collective consciousness” (society's “psychological type”), which he imagined present everywhere and across generations.¹⁴² This definition presupposed a communal mind, an essentialist cultural unity of a sort now largely rejected by social scientists.¹⁴³ At best, it would describe only a small frac­tion of all statute. Unsurprisingly, however, lawyers have been grati­fied by the importance Durkheim attributed to the law. Some have arrogated to themselves the role once served by high priests. They argue that in the absence of shared national religions, law expresses our common beliefs of what must be condemned and helps create norms.¹⁴⁴

Durkheim's later writings, elaborating the development of indi­vidualism, more plausibly argued for a collective sense of justice and has influenced thinking on human rights.¹⁴⁵ Restorative jus­tice, returning punishment to its traditional prestate role of making good the damage done, has Durkheimian roots. Though Durkheim had a curiously mystical view of the law as expressing the collec­tive nous, he also made other points of interest here. Early gods were enforcers. Religious transgressions were the first public crimes, affecting the whole community. The state eventually assumed the divine's role in enforcing. The law socializes us, though he under­stood it as the expression of shared communal values and not—as seems more plausible today—a tool wielded by powerful social groups. Durkheim also thought that punishments moderated as society developed, though not, as argued here, because the state strengthened but because human sympathy extended from victims to criminals.¹⁴⁶

The argument made here is simple. Seen in the longue duree of global history, the state came late to making and enforcing law. But once started, it never looked back. Today, we are governed by more law than ever before. And yet even outside the law we are also increasingly socialized into correct behavior by an array of other means. So powerful is this socializing process that it raises the ques­tion: Why do we need the law any longer, especially more of it? Belt and suspenders? Clearly, the law persists. Despite our ever better-mannered and docile citizenry, law remains the workhorse of social control, defining and deepening the parameters of our social­ization. Time therefore to bring the law back in, to move beyond Foucault. Today's penal codes are an absolutist ruler's wet dream, bestowing real power such monarchs would have envied. Yet most of us—the codes' subjects—scarcely notice them in our daily lives. In The Devil's Dictionary, Ambrose Bierce defined opiate as “an unlocked door in the prison of identity. It leads into the jail yard.” We might say something similar of the Foucauldian vision of social discipline—the yard where inmates catch a glimpse of sky, run a few laps, and imagine the world beyond the prison walls. It remains in fact wholly under the state's umbrella.¹⁴⁷ To deter and otherwise shape our behavior, the law must exist, and it must be enforced. The rule of law requires laws, indeed ever more of them as mat­ters become complex. A more advanced society may not have more criminals, as Hall thought, but it certainly has more laws, and those statutes require and encourage most citizens to toe the line. Ever new behaviors are forbidden, even as formerly offending conduct is gradually socialized away. To gain more self-control, it seems, we need more law.

Although the state may lay low, in dealing with crime it does not wither away.