Vol. 1. Introduction to Postmodern Criminology.
Constitutive Criminology: An Overview of an Emerging Postmodernist School*
No. 001
Distributed as part of the Red Feather Institute Postmodern Criminology Series. The Red
Feather Institute, 8085 Essex, Weidman, Michigan, 48893.
Constitutive criminology is an integrated critical approach to the analysis of crime and its control. It has emerged in the past 10 years through our collaborative efforts to transcend the limits of both modernist and postmodernist thought on matters of crime and justice (Henry and Milovanovic, 1991; 1994; 1996; Milovanovic and Henry, 1991; Barak, 1993; 1994a; 1994b; 1997b). It surpasses the limited and often reductionist causative models of modernist positivist empiricism and abandons the search for causal factors. However, constitutive criminology also moves beyond the nihilism, subjectivism and defeatism found in skeptical postmodernism (Schwartz and Friedrichs, 1994). It is an affirmative postmodernism, recognizing the co-production of crime by human subjects, and by the social and organizational structures that humans develop and endlessly (re)build. The essence of the constitutive argument is that crime and its control cannot be separated from the totality of the discursively ordered, structural and cultural contexts in which it is produced.
Drawing on contributions from postmodernism, feminism, marxism,
semiotics, psychoanalysis, social constructionism, structuration theory, chaos
theory, and communications theory, constitutive criminology provides a
genealogical investigation of crime, criminologists, and criminology in their
relations with human subjects, law and social order. This new criminology
addresses crime's interwoven connections with the wider complexity of social
relationships through a synoptic analysis whereby crime is related to the
"symbolic," the "imaginary," and the "real." It is an open-ended approach
proposing that human subjects are responsible for actively creating their
world with others, a world which simultaneously acts back, shaping the
subject's own identity. Through social interaction involving language and
symbolic representations, people identify and evaluate differences, construct
categories, organize their activities to reflect those categories, and share a
belief in the reality of that which is constructed. This shared belief gives
order to otherwise chaotic states while it also recursively constructs their
lives. By investing energy in socially constructed realities, human subjects
are not only shaped, but they also help shape the world around them.
Constitutive criminology thus furnishes a dynamic conception of social structure as a virtual and infinitely revisable society where human subjects dynamically and contingently interact. Consistent with its own analysis, constitutive criminology is an unfinished, emergent articulation of these interrelations as they develop, merge, and continue to transform one another.
The constitutive criminological vision of the human subject is open to
both human diversity and specificity, as well as being contingently formed so
as to adjust to emerging renditions of subjectivity in historical contexts
(Butler, 1990). To capture this contingent formation, constitutive
criminology uses the term "recovering subject." The human subject is seen as
"recovering" because it is always striving for a final and certain state of
being, but never arrives. Such a vision is an important first step in
developing a framework that allows for the richness of human potentiality,
without foreclosing its endless possibilities. The recovering human subject
always has the potential to escape the cages of its own and others'
constructions, not least by investing energy in new ones.
An emergent, contingent, and revisable notion of human subjectivity and
behavior also influences constitutive criminology's conception of criminals
and victims. The human subject-as-offender is viewed as an "excessive
investor" in the power to dominate others. Such "investors" put energy into
creating and magnifying differences between themselves and others. This
investment of energy disadvantages, disables and destroys others' human
potentialities. The human subject-as-victim is viewed as a special case of
the "recovering subject," still with untapped human potentiality but with a
damaged faith in humanity. Victims are more entrenched, more disabled, and
suffer loss. Victims "suffer the pain of being denied their own humanity, the
power to make a difference. The victim of crime is thus rendered a
non-person, a non-human, or less complete being" (Henry and Milovanovic, 1996:
116).
Each of the "subjects" of these multiple interrelations of crime may
simultaneously be viewed as "objects" for domination. As objects, human
subjects represent co-produced reflections of the multiple signifiers that are
connected in chaotic and continuous ways. At the same time these signifiers
remain with some degree of self-referentiality (autopoietic). In other words,
they replicate and expand, drawing energy from their environment to strengthen
their own internal processes. Nowhere is this self-inflating expansion more
evident than in law.
Constitutive criminology rejects modernist images of law as an
independent entity; autonomous law is myth (Fitzpatrick, 1992). It argues
that we need to transcend the view that law is the linear product of cultural
consensus, structural forces, structural conflicts, interactive relations or
system processes. This vision distracts from addressing the complexities
involved in the subject-society-law relationship. In contrast, constitutive
criminology views law, like other institutional structures, as semi-
autonomous, mutually constituted through social relations and discursive
misreading (Santos, 1987). Law's semi-autonomy derives from its constitution
through the discursive processes of non-state normative orders with which it
is interrelated and interwoven. These dynamic normative orders provide the
formative contexts for the production of new legal and social forms. Here we
begin to see how "social control," taken as the plethora of non-state
normative orders, are a necessary part of the ideological process whereby
object-like qualities of law are created and sustained. It is the very
distinction between "law" and "social control" that sustains law as a discrete
entity. Investment in the construction of this distinction gives law its
appearance of autonomy and is constitutive of its power.
The significance of the interconnectedness of law with other social
forms is that law will inevitably contain the self-same expressions of power
that create the "formative contexts" of crimes that are subsequently omitted
from definition (Unger, 1976). Law recursively constitutes the suffering,
and pain of "crime" in more insidious forms, such as when the powerful benefit
from otherwise perceived "free" contractual relations. This is not the same,
for example, as saying corporate interests shape the law in order to be immune
from prosecution which renders them free to create harm. Rather, it is saying
that corporations, as "excessive investors" in power, constitute law to
reflect the legitimacy of their power and the illegitimacy of the power of
others. Uncritically accepting legal definitions of crime reconstitutes the
power that is crime's harm. Law is not merely a passive definer of crime. It
is a maker of crime, the manifestation of which provides sustenance to its
classificatory schema of crimes. This is because it conceals some agent's
(person, agency, institution, state, "constitutive interrelational-set") harms
by institutionalizing and legitimizing the power relations whose continuance
brings harm. For example, "`conjugal violence' is a product of a
crimino-legal practice which stands in as proxy for the violence of the
marriage relation. There is then a legal culture of violence in which
conjugal homicide takes place. Violence resides in the house of law, the
house of marriage" (Young and Rush, 1994: 166). As Young and Rush argue, it
is necessary to abandon the "smooth surface of the universal victim" for this
sacrifices too much of its particular in silence. Law designed to uphold
power differentials cannot protect against harm; it frames its construction
(Young and Rush, 1994). This is in the sense of the pervasive hidden crimes
of domination that Bourdieu describes as "symbolic violence," "the violence
which is exercised on a social agent with his or her complicity" (Bourdieu and
Wacquant (1992: 167).
So too, with the unitary notion of "crime." Crime is a socially
constructed and discursively constituted legal category. It is a violent
categorization of the diversity of human conflicts and transgressions into a
single category "crime." It melts differences reflecting the multitude of
variously motivated harms into a single entity or series of legal
abstractions, such as "violent crime" or "property crime." As such the
conventional and legalistic conceptions of crime are celebrations of
homogeneity that sustain and perpetuate the violence of crime's power
relations.
Whether one is referring to victims experiencing harm, or to offenders
experiencing ennui, rage, rationalization, seduction, or dehumanization,
constitutive criminology argues that unequal power relations, built on the
construction of difference, provide the conditions that define crime as harm.
Thus constitutive criminology redefines crime as the harm resulting from
investing energy in relations of power that involves pain, conflict and
injury. People in relations taken to be "crimes," are in relations of
inequality. They are, as discursively constituted human subjects, being
disrespected; reduced from what they are, prevented from becoming what they
might be. Thus we define crime as "the expression of some agency's energy to
make a difference on others, and it is the exclusion of those others, who in
the instant are rendered powerless to maintain or express their humanity"
(Henry and Milovanovic, 1996: 116). This agency may be comprised and
energized by people, social identities (men, women, etc.), groups, parties,
institutions, the state or even constitutive interrelational-sets. Crime
manifests a disrespecting power. Indeed, "crimes are nothing less than
moments in the expression of power, such that those who are subjected to them
are denied their own contribution to the encounter and often to future
encounters, are denied their worth . . . Crime then is the power to deny
others their ability to make a difference." (Henry and Milovanovic, 1996:
116).
The activities of many of those in the institutions in western
industrial society are premised on the exercise of power over others; the
witting or unwitting denial of others' right to make a difference. This is
the root of why capitalism is criminogenic, why ours is a violent society. It
is also why Party hierarchy state socialism is criminogenic. The activities
of those who construct occasions for the deliverance of power is crime. It is
crime because it takes from people any present dignity and, further, represses
their attempt to change. Thus a constitutive view of crime includes much of
what currently stands for business practices, governmental policies, and
hierarchical social relations. It includes a lot of what occurs in family
life. It is why sexual harassment and violence against women (whether in
emotional torment or physical beating from either spouse to the other or to
dependents) are crimes. It is especially why child abuse is a crime. Indeed,
it is why emotional terror by employers over employees through at-will
employment is a crime. Finally, it is why several of the actions or inactions
of government agencies, such as neglect of health and safety in the workplace,
are also crimes and why homelessness is a crime. These arenas are each
premised upon the inequality of power relations that allow some to build their
freedom on the backs of others denied.
As a discursive construction, crime has various capabilities of being
expressed within given discourses. It also undergoes
translation/transformation between discourses as is the case of the lower
class defendant or other marginalized, disempowered, and disenfranchised
groups before the court, a translation often unreflective of the complexities
of existence. This is the violence of language. As an alternative to the
legalistic definition of crime, our postmodernist definition focuses on harm
inflicted in all its guises and would certainly include the "violence of
language" (Lecercle, 1990), particularly how disenfranchised, disempowered,
and marginalized have been denied expressive forms for their desires and
yearnings, that is to say, how their voices are denied (Freire, 1985;
Aronowitz and Giroux, 1991; Giroux, 1992).
Thus, in contrast to existing legal and modernist definitions of crime
our definition of crime is specific, but historically contingent, and includes
victim categories that allow us to be aware of the changing nature of the
emerging social constructions whose relations of power are relations of harm.
Harm results "from any attempt to reduce or suppress another's position or
potential standing through the use of power that limits the other's ability to
make a difference" (Henry and Milovanovic, 1996: 13). For this reason
constitutive criminologists find it helpful to identify two aspects of the
relations of domination that characterize crime. "Crimes of reduction" and
"crimes of repression" refer to power differentials and to hierarchical
relations that reinforce both types of harm. Harms of reduction occur when
offended parties experiences a loss of some quality relative to their present
standing. They could have property stolen from them, but they could also have
dignity stripped from them as in acts of hate against discredited groups.
Harms of repression occur when offended parties experience a limit or restriction preventing them achieving a desired position or standing. They could be prevented from achieving a career goal because of sexism or racism, or meet a promotional "glass ceiling." Considered along a continuum of deprivation, a continuous variable, harms of reduction or repression may be based on any number of constructed differences. As presently constituted in late twentieth century western industrial societies harms cluster around the following constructed differences: economic (class, property), gender (sexism), race and ethnicity (racism, hate), political (power, corruption), morality, ethics (`avowal of desire'), human rights, social position (status/prestige, inequality), psychological state (security, well being), self-realization/actualization, biological integrity, etc. Whatever the construction, these are harms either because they move the offended away from a position or state they currently occupy, or because they prevent them from occupying a position or state that they desire, whose achievement does not deny/deprive another.
As can be seen, unlike the narrowly defined modernist definitions of
crime, the constitutive definition is capable of accommodating an infinite
range of harms as experienced, for example, by the present sites of race,
class, and gender domination. Our definition of crime as "the exercise of the
power to deny others their own humanity" needs to be anchored to the
specificities of endless substitutable, existent and emergent social
constructions. It is through these constructions that humanity is constituted
and along these discursive dimensions it takes shape. Only in such a way can
we be continuously aware of the relations of crime and of the social space
needed to replace these with less harmful forms. But because law can only be
reconstituted (because of its interrelations with other social orders) by
reconstituting the relations of other social forms with which it is
interrelated, merely changing law's definition of crime to include more victim
types is, on its own, futile. Rather, to change the social construction of
harm it is necessary to change the social forms and their implied power
relations so that harm is not carried under the guise of law, in the
expression of power over others. To both comprehend and counteract the
harmful outcomes of such interrelations, constitutive criminology points to
the need to transcend modernist culturally produced images of crime and
punishment and to see them more appropriately as mutually constituted through
social relations and discursive (mis)readings.
Assuming that crime, criminals, and victims are dynamic, indeterminable,
dialectical, and interrelational phenomena, embedded in the discursive
cultural co-production of the subject-society-law relationship, constitutive
criminology argues that "causation" in the positivist, predictive,
determinist, and linear sense, does not exist. Constitutive criminology,
claims that the very notion of "cause" is problematic, and sets out to examine
the unexplored territories of probability and criminological theory. Modern
theories of crime causation have failed not because they have been unable to
correctly advance the causal ordering among variables, but because no such
correct causal ordering exists in the first place.
Importantly, while not totally abandoning the notion of causation,
constitutive criminology presents an assemblage of causality from the
perspectives of "mutual influences," "structural couplings," "relational
sets," "psychoanalytic semiotics," "gendered analyses," and "chaotic
transformations." Consistent with an affirmative postmodern position,
constitutive criminology draws inspiration from dialectical assumptions,
arguing that crime is not so much caused as discursively constructed through
human processes of which it is one. Hence, "crime is the ongoing, recursively
produced outcome of numerous different contexts of interrelationship, wherein
human subjects progressively lose sight of their productive contribution, and
increasingly invest in that which they produce to the point of some becoming
excessive investors and others victims of denial, reduction, [and] repression"
(Henry and Milovanovic, 1996: 170). In the non-linear chaotic world, neither
"criminals" nor "crimes" are static concepts or objective entities. They only
appear this way when positivistic criminologists "freeze" the social reality
of either for the purposes of trying to identify "independent" and "dependent"
variables. Nevertheless, in terms of a soft determinist, neo-positivist, and
postmodern integration, "cause" may refer to the influences and variations
that occur through the interrelations of discourses, ideologies, imaginations,
unconsciousnesses, histories, and political economies, all of which are never
fully separated as discrete entities. Instead of singular "factors" or
"multiple factors" causing crime, constitutive criminology sees crimes as
harms that are the recurrent, co-produced outcomes of constitutive
interrelational sets (or "COREL" sets).
Given this interlocking and interconnected perspective of crime and
society, what has constitutive criminology to say with regards to questions of
justice policy and practice techniques? The object-like qualities of crime,
law, and punishment are created and sustained by discursive policies and
practices, and can be transformed to reflect the expansive possibility
engendered by our recovering human subject. In short, constitutive
criminology calls for a justice policy of replacement discourse. This should
substitute for a policy of criminal justice founded on deficient conceptions
of the problem which are co-constitutive of the ongoing vitality of crime. In
terms of diminishing the harm experienced from all types of crime (street,
corporate, state, hate etc.), constitutive criminology talks of "liberating"
discourses that seek transformation of both the prevailing political economies
and the associated practices of crime and social control.
As part of a policy of "replacement discourse" on crime and justice,
constitutive criminology welcomes theoretical contradictions and behavioral
contingencies. These provide discursive opportunities for reinvesting in the
ordering of disorders and for recovering those subjects overinvested in the
"harms of reduction" or the "harms of repression." In other words, as a
"post" postmodern integration, constitutive criminology has policy
ramifications for criminal justice, media production, and mass culture. In
particular, it advocates an "empowered democracy" (Unger, 1987) through
newsmaking and peacemaking criminologies, social judo, radical refraction and
cultural pluralism. Constitutive theory is rooted in, yet striving to be free
from, the material conditions of an apparently inevitable linear unfolding of
historical processes. Hence, the constitutive approach to criminology calls
for a transpraxis of incompleteness, for a movement toward a process that
seeks to liberate the human spirit while at the same time not sowing the seeds
of additional harm and destruction.
In applied terms, constitutive criminology seeks to integrate
"objective" and "subjective" interpretations of crime and social control.
Conceptually it aspires to do this by connecting scholarly analyses and
popular discourses as they intersect in the virtual reality of such mass-
mediated themes as: crime and crime-fighting, criminals and victims and
criminalization and victimization. Specifically, constitutive criminology
recognizes the co-responsibility that criminologists have for crime and crime
control that is reproduced (or reduced) daily. As such, constitutive
criminologists actively engage in the developing praxis of newsmaking
criminology that confronts the prevailing myths, stereotypes, and
constructions associated with the common images of crime and justice, as a
means of transforming both the discourses and practices surrounding crimes of
reduction and repression (Barak, 1994a; 1997a; 1997b).
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