ALL RED FEATHER MATERIALS ARE ALWAYS FREE TO STUDENTS AND TO THOSE WHO TEACH THEM....T R Young

VOLUME 8

 Re-Mapping American Criminology

ASSESSING HENRY AND MILOVANOVIC'S CONSTITUTIVE CRIMINOLOGY

by Andrew Bak

Constitutive theory surpasses early postmodernist schools of thought that focused upon analytical deconstruction. These earlier strains of postmodernism have been described as "skeptical, nihilistic, subjective and defeatist" (Einstadter and Henry, 1985; Rosenau 1992). Instead, constitutive theory focuses upon reconstruction through the implementation of an "affirmative, optimistic and humanistic approach" (Bohm 1996:15). The purpose of this paper is to develop a critical appreciation of Stuart Henry and Dragan Milovanovic's constitutive criminology. To do so I will first review each component of constitutive ideology and then introduce an overview and synthesis of some of the recent scholarly work directed at Henry and Milovanovic's philosophy.

Henry and Milovanovic develop their constitutive theory through a careful analysis of both modernist and postmodernist perspectives regarding the individual and human behavior, society and social structure, crime causation and the constitution of crime. They perceive the human subject as an active creator of his or her social environment. Simultaneously, this social environment, which is collectively constituted by and through discursive mediums, acts to create those who have created it. As human subjects, we actively create and recreate our social world by replicating old meaning and creating new meaning. At the same time, this social world that we actively create through discursive practices introduces us to new phenomena, which in turn create us by providing us with new meaning.

Henry and Milovanovic's conception of this simultaneous process of creation and recreation between the active human subject and the social world is shown to have a "recovering" effect on the human subject. They describe human subjects as "recovering subjects," recovering from a never-ending exchange of familiar and unfamiliar social forms through active discourse with their environment.

In a major review of their work, Bruce Arrigo (1997) considers Henry and Milovanovic's recovering human subject as rooted in, but an advance over existential phenomenological principles. Arrigo finds that these authors' characterization of the recovering human subject is particularly derived from the work of the sociological phenomenologist Alfred Schutz (1967), and also reflects the ideas of several philosophers including Edmund Husserl, Maurice Merleau-Ponty and Martin Hiedegger. Arrigo discusses four existential phenomenological concepts that he finds to be fundamental to Henry and Milovanovic's conceptualization of the human subject. These concepts include: Intentionality, Being, Lived-Body/Lived World and Meaning. In the next section I will briefly discuss the connections Arrigo makes between each of these concepts and constitutive theory.

Arrigo (1997) points out that Husserl (1983) developed the principle of "intentionality" which he saw as how our observation of phenomenon and our understanding of the social world are negotiated. This is how we achieve an "attentive mental regard" (Husserl, 1993:70-71) or "consciousness of something" (Husserl, 1960:30). Constitutive philosophy parallels Husserl's principle of Intentionally in asserting that the social world is negotiated by the active human subject through discourse.

According to Arrigo, the notion of "Being" contends that aspects of the human subject are manifest in the phenomena that we observe. He says this notion of being is an "interconnected co-constitutive understanding of phenomena which contributes to how meaning or sense-making is derived" (Arrigo, 1997: 2). Similarly, constitutive theory asserts that everything that constitutes the social world is seen to be interconnected by and through a discursive medium: "Human agency is connected to the structures that it makes, as are human agents to each other in making those structures" (Henry and Milovanovic, 1996: 39).

Ponty's (1962: X) notion of lived-body/lived-world builds upon Heidegger's notion of being. For Ponty, the manner in which the human subject experiences phenomena is important to their experiencing the fullness of the life-world. Arrigo points out that Ponty's notion of lived-body/lived-world, like Henry and Milovanovic's conception of the environment, asserts that as embodied subjects, aspects of ourselves are incorporated into our perceptions of situations which inform our understanding of the phenomena we observe.

The fourth existential phenomenological concept which Arrigo argues underlines Henry and Milovanovic's ideology of the human subject and the social world is "meaning". For this, Arrigo looks to the work of Kockleman who writes: "Meaning is the result of an on-going encounter between human subjects and the world in which both are purposefully engaged" (Kockleman, 1966:63).

The key to obtaining a firm understanding of how Henry and Milovanovic construct their ideology regarding the human subject and the social world is to fully comprehend and appreciate the context of their use of the term discourse. Speech, body language, and the written word are all symbols that constitute discourse. For Henry and Milovanovic, discourse is an essential and necessary medium through which human agents act to construct their social world and are simultaneously shaped by that social world. Indeed, they argue "without a discursive medium constructed with others through which people converse with themselves, without their unique turn of our cultural conglomerate of meaning, they and we would cease to exist" (Henry and Milovanovic, 1996:38).

Thus, discourse is viewed as an active agent; as embodying subjective creativity, desires, drives and needs which emerge from both within the human subject and from within our social world. These are invested with energy by humans and are exercised and negotiated within the realm of reality with the effect of creating new and recreating old meaning. I have purposefully examined Henry and Milovanovic's conceptualization of discourse to illustrate how their view of discourse, as a necessary and essential active agent in constructing reality, can be easily misconstrued.

In his assessment of constitutive philosophy, Sibo van Ruller asserts that the work of Henry and Milovanovic has broken ground in establishing a post-modern strain of criminology that does not parallel the deconstructive postmodern attitude of the past. Van Ruller credits the authors with establishing a new variety of criminology that; "overcomes both the restrictions of modern criminology and the fruitlessness of skeptical post-modern criminology" (van Ruller, 1997:496).

Henry and Milovanovic argue that their conceptualization of discourse has both a liberating and constraining effect on the human subject. Discourse serves to liberate human subjects because, through active discourse one is able to communicate the uniqueness of their inner being, desires, drives and needs. At the same time, discourse is said to have a constraining effect on the human subject because individuals often perceive themselves as being more acted upon than acting. Ironically, they invest energy in losing sight of their own authorship of the world (i.e. reification).

Arrigo identifies Henry and Milovanovic's idea of the human subjects' perception of themselves as being more acted upon than acting, as similar to the interactionists' theory of "role engulfment". According to labeling theory, role engulfment refers to how one's identity becomes "caught up in 'or' organized around" the status one assumes (Schur, 1971: 69-71). The role one assumes in society is dependent upon the social and psychological influence society has imposed on the human subject. Schur (1971) believes that the individual has a greater tendency to define themselves as society defines them as one's role engulfment increases. However, again Arrigo sees Henry and Milovanovic's work to be an advance on the labeling perspective on the role engulfment. Labeling theory presents the idea that the individual takes on the role imposed on him or her by society. Arrigo views this as a "psychic disequilibrium mobilized externally by extant forces" (Arrigo, 1997: 5).

Henry and Milovanovic derive their conceptualization of liberation and constraint in the agency-structure interrelationship from Giddens (1984) and his characterization of this relationship as a duality. The duality of the agency-structure relationship, envisioned by constitutive theory, draws inspiration from Giddens' theory of structuation. For Giddens:

the constitution of agents and structures are not two independently given sets of phenomenon, a dualism, but represent a duality. According to the notion of duality of structure, the structural properties of social systems are both reaction and outcome of the practices they recursively organize. Structure is not external to individuals: as memory traces, and as substantiated in social practices, it is in a certain sense more 'internal' than exterior to their activities . . . Structure is not to be equated with constraint but is always constraining and enabling" (Giddens, 1984:25).

The structures that exist within our social world are continually being created and recreated through active discourse. They gain legitimacy by and through the discursively active human agents investment in them by relating, creating and recreating them, not least through institutions designed to maintain conceptual distinctions, making them seem concrete, or real.

According to constitutive analysis, social structure is not only established but also maintained by and through "control institutions" (Henry 1989:9-12). These are part of social structure and are discursively produced for the purpose of maintaining order over the discursive distinctions which arise within and which symbolically frame our social order. "Control institutions" are the product of discourse that is control oriented, inter-subjectively routed, having the purpose of perceiving the virtual social world and are reconstituted through the investment of energy. Henry says: "institutions of social control then, are the organized acting out of discursively produced 'controlled thoughts', where every action reflects on the reality of that which they are organized to defend" (Henry 1989: 9-12).

In understanding the constitutive theory of crime in the context of the preceding discussion, one must set aside any preconceptions of a legalistically routed ideology. For constitutive theorists, crime is something more than a violation of written laws derived from a societal consensus of norms and values. Written law is merely a selective conglomeration of harms and injustices that are rendered inadequate in satisfying what the constitutive approach perceives to be crime. Constitutive theorists argue that such a legalistic view of crime fails to consider the context or meaning of crime and fails to consider the evolutionary and ever-changing aspects of discourse which lead to the construction and interpretation of what forms of action are criminal.

Again there are parallels with labeling theory here since it argues for a relativistic conception of law and crime as social constructions. However, whereas labeling theory tended toward arbitrary moral relativity, constitutive theory, according to Henry and Milovanovic, locates the source of law and its definition of crime in the context of historically specific configurations of discursively ordered structures. Moreover, they consider crime to be not only discursively organized by this structural context but also harmful activity by virtue of some human agents "excessive investment" in exercising power over others. Constitutive theory considers the harm, injustice, pain and conflict that stem from human discourse. The authors of constitutive theory view crime as a movement of discourse which is created and recreated by and through "relations of inequality" (Henry and Milovanovic, 1996:16).

Rather than seeing control institutions as forces for stability, Henry and Milovanovic see them as forces for both stability and change. Indeed, Van Ruller credits Henry and Milovanovic's constitutive view for its "optimistic" and "utopian flavor" and shows an appreciation for their conceptualization of the human subject as being in a constant state of recovery from a discursively constituted active social world. The theory advances a transformational ideology and puts forth a conceptualization that takes the form of a "radical superliberalism" between human agency and social structure, where the human agent and social structure are co-producers of each other and therefore have the potential to change each other.

This presentation of a dualistic relationship between the human social agent and the social world enables one to envision how the active human subject can initiate social change through the substitution of alternative forms of discourse. Put simply, if the social world is discursively ordered, it can be discursively disordered and reordered.

Some however, such as Nagaire Naffine (1996) contradict Henry and Milovanovic's characterization of the human subject as a dynamic being who transforms cognitive processes into active discourse which has a 'real' effect on constructing and shaping his or her social 'reality'. Whereas Henry and Milovanovic, see 'our imaginings' being a constructed reality through discourse Naffine examines their constitutive approach and claims their philosophy parallels both Foucault and Marxist criminology. For Foucault, the discipline of criminology has influenced the manner in which we threat those who offend. Criminal justice and ideologies regarding formal punishment have turned away from physical forms of body chastisement and have incorporated other methods for dealing with crime such as explanation, analysis and observation. Naffine views Henry and Milovanovic's work as an approach to the study of crime that "clearly displays the mark of Foucault" (Naffine, 1996: 75). She also views Henry and Milovanovic's approach as; "difficult to characterize, partly because of the opacity of its exposition, partly because its constituting ideas perhaps have yet to be clearly realized, but also because of its curious eclecticism" (Naffine, 1996:75).

According to Naffine, Henry and Milovanovic seem to suggest, from a Marxist perspective, that economic structures, as a product of capital logic are the determining factor when regarding the fate of the individual and that laws are made by the controlling classes, to suit their best interests in an attempt to maintain or accelerate their power over others. For Marxist criminologists, crime is seen to be the exercise of power over others. From this perspective, Naffine characterizes constitutive theory as "pure instrumental Marxism" (Naffine, 1996:76). She then criticizes the authors for complicating their ideological conceptualization of power by incorporating the idea that the power of oppression is the product of the human subject exercised through discursive practices. In an assessment of constitutive criminology, Naffine (1996) characterizes Henry and Milovanovic as having drawn from the ideology of Marxist materialists. Naffine writes: "As `Marxist materialists' Henry and Milovanovic evidently are not persuaded that he life of the mind can have real effects. It is the economy that is real, while, our understandings of the world 'our imaginings'- can never be truly constitutive of reality" (Naffine, 1996: 76).

For this author, Henry and Milovanovic are seen to be in touch with the work of Foucault but prefer the Marxist approach and how it establishes a firm correlation between power and crime while also allowing humans the freedom to escape the determinism implied by oppressive structures. Naffine, however, concludes: "So while they flirt with Foucault, at heart Henry and Milovanovic seem unconvinced by the Foucauldian account of power as knowledge, preferring an oddly-adapted Marxist formulation of power and its relation to crime" (Naffine, 1996:76). Naffine finds Henry and Milovanovic's use and incorporation of the ideas of Marxist theory and Foucauldian analysis to be an uncomplimentary union of ideas. She says: "Given the doubtful compatibility of these different approaches to crime, this does not always make for a happy marriage of ideas" (Naffine, 1996: 75).

From my perspective, I feel Naffine tries too hard to pigeonhole constitutive theory. In doing so, she fails to realize or fairly reflect the authors' creation. I agree that the work of Marxist criminologist and the work of Foucault can be seen to influence Henry and Milovanovic's work, however, I feel Naffine failed to appreciate constitutive theory for what it is, that is, a celebration of existing schools of thought incorporated into their own philosophy. For example, Henry and Milovanovic, in my opinion have expanded upon Marxist theory in that they have taken the Marxist ideology of power to another dimension, elaborating on this conceptualization by drawing on Foucault's ideas about discourse, and those of Giddens on how the human agent is connected to the social world by and through discursive practices. By this melding of ideas they go beyond the realm of the envisioning that power is exercise by the powerful over the powerless to create harm. Henry and Milovanovic's philosophy shows us that it is not only the powerful who exercise harm but that we all, through discursive practices, create the environment which fosters those expressions of energy which focuses upon the reduction and repression of the human subject, creating inequality and denying others their humanity. The focus, then, of constitutive criminology is to reduce the harm within our society by adopting alternative forms of discourse, which reduce inequality and create less harm.

I have previously examined how constitutive criminologists view crime as a perceptually produced outcome of a variety of contexts of human discourse (Bak, 1998). Through active discourse, individuals develop interrelations with other social forms. These interrelations are maintained and sustained through what Henry and Milovanovic have termed "COREL sets". The constitutive model shows the causality of crime to be co-determined and interrelated to other constructed, and being constructed entities, through discourse. The concept of co-determination and interrelationship can be described as the overlapping and interconnecting of social units that are constructed and maintained through discourse. Henry and Milovanovic (1994) illustrate three specific discourse forums or regions: the first depicts the present configuration of social order and discourse practices; the second is created for the purpose of negotiating existing discursive practices; and the third region is created through disagreement with existing discourse. It is this third region where alternative discursive practices are introduced; this is the realm of "replacement discourse". This third region depicts the degree to which the human subject is not attached to the existing social conditions, whereas the first region depicts the human subject's attachment to existing social conditions and the second region depicts skepticism over existing discursive practices.

Through this notion of complex COREL sets and how the Constitutive theory defines crime, we are able to focus on the coproductive conditions which fosters crime and examine the discourse that is articulated within the structurally connected COREL sets. By this, discursive patterns that exhibit harm may be located and substituted with a less harmful replacement discourse.

However, Van Ruller (1997) is critical of Henry and Milovanovic's notion of COREL sets. He asserts that the majority of criminologists will not understand the perspectives put forth by these authors, because of their complex nature. He characterizes Henry and Milovanovic's conceptualizations as "downright esoteric," and feels that the terminology they use in expressing their views needs to be translated into usable terms and asserts that this will not be an easy task.

Van Ruller is also critical of the fact that Henry and Milovanovic draw their constitutive views from many diverse postmodernist schools of thought, and for this finds them to be out of control. He writes: "Something like a conceptual jungle is created, in which the criminologist who wants to make use of the ideas of Henry and Milovanovic easily gets lost" (Van Ruller, 1997:497). He does, however, find their approach to be "daring and stimulating" because it leads the reader to raise question about conventional knowledge.

Although critical of Henry and Milovanovic's theory, Van Ruller also credits them with bridging the gaps that exist between the disciplines from which they draw and in doing so, they provide their readers with alternative ways of thinking.

Barak (1996) also credits the work of Henry and Milovanovic with bridging modern and postmodern theories of crime. Barak writes:

Their constitutive integrative approach constitutes a model of crime and justice that incorporate the overlapping spheres of classical, positivist, and critical criminology, thereby establishing a framework of crime and justice that is capable of connecting the various contradictory bodies of criminological knowledge. This kind of synthesis resists the biased, reductive, and competitive "micro" and "macro" formulations of modernist integrations that have failed to appreciate the constitutive nature of crime and injustice as these have cut across the domains of discursively produced knowledge. (Barak, 1996:4).

Barak (1998) draws on these ideas to develop his own integrated approach to crime which transcends the limits of modernist attempts at integration by incorporating a post-modernist frame of analysis which he calls "integrative constitutive."

The social justice policy of constitutive theory is one of replacement discourse. The purpose of implementing replacement discourse is to disassemble current discursive meaning and reconstruct or replace meaning with less harmful new conceptions. For constitutive theorists, replacement discourse "is not merely another package of ways to talk and make sense of the world, but a language of `transpraxis'" (Henry and Milovanovic, 1991).

Henry and Milovanovic utilize two distinct strategies, which they believe can be utilized in the reduction harm by and through the substitution of current forms of harmful discourse with alternative less harmful forms. The first of these strategies examines ways in which alternative forms of discourse can be assimilated into the mainstream popular culture. For this to be possible, large-scale social organizations must cooperate in the encouragement of replacement discourse. The social force which Henry and Milovanovic target for this cooperation is the news media and here Barak's (1988; 1994) earlier work on news making criminology provided an illustration for Henry and Milovanovic in their original concept of "replacement discourse" that is at the heart of their ideas for justice and social change.

Members of the news media are involved in creating a discursive image of what exists in our society. This image is transmitted to social audiences who are, in the process, partly constituted by what they absorb from the media. Drawing on Barak's (1988, 1991A, 1994) "Newsmaking Criminology," Henry and Milovanovic argue that what is transmitted are partial truths which act to sensationalize negative discursive practices. In doing so, negative images are created and the social world acts towards these images to create more harms. Barak states: "In the post-modern era, social problems such as homelessness, sexual assault, or drug abuse are politically constructed, ideologically articulated, and media produced events" (Barak, 1991A: 5).

The second strategy for implementing discourse is refractory process which Henry and Milovanovic term "social judo" (Einstadter and Henry, 1995). Social Judo is a practice where negative constitutive energy is displaced and re-directed into positive interrelations, positive COREL sets. I examined earlier how harm is constituted through the exercise of power over others that deny them their humanity. "Social Judo" focuses upon replacing exercised power with alternative discursive practices that prove to subdue the power exercised by the powerful in making them realize the limitations of the power that they exercise. In considering this aspect of their theory, Bohm (1996) compliment Henry and Milovanovic. Bohm writes: "The judo metaphor is apt here because, on the one hand, the authors argue that using power to reduce the power of others only replaces one excessive investor with another. On the other hand, when using judo as a means of self-defense, the power of the aggressor to bring about his or her ultimate defeat" (Bohm,1996:4).

The implementation of replacement discourse requires identifying those forms of discourse, which create harm by focusing upon the interconnections that exist between human and subjects, societal structures and discursively constructed harm. In doing so, alternative, less harmful forms of discourse can be substituted. For this to be successful, human subjects must take it upon themselves to initiate new discursive constructions. Henry and Milovanovic envision this through Unger's (1987) and Giroux's (1992) conceptualization of a "cultural revolutionary". Butler describes the "cultural revolutionary" as follows:

The cultural revolutionary finds her/himself assuming a dialogical discursive subject position and taking a more activist and interventionist stance, based on provisional and contingent universality’s established thorough ongoing struggles (Butler 1992).

Arrigo (1997) finds Henry and Milovanovic's concept of discourse analysis and replacement discourse to be an advancement of post-modern discourse analysis toward bringing about social change. He states:

The role of language is important to constitutive theory because its signals how dominant, hierarchical relations are conceived, legitimized and reproduced through and within the words that we speak. Post-modern discourse analysis is significant to constitutive thought because it suggests the possibility of establishing more inclusive replacement discourses (Arrigo, 1997:7-8).

Arrigo credits Henry and Milovanovic with devising their conceptualization of replacement discourse from the postmodernist approach that finds language to be the medium through which new meaning can be created and exercised.

Colvin (1996) also finds Henry and Milovanovic's notion of replacement discourse helpful in supplementing the deconstructive attitude of the skeptical postmodernist school of thought and he acknowledges their affirmative outlook that focuses on the constitution of a less harmful world. Thus Colvin says:

While they view deconstruction as an important technique and an essential component of social change, they reject postmodernism's obsession with deconstruction. Instead, they point toward an "affirmative" postmodernism that emphasizes "reconstruction", in which humans actively constitute a less harmful world. (Colvin, 1996: 1448).

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In conclusion, Constitutive theory has provided Criminology with a new perspective from which the phenomenon of crime, its constitution and justice policies can be examined. I hope that through this analysis, students of criminology will be better able to understand the constitutive philosophy of Henry and Milovanovic and gain an understanding of how and where their constitutive ideology comes and may better project how their ideas may be further developed and applied.

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