Abstract
One measure of the effectiveness of critical analysis is its ability to shine powerful new light on the present by connecting it to our past in a way that draws out those patterns of thought and practice that lie deeply embedded in the fabric of our history. The present never simply mirrors our past, of course, but attention to the practices and voices of power and resistance resonating from history deepens our understanding of the moment in which we live and can reveal important, perhaps at times overlooked, violent continuities with that history. This is perhaps a banal observation to readers of this journal, yet it is not uncommon to hear from some quarters analysis of certain police practices detached from a deeper historical knowledge of policing and criminal justice interventions (read a newspaper article on indigenous people in Canada’s prison system, for instance) or from others that our neoliberal conjuncture has witnessed a retreat of the state (as if capital has ever been able to reproduce itself without aid of aggressive state power or that cuts to social programmes equals a retreat).
It is with this context in mind that we should welcome the growth of a critical literature whose gaze targets the way in which ever expanding budgets for domestic security apparatuses, racist police violence, assaults on the visibly poor in public space and mass incarceration mark the neoliberal moment (inter alia Alexander 2010; Camp 2016; Camp & Heatherton 2016; Gilmore 2007; Gottschalk 2015). State power and law are being mobilized in extremely aggressive ways, its normalized character in no way diluting the violence experienced by its targets. As this agenda persists, if not expands, as we continue along our dystopic neoliberal trajectory, Adrienne Roberts’ Gendered States of Punishment and Welfare should not get lost in the growing chorus of dissident voices.
Gendered States of Punishment and Welfare (Roberts 2017) is indeed a powerful study that brings a – largely hitherto absent – feminist-oriented historical materialist lens to bear on the subject. Law, Roberts insists, has a constitutive role in capitalist social relations, in producing disciplined working classes, compliant pools of the unemployed, deeply gendered relations of social reproduction, racialized subjectivities and so on. While the observation that law is internal to capitalist social relations – is ‘part of the ontology of capitalism’ (p. 4) – offers a much richer understanding of the relation between law in the making and remaking of capitalist societies than those that portray law as merely responsive to or independent of social relations, it is not in itself entirely unique. The real force of Gendered States of Punishment and Welfare is the way in which it situates that constitutive role within a broad historical sweep that, on one hand, connects the origins of capitalism in the United Kingdom and North America to the neoliberal period, while, on the other, stressing that capitalist orders, and law internal to them, have always been refracted not only through class relations but racialized and gendered ones as well.
There are many important arguments made in Gendered States of Punishment and Welfare that powerfully illuminate law’s role in constituting racialized and gendered capitalist orders both past and present, which I cannot do proper justice to here. I will note a few broader arguments I think worth highlighting. One such observation is that while the American carceral state and political violence against African Americans has understandably received a great deal of attention, these kinds of developments – state violence in the form of aggressive policing, incarceration as a political and economic tool, and more generally the intensification of punitive laws – are in fact not unique to the United States but can be found in other advance capitalist countries, including ‘those states most commonly associated with the idealized model of liberalized capitalism’ (p. 3), such as the United Kingdom and Canada. Roberts comes at the subject from a comparative perspective that while understandably limited in its geographic scope nonetheless convincingly conveys to the reader that the United States, while perhaps cutting edge in these policies and practices, is part of a broader pattern. This observation obviously complicates suggestions that rising incarceration, racism in policing or the increased criminalization of women is particularly American, or those crude but popular in mainstream social science theories of crime that rest on individualist-rooted biological or psychological determinations. There is instead, Roberts convincingly demonstrates, an ‘underlying systemic logic’ (p. 4); and such practices are reducible neither to particular political leaders that stump on law-and-order platforms nor to individual states (nor, for that matter, to individual police officers), but are instead part of the form of neoliberalism – a ruling-class project rooted in part in the recomposition of class relations and the extension of market relations deeper into our lives, and which has resulted in considerable dislocation and increased inequality and poverty. Neoliberalism – and Roberts notes its heterogeneity and unevenness in practice in different jurisdictions – has not been implemented independent of law; law – in its visceral, blunt and violent form – has always been an important constitutive moment in it.
At the same time, Gendered States of Punishment and Welfare stresses that the violence of the state and law of the neoliberal period represent continuity in the long historical arc of the constitution of capitalist orders. Which is not to say that the way in which law constitutes capitalist order today has no specifically neoliberal shadings, but that policies and practices like zero tolerance, stop and frisk, mass incarceration or gendered welfare reform cannot be properly understood if they are isolated from 18th and 19th century vagrancy laws, the past criminalization of particular modes of behaviour by poor women or the long legacy of racist policing. As Robin Kelley (2016) reminds us, for instance, for African Americans ‘Our parents, grandparents, and great-grandparents experienced ‘no tolerance’ policing long before that term was in vogue’ (p. 19). In drawing out these historical links, Gendered States of Punishment and Welfare is a powerful reminder that capitalist social relations, including labour markets and reserve armies of labour, have always had to be constituted, and a law articulated through class, racial and gender relations has always been central to these processes. Implicit in this analysis, further, is a rejoinder to common-sense depictions of the targets of law and police: criminality is a process of criminalization, of targeting forms of behaviour that are deemed for political, social or economic reasons dangerous. Law constitutes people as criminals, rather than responds to a fact of criminality that has meaning independent of its socio-historical context.
But perhaps Gendered States of Punishment and Welfare is analytically at its most powerful in its extension of the insights of social reproduction feminism (cf. Ferguson et al. 2016; Bakker & Gill 2003; Bezanson & Luxton 2006) to its discussion of law’s constitutive role in capitalist societies. It is not simply that law – its development, application and outcomes – is gendered, applied differently to women than to men. Nor are gender relations merely ‘extra-economic’ in nature. Rather, they are internal to capitalist dynamics and law itself as a moment in the enforcement of the privatized character of social reproduction in capitalist societies. Primitive accumulation, for instance, has been ‘used to undermine the power of women, to create a gender-based division of labour based on the devaluation of women’s work … to institutionalize a role for capital and the state in controlling biological and social reproduction and, ultimately, to fuel-gender based divisions and hierarchies’ (p. 5). Law, through the criminalization of particular practices deemed threatening to privatized social reproduction (sex work or abortion, for example) and the extension of moral reform to both incarcerated and non-incarcerated women, actively produces and reproduces particular gender norms – naturalized in much non-feminist social science – rooted in the separation of the private sphere of the family and the public sphere of production under capitalism.
That patriarchal dynamic has continued, with interesting permutations, under neoliberalism which, Roberts argues, ‘is a deeply gendered politico-economic project’ (p. 140) based on the reprivatization of social reproduction and the intensification of vulnerabilities that has led more women to engage in criminalized behaviour and ultimately be ‘drawn into the state’s carceral net’ (p. 140). Underlying this development is neoliberalism’s particular reworking of formal gender equality won through women’s struggles and the emphasis on individual responsibility (gender is no longer seen as framing peoples’ decisions to engage in criminal behaviour). This has in turn translated into an equality of punishment, or ‘the standardization of harsh sentencing’ (p. 2) and a replacement of previous efforts to reinforce a standard feminine role among prisoners with more ‘masculine get-tough principles’. Gendered States of Punishment and Welfare offers a penetrating and nuanced look at the way in which gender norms are produced by law under neoliberalism.
While Roberts’s discussion of law and neoliberalism offers many important insights, her deployment of primitive accumulation in this part of the book (pp. 149ff) may raise some eyebrows. Primitive accumulation, as both analytical concept and description of historical processes in the making of capitalist social relations, is central to the narrative of the inner-connection between law and capitalist social relations in Gendered States of Punishment and Welfare. Roberts here compellingly draws out the production of a gendered order within processes of dispossession through capitalist history, a challenge made to traditional Marxist historiography whose treatment of dispossession as gender neutral flattens its analyses. But in the discussion of primitive accumulation in the neoliberal period, Roberts stretches the concept to a point in which it risks losing its form; its meaning becomes so broad that its conceptual clarity and political force are potentially sacrificed. To be fair, Roberts is not unique in this regard, but that does not gainsay the concern raised here. 1
Roberts’ discussion focuses, for instance, on ‘the securitization of housing [which] has operated as a mechanism of the primitive accumulation of capital by transferring the wealth and assets of hundreds of millions people to the financial sector and rich investors, leaving many of them dispossessed of their homes (p. 149)’. An important, and noxious, part of recent neoliberal history to be sure, but does that make housing securitization a form of primitive accumulation? Or is Roberts trying to force an important contemporary social process – the housing crisis and its tie to the criminalization of poor people – into her conceptual arsenal in order to maintain narrative continuity vis-à-vis primitive accumulation’s past role in producing capitalist social relations? No explanation is offered for how this is primitive accumulation or is consistent with her previous use of the concept in the book.
At the same time, Roberts does not engage with what many others have identified as a classical form of primitive accumulation in the neoliberal epoch, both in the Global South and settler colonial societies like Canada and the United States. Roberts does well to highlight the intensification of indigenous peoples’ interaction with the legal system in Canada, for example, but the connection to the land question – inherent to settler colonial societies – deserves to be deepened. Land has always been at the heart of the ‘indian problem’ in Canada (Coulthard 2014; Gordon 2010: 66ff) – this connection is no less salient today than in the past, and incarceration has echoes of past strategies of physical containment (restricting people to reserves, residential school system, the sixties scoop) that have always been linked to the broader agenda of dispossession and the colonial desire to make indigenous bodies disappear (see, for example, Truth and Reconciliation Commission of Canada 2015). Instead the focus of Gendered States of Punishment and Welfare is on processes whose identification as primitive accumulation are, I would argue, questionable. Importantly, not describing the housing crisis as primitive accumulation would take nothing away from Gendered States of Punishment and Welfare’s contribution to our understanding of the role of law as a constitutive force of neoliberalism; the argument would be just as compelling.
One might ask too if Roberts’ understandable desire to situate the aggressive legal regime in the United States as part of a broader pattern across neoliberal states does perhaps obfuscate the degree to which the United States is (at least somewhat) unique both in motivation and in the sheer scale and extremity of violence against its residents, particularly African Americans? Camp (2016) argues in his important work, Incarcerating the Crisis, for example, that an increasingly militarized law-and-order approach to largely African American communities is in fact a form of counterinsurgency that has dramatically transformed American cities. For Camp (2016), counterinsurgency and the criminalization of large populations in response to urban rebellions and capitalist crisis in the 1960s and 1970s has led to the carceral city where (citing Mike Davis’ study of Los Angeles) ‘‘urban design, architecture, and the police apparatus’ have been integrated ‘into a single, comprehensive security effort’ (p. 103). I am not sure this can be said for the Canadian context, for instance. And this dynamic has broader repercussions for the success of the neoliberal agenda, as the ‘Fears and class anxieties produced by capitalist restructuring’ – whose impact has also been felt harshly by working-class Whites – ‘were transformed into racist consent to security, law, and order’. The shift away from legalized racial segregation to greater formal equality for African Americans has, importantly, been accompanied by the shift to the carceral state and more militarized policing (Camp 2016; Taylor 2016). As noted earlier, I am, in general, sympathetic to Robert’s comparative approach, but at the same time is it not unfair to ask at what point do the commonalities of neoliberal law and policing across states end and the United States’ particular dynamic begin?
Despite these reservations, Roberts offers us a powerful tool of analysis for making sense of the scale and ferocity of law-and-order practices today, and offers a unique way of bringing the histories of capitalism’s origins in England and North America together with zero tolerance and mass incarceration through a feminist lens and comparative perspective. There is, to my knowledge, no other work does that does this. But just as importantly, Roberts avoids the trap, which can be so easy to fall into, of treating targeted populations as mere passive victims. Gendered States of Punishment and Welfare reminds us that coercive, patriarchal and racist policies to produce market relations seldom go uncontested, as true today as a century ago. Indeed, these policies are in part a response to the struggles of the dispossessed for gender equality and against racism and colonialism, an attempt to establish stability for an order that can never fully be stabilized.