Response to reviews

The political and the social

It is fair to say, as Lucia Zedner suggests, that my analysis of the social in The Preventive Turn in Criminal Law is intertwined with and, in some ways, subsumed under the political, so that ‘society’ is primarily analysed in terms of a political community, and in light of the problem of political (and legal) authority. This was, to a large extent, deliberate, as the argument in the book was directly addressing the issue of criminalization from the perspective of the criminal law as a socio-political institution and phenomenon. One of the main aims of the book was explicitly to stress the need for criminal law, criminalization and punishment scholarship to see its subject matter as inextricably linked to social issues, by highlighting how this relation is already present in and significantly conditions, even if in a repressed manner, legal and political thought in this area. Thus, my emphasis was on pressing two points: first, that criminalization is inherently political; and second, that the political is inherently social, and that it cannot be dissociated from social problems and transformations.

Therefore, while my focus was on critically examining the legal and political underpinnings of criminalization, I did so by arguing that these can only be properly understood from a theoretical perspective which is sensitive to social issues, especially those of structural inequality and violence, of social experience and of the intrinsic interdependence of subjectivity and social life. The last two chapters of the book tackle most directly these ideas, first by engaging with a critical discussion of the notion of recognition, and second by discussing criminalization from the perspective of a political sociology of citizenship. Thus, while The Preventive Turn in Criminal Law may have ‘more to say about the political theories that inform criminalization than it does about the social’ (Zedner, this volume), I hope it has done enough to press the importance of pursuing new avenues in criminalization scholarship which are more socially aware, and to which I hope to continue to contribute.

Ambivalence and structural violence

Critically deploying a concept such as ambivalence is far from straightforward. I believe Peter Ramsay is correct when he says in his review that, ‘when responsible subjectivity appears itself to be the source of danger to law-abiding subjects legally constructed as potential victims, the threat cannot be regarded as external to the liberal model of society’ (Ramsay, this volume, emphasis in original); I also agree that, through preventive criminal offences, the law effectively ‘presents its own premises—the responsible subject—as the source of threat’ (Ramsay, this volume). The problem, however, is that the criminal law practically undermines its own premises at the same time as it symbolically and discursively attempts to do the precise opposite, by declaring that it is dangerous subjects, and not responsible subjects, who present a threat to liberal society. This ‘radical ambivalence’ (Carvalho, 2017: ch. 7), which I attribute to the preventive turn, and through which the law both confuses and distinguishes responsibility and dangerousness through its construction of criminal subjectivity, is a direct reflection of the contradiction which lies at the heart of liberalism, and which The Preventive Turn in Criminal Law argues has been there since the inception of liberal political theory and liberal society. I thus feel that this contradiction is one that the book not only fully embraces, but is dedicated to exposing and understanding.

As for structural violence, I believe Ramsay has a point in arguing that the term can be used to suggest a normalized state of victimization, and therefore reinforce the ideological thrust of the idea of vulnerability, already so predominant in criminalization, especially if emphasis is put on the term violence. Moving forward, this is something that I must consider. However, my intention in deploying this term was to stress the structural character of social conditions that are experienced by members of society, some much more than others, as violent—and I mean this in a psychosocial and embodied sense. This structural element of violence is important: as criminological scholarship attests, one of the greatest problems with the concept of crime is that it obfuscates the extent to which society contributes to the harm that is attributed to crime.

My emphasis on the structural violence embedded within liberal society was meant precisely to contrast it with the individualized notion of violence that is linked to the subject of criminal law. One reason why I preferred this term over others such as ‘exploitation’ or ‘oppression’ is that, while these concepts appropriately express the ‘criminogenic social experiences’ to which Ramsay alludes, they do so in a way that can also lend itself to an individualization of blame—so that the problem can be linked primarily to those exploiters or oppressors who benefit from social arrangements, rather than these social arrangements themselves. Instead, by focusing on how the structural aspects of liberal society are themselves perpetuating conditions which can be experienced as violent, I sought to emphasize the need for us to strive for social change, instead of focusing on discourses of individualized blame.

Ambivalence and recognition

The theoretical perspective adopted in The Preventive Turn in Criminal Law undoubtedly pays heed to, and I hope can be considered a part of, the tradition of critical theory and thinking; one of the main traits of this tradition, especially in relation to criminal justice scholarship, is its tendency to look at matters of law and society from a pessimistic perspective—‘through a glass, darkly’, so to speak. Indeed, the last substantive chapter in the book concludes with the rather damning suggestion that, to a large extent, ‘the criminal law is a gateway to its own insecurity’ (Carvalho, 2017: 187). However, as Alan Norrie suggests, ‘there must be room for ambivalence’ (Norrie, this volume) in any appreciation of the role of the law in justice processes, including criminalization. The issue becomes how to acknowledge this ambivalence in a manner that remains critically aware, and that can potentially prove a pathway to moving beyond it.

In the book, I discussed how there is a latent notion of recognition that is intrinsic to liberal criminal law, but that is nevertheless disconnected from concrete social conditions, so that it remains ultimately abstract. Because of this, ideas of individual autonomy and justice, social welfare, equality and mutual respect, while still present as driving aspirations of the criminal justice system, are mostly actualized as a morality of form, which at best prove incapable of counteracting the authoritarian and exclusionary aspects of criminalization, and at worst ideologically corroborate and legitimate these same aspects. Against the abstract, broken recognition embedded in the criminal law, I argued for the value of a critical theory of recognition that understands it as a dynamic process which is intrinsic to human sociability, and which cannot be taken for granted. To pursue such an approach, as Norrie has indicated, we need to consider issues of intersubjectivity at a much deeper level than criminal law and criminalization scholarship have so far been comfortable with. In The Preventive Turn in Criminal Law, I strived to make a good case for why such an intersubjective engagement is not only necessary, but also well worth the effort.