A matter of degree: A justice framework for penal legitimacy

Introduction

Legitimacy is fundamentally a political concept. It is related to Plato’s (1992) conception of human relationships of command and obedience, in the sense that legitimacy concerns the appropriate acquisition and exercise of power by a person (or group of persons) over other(s) (Beetham, 1991) – power is exerted when the former issues decisions and rules that bind the latter. In other words, legitimacy means authority used rightfully (Bottoms and Tankebe, 2012). Any modern social arrangement with an underlying system of power encompasses a claim from the power-holders to exercise authority over responsive audiences, aiming at the recognition of the right to govern (Jean-Marc Coicaud in Bottoms and Tankebe (2012)). The prison setting is no exception. However, following Liebling, ‘no one ever gets the use of authority right. It can be better or worse, and should therefore be subjected to ongoing scrutiny and reflection’ (2011: 496). This paper claims that the concept of legitimacy ought to convey the justification of authority in prisons. Instead of aiming to find an ideal ‘legitimate prison’, I build on Liebling (2011) and propose the adaptation of Sen’s theory of justice framework (2009) as a guide to research on penal legitimacy. Thus, the importance of acknowledging and comparing existing and/or feasible dissimilar realizations of legitimacy in prisons is stressed.

Legitimacy is of a ‘dialogic’ nature, whereby implying a ‘perpetual discussion’ between power-holders and audience (Bottoms and Tankebe, 2012). As a consequence of constant dialectic transactions, legitimacy is ‘liquid’ rather than static, in unceasing negotiation and mutation (McNeill and Robinson, 2013). It follows that legitimacy varies according to the diversity of stakeholders; it is multifaceted. A consensual justification of authority is, at best, unlikely. Legitimacy is not an ‘all-or-nothing’, ‘once-and-for-all’ matter (Sparks and Bottoms, 1995). Nonetheless, as Sparks realizes (1994), it is still possible to make a clear distinction between penal policies and practices that are better or worse, carrying stronger or weaker justifications. Accordingly, penal legitimacy is a matter of comparative degree (Liebling, 2011), and there are circumstances which enhance or diminish the recognition of justified authority of prison regimes. These go beyond – and include – the framework of procedural justice (Bottoms and Tankebe, 2012). They are connected with the nature of staff–prisoner relationships (e.g. Crewe et al., 2014; Liebling, 2011) and incorporate wider questions of justice associated with the concepts of ‘threshold quality of life’ and ‘legitimate expectations’ introduced by Lord Woolf (1991). Highlighting Beetham’s (1991) concept of justifiability of power in terms of shared beliefs – the core moral values ‘to which people [appeal] for the ultimate rationales of action’ (Spates in Bottoms and Tankebe (2012: 141)) – this paper claims, as argued by Crewe et al. (2014: 390), that, in addition to the empirical concept of legitimacy based on prisoners’ subjective approval of authority, ‘we should also consider a more normatively grounded concept of legitimacy, based on objective criteria of justice’. Penal legitimacy requires the reference to standards defendable externally in the moral and political debate (Sparks and Bottoms, 1995).

To this purposes I start by analysing what legitimacy is and why it is relevant, connecting the topic with the idea of justice. Subsequently, I seek to explain Sen’s framework (2009) and defend its applicability to the question of prison’s legitimacy. The paper concludes that public debate should be fundamental in guiding the choice between penal policies and practices in order to assure a higher justification of authority.

Understanding penal legitimacy

According to Beetham (1991), every system of power, independent of its historical contingency, has a common underlying structure which embodies three distinct levels. He claims that power is legitimate to the extent that it ‘i) conforms to established rules; ii) the rules can be justified by reference to beliefs shared by both dominant and subordinate; iii) there is evidence of consent by the subordinate to the particular power relation’ (1991: 15). He recognizes that legitimacy can be ‘eroded, contested or incomplete; and judgments about it are usually judgements of degree’ (1991: 20). Thus, a discussion over the legitimacy of power does not require a perfect fulfilment of each and every Beetham’s criteria.

Criminal justice literature often focuses on the relevance of Beetham’s third element – consent. One of the most relevant works in the field is that of Tyler (1990), whose main question is why people obey the law. He explores compliance from a normative perspective, which he concludes to be of higher importance than instrumental motives to law-abiding behaviour. His empirical study suggested that compliance with legal authorities is particularly related to the manner they treat citizens: it is the perceived procedural fairness entrenched in encounters with authority that promotes subsequent compliance, rather than the fairness and/or satisfaction with the outcomes of those encounters. ¹ As noted by Bottoms (1999: 256), Tyler’s work, when extrapolated to a prison setting, emphasizes the relevance of ‘ordinary everyday encounters between staff and prisoners’, and how these crucially influence the ‘nature of the power relations in prison’. Any staff action can enhance or diminish offenders’ perceived penal legitimacy (Bottoms and Tankebe, 2013).

Tyler’s work has the merit of stressing the relevance of normative elements to the compliance of criminal justice audiences with authority. A legitimate prison regime ought to move beyond compliance based on ‘dull compulsion’, whereby prisoners would represent power in prisons as inevitable and consequently ‘fatalistically accept or pragmatically put up with prison regimes even when distribution of institutional power is patently illegitimate’, as suggested by Carrabine (2004: 180). Despite its merit, Tyler’s work falls short in two main aspects when related to prisons. First, emphasizing procedural fairness as the central feature of legitimacy in a prison context overlooks the crucial significance of decision outcomes. These outcomes decisively influence offenders’ daily life, impacting on the perceived legitimacy of penal power relationships (Sparks and Bottoms, 2008). Aspects that are taken for granted in the outside world gain disproportionate relevance in a prison setting. Decisions that impact ordinary life moments such as the choice of one’s clothes can severely affect the offenders’ well-being and trust in authority. More recently, Tyler (2010: 129) claimed that a procedural justice framework for corrections would encompass four key issues: voice, neutrality, treatment with respect and dignity, and trust in authorities. Penal scholars would arguably agree on the relevance of those elements. However, as noted by Crewe (2011: 465–466), even ‘procedural decency in prison… can be somewhat empty if prisoners believe that the system is excessively insensitive, one-sided and demanding, and if they think its logic is fundamentally unfair’. An example can be found in an offender quoted in Liebling and Costa (in press). It underpins the frustration attached to the belief that using one’s voice can be counter-productive: ‘I wouldn’t voice my concerns even if I could. Hierarchy comes and they will just target you if you do. It’s a bully culture’. Second, although Tyler’s notion of obedience suggests the relational nature of legitimacy, he focuses on the grounds of the audience’s compliance but neglects the justifiability of the power-holder’s claim for authority. As clearly pointed out by Bottoms and Tankebe (2012: 119–120), ‘legitimacy is dialogic, involving claims to legitimacy by power-holders and responses by audiences’, thus emphasizing its ‘dual and interactive character’. As further claimed by Bottoms and Tankebe (2012), a dialogic approach to legitimacy necessarily widens the answer to the question of legitimacy’s relevance within a criminal justice system: underscoring the need for justification of authority, its relevance goes beyond the framework of legal compliance from the audience’s perspective.

Following Beetham (2013: 20), legitimacy cannot be reduced to ‘subjective belief in legitimacy’, ² rather involving ‘a discursive investigation of the grounds or criteria on which a claim to legitimacy is based, and of the credibility of those grounds to the relevant agents in a given social and historical context’. Sheer obedience can be morally empty, and the focus on the mere fact that people believe in the legitimacy of a given power relationship would not encompass an explanation as to why people acknowledge authority at one time or place and not another (Beetham, 1991). Hence, Beetham argues that a given power relationship ‘is not legitimate because people believe in its legitimacy, but because it can be justified in terms of their beliefs’ (1991: 11). It follows that ‘power is legitimate to the extent that the rules of power can be justified in terms of beliefs shared by both dominant and subordinate’ (1991: 17). Acknowledging the need of the effectiveness of authority in accordance to general interests, Beetham’s framework suggests that legitimacy needs to be justifiable in conformity with ‘rationally defensible normative principles’ which embody a ‘universalising claim’ (1991: 5).

Although no complete uniformity of beliefs is achievable, particularly in a prison setting characterized by stark disparities in power (Crewe, 2011; Sykes, 1958), the insertion of the notion of shared beliefs as fundamental for the legitimacy of a power relationship clearly denotes the dominant–subordinate dichotomy. In this context, penal legitimacy also needs to take into consideration the demands of society at large – prison’s external stakeholders (Crewe et al., 2014) – recognizing the wider public’s expectations for criminal justice (Beetham, 2013). As explained in Tonry (2011: 4), criminal justice embodies part of society’s most fundamental social norms, and it should ‘embody, express, and reinforce’ what Durkheim called the ‘conscience collective’. The way power is exerted in a penal setting ought to be an extension of this collective conscience, and thus reflect society’s shared expectations regarding the penal system. As a consequence, penal legitimacy requires the reference to standards that are also defendable externally in the moral and political debate (Sparks and Bottoms, 1995). ³ Simultaneously, the reference to the shared beliefs of both internal and external stakeholders emphasizes legitimacy’s moral purport, linking it ‘very closely to the concept of justice’ (Sparks et al., 1996: 335). Indeed, alongside the empirical consent-based conception of legitimacy, a dialogic approach widens its focus and ultimately presupposes that a legitimate power relationship meets ‘substantive requirements and, in particular, requirements of basic justice and rationality’ (Hinsch, 2010: 42).

Discussions about the penal system have previously disclosed the underlying association between legitimacy and justice. Lord Woolf’s (1991) famous report in the aftermath of the 1990’s prison disturbances attributed its causes to the lack of justice prisoners felt in the way they were treated by the penal system. Beyond the procedural framework, Woolf referred to prisoners’ ‘legitimate expectations’, to the concept of ‘threshold quality of life’, and to how the achievement of justice would ‘itself enhance security and control’ (1991: paras 12.129, 14.437-8). As noted by Sparks and Bottoms (1995: 46), Woolf outlines something ‘akin to a theory of legitimacy’. A normative concept of legitimacy is often equated in literature with the concept of justice, and some define legitimacy as a criterion of minimal justice (Peter, 2014: 4). However, the two concepts are distinct – legitimacy applies to power relationships, whereas justice also covers the wider overarching features of a given social arrangement. Despite this different width of application, both questions of legitimacy and of justice are characterized by a similar rationale based on the aforementioned idea of shared beliefs. Concordantly with Rawls’ (2001) justice as fairness, the justification of authority depends partly on it being rooted in those core sets of values which can be reasonably expected to be acceptable by all members of a given society. If that is the case, then it can be argued that regarding the justifiability of authority legitimacy and justice are organically interactive: in this sense, justice is a necessary but not sufficient condition of legitimacy ⁴ – not sufficient because of the multidimensional nature of legitimacy and its need of empirical consent.

A justice framework for degrees of legitimacy

Sen (2009) argues that a theory of justice focused on identifying a perfect ideal of justice, rather than on relative comparisons of justice, suffers from issues of feasibility and redundancy. The former addresses the (im)possibility of outlining an agreed transcendental solution concerning the nature of the ‘just society’. The latter implies that a theory aiming to guide a reasoned choice of policies and institutions ought to allow for the comparison between existing and/or feasible alternatives, instead of offering a ‘possibly unavailable perfect situation that could not be transcended’ (2009: 9). Accordingly, Sen suggests a focus on comparisons between societies and institutions that either exist or could feasibly emerge, in what he calls a ‘realization-focused’ approach to justice. This approach is concerned with ‘how would justice be advanced’ and how ‘manifestly severe injustice’ could be prevented (2009: 7, 21). Sen believes in the need for ‘an agreement, based on public reasoning, on rankings of alternatives that can be realized’ (2009: 17).

Despite having suggested that a conception of legitimacy encompasses questions of justice, the scope of this paper is not to discuss a framework for a theory of justice. Instead, I seek to defend that the same issues identified by Sen are applicable to the context of penal legitimacy. First, the feasibility of a ‘legitimate prison’ appears utopic. As Carrabine (2004: 63) noted, ‘the institution generates intrinsic and fundamental conflicts, not least since prisoners are confined against their will’. Thus, following Liebling et al. (2005), there are inherent limits to legitimacy in prison. Second, in addition to the exceptional discrepancies of power which undermine consensus in and on themselves, the subjectivity of the offenders would likely lead to conflicts regarding the ideal prison. Last, different stakeholders have different demands. In a penal context, offenders and general public often have different (if not incompatible) priorities (Bottoms and Tankebe, 2012). These discrepancies can be traced back to sentencing itself, where the general public is known to accuse the courts of leniency (see Ashworth, 2010: 45–46). Indeed, one would not be surprised to hear claims from offenders for less severe punishment and lighter prison regimes being received with a degree of scepticism from the wider society. This reality is captured by a prisoner in Liebling and Costa (in press):

You’re in prison as a punishment, not to be punished. That’s the big thing about it. Prison is your punishment. People say it’s too easy when you got TVs and what not. Coming to prison, being incarcerated, that’s the punishment, not what happens in prison.

Nonetheless, as argued by Sparks (1994: 26)

for as long as we must have prisons, it is indeed possible to distinguish clearly between better and worse, preferable and less preferable, stronger and less strong justifications both in the conditions which externally govern their use and in their internal practices. ⁵

Following this paper’s argument, penal legitimacy encompasses more than procedural aspects, and its connections to questions of justice and shared beliefs imply dimensions of humanity, respect and dignity. Liebling’s (2004) measures of quality of prison life establish the idea of a prison’s moral performance. The moral performance incorporates broad questions regarding the ‘emotional texture’ of prison life, which fall beyond the flow of power associated with the idea of legitimacy. Nonetheless, as Liebling (2004: 475) recognizes, ‘some aspects of moral performance overlap with the concerns of legitimacy’. Her scheme encapsulates ‘dimensions that matter’ for legitimacy, and Liebling (2015) believes it can at least partially operationalize the concept of internal prison legitimacy, thus allowing for realization-focus comparisons between regimes vis-à-vis offenders’ perspectives. However, the wider public also has a stake in and expectations for criminal justice (Beetham, 2013). A practice deemed legitimate in the eyes of the offenders can still represent unjustified authority in the eyes of the public. Hence, the justifiability of penal authority ultimately implies a filter represented by the beliefs of the public; its defensibility in the external moral and political debate. Standards of penal fairness need to be generally accepted by society at large (Sparks and Bottoms, 2008).

Although scholars recognize the relevance of the public’s demands, available studies tend to approach penal legitimacy through its internal features. Therefore, when scrutinizing penal legitimacy, there is a need for further analyses that balance the various stakeholders of penal power relationships, offenders and society at large. In this context, public debate might be key (Sen, 2009). Following Habermas (1984: 286–287), the ‘inherent telos of human speech’ is reaching understanding. The author claims that an agreement reached through communication has a rational basis – it cannot be imposed on any party but rather rests on ‘common convictions’. The rationality of the agreement is tied to the idea of open discussion, as it involves mutual criticism and justification of alternative (feasible) possibilities. Through communication, members of a society can thus discuss between those preferable and less preferable alternatives in order to ‘pursue their plans cooperatively on the basis of a shared definition of the situation’, overcoming their merely subjective views (Habermas, 1989: 120–126).

In a modern democracy, fundamental political questions require a reasonable public basis for their justification (Rawls, 2005). Communication and interpersonal comprehension are central features of public reasoning (Sen, 2009). Thus, through public debate existing or feasible alternative penal policies and practices could be reasonably compared: a ‘realization-focused’ approach to legitimacy. Recalling Beetham (1991: 17), the legitimacy of power depends on its justification in accordance of beliefs shared by both dominant and subordinate. Finding overlapping beliefs between offenders and society at large that ought to guide the choice amid (better or worse) feasible relationships of penal power similarly requires objectivity, in order to mediate the disparity of individual demands. For this purpose, a deliberative democracy framework could lay the foundations upon which to probe the potential of public debate. Rooted in ‘the intuitive ideal of a democratic association in which the justification of the terms and conditions of association proceeds through public argument and reasoning among equal citizens’ (Cohen, 1989: 21), it implies that in the process of reaching a decision ‘initial preferences are transformed to take account of the views of others’ (Miller, 1992: 55). Furthermore, it allows different stakeholders to ‘become involved in the societal context of life’, and as a consequence it can lead to the ‘normative integration of society’ (Honneth, 2004: 354). Its specific development and exploration creates an agenda for future research.

Conclusion

Foucault (1977: 301) famously argued that one of the most important effects of the penal system is that ‘it succeeds in making the power to punish natural and legitimate’. Although the power to punish can be seen as natural in modern societies, ⁶ the ways in which the state’s power to punish are translated have yet to find general agreement. A dialogic approach to legitimacy implies a ‘perpetual discussion’ over the justifiability of authority, where the claims of power-holders face mutable responses from a variety of dissimilar audiences (Bottoms and Tankebe, 2012). In this framework, this paper acknowledged, based on Sen (2009), that an ideal of a ‘legitimate prison’ was unfeasible and redundant. Notwithstanding, empirical studies suggest the existence of better penal practices. These practices convey higher degrees of recognition of a prison’s regime authority through the offenders’ lens. However, since the legitimacy of power depends on its justification in accordance with beliefs shared by offenders and society at large, further research is required in order to confirm the justifiability of such practices externally. In this context, public reason suggests the possibility of objectively ranking competing alternatives (Sen, 2009). It follows that future research should focus on finding reasonable criteria as to ‘what makes a prison more legitimate than others’. The difficulty of such an endeavour will rest on how to balance and analyse disparate interests of disparate stakeholders. The leniency inherent to the stakeholders’ shared beliefs is arguably divergent. Reconciling the demands of internal and external players is thus not negligible or straightforward. The answers to these doubts might rest on exploring the possibilities of public debate.