Introduction
In his work Critique of Violence, Benjamin claims that the law is both originated from and preserved through violence, as the law is compulsory in its nature, that is, it must be obeyed regardless of the will of the legal subjects. This compulsiveness of the law is guaranteed through violence: each party entering a legal agreement is granted “the right to resort to violence against the other” in the event of the opposite party’s breach of contract. In this way, violence is not only introduced as a means to prevent any legal subject from violating the law, but is also the very source that brings about the existence of a legal agreement in the first place – violence is woven into the fabric of the law, constituting its coercive character. In fact, Benjamin even contends that “[when] the consciousness of the latent presence of violence in a legal institution disappears, the institution falls into decay.”
Therefore, violence – due to its both “law-making” and “law-preserving” characters – should be an indispensable part of the legal framework, and is ought to be especially essential to the criminal justice system, because it is in this very system that the employment of violence is required against the criminals so as to uphold the authority as well as the integrity of the law. Indeed, this prevalence of violence within the penal system has been in place for centuries: wrongdoers have been subjected to various forms and degrees of corporal punishments, ranging from flogging to the death penalty, serving both retributive and deterrence purposes – with retribution being the manifestation of the law, deterrence ensuring the preservation of it.
However, rehabilitation – a relatively modern approach that was promoted and applied in the criminal justice system since the last century – appears to challenge Benjamin’s theory that violence plays a crucial role in the assertion of the legal power, for rehabilitation does not (at least in theory) aim to punish the offenders but to transform and better them. Francis Allen, in defining the “rehabilitative ideal,” maintains that its goal is to radically alter the disposition of the offenders at the root, “not only in the interest of the social defense, but also in the interests of the well-being of the offender himself.” In this sense, rehabilitation can be regarded as a renunciation of the use of violence towards the transgressors, which would lead to the decadence of legal institutions according to Benjamin. Hence, it is the objective of this essay to resolve the seeming contraction between rehabilitation and Benjamin’s theory of legal power.
Rehabilitation: Rhetoric and Foundation
While rehabilitation has been a component of the criminal justice system since as early as the eighteenth century in quite a few Western countries including Britain, these rehabilitative practices are neither the dominant aspect of the system, nor are they comparable to their contemporary counterparts. Suffice it to say that the retributive style of proportionate punishment – often referred to as “just deserts” – significantly overweighed the rehabilitative function within the penal system; the classist school of criminology was still viewed as the guiding principle until the late nineteenth century, when the positivist school stated to be more recognized. The positivist criminology holds that delinquent acts are driven by a variety of factors which can be observed, measured, analyzed, and reasoned about – thus can be detected or diagnosed by “the methods used by the natural and social sciences.” Since it is due to these external factors that cause people to commit crimes, the offenders should not be held exclusively accountable for their conducts, rejecting the legitimacy of retribution. Hence, rehabilitation in the form of “medicalization” replaces the role of punishment as the optimal countermeasure.
Starting in the early twentieth century, the major rehabilitative innovations – such as “the juvenile court, systems of probation and parole, the indeterminate sentence, the promise (if not the reality) of therapeutic programs” – have taken place in the criminal justice system. One of the key conditions that give rise to these reforms towards the rehabilitative ideal is a faith in the “perfectibility of man;” whereas another, perhaps even more crucial, is the belief in the power of the “scientific reason” and methods to change and improve the convicts. Such beliefs insinuate the inherent logic of rehabilitation, which assumes that all crimes are caused by some kind of deviance or even illness of the offenders – in the psychological, cognitive, or behavioral sense – thereby suggesting they are possible to be cured with the application of appropriate techniques. In this way, it seems that the offenders are no longer treated as mere unruly subjects or dangerous forces that threaten the law and thus need to be suppressed and punished through violence; instead, they are now viewed as patients who can be transformed into the good, normal, law-abiding citizens. This shift in attitude towards the transgressors reflects, to a certain extent, the growth of the state power: it is precisely because of the significant growth in its power that the state does not feel threatened by these delinquents; rather, it is now able to control them even without resorting to violence.
Dissecting Rehabilitation Under Benjamin’s Theory
The legitimate use of violence is monopolized by the state for the purpose of defending the law, which is an instrument of domination the state creates to sustain itself. The transgressors are not necessarily being penalized for their actions are morally wrong or unjust – though that may be part of the reason – but, more importantly, it is because their lawless behaviors threaten the state through undermining its apparatus of control. As a result, violence must be employed as a law-preserving measure, punishing the enemies of the state as well as deterring those who have the inclination or potential to violate the law in the future. In Critique of Violence, Benjamin elucidates that “the law’s interest in a monopoly of violence” is due to “the intention of preserving the law itself.”
Rehabilitation, despite eschewing the use of violence, is designed to achieve the very same end as violence does in the criminal justice system – to preserve the law. As summarized by Francis Allen, the support for rehabilitation is usually driven by two distinct purposes: one is based on humanitarian considerations, which is on behalf of “the well-being of the offender himself”; the other has a more utilitarian incentive, for “the interest of social defense.” While both objectives are used as arguments in the promotion of rehabilitative programs, it is clear that the utilitarian motive outweighs the humanitarian one when rehabilitation is actually put into practice. For example, David Garland points out that in correctionalist policies, “the bloodless language of social science” which underlines the “technical values” of rehabilitation is favored over one stressing “moral values,” indicating the effectiveness has always been the most prioritized component in terms of policy formulation.
In addition to the choice of policy language, another piece of evidence for the utilitarian essence of rehabilitation is the criteria employed to measure the efficacy of these programs as well as their rapid decline after being proven unsuccessful. In his famous essay “What works? – questions and answers about prison reform”, Robert Martinson claims that “the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism.” This finding of Martinson is widely regarded as the trigger for the demise of the rehabilitative ideal, together with its practices. The very fact that the recidivism rate is used as a criterion for evaluating the effectiveness of rehabilitation demonstrates its utilitarian nature. It reflects the fact that the aim of rehabilitation in practice is to reduce the number of future perpetrators, in other words, to protect the authority of the law from being eroded. Therefore, both the introduction of rehabilitation into and its withdrawal from the criminal justice system are consistent with the law-preserving objective, which is the very same end of legitimate violence in Benjamin’s theory.
Rehabilitation as the Disguise of Power
The establishment of many rehabilitation programs in the twentieth century was largely attributed to the bureaucratization and professionalization occurring in the criminal justice system. In the United States, the general statistical information on criminal justice education suggests that there had been “a continual tendency towards more formal qualifications and an upgrading of job requirements,” implying that the proportion of specialists and experts employed in the criminal justice system should also have increased over approximately the same period of time. These professionals, driven by their own interests – not only by profit motive, but also by academic passion – advocated for more scientific and effective measures to regulate the penal system, which explains to some extent the replacement of “punitive sentiments” in the official rhetoric by more pragmatic goals and outlooks. Indeed, it was observed that the academia appeared to be more keen to endorse the correctionalist methods in comparison to the general public. As a result, the rehabilitative ideal can be understood as the product of a top-down process of the dissemination of knowledge or ideology – it is, in Garland’s words, “the colonization of a formerly legal terrain by ‘social’ authorities and professional groups.”
Rehabilitation hence falls within the realm of knowledge and science; and with its growing prominence in the criminal justice system, rehabilitative practices have led to an expansion of the traditional state power – the experts become the fringes of its dominion, exercising power over the lives of the convicts in a more covert fashion. The regulation of life is made possible as power extends to encompassing knowledge, while the oppression and subversion of life – specifically, the violence corporeal punishment in the past – is rendered an undesirable means due to its indecency and inefficiency. Human life is now considered so precious that it should not be cheapened or wasted on by pointless retributive penalties; rather, its value is ought to be fully realized after the offenders are treated and perfected. Such treatment, despite mostly causing no explicit harm to the offenders, is still a manifestation of control. Foucault, in his work The History of Sexuality, refers to this kind of control as the bio-power over the population: “a power whose highest function was perhaps no longer to kill, but to invest life through and through.”
When power takes on the mask of treatment, its exercise also becomes smoother and more seamless, that is, it can easily inflict its influence on the subjects in such an insidious way that it hides itself in normality and thus provokes less defiance. Nonetheless, the waning hostility between offenders and penal experts does not imply any “equality” between them; on the contrary, the disparity in terms of the power leverage between inmates and authorities has become unprecedentedly large, since perpetrators who used to be seen as menaces are now treated as patients who committed crimes due to their social or psychological difficulties.
In Benjamin’s original German text, the word “violence” is translated from “gewalt.” Its meaning cannot be reduced to simple physical violence, but is also tied to authority and power which has judicial connotations. That being the case, rehabilitation can be considered as a form of “gewalt,” since it is clearly an expression of power, and arguably one that is much stronger than the physical violence: the difference in bodily strength between criminals and law enforcers is impossible to exceed the limit of man to man, which is determined by nature; while the knowledge (and thus technology) preserved by the correctionalist experts truly widens the power disparity. What rehabilitation is disguising, thereby, is a power greater than that of corporal punishment.
The “All-Pervasive” Violence within Modern States
The professionalization that has taken place in the criminal justice system is an inevitable by-product of the centralization of the governmental executive power, whereas this centralization is a part of “the much broader process of state expansion and consolidation.” With the expansion of the state, there accompanies an extension of state power: not only outward in terms of the territorial dimension, but also inward, directed to the interior of the social organism, so as to reach its every capillary. As noted in the previous section, experts and professionals – in the case of the penal system, the criminologists, psychiatrists, and psychologists – are the incarnation of this enlarged state power. Thus, all their operations and performances as institutional agents, including the various rehabilitation programs that they carried out, were under the direct control of the state. Unlike the pre-modern period, when there was no systematic bureaucracy and therefore power could not be totally centralized to the state apparatus; today all power rests solely in the hands of assigned personnel, namely the professional officials. In this sense, professionalization and the centralization of state power are two sides of the same coin.
Nevertheless, the power of the modern state is at the same time dispersed, because the state’s monopoly on violence is allocated to a segment of the population, rather than being controlled under the name of an absolute monarch alone. Before the rise of the modern state, all legitimate violence theoretically resided in the will of the king, the one and only ruler; the law enforcers were merely his swords, and it was the monarch himself who the lawbreakers offended. The authority of the sole monarch, however, is now gone, leaving a vacancy in his position; his power is thus disseminated into the hands of the experts and professional officials. While these experts are indeed the extended tentacles of state power, they do not act at the will of the absolute monarch – for there is none – but are guided by their own interests and objectives. As such, the modern state is no Leviathan; rather, it is more like the many-headed Hydra, each head with its own consciousness and power.
The coexistence of centralization and dispersion of power in the contemporary state creates a climate of tension, for there is the possibility of legitimate acts of violence occurring in every corner of society, not by the orders of the sovereign but independently by those who have been given the power to do so. Given the law-making character of violence, such scenarios are detrimental to the state, because every now and then new laws may be born out of the anonymous violence, gnawing away at the laws of the state. Benjamin recognized this danger in the police system a hundred years ago, he argued that the policing force is “formless, like its nowhere-tangible, all-pervasive, ghostly presence in the life of civilized states.” And since the “executive supremacy” that represents the police system is no longer united with the legislative supremacy in the modern states, unlike the case in monarchy, the violence is of “the greatest conceivable degeneration.”
However, the degeneration of violence does not imply a diminishment of its power; it simply mutates into a new form. Just as the absence of an absolute monarch leads to the ubiquity of anonymous authority, the disappearance of physical violence from the public sight does not mean its demise, but rather because it is rendered invisible. The violence becomes, as Benjamin put it, a “ghostly presence,” ubiquitous but hardly perceptible – it is no longer a blatant intimidation, but a control that gradually permeates people’s lives. In this sense, one is surrounded by an air of violence without being aware of it, hence she would not react against it, allowing it to be concealed in the normality of everyday life. As a result, it is even more perilous than the traditional form of violence, for it is almost impossible to resist.
The classification that built into the framework of rehabilitation, for instance, is such violence at work. Classification enables those who hold power, namely the experts, to determine the abnormal from the normal by reducing people to qualifiable or even quantifiable bits of information and fit them into the criteria they established. In the Deuel School experiment, the juvenile delinquents were categorized respectively as the “amenable” who were treated and the “non-amenable.” This measure is surely “non-violent” as a scientific, regular classification that helps with the experiment of rehabilitative model, yet it demonstrates the god-like violence (not divine violence) in determining whether a life is redeemable or not. This is kind of violence that resides in the society as a giant rehabilitative machine, constantly scrutinizing and assessing the population, investing in whoever is worth investing in, fixing whoever can be fixed – and thus taking control of them all.
Bibliography
Allen, Francis A. “The Decline of the Rehabilitative Ideal in American Criminal Justice.” Cleveland State Law Review, no. 27 (1978): 147-156.
Bailey, Victor. The Rise and Fall of The Rehabilitative Ideal, 1895–1970. New York: Routledge, 2019.
Benjamin, Walter. Selected Writings, Volume 1: 1913-1926. Edited by Michael W. Jennings, Howard Eiland, and Gary Smith. Cambridge: Harvard University Press.
Cohen, Stanley. Visions of Social Control. Cambridge: Polity Press, 1985.
Foucault, Michel. The History of Sexuality. New York: Pantheon Books, 1987.
Garland, David. Punishment and Modern Society. Chicago: The University of Chicago Press, 1990.
Garland, David. The Culture of Control. Chicago: The University of Chicago Press, 2001.
Martinson, Robert. “What Works? Questions and Answers about Prison Reform.” The Public Interest, vol. 35 (1974): 22-54.
