Sanctions such as imprisonment, parole probation and community service used to punish criminals

4 Impulse and Obligation in Conditions of Imprisonment

Imprisonment is the most serious penal sanction that is frequently imposed in the modern state and a stunning example of the conflict and complexity involved in the protection of individual dignity during punishment. The imprisoning state administers an institution where the totality of the offender's life is under its control and restraint. For this reason, sociologists describe such facilities as ‘total institutions.’ For the modern prison, the same government that condemns and wishes to punish offenders controls every aspect of their daily life: eating and drinking, social contact, excreting, communication with the world outside the prison, exercise, light and darkness are all state-administered conditions in the modern prison.

The totality of state power over individual life means that the punitive impulse that inspires imprisonment could in theory influence every aspect of the conditions of confinement. Why should those who have murdered and raped get decent meals or the opportunity to communicate with family and friends? What is the argument for allowing those who are being punished by imprisonment to enjoy movies on cable television or build their muscles in exercise rooms that have been equipped at public expense? One version of objections to positive conditions in prison acquired the label ‘less eligibility’: an argument that conditions in confinement should not be better than those available to the poorest members of the law-abiding community. But the broader argument is why not make the conditions of confinement in penal institutions punitive in all their details?

Two points of importance in considering the limits of punitive agendas on conditions of imprisonment echo general concerns which we adverted to earlier in this article. The first is that the source of any limits on the punitive content of imprisonment will be external to the purposes of punishment. One cannot derive compelling arguments for cable television in prison through analysis of concepts like deterrence and retribution. The second point is that the popular will in democratic government will be an unlikely source for conferring amenities on prisoners. The general hostility to the subjects of imprisonment is not self-limiting.

The limiting principal necessary to minimum standards of confinement is the governmental obligation to respect the human dignity of the prisoner. The content of this obligation is not easy to determine and will vary with economic resources and other social conditions. Deprivations that are not necessary to maintaining the restriction on liberty that make prisons punitive are gratuitous, and the claims of the prisoner as human being against the state make most gratuitous punitive conditions of confinement seem problematic. But the most that one can conclude from a discussion of the purposes of punishment is the lack of necessity to push further, a sense of what might not be necessary in order to condemn the punished offender or to deter others.

Yet more than a general notion of parsimony informs prohibitions on torture and execution. And the use of torture is prohibited even when it might prove quite useful to interrogations. As with torture, we believe that gross conditions of isolation and sensory deprivation that are intentionally imposed in hypermaximum security prisons in the USA also violate free-standing conceptions of human dignity that are no less important because they are imprecise.

But enforcing restrictions on punitive conditions of confinement through the political process is difficult not only in autocratic political regimes, but also in democracies. The authoritarian government is unwilling to constrain the tactics it uses in conflict with domestic enemies. In democratic regimes, citizens will be unwilling to spend resources to confer benefits on hated criminal offenders, particularly when politicians portray spending money on prison conditions as a status competition in which the citizen must choose between the interests of prisoners and the interests of crime victims (Zimring et al. 2001 Chap. 11). Under such circumstances books for prison libraries and educational programs in penal institutions might be regarded as a direct affront to the victims of crime.

Enforceable limits on the punitive content of imprisonment can be maintained in two ways even when they are unpopular. The first is by a commitment of government to constitutional principles that render some conditions of confinement beyond the reach of governmental discretion. This is a ‘bill of rights’ approach to the limitation of gratuitous punishment. It requires enforcement somewhere in government, but not necessarily by the executive branch that administers prisons.

A second strategy for protecting imprisonment from gratuitous punitive content is to make the detailed conditions of imprisonment the responsibility of expert governmental actors whose discretion is insulated from populist politics (Zimring et al. 2001 Chap. 10). This has the advantage over a ‘bill of rights’ approach of allowing detailed consideration of conditions of confinement by governmental officials who have ongoing responsibility for administering imprisonment. The disadvantage of delegating to the warden and the prison guard is the threat of conflict of interest, that prison administrators will themselves prefer unjustifiably punitive conditions for their least favorite prisoners for reasons of animus or administrative convenience. The recent history of maxi-maxi prisons in the USA suggests that administrative controls within the executive branches of government have been manifestly insufficient protection of the human dignity of prisoners.

3 The Triumph of Modernist Penology

In the aftermath of the Enlightenment and the age of Revolution, penology was largely a debate between proponents of deterrence, primarily lawyers and politicians who saw the whole population as the primary subject of penal sanctions, and proponents of normalization who saw the individual offender as the subject. By the 1920s establishment opinion was well set in favor of increasing the rehabilitative capacity of the penal system, even at the expense of deterrence. The ubiquity of three particular penal practices reflects the spread of this approach. Juvenile justice was the first great step in a global pattern toward reform and rehabilitation followed by the most advanced societies in the late nineteenth and early twentieth centuries (Rothman 1980, Garland 1985). In creating a distinct penal system for youth, these societies reflected both the influence of scientific ideas on penal practice (the recognition of adolescence as a distinct phase of life was being promoted by the rising field of psychology), and the belief that at least some offenders should be handled in a nonharmful way. Juvenile courts, the heart of these juvenile systems, in turn showcased two other features that would become synonymous with modernist penology, probation and the indeterminate sentence.

The crucial legal invention of probation was the ‘probation officer,’ an agent of the court who presumably gathered knowledge of the offender's individual circumstances by conducting close research into the offender's biological, psychological, and sociological circumstances. As a punishment for both minor and serious offenses, probation subjected offenders to the supervision of a probation officer, charged to direct their rehabilitation and empowered to enter their homes, to search them, to interview their neighbors and co-workers, and to arrest them for violations. The indeterminate sentence meant that most of those convicted of serious crimes like robbery or assault were given a formally quite lengthy sentence with the expectation that an administrative agency, usually known as the ‘parole board,’ would exercise discretion to release the inmate from prison and allow him or her to serve some remaining years under probation-like supervision in the community (by parole agents) (Simon 1993).

The establishment of probation and indeterminate sentencing programs reflected a willingness to de-emphasize both deterrence and retribution as penal values. An indeterminate sentence (e.g., 5 years to life for a burglary) left the potential offender free to dream that he or she would get out in five. Juvenile justice, probation, and parole all lowered deterrence by diminishing the severity of the expected sanction, since all three involved reducing the amount of time that would otherwise be served in confinement. Moreover, in all three institutions, the legal authority to punish was grafted onto an elaborate decision-making mechanism incorporating not only legal but social and psychological facts.

By World War II most industrial societies operated some version of this modernist penology. The Soviet Union under dictator Joseph Stalin adopted a particularly humanist version of this penology (albeit undercut by the penal violence of the state security organizations). Of the three systems engaged in World War II only the Axis powers repudiated modernist penology, adopting penological ideas consistent with fascism central concerns with racial unity and populist excess (Evans 1996). The victory of the Allies in World War II secured a place for modernist penology in the legal and political structure of the post war world. For the next 25 years the rehabilitative logic of modernist penology enjoyed unprecedented ideological support and investment. As the European economies struggled to rebuild and the United States enjoyed surging affluence, the underlying presumption of modernist penology, that society had a significant stake in the adequate adjustment of even its most recalcitrant members, had broad currency.

Modernist penology also enjoyed unprecedented legal support after World War II due to the genocidal use of penal-like sanctions by the Axis powers. As the victorious Allies began to construct an international legal order to assure that such actions would never be repeated (an aspiration that remains unfulfilled), modernist penology became a constitutive element. With its focus on the whole circumstance of the individual and on rehabilitating rather than eliminating those the state defines as enemies, modernist penology reaffirmed core elements of human rights ideology and offered a normative check within the penal organs of the state against that organ becoming an adjunct to genocidal crimes of the state. For example opposition groups powerfully resisted the death penalty in the post-World War II international legal order. Abolition and limitation of capital punishment has been a central issue of concern since the Enlightenment, but the Nazi atrocities underlined the potential for execution to become mass state policy.

Introduction

Nemo punitur sine injuria, no one is punished except for wrongdoing. It would seem that a just society should punish only those acts that cause harm. Yet many acts have, at one time or another, met with penal sanctions despite the speculative nature of the harm they cause. Drug or alcohol consumption, loitering, gambling, cockfighting, hate speech, blasphemy, possession of weapons, euthanasia, flag burning, smoking, spitting, contraception, abortion, nudity, indecent exposure, erotic art, obscenity, pornography, prostitution, adultery, polygamy, homosexual as well as heterosexual ‘sodomy’ (oral or anal intercourse), sexual sadomasochism, or bestiality all provide vivid examples. If nontherapeutic consumption of drugs is harmful for some people but harmless for others, when, if ever, should it be prohibited? If greater incidence of death or bodily injury results from boxing than from public nudity, should the latter be legal and the former illegal? If eating sweets causes more overall damage to health than failure to wear seat belts, which should government punish? The distinction between ‘victimizing’ and ‘victimless’ acts raises questions as to (1) the definition of harm, (2) the persons or entities who are harmed, (3) the gravity of various harms, and (4) the appropriate forms of redress. These issues cannot be resolved by purely objective or empirical criteria. Any resolution assumes some broader legal, ethical, political, economic, or social theory. A number of standard theories have long competed with each other. These include liberalism, utilitarianism, communitarianism, paternalism, and republicanism. Each school provides cogent possibilities for delimiting the legitimate reach of criminal law. Yet each is subject to ambiguities and contradictions.

Post–World War II

In 1949, a Diplomatic Convention sitting in Geneva drafted four Conventions for the Protection of Victims of War. Each of these conventions contains an article specifying the acts considered to be “grave breaches” of that convention as well as provisions requiring a contracting party to

enact legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

Identical language is found in Articles 49/50/129/146 of the four conventions. Articles 50/51/130/147 of the conventions specify the “grave breaches” of each convention. Grave breaches of the conventions are, of course, war crimes. (There are, of course, war crimes other than the grave breaches of these conventions.)

On August 21, 1996, the Congress of the United States enacted the War Crimes Act of 1996, adding a new provision to Title 18 of the United States Code. It states:

War crimes

a. Offense—Whoever, whether inside or outside the United States, commits a grave breach of the Geneva Conventions, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

b. Circumstances—The circumstances referred to in subsection (a) are that the person committing such breach or the victim of such breach is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

c. Definition—As used in this section, the term “grave breach of the Geneva Conventions” means conduct defined as a grave breach in any of the international conventions relating to the laws of warfare signed at Geneva on 12 August 1949 or any protocol to any such convention, to which the United States is a party. (Sec. 2401)

While this is certainly belated legislation, inasmuch as the United States ratified these 1949 Geneva Conventions in 1955 (it has not yet ratified the 1977 Additional Protocol I) and thus at that time took on the obligation of punishing violations of the grave breaches listed in each of the four conventions, it is believed that existing law could have been found to punish most, if not all, of the violations of the grave breaches provisions to which reference is made. However, it is obviously preferable to enact specific legislation implementing the grave breaches provisions, as the United States was committed to do by the article quoted earlier, which precedes the grave breaches provision in each convention.

During the period 1950–90, there were more than 100 international conflicts in many, or all, of which war crimes were committed, but not a single war crimes trial was conducted. During the hostilities in Korea (1950–53), the United Nations Command had identified as persons who had committed war crimes, and had confined in a single prisoner-of-war compound, about 200 communist prisoners of war who were to be tried for their illegal actions upon the conclusion of hostilities. There were no trials because the Armistice Agreement required the repatriation of all prisoners of war who desired to be repatriated. During these hostilities, tuberculosis was found to be prevalent among the North Korean prisoners of war held by the United Nations Command. Although their medical treatment in a prisoner-of-war hospital received the approval of the delegate of the International Committee of the Red Cross, who frequently inspected it, after the hostilities had terminated and the prisoners of war had been repatriated, the Chinese Red Cross Society leveled charges of maltreatment of these prisoners of war by the United Nations Command. (This was just one of innumerable offenses alleged by the Chinese Red Cross Society to have been committed by the United Nations Command—perhaps on the theory that the best defense against the fact of maltreatment of prisoners of war by the Chinese communists was to charge that these offenses had been committed by the United Nations Command.)

As noted previously, during the hostilities in Vietnam (1965–75), the North Vietnamese announced their intention to try captured Americans as war criminals captured in flagrante delicto. However, they apparently changed their minds as, when queried, Ho Chi Minh announced that no war crimes trials were contemplated. (For some unknown reason, when a nation tries one of its own citizens for a violation of the law of war, it is not considered to be conducting a war crimes trial. Thus, when the United States tried Lieutenant William Calley for his actions at Mỹ Lai during the hostilities in Vietnam, it was not considered to be a war crimes trial, although it most certainly was. This now appears to have been changed insofar as the United States is concerned by Section 2401(b) of 18 US Code, quoted previously. Had the North Vietnamese tried Calley for the same actions, it would have been considered to be a war crimes trial.) In 1966, one of the groups fighting for the sovereignty of Angola announced that it considered mercenaries to be illegal combatants and, some years later, after that group had acquired sovereign power in Angola, it tried, convicted, and executed a number of captured mercenaries. At that time, being a mercenary was not a violation of the law of war and the trial was not a valid war crimes trial. (Article 47 of the 1977 Additional Protocol I now provides that “a mercenary shall not have the right to be a combatant or a prisoner of war.” This was the first international legislation with respect to mercenaries and there had been no prior customary rule on the subject.) After the 1972 war between India and Pakistan when India released Pakistani prisoners of war in 1974, it withheld 195 of them for Bangladesh to try for the war crime of genocide. However, India eventually released all of these prisoners of war without any trials having taken place. (Trials such as that of Adolf Eichmann by Israel and of Klaus Barbie by France arose out of the events of World War II.)

In 1993, the United Nations Security Council adopted Resolution 827, which established an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (International Criminal Tribunal for the former Yugoslavia, ICTY) since 1991. This was the first tribunal for the trial of war crimes not established by the victor or victors. It has 11 judges, elected by the United Nations, and is composed of two trial chambers of three judges each and an appeal chamber of five judges. Thus, it is also the first war crimes court in which there is a right of appeal. In the Tadic Case, the Appeals Chamber of the Tribunal held that it was properly established and that it did have jurisdiction to try cases involving violations of the law of war that had occurred in the former Yugoslavia. Though it started slowly in gaining credibility and success, the ICTY eventually indicted Slobodan Milošević, the first head of state to be indicted for war crimes. Louise Arbor was also successful as chief prosecutor at moving the ICTY from what she called “historical time” into “real time.” By this, Arbor meant that for too long international criminal law had been consumed with righting historical wrongs, invoking the image of Nazi hunters. It needed to move into the present where crimes against humanity were being committed and could be pursued before the trail grew cold.

The Foca Rape Case verdict established rape as a crime against humanity and the organized and sustained nature of the crime, in this case, as a form of enslavement. In spring of 1992, more than half the population of Foca was Muslim. By the following fall, there were almost no Muslims left in the area. The convictions in this case for rape elevated the crime to a new level of seriousness despite the low ranks of those involved in the crime. No longer would rape be considered a “spoils of war.”

In 1994, the United Nations Security Council adopted Resolution 955, establishing a similar Tribunal (International Criminal Tribunal for Rwanda, ICTR) to try war crimes committed in Rwanda or in neighboring states by Rwandan citizens. The statute for this tribunal is, mutatis mutandis, identical to that of the tribunal for the former Yugoslavia. As with the case in Yugoslavia, rape and crimes against women gained new levels of seriousness in the Rwandan tribunal. Jean-Paul Akayesu, a former burgomaster, was found guilty of genocide, inciting genocide, and rape. He was the first person to be convicted of genocide after trial by an international court and the verdict was the first to recognize rape as a form of genocide. Known as The Media Case, Ferdinand Nahimana, founder and principal ideologist of RadioTélévision Libre des Milles Collines, Hassan Ngeze, the founder owner and editor-in-chief of the newspaper Kangura, and Jean-Bosco Barayagwiza, a lawyer by training, were found guilty by the ICTR of genocide, incitement to genocide, and crimes against humanity. The “media of hate” was used by these men in conjunction with Hutu political interests to target Tutsi for violence.

Then in 1994, the International Law Commission released a draft of a statute for an ICC, of which the largest part of its jurisdiction would be violations of the humanitarian law of war. The General Assembly of the United Nations has adopted Resolution 51/207, calling for the continued activities of a Preparatory Commission and for the convening of a Diplomatic Conference in 1998 to consider the matter. This conference led to the 1998 Treaty of Rome on the ICC. In February 2002, the United Nations announced that 60 countries had ratified the treaty, thereby establishing a permanent ICC. In 2002, the United States and Israel unsigned the treaty, making them free from any legal obligation in the treaty. The United States has asked for legal exemption for its citizens from this court. The European Union has largely denied this request as they feel it is a threat to the basic principles of the universal rule of law. Though very much a part of the success of the ICTY and ICTR, Americans cannot work for the ICC as nontreaty citizens and are barred from employment: thereby denying the ICC critically important resources. As the United States and Iraq are not members of the Treaty of Rome, the ICC would have no bearing on crimes committed by their citizens in Iraq. However, British soldiers committing war crimes would fall under the jurisdiction of the ICC.

Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)

The United Nations adopted CEDAW in 1979, and it entered into force in 1981. The Convention originally mentioned ‘gender based violence,’ though not specifically DV; but it did emphasize equality and the “elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes” (Article 5). Violence against women became an explicit part of the Convention in 1992 when the Committee adopted general recommendation 19, listing specific types of DV against women (paragraphs 11, 23). The Committee specifically recommended that states take “appropriate and effective measures” against public and private acts of violence, including the full range of legal measures: “penal sanctions, civil remedies and compensatory provisions … preventative measures, [… and] protective measures” (paragraph 24). Thus states parties have a duty to protect individuals, even within the home. The 188 states parties to CEDAW are responsible for formerly private violence, including acts and failure to act.

This seemingly wide acceptance of state responsibility to end violence against women is undercut by numerous reservations made by signatory countries (CEDAW, SP/2006/2). Some of these reservations are against core provisions of CEDAW like Article 2, which “condemns discrimination against women in all its forms,” even though Article 28 expressly prohibits any reservation incompatible with the object and purpose of the Convention. These reservations keep many states parties from engaging in a revolution of gender relationships that would change the dynamics of control that lead to DV.

CEDAW is an international law that relies on exposure, shaming, and international standards to compel state action (Merry, 2003). But enforcement is possible for states parties who have ratified the optional protocol, which provides individual complaint mechanisms to the Committee (Optional Protocol A/RES/54/4, 15 October 1999). It was adopted by the UN in 1999, and ratified by some states parties to CEDAW. Even without this enforcement arm, however, the cultural and standard-setting work of CEDAW and states reports are important; both allow an international view on the social, economic, and cultural aspects of gender and violence (Merry, 2003).

International Data Sources

4 Law and Power

Since the 1980s, the anthropology of law has become concerned increasingly with the relationship between law and the exercise of power (see Starr and Collier 1989). Inspired by Marxist and Foucauldian theory, and by the Critical Legal Studies Movement in law schools which argued that law reflects the interests of dominant groups rather than simply the logic of legal reasoning, anthropologists examined the way law supports relations of power in a wide range of social contexts (see Lazarus-Black and Hirsch 1994). But this research also demonstrated how law challenges dominant groups. It showed law to be a double-edged sword, expressing the rules and sanctioning authority of established political authorities and at the same time offering opportunities and justifications for resisting political authorities. For example, social movements that call on civil rights, such as the US civil rights movement against racial discrimination in the 1950s and 1960s, challenge existing power hierarchies.

Feminists have used the criminal law to challenge male privilege by demanding penal sanctions for those who use violence against women in intimate relationships. The discourse of human rights has been deployed by indigenous peoples, women, victims of war atrocities, prisoners of war, and many other groups to claim protection from state authorities. Thus, law usually reinforces existing power arrangements, but can provide an avenue of resistance through its institutions and the discourse of rights.

Attention to the way legal forms and institutions exercise power, legitimate power, and resist established forms of power leads to a concern with the way laws are produced and enforced as well as with the linguistic and social exchanges which take place in courtrooms, police stations, and lawyer's offices (e.g., Conley and O'Barr 1990). Law constitutes social identities and understandings of social relationships through its regulations and through the spectacular as well as the mundane processes of arrest, trial, and mediation through which these regulations are enforced and failure to comply is punished. Even when laws do not impinge directly on social life, they exercise power through the ways in which they shape individuals' legal consciousness. This refers to the way people see themselves defined by and within law, the rights they can assert, and their entitlement to seek legal remedies for grievances (Merry 1990).

Law is a fundamental aspect of the exercise of power in colonial situations, since colonizing nations characteristically imposed a metropolitan legal code on to societies with very different legal orders. Such legal transplants were usually legitimated by goals of reforming family and community life. But they also privatized land ownership and created the basis for wage labor on plantations and mines. Several historically grounded studies have explored the complex relationships between this new European law and the shifting legal terrain of the colonized peoples of Africa (e.g., Moore 1986), Latin America (e.g., Collier 1973), and the Pacific (e.g., Merry 2000), among many others (see Colonialism, Anthropology of).

Sources of Data

Nationally, most countries collect homicide data from law enforcement agencies. For example, criminal statistics in Canada are collected by Statistics Canada, a government agency; in France, the source of criminal statistics is known as Compte general de l'administration de la justice criminelle; in England, criminal statistics are published in Home Office: Criminal Statistics, England and Wales; and in the United States, Crime in the United States: Uniform Crime Reports (UCR) is published annually by the Federal Bureau of Investigation.

A second source of homicide data are medical cause-of-death statistics that are drawn from the files of officials such as coroners or medical examiners. In the United States, statistics drawn from death certificates are gathered and distributed by the National Center for Health Statistics, National Institutes of Health.

Finally, researchers compile and archive national data sets drawn from official records and contact with criminal justice agencies. In the United States, the most extensive data file on homicides, which has been updated several times, has been compiled by Richard and Carolyn Rebecca Block (Block, 1993). It consists of detailed data on nearly 23,000 homicides in Chicago from 1965 through 1995.

Researchers also compile and archive data sets on homicide and violence for many countries. The best known is the 110-nation Comparative Crime Data File, compiled by Dane Archer and Rosemary Gartner (Archer and Gartner, 1976) from 1900 through 1974, and the 14-nation crime file by Ted Robert Gurr and Erika Gurr (1978). Both contain data on murder, assault, robbery, and rape.

There are three readily available sources of homicide data compiled by international agencies: United Nations Surveys, crime data from the International Criminal Police Organization (INTERPOL), and mortality statistics from the World Health Organization (WHO).

Law and Power

The law also provides a rich vocabulary for describing and legitimating relationships of unequal power. It contributes in significant ways to the hegemony of a political system by engendering consent and fostering legitimacy for its exercise of power (see Nader, 1991). Since the 1980s, the anthropology of law has become concerned increasingly with the relationship between law and the exercise of power (see Starr and Collier, 1989). Inspired by Marxist and Foucauldian theories as well as the Critical Legal Studies Movement in law schools that argued that law reflects the interests of dominant groups rather than simply the logic of legal reasoning, anthropologists examined the way law supports relations of power in a wide range of social contexts (see Lazarus-Black and Hirsch, 1994). However, this research also demonstrated how law challenges dominant groups. It showed law to be a double-edged sword, expressing the rules and sanctioning authority of established political authorities and at the same time offering opportunities and justifications for resisting political authorities.

For example, social movements that call on civil rights, such as the US civil rights movement against racial discrimination in the 1950s and 1960s, challenge existing power hierarchies. Feminists have used the criminal law to challenge male privilege by demanding penal sanctions for those who use violence against women in intimate relationships. The discourse of human rights has been deployed by indigenous peoples, women, victims of war atrocities, prisoners of war, and many other groups to claim protection from state authorities. Thus, law usually reinforces existing power arrangements, but can provide an avenue of resistance through its institutions and the discourse of rights.

Attention to the way that legal forms and institutions exercise and legitimate power, while offering a mode of resistance, leads to concerns with the way that laws are produced and enforced as well as with the linguistic and social exchanges that take place in courtrooms, police stations, and lawyers' offices (e.g., Conley and O'Barr, 1990). Increasingly, anthropologists have examined the technologies and forms of law itself. Rosemary Coombe (1998) analyzes the regime of international property law to reveal the underlying conceptions of individualism and agency implicit within these laws. She documents how, as Canadian First Nations engage with the language of intellectual property laws to contest the ‘cultural appropriation’ of native knowledge and symbols, they also resist its underlying possessive individualism. Indigenous groups deploy a ‘double-voiced rhetoric,’ whereby “they empty tropes of a dominant language simultaneously engaging and subverting these metaphors through the character of the alternative claims they make into the voice of an authorial other” (1998, p. 242).

Another approach to understanding law and power integrates insights from Science and Technology Studies to examine the content, form, and agents involved in the production of legality as a technology and network. This approach does not focus directly on the relations of power that underlie law-making processes. Instead, it shows how technologies of law, in the form of doctrine, interpretive techniques, or dispute resolution tools, produce forms of knowledge that conceal more substantive, political issues. Both Bruno Latour (2010), in his study of the French Conseil d’État, and Annelise Riles (2001), in her study of Fijian activists negotiating human rights language for the United Nations Fourth World Conference on Women in 1995, seek to open up the ‘black box’ of law. This is Latour's term for complex techniques that scientists present in diagrams as taken for granted rather than present in detail. Latour and Riles both analyze the details of legal processes to show how technologies of lawmaking become tools to overcome political and epistemological limits. Whether studying the objectivity of judges or the use of ‘bracketing’ as a way to move past substantive disputes in the United Nations, each of these technologies produces knowledge that is translated into commonplace understandings. Similarly, Merry (2011) examines new tools of international governance, such as the use of quantitative indicators to measure qualitative categories such as ‘the rule of law,’ as technologies that transform political decisions into scientific, empirical knowledge (see also Davis et al., 2012).

Scholars have also looked to the way that law imposes new forms of power through constructing and transforming notions of space. Drawing on the work of cultural geographers, these studies recognize space as a key constituent of social life that plays an important role in the construction of social relationships and the formation of the political domain. Since law is the apparatus through which states define political territories, as well as their domestic and public spheres, it is a key form through which space is made (see Law and Geography). Benda-Beckmann et al. (2009) explore the relationship between competing spatial configurations of law within plural legal orders. By exploring the plural legal orders and their particular notions of space, they argue that “multiple legal constructions of space open up multiple arenas for the exercise of political authority, the localization of rights and obligations, as well as the creation of social relationships and institutions that are characterized by different degrees of abstraction, different temporalities and moral connotations” (2009, p. 4).

Other Recent Trends

In addition to the tensions among the main objectives attributed to punishment in modern times, other ideological trends have recently emerged or re-emerged. While they are sometimes difficult to define precisely, five significant themes seem worthy of mention here.