Stating Punishment: The Struggle over the Right to Punish
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The state punishes. That it is the state that punishes is something we all take for granted. What this “state” is that does the punishing is not so obvious. There is a considerable literature, both inside anthropology and in other disciplines, concerned with pinning down just what a state is (cf. Abrams 2006; Aretxaga 2003; Sharma and Gupta 2006). Whether the functions of punishment are carried out by “a state” or by bureaucracies posing as states, or by a regime using the “state” as an ideological fiction “legitimating the illegitimate,” masking “the pretensions of regimes to be states” (Abrams 2006:122, 123), or by a “protection racket” (Tilly 1985), punishing is critical to “stateness” and to carrying out the will of the elite of the “nation.” Regardless of how states are defined, however, in our daily lives we simply know that punishment awaits, or should await, those who “transgress.”
And while it is obvious that state agents exercise force in order to punish, we are only rarely actively aware of that fact, nor are we often conscious of the ways in which a state's ruling elite maintains its monopoly on the use of punishing force, both internally within the borders of the territory they rule and externally against designated outsiders. That we, living within that territory, are not allowed, except under specific, state-permitted conditions, to use force seems perfectly natural, even though some of us argue about what those state-permitted conditions should be. Equally, it seems perfectly natural that state-designated individuals and institutions act with force in the name of the state. If we do think about the state's use of force, we are likely to think about the state in terms of the social contract — the state uses force to punish for our benefit — to maintain order, keep us safe, allow business to proceed, to make “civilized” life possible. In return for security, we allow a small number of power holders to govern us, to extract wealth from our work, and to punish those who are believed to threaten or violate that contract. Unless control of punishment is concentrated in the hands of a small number of power holders at the top of a stratified society, there is no state — there is no ruling elite with a monopoly on force that makes possible the punishing required to enforce their rule, an exercise of force that is legitimized in the name of an arguably ideological entity called a state.
Foucault, in Discipline and Punish (1995), begins with an unforgettable description of punishment by drawing and quartering in France, a state in which the power to carry out such a killing was already monopolized by the king. Spectacular displays of pain demonstrated his sovereignty. With the development of a “modern” state, however, the spectacular punishment waned, and a “different physics of power” emerged (Foucault 1995 :116). It was not the king exercising the power to inflict pain; punishment must appear to be a result of laws that reflect nature, the natural consequence of crime (Foucault 1995 :106). Discipline, not painful punishment, will create productive subjects who, although bowing to sovereign power, are unable to recognize their own subservience.
Foucault takes the sovereignty that is built on the power to punish as his starting point. My argument here is that polities moving in directions that eventually lead to what we call “states” fight long and hard to gain that power to punishment, taking it out of the hands of local people. Who adjudicates and punishes is not always so clearly in the hands of central power holders; as a ruling elite becomes stronger it more and more effectively prevents nonauthorized individuals or groups from defining and punishing transgressions, both internally and externally. Sovereignty, thus, rests at base in the control of punishment. To illustrate this argument, I examine Virginia's Powhatan polity during the years preceding and following the founding of Jamestown in 1607, and then briefly draw suggestive parallels from English and Scottish history of that same time period. My hope is that delving into the role of punishment in state formation itself and its relationship to sovereignty can provide an illuminating perspective on the incarceration, detention, and “targeted assassinations” entailed in the construction of a globalizing empire ruled by corporate elites.
So, first, my premises. States — however we understand that concept — are about wealth and its concentration in the hands of the few, with varying intensity and focus in capitalist and socialist states. A “modern” state is a clearly bounded territory existing within a system of such states, facilitating and defending the right of its elites to extract wealth from the territory's resources, both natural and human. The system of states jointly regulate each other and recognize the right of each to use force internally and to use force externally to defend its territory from incursion by other states (cf. Giddens 1987:119–120, 281–282). The meaning of “state-ness” is, however, changing within the developing structure of global corporate empire, including the gradual loss of state control of punishing, a point to which I shall return in concluding. Second, the state apparatus provides the force needed to ensure that recalcitrant people, who would prefer to keep the value of their surplus labor for themselves, cannot do so. And third, a state provides the means by which its elites transgress on the wealth of elites of other states and defends borders against foreign elites who would do likewise. Thus, war and state are inseparable; the state's ability to maintain order even within its borders may be dependent on predation outside its borders (Kapferer 2004:1; cf. Aretxaga 2003:403).
To do any of this, states must be able to control punishment — punish the recalcitrant who resist the expropriation of their labor in wealth and of their bodies in war. Thus, a state to be a state has to punish; the foundation of its sovereignty is punishment. As a polity concentrates punishment in fewer and fewer hands, it becomes more state-like, setting up a feedback loop in which greater punishing power allows a greater concentration of wealth, which provides the resources to more effectively punish, make war, and move further toward state sovereignty. The legitimacy of a state in the eyes of its citizens rests largely on this control of the use of force — in other words, on the effectiveness with which it maintains an “orderly” society, providing its citizens the local peace needed to reproduce with at least minimal success and to produce the surplus needed to fulfill elite demands without the fear of additional extractions of surplus by marauding neighbors or outsiders.
But a state cannot just claim it has a monopoly on the use of force; people have to believe its ability to punish is real, and therefore agree to be submissive. Otherwise, the state would be in a constant condition of strife with the people who do the work of wealth creation — counterproductive if the point of a state is to place wealth in the hands of an elite. So the state must demonstrate its monopoly by punishing a carefully selected few, those defined as “Other” by the majority of wealth producers; making this selection may well require another aspect of sovereignty, the ability to declare a de facto or de jure exception, people and situations where the standard rules do not apply (Agamben 2005). As Mbembe (2003:11) says, “the ultimate expression of sovereignty resides, to a large degree, in the power and capacity to dictate who may live and who must die.” Martinot (2003:114) claims that “[t]he prisoner is the means by which the state produces its overarching power. … the prisoner is the sign of the state's presumed political legitimacy.” So state-making involves gaining a monopoly on punishment. This requires wresting the power to deal with transgression out of the hands of local people, those who are directly affected by transgressive behavior, and placing it in the hands of those at the top of a stratified society. This process is central to state-making.
To illustrate this centrality, I turn now to the early 1600s, to the Powhatans of Virginia, and briefly, for suggestive parallels, to the English who landed on their coast and built Jamestown. The Powhatans under Wahunsonacock, the Powhatan, had been moving in directions that potentially could lead to state formation, taking punishment away from local clan elders and placing it a notch higher up the hierarchy, in the hands of regional subchiefs. The English already had a state, but punishment was not yet fully monopolized. Local people in England had long ago lost control of punishing, which was now held by church and regional lords, a situation the Crown hoped to rectify by moving it yet another notch higher up the hierarchy into its own hands in order to gain a more complete monopoly on the use of force. Both societies had a history of diarchy, or dual sovereignty, and thus were dealing with parallel issues as they moved punishing further up the hierarchy.
Diarchy, Sovereignty, and Punishment
Diarchy, or dual sovereignty, has been a widespread, complex form of governance, carried out through the convergence of spiritual authority and worldly power. 1 Diarchy means joint rule, usually by priest and king, who are complementary (but inherently unequal) representatives of religious authority and secular power. One legitimizes action, the other acts. The priest (the pope, the Powhatan priests) speaks for the gods and legitimizes the king's exercise of power. The king or paramount carries out the will of the gods as expressed by the priest; his or her actions are defined as legitimate because they carry meaning within a religious context. The priest, although superior, is nevertheless dependent on the king, both for material support and because the priest has no coercive power and cannot, without the king, carry out the wishes of the gods. Neither can function without the other. Without the priest, however, the king has no right to exist; the king's legitimacy and ability to rule come from the priest. For centuries in England, until Henry VIII, as in other countries ruled by Christians, “sovereignty … was to be exercised through a complementary opposition between the king, as wielder of secular power, and the church, as mediator of spiritual authority” (Needham 1980:64). Consecration, conducted by the spiritual authority, made a king “by the grace of God” no longer merely a natural human (Kantorowicz 1957:47; Kupperman 2000:95).
The king's exercise of power under priestly authority thus took on a sacred aspect, and disobedience became “sacrilegious transgression”; there was a corresponding “sacrilization” of the social order itself (Balandier 1970:99, 101). Much of the decision making about punishing transgression was in the hands of the religious authorities, while in many polities the king or paramount carried out the actual work of punishing. The transgressive behavior was, thus, more a sin than a crime, an offense to the gods not to the state. Such sins could threaten the entire polity, not just the local group, through displeasing the gods or upsetting the balance of spiritual forces. Mixed in and disguised by the mantle of sin was behavior, which actually threatened the elite ability to extract wealth. Refusing to give tribute or to provide labor to lord or king, for instance, is an offense against the gods, as is a king's refusal to redistribute some (usually relatively small) portion of that wealth in rituals that promote the well-being of society, and in gifts that acknowledge and ensure loyalty of the lesser elites who are needed to ensure the upward flow of wealth from those below them and to support wars of conquest. Equally, the king must use wealth to support the priests who make the extraction of that wealth possible ideologically. Clouds of incense, figuratively speaking, provide a smokescreen.
Diarchy in a wide range of societies regularly obliges a king to provide sacrificial victims to ensure the life, the general well-being, of the community. While the sacrificial punishment of either external enemy war captives or internal “enemy” transgressors was of significant religious benefit to the polity, it also — and not coincidentally — strengthened the position of an extractive elite, as it did for the Powhatans. For the Powhatans, providing sacrifices, war captives, or transgressors was the most important thing a king did for the general welfare (Williamson 2003:171). Williamson concludes that for sacrificing, little distinction existed between war captives and transgressors. The sacrificial death of either benefited the polity spiritually, and as she points out the elimination of either was at the same time the elimination of a threat to the order the king was expected to provide. A primary motivation for war was the king's obligation as secular power to provide sacrifices for the priest as spiritual authority. Thus, the king's exercise of the use of force, both externally in conquest and internally in punishing, was justified religiously as sacrifice needed to keep the favor of the gods for the benefit of all.
With the religious legitimacy for war comes an added benefit — the “protection racket” that Charles Tilly (1985) maintains is the basic descriptor of a state: the state protects citizens from violence by dangerous “Others” (i.e., maintaining law and order and defending borders) in return for payment through tribute or taxes, but principally by allowing elite exploitation of the people the state protects. Wahunsonacock, well before Jamestown, appears to have been embarked in this direction, using war with enemies to create dangerous others from whom people needed to be protected, and using the resulting need for war as legitimation for collecting tribute from them. Wahunsonacock gave valuables to subchiefs who fought for him (Williamson 2003:52; cf. Rountree 1989:109–111, 122). It was that tribute, recycled, and his monopoly on the copper trade that enabled him to extend his conquests — all legitimized by the production of human sacrifices, enemies to be spectacularly punished.
Wresting Control of Punishment from Local Groups
To make this work, however, control of punishing must be wrested out of the hands of local groups. This involves the redefinition of transgression from a local, community affair to an act of concern to a far broader polity ruled by those gaining power within the polity. Additionally, punishment, not the restoration of community balance as in many nonstate societies, needs to be defined as the correct response to transgression. Antisocial behavior that was once dealt with by local elders and leaders through peer pressure, manipulation, requiring restitution, or maybe even a locally sanctioned killing must be redefined as a transgression worthy of punishment — retribution becomes the goal, not just the restoration of community balance. The Powhatans can illustrate this transformation of punishment as they conquered neighboring polities, constructing an empire and gradually solidifying the class structure that characterizes states (Kupperman 2000:98). 2
Legitimation for this transformation frequently comes, as it did for the Powhatans, by way of an elite-controlled religion that postulates the existence of behaviors that are so offensive to the gods that divine protection might be withdrawn, not just from the offending individual or local group, but from the entire polity. Punishment, thus, concerns the entire polity, to be handled above the local level, a religiously mandated sacrifice for the benefit of the entire polity, by edict of the gods. But knowledge of those spiritual forces, of what offends them, and what might regain their protection can no longer be accessible to local people. It becomes esoteric knowledge, accessible only to specially trained and appointed religious authorities. The Powhatan gods spoke directly only to priests, who in addition could detect secret transgressors for sacrifice, and priests spoke only to chiefs (Kupperman 2000:123, 125; Rountree 1989:115, 120).
Conquered local diarchic chiefs became subchiefs under Wahunsonacock, owing him tribute and ideally obedience. 3 Punishment was shifted up the hierarchy from local clan leaders and individuals to local subchiefs and their priests (Rountree 1989:85, 115). The first English at Jamestown spoke of the submissive behavior of Powhatans accused of wrongdoing when judged and punished within the Powhatan diarchic framework (Kupperman 2000:103; Rountree 1989:85). Personal disobedience to Powhatan or to subchiefs was punished with beating or clubbing to death on a sacrificial stone; individuals, at least to some extent, could still exact personal revenge, although in the early 1600s punishment for murder and stealing was being taken over by chiefs and the paramount (Gleach 1997:51; Rountree 1989:85, 115–117; 1993:11; Williamson 2003:236–239). That stealing became punishable by death administered by the chief perhaps reflects the importance that personal wealth played in the stratifying Powhatan society. Distinctions between chiefly families — the respected and wealthy families of the “better sort” as the English put it — commoners, and “the poor” were dependent in large measure on wealth, and there were significant practical barriers to commoners' abilities to accumulate wealth (Potter 1993:17; Rountree 1989:100). Such barriers were less noticeable in the more egalitarian societies that were being incorporated into the Powhatan polity. Thus, a possible interpretation is that stealing was much more than merely taking someone else's good: it was a threat to the entire social hierarchy, since it shifted wealth, thereby potentially shifting status, and therefore was as reprehensible as murder, which by shifting people likewise threatened the social hierarchy. If so, then as the Powhatan class structure solidified (Kupperman 2000:98), punishing both theft and murder might have been seen as a polity-wide, chiefly, issue, no longer within the purview of the individual affected. These chiefs acted on the authority of their priests, but were nevertheless answerable to Wahunsonacock. In some cases, he apparently bypassed the local chief and priest to take charge of punishing himself, moving punishment yet further up the hierarchy. Tellingly, Rountree (1989:115) points out that in the late 1600s, as the Powhatan polity was gradually broken apart under the combined influences of internal strife, military action against the English, and eventually English land appropriation and genocidal policies, punishing theft and murder returned to local hands and individuals.
Before Jamestown, however, as punishment shifted out of the hands of local elders and communities into the hands of regional subchiefs further up the hierarchy, Wahunsonacock gained a “plurality,” not a monopoly, on the use of force (Barker 1992:68; cf. Gleach 1997:29–31). While absolute in the sense that what he ordered did happen, including punishment, subchiefs also had the ability to punish on their own authority, although they could not override Powhatan. Furthermore, as a diarch, not a “monarch,” his power was not absolute but instead shared with his priests (Williamson 2003:205). Nevertheless, by coming closer to confining punishment to elites he could control, Wahunsonacock clustered punishers higher up the hierarchy, closer to himself. This was a dramatic extension of power over local people, a move toward the monopoly on force that is part of state-making.
Externally also Wahunsonacock was increasing his ability to use force, using his increased tribute to support large armies. Tilly (1985, 1992) emphasizes the importance of war in making state formation possible; Wahunsonacock's strategy serves as an illustration of this principle. How important punishing was in mobilizing his armies is not clear. Rountree (1989:122) says participation was not voluntary; Williamson (2003:53) thinks it probably was. However, his control over this empire was not complete, and its boundaries were not fixed. It was tightest in the core areas that he ruled by bloodright. There absolute obedience could be directly enforced with swift violence; on at least one occasion, a whole community was wiped out. This degree of control was much harder to accomplish in the periphery where he controlled only through conquest and control of trade (Rountree 1989:119, 121; 1993:3–4; Williamson 2003:72, 228).
But in doing all this, Wahunsonacock had to act within Powhatan customary law and was dependent on the legitimizing approval of his priests, his primary councillors, for the use of force internally (Kupperman 2000:103; Rountree 1989:114–115, 119; 1993:7–13; Williamson 2003:203). Equally, priests also authorized the declaration of war, without which Wahunsonacock could not act externally (Potter 1993:16). Building the Powhatan empire must have led to changing relationships among priests. Each chief was associated with particular priests, and as a chief was conquered and subordinated to Powhatan, his or her priests would probably have been subordinated in some sense to Wahunsonacock's priests. This would appear to have led to the development of a hierarchical structure among priests, with Wahunsonacock's seven priests of the principle temple above the priests of subchiefs (Potter 1993:16). If so, then the relationships between chief and priest would necessarily have changed, and the structure of diarchy as it affected daily lives may have changed correspondingly. The local representatives of the spiritual authority would no longer carry the final authority, and local people's loyalty would have been directed more effectively toward Wahunsonacock and his priests, particularly as they became the ultimate punishing authorities.
Eventually, control of punishment became an issue between Powhatans and English, once the English were no longer dependent on Powhatans for survival. Gleach (1997:4, 52, 120–122), in fact, interprets the Powhatan 1622 attack against the English as a blow delivered by people who saw themselves as dominant and sovereign against an upstart and recalcitrant subject people who needed to be punished and taught to behave — as Wahunsonacock had occasionally done with other upstart polities. The English, likewise seeing themselves as sovereign, had by the end of the 1600s, long after Wahunsonacock's death, gained the power to enforce laws, which gave them the right to adjudicate quarrels between Powhatans. Who had the right to punish whom was a serious bone of contention (Merrell 1991:142–145; cf. Wright 1999:227–228, 282–283). The polity that could punish members of the other demonstrated its dominance — punishment was a critical aspect of sovereignty.
Wresting Control of Punishment from Regional and Religious Authorities
The history of England and Scotland before and shortly after Jamestown can provide some interesting parallels to the Powhatan consolidation of the power to punish. Both the English and the Powhatans were dealing with diarchy; Wahunsonacock was using it to move punishment away from local elders and individuals and into hands a bit closer to himself, those of regional subchiefs and their priests. In England, authority over punishment had already been moved into the hands of regional lords and their priests, and the English Crown was bent on taming diarchy as it then functioned in order to bring control of punishment more clearly into its own hands.
Diarchy, as we have seen with the Powhatan polity, can provide the spiritual authority for wealth extraction. However, there is a downside for elites: in a diarchic structure, economic and political elites do not have full control even if they do own the means of production; religious elites carry considerable influence and are in a position to manipulate the ideology that supports the power of kings and lords, potentially a threat to elite control. The king must, like Wahunsonacock, rule within the bounds of tradition and live up to the expectations of the priesthood and nobility for religiously defined correct kingly behavior — he was, to some extent, held in check by their interpretation of what a godly king should do. In the two centuries preceding Jamestown in England (and elsewhere), the diarchic system was falling apart by which the king, by the grace of God, had acted as secular power with the spiritual authority of the Church. God and king were, theoretically at least, the ultimate source of authority, but as a practical matter the old feudal system had placed much of the right to punish in the hands of regional lords and their associated church authorities. The English king, in other words, like Wahunsonacock, had a plurality, not a monopoly, on punishment and on the use of force it entails, although punishing power in England was consolidated further up the hierarchy than it had been in the Powhatan polity before Wahunsonacock's manipulations of the system.
The kings of England had, for some time, been attempting a greater consolidation of power than that provided by diarchy. Kings throughout Europe were attempting to take control of the labor force out of the hands of regional and local nobles in order to take a larger proportion of their production (Wallerstein 2011:xxi; cf. Tilly 1992:69–76). The problem was that diarchy limited their ability to exploit local producers; it left too much wealth in the hands of church and regional lords. But successful exploitation depends on the ability to punish, so the power to punish would have to move into the hands of the king if the king were to exploit directly, rather than through regional lords. The result was an ongoing struggle between king and lords and church over who has the right to punish. 4 However, the king's power did not actually extend far enough or deeply enough to keep order without the lords, and with their punishing power undercut, the lords also were often unable to punish effectively (Grant 1987:46–48). Consequently, the English king's biggest challenge in the several centuries leading up to Jamestown was frequently “the preservation of public order” (Bellamy 1973:1–2). The king, in other words, did not have a secure grip on the use of violence, and therefore could not punish effectively enough to keep public order and was as dependent on honor, magnificent display, and the pageantry of office as on force to maintain his position — as was Wahunsonacock (Kupperman 2000:92).
And, like Wahunsonacock, the power of the crown diminished in proportion to distance from the capital, even within England itself. In the outer reaches of the territories that the English Crown tried to control, peripheral regional elites who had long before wrested punishing from local groups still retained that right (Bellamy 1973:47). Scottish kings had for centuries fought a running battle against an English conquest that would turn Scotland into another peripheral region under the English Crown (Barrell 2000). But at the same time, the Scottish Crown had problems with its own peripheries. In the Scottish Highlands, for instance, beyond the reach of the crown, Scottish or English, regional lords maintained their power to punish and continued to enforce the flow of wealth to themselves (Brown and Boardman 2005; Grant 1987). Highland chiefs could ignore calls to appear before the Scottish Parliament, even when indicted for treason (e.g., Moffat 2010:48). The king clearly did not have a monopoly on the use of force and was unable to punish, at least in the Highlands. And because they had no real power in the Highlands, Scottish kings could not govern there (Whatley 2010:192). Instead, they appointed in each of three regions one of the major magnates to serve as justiciar, acting as an agent of the king, in some cases acting in an almost “viceregal” capacity (Young 1998:178; cf. Barrell 2000:35–36). According to Macleod (1996:113; cf. Moffat 2010:46), by mid-1500s, the justiciars had become hereditary, exercising the power of life and death in a way that the king could not, although theoretically in his name. Sanctioning the already existing power of clan chiefs made it appear that the power of life and death that the chiefs already wielded actually came from the king, the channel for the God-given right to rule. This move was at the same time a consolidation of power in fewer hands — again, theoretically, and apparently to some degree in fact, the regional justiciars took over some of the right to kill that had formerly been exercised by at least many more local clan chiefs. More emphatically, the local, and more informal, clan judges could no longer function legally and were apparently absorbed into the justiciars' courts in a subordinate position (Barrell 2000:36). The king's charters to justiciars and to many clan chiefs as magnates gave them the power to punish “with gallows and pit” (Neville 2010:15). The right to punish had until then been shared with the local judges, who punished primarily by fining offenders and forcing them to make restitution to the victim and victim's family. 5 Clan elders now had only moral authority; legally, the chief did not have to consult them. While the power to punish was still widely spread compared with England, it was now more concentrated than previously. 6
With the Reformation in the 1500s came an intensification of the already raging religious/political debates throughout Europe about the right to rule, and thus to punish. Was it a sin to obey a king's ungodly commands — or instead was it a sin to fail to resist an ungodly king, and if so was it a sin to resist the punishment the king would then mete out for disobedience? If failure to resist was a sin, did that give ordinary people the right to disobey? The answer to that was a fairly resounding “no,” except among the most radical. But perhaps lesser nobles and magnates sinned in failing to resist, thus failing to live up to their obligations as the appointed defenders of the people, in whom, according to some, sovereignty resided. Among those arguments was the claim that Scottish nobles (and others) were as much ordained as punishers by God as was the king. The Calvinist claim was that lesser nobles, no less than the king, are “powers ordained of God,” and are “ to take vengeance upon evil doers, to maintain the well doers” — in other words, they had the right to punish, as they were in fact doing in the Scottish Highlands (Skinner 1978:211).
The issue at base was that of sovereignty: did it come from the people, or did it come from God, either directly or by way of the Church, thus requiring obedience even under unjust punishment? One approach, taken by many English, was to see the king as “God's lieutenant,” exercising force not on the authority of the church but on his own direct appointment by God as protector of the people, controlling them in accordance with God's decrees. The church, while still the congregation of believers and the source of religious knowledge, would no longer have the right to direct the use of force. 7 English kings saw direct appointment by God as a way around the restraint on kingly power that is imposed by diarchy. In the years before Jamestown, they were moving toward absolute monarchy, in which priest and king or council and king are rolled into a single authority, a monarch who both speaks for and interprets the gods and punishes those who did not comply. This process came to a head in England in 1534 when Henry VIII became both the head of state and head of church in a modified diarchic system, giving him sufficient power to gain a greater monopoly on the use of force by reining in the great aristocrats' private armies (Tilly 1992:156). His heightened sovereignty was marked by a change in address, “Your Majesty” rather than “Your Grace” (Kupperman 2000:95). Diarchic forms remained, although monasteries were confiscated and the state took over former monastic roles of education and charity (Wright 1999:65). The Church of England continued to play an important role in governance, including in many of the punitive aspects of the social control of daily lives (Horn 1994:351). It lent legitimacy to secular punishing as well, as can be seen in descriptions of executions throughout the following century. And it continued to conduct the ceremony that creates a king, but it did all this under the control of the king.
As kingdoms shift, as England was doing, toward absolute monarchy, first with Henry VIII, then with James I's avowed approval of absolutism and then a bit later by Charles I's rule without Parliament, they wrest power from the religious authorities, claiming religious authority for themselves, further consolidating control of punishment (cf. Skinner 1978:73). Disobedience becomes at once sin and crime against the person of the king, and punishment is at once religious sacrifice and secular protection for the status of elites, and an expression of the sovereignty of the king (Foucault 1995:47–48). Punishing is removed from the control or influence of powerful religious authorities and is held in the unrestrained hands of secular powers. But in consolidating power this way, the legitimation of spiritual authority is lost, and a king's claim to both roles can appear self-serving, especially if a powerful merchant class develops with no birthright claim to position, but nevertheless inclined to question the infallibility of an unrestrained monarch. So the right to punish has to be justified at least partially in nonspiritual ways, a problem which in England and Europe more generally was eventually addressed by the ideology of the nation state existing for its own sake, so that the king could punish for the sake of the state, rather than for God. Crime is redefined as transgression against the king as representative of the state. And in the process, a transgressor becomes “not so much the citizen as the enemy,” whose crime is an attack on the whole of society (Foucault 1995:90). The use of judicial investigation was the new version of “the sovereign power arrogating to itself the right to establish the truth.” 8 The right to punish “was transferred from the altar to the bench” in conjunction with the early rise of national states (Kantorowicz 1957:140, 126).
With Cromwell, this process went a step further. The beheading of Charles I and governance through a Parliament, some forty years after Jamestown, reflected the growing claim that sovereignty lay with the people, that the Anglican church should be purified of the diarchic (i.e., Catholic) power it still held, that individuals did not need the intervention of the church to gain access to God, and that both church and civil rulers should be subject to law — as constituted by God through Parliament's interpretation of God's will (Hashaw 2007:43; cf. Skinner 1978:303–348). Punishment, in other words, was moving out of the hands of the king and into the hands of a secular rising capitalist class as England moved in the direction of modern statehood.
Punishment without Diarchy
As states become modern states, punishment itself becomes a hidden practice. Foucault (1995:7–16) points out that around the turn of the 19th century, the “ceremonial of public punishment” (p. 43), the horrific public spectacles of pain that wiped out the offense to the king's sovereignty, was gradually abandoned and replaced by the spectacle of public trial and judgment, but with punishment carried out behind walls, hidden from public view and directed more at disciplining and regulating than at producing physical pain. We should not, however, discount the actual continuing use of force to produce pain in punishment. It could be argued that the blatant and violent use of force in punishment continues hand in hand with the less violent forms, but directed at generally racially defined “Others,” and delivered informally, sometimes secretively, but at other times quite openly, as in the murder of Trayvon Martin. Administered to “Others,” such punishment can perhaps be dismissed by many of the racially unmarked as permissible, or if not permissible, then merely individual perversions of the otherwise legitimate use of power. And of course, while it is true that disciplinary surveillance — even in the various forms of the panopticon — does not depend for its effectiveness on the direct use of force, nevertheless it is at base the threat of the use of force that brings people to “accept” this treatment. Nevertheless, I would emphasize that disciplinary effectiveness depends at base on the use of force, often accompanied by physical pain. The prisoner does not choose to be in prison and would not be there without the exercise of the state's use of force; the same for the military, the school, the factory, as Foucault (1995:170–194, 228) describes. Emphasizing the continued use of violence in punishing and incarceration does not in any way detract from Foucault's statement that “[w]e must cease once and for all to describe the effects of power in negative terms: it ‘excludes,’ it ‘represses’. … In fact, power produces; it produces reality. … The individual and the knowledge that may be gained of him belong to this production” (1995:194).
Without dramatic and long-drawn out displays of force carried out before an audience — drawing and quartering, clubbing to death on a sacrificial stone, skinning alive — “it is the certainty of being punished and not the horrifying spectacle of public punishment that must discourage crime” Foucault (1995:9). 9 The process of punishing, but not judging, becomes shameful; the punisher is seen as, to some degree, on a par with the transgressor, but because punishment is hidden sovereign legitimacy is not tarnished (Foucault (1995:56). Clearly, to take such a position, the state's elites must be strong enough, and power centralized enough, that punishment can be relatively inevitable, so that the spectacle is no longer needed. The timing of the transition away from public spectacle does correspond generally with a strengthening and centralizing state, carrying with it a much clearer hierarchy of power and a loss of autonomy in punishing for local elites and magnates. 10 States with a clear monopoly on the use of force can pull this off. For the elites of states without a clear monopoly, this is a strategy fraught with danger.
We can, at this point, look at the present through the lens of this past history, not achieving Ntarangwi's (2010) “reversed gaze” or the perspective of Harrison's (2008) “outsider within,” but certainly positioning ourselves to see from a different angle. I suggest here a few ways in which the ideas of diarchy, sacrifice, and the relationship between sovereignty and punishment might illuminate punishment in the world's most punishing state.
We might perhaps pursue the notion that sacrifice has in fact continued in the United States, although unacknowledged, largely of racially marked “Others,” through mass incarceration, death, community destruction, the punitive treatment of immigrants, the designation of “enemy combatants” to be held indefinitely, all legitimized by the notion of a homogenous “nation,” a quasi-religious construct, for which any sacrifice is justified (cf. Buck 2012). Sacrifice is perhaps visible, although a shadow of its former self, in the presence of church officials at executions today. We might also see sacrifice in the “targeted assassinations” ordered by Obama and carried out by drone strikes, sometimes against U.S. citizens (“Citizen executions” 2012; Reagan 2012).
Or perhaps we should be looking through the lens of the relationship between punishment and sovereignty. We could see the gradual establishment of globalized institutions, such as the World Court, as the consolidation of the power to punish at yet a higher level in the hierarchy of the global stratification system, above that of individual nations, and signaling a shift in sovereignty. In that case, we might see Obama as acting within the parameters of a form of diarchy, 11 in which corporate elites authorize and the president, as the lesser secular power, acts through the U.S. military, extending the role of punisher to the outer edges of the corporate empire, paralleling the actions of Wahunsonacock as he moved punishment out of the hands of local elders and into the hands of conquered chiefs answerable to himself, or as the English Crown did in attempting to take control of punishing on its outer borders. And here also we can see the centrality of punishing to sovereignty. By claiming the right to punish, rather than to wage war, that is, treating people in Pakistan and elsewhere as internal enemies, Obama is perhaps pursuing that consolidation of the right to punish that marks an extension of sovereignty. Although masked as an extension of U.S. sovereignty, this punishing may prove instead to be an extension of the sovereignty of globalized corporate empire.
Whether we look through the lens of sovereignty or of sacrifice, the ideology of nation, of exclusion, of race, rather than religious diarchic authorization, provides the needed legitimation. This unacknowledged sacrifice/punishment of racially designated “Others” is accepted and even welcomed by most of the racially unmarked because purportedly it will, in some obscurely magical or religious fashion, strengthen a failing nation, and for some carry out God's will. Just as sacrifice did in early states, sacrifice today enhances the power of an extractive elite, and just as it did for the Powhatans and the English punishment marks the sovereignty of the state.
Needham (1980:65). For a detailed discussion of diarchy and arguments relating to the relationship among king, people, and God in England, in particular, see Kantorowicz (1957) and Skinner (1978); for India, see Coomaraswamy (1942:69–71, 85–86); for the Powhatans, see Williamson (2003). There are many ways of organizing diarchy, but all involve two complementary roles, with one being the active exerter of force and the other, and superior, performing a jural or mystical function (Needham 1980:71). Williamson (2003:46) cites the example of peace chief/war chief in Native American polities that were more egalitarian than the Powhatan, sometimes referred to as the inside and outside chiefs (Kupperman 2000:102), or the peace chief and war chief (Gleach 1997:35, 142), or the red towns and white towns (Wright 1999:234).
A caveat is needed, however: most of what is theorized about the Powhatan social structure is built largely on historical, anthropological, and archaeological interpretations that of necessity lean heavily on the perceptions of literate English at Jamestown, and there are significant disagreements among scholars.
See also Potter (1993:16–17); see also Rountree (1989:117–119) on the relationship between subchiefs and Powhatan. On tribute, in particular, see Barker (1992).
For a discussion of the philosophical/theological positions taken on both sides of the argument about the power of the church relative to the state, see Skinner (1978, e.g., 12, 127–130, 144–148, 189–238, 302). For the specifically religious arguments about the relationship among king, God, and people, see Kantorowicz (1957).
Analysis of the Highlands political and judicial system must remain tentative. There is a serious lack of legal documents, especially from the Highlands, making analysis of the relationship among local judges, local magnates, and justiciars difficult (Neville 2010:13). Additionally, the system changed differently in different places and at different times over the centuries since the late 1100s, when the first justiciars were appointed. For various interpretations of local judges, see Moffat (2010:35), Macleod (1996:113), Whatley (2010:198–199), Bannerman (1998:23–24), and Neville (2010:13).
When James VI became the king of Scotland in 1567, he, like the English kings, tried to consolidate power; it took several kings, three Jacobite rebellions, and the Union of Scotland and England under one (English) crown before Scottish Highlands regional chiefs lost their power to punish.
Skinner (1978:95–98, 333) and Foucault (1995:213) discuss the shift in France, from religious control of regulating and punishing social transgression to state control through disciplinary policing and surveillance; religious control lasted longer in England than in France.
Foucault (1995:225); he points out the connection to the reorganization of the Church and the rise of princely states in the 12th and 13th centuries.
As a contemporary author put it, “[b]y means of a wise police, the sovereign accustoms the people to order and obedience” (cited in Foucault 1995:215).
See Foucault (1995:110–103, 168). Foucault identifies the 18th century with the rise of control and the creation of submissive bodies through highly detailed disciplinary techniques, and associates this with the rise of national states.
My thanks to Richard Heiberger for suggesting this interpretation.