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Discursive Approaches to Populism Across Disciplines: The Return of Populists and the People Michael Kranert
Populism, Punishment and the Threat to Democratic Order
This book traces the rise of contemporary populism in Western democracies, marked by the return of would-be ‘strong men’ politicians. It seeks to make sense of the nature, origins, and consequences of their ascendancy—as expressed, for example, in the startling rise of the social movement surrounding Trump in the US, Brexit in the UK, and the remarkable spread of ideologies that express resistance to ‘facts,’ science, and expertise. Uniquely, the book shows how what began as a form of penal populism in the early 1990s transformed into a more wide ranging populist politics. This has had the potential to undermine or even overthrow the democratic order altogether. It examines the way in which the COVID-19 pandemic has impacted on these forces, arguing it threw the flailing democratic order an important lifeline, as Vladimir Putin has subsequently done with his war in Ukraine. The book argues that contemporary political populism can be seen as a wider manifestation of the earlier tropes and appeal of penal populism arising under neo-liberalism. The author traces this cross over and the roots of discontent, anxiety, anti-elites sentiment and the sense of being forgotten, that lie at the heart of populism, along with its effects in terms of climate denial, ‘fake news,’ othering, nativism, and the denigration of scientific and other forms of expertise. In a highly topical and important extension to the field the author suggests that the current COVID pandemic might prove to be an ‘antidote’ to populism, providing the conditions in which scientific and medical expertise, truth telling, government intervention in the economy and in health policy, and social solidarity, are revalorised. Encompassing numerous subject areas and crossing many conventional disciplinary boundaries, this book will be of great interest to students and scholars of criminology and criminal justice, sociology, political science, law, and public policy.
John Pratt is Emeritus Professor of Criminology at Victoria University of Wellington, New Zealand. His research interests are in the areas of the sociology and history of punishment, and criminological and social theory, and comparative penology. Professor Pratt has published extensively in these areas, including Law, Insecurity and Risk Control (2020); Contrasts in Punishment. An Explanation of Anglophone Excess and Nordic Exceptionalism (2013, with Anna Eriksson); Penal Populism (2007); Punishment and Civilization (2002).
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Demystifying Modern Slavery
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Fraud Examinations in White-Collar Crime Investigations
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Populism, Punishment and the Threat to Democratic Order
The Return of the Strong Men
John Pratt
Alcohol, Crime and Public Health
Dorothy Newbury-Birch and Jennifer Ferguson
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Populism, Punishment and the Threat to Democratic Order
The Return of the Strong Men
John Pratt
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DOI: 10.4324/9781003262855
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‘We know that no-one ever seizes power with the intention of relinquishing it’,
—George Orwell
Finally, for Xiaowen
Acknowledgments
This book began during a COVID-19 lockdown in New Zealand, where I live, in 2021. At that time, I was asked by Routledge if I would consider turning a paper that I had given virtually to the Asian Criminology Conference in Japan into a book for their Focus series. I agreed to do this and would like to thank the Routledge team for the encouragement and guidance they have given me along the way. I would also like to thank the reviewers of my subsequent proposal for the book for their helpful comments.
The book itself follows on from my previous work, particularly my 2020 text, Law, Insecurity and Risk Control. But while that book was mainly focused on the emergence of ‘risk’ as a dominant theme in the post-war development of the Anglo-American Western democracies, this one discusses one of the consequences of this: the rebirth of populism as a dominant political force and the threat it poses to the democratic order. As the book was being written, the challenges this mode of governance already faced from populism, particularly Trump and his supporters in the US, were magnified by the COVID-19 pandemic and the far-flung consequences of Putin’s war with Ukraine. On the horizon, fresh challenges to its viability are taking the form of new pandemics and climate change and its destructive capabilities.
Writing the book against this background, Pat O’Malley’s (2000) article on ‘catastrophic criminology’ regularly came to mind. He was referring to the way in which a good part of the discipline of criminology had become preoccupied with ‘genealogies of transformation and rupture, usually pessimistic that imagine us to be on the brink of a general social and political watershed.’ Perhaps after all the false alarms variously sounded by critical criminologists that O’Malley had in mind, the democratic order has actually arrived at a precipice— with catastrophe certainly waiting the democratic order if it was to fall over. In addition to its own destruction, everything that we had
Acknowledgments
long since taken for granted about our life within it—both freedoms and protections—until the renaissance of populism would also be destroyed. As it was, the democratic order survived the challenges of populism, for the time being at least. It was helped along the way by the incompetence of the populist strong men, and the way in which COVID-19 and Vladimir Putin inadvertently threw it lifelines. Its current fragility, though, should act as a warning to us.
A good part of the book was written during a very pleasant Southern hemisphere winter stay at the Queensland Gold Coast: the New Zealand borders, closed for COVID reasons for some 16 months—it seemed much longer—finally opened and allowed me out and to travel to this haven. As the book was being written, Anne Holland worked with her usual diligence and efficiency on its formatting, chasing references, preparing the bibliography, etc.
I am particularly indebted to Xiaowen Ma for her patience and support during the course of this project.
1The Return of the Strong Men
What we may be witnessing is not just the end of the Cold War, or the passing of a particular period of post-war history, but the end of history as such: that is, the endpoint of mankind’s ideological evaluation and the universalization of Western liberal democracy as the final form of human government
(Fukuyama, 1989, p. 4)
Democracy [is] in retreat. Liberal values such as transparency, the rule of law, accountability and respect for human dignity are being widely trampled. Autocrats and even some Western politicians openly traffic in fear, xenophobia and paranoia (Washington Post Editorial Board, 2016)
Two very different opinions, spanning less than 40 years, of the future prospects for the Western democratic order. How has the post-war triumph in the first come to be under such threat in the second?
The first was written at the time of the fall of the Berlin wall. That event symbolized the end of the rule of darkness and fear that lay behind it in the Eastern Bloc, in contrast to the bright lights of the West on the other side. It marked the end of a system of governance in which dissidents—there was no authorized opposition to government in those societies—were persecuted for speaking out about the reality of life behind the wall. It marked the end of a system that generated vast queues of citizens waiting in line to receive everyday necessities that had long been taken for granted in the West; it marked the end of a system that attempted to reverse reality—the wall was needed not to prevent Eastern Bloc citizens fleeing to the West, it was claimed by its protagonists, but to prevent a flow of Western imperialism into the East, thereby corrupting its pristine socialist purity (see Funder, 2003). Indeed, it had become a system that encouraged informers to
DOI: 10.4324/9781003262855-1
report the slightest signs of subversion, with the secret police hunting down such ‘enemies of the people.’ What might then happen to them—often played out in show trials and confessions obtained by torture—could variously involve their public denunciation, disqualification, indefinite removal, disappearance, or worse. Vast organizations were built up, with their ostensible purpose being to protect and maintain totalitarian regimes by collecting mountains of detail on those who displayed the slightest signs of dissent. The Stasi, the secret police in what was then the German Democratic Republic, even more so than Russia’s KGB, provides the clearest example of the way in which massive state resources were being invested in putting fear into the hearts of citizens rather than promoting their well-being: ‘[the Stasi’s] job was to know everything about everyone, using any means it chose. It knew who your visitors were, it knew whom you telephoned, and it knew if your wife slept around. It was a bureaucracy metastasized through East German society: overt or covert, there was someone reporting to the Stasi on their fellows and friends in every school, every factory, every apartment block, every pub … In its forty years, “the Firm” generated the equivalent of all records in German history since the middle ages. Laid out upright and end to end, the files the Stasi kept on their countrymen and women would form a line 180 kilometres long’ (Funder, 2003, p. 5).
The fall of the Berlin wall in 1989 thus seemed to represent the final act of the legacy of the Allies’ victory over the Axis powers in August 1945. It had been intended that Nazi demagogues and their associates would be firmly consigned to the dustbin of history, along with all their brutish stains of torture, mass murder, and genocide. As President Harry S. Truman had emphasized on August 16, 1945, the day after Japan’s capitulation, ‘this is the end of the grandiose schemes of the dictators to enslave the peoples of the world, destroy their civilization, and institute a new era of darkness and degradation. This day is a new beginning in the history of freedom on earth.’
Moving forward 40 years or so, President Ronald Reagan (1987a), standing on the Western side of the Berlin wall, urged Russian Premier Mikhail Gorbachev in 1987 to ‘tear down this wall,’ insisting that ‘the wall cannot withstand freedom.’ A few weeks after its eventual collapse in 1989, Leonard Bernstein conducted a performance, in Berlin, of Beethoven’s Symphony No. 9 in celebration. His international orchestra included musicians from both East and West Germany. The Ode to Joy title of the symphony had been changed to Ode to Freedom. The 1945 legacy, it seemed, had at last been fully realized.
The meaning of ‘freedom’
Life in the Western democracies had indeed embodied ‘freedom’ from the end of the war to the end of the wall, but the nature of this freedom and how it was understood had undergone a great transformation between 1945 and 1989. When Truman made his pronouncement, freedom was a concept intended to mean the end of uncertainty and insecurity: not just from the terrors of war but from the chaos that adherence to the free market had brought during the 1920s and 1930s, with governments masquerading as mere croupiers at the roulette wheel in casino-like economies: it was that uncertainty and insecurity that had helped to bring pre-war demagogues to power. Post-1945, Western governments were committed to maintaining full employment. It would no longer be the market that would determine who would be society’s winners and losers; indeed, the metaphorical casinos in which every individual had previously been a player were largely shut down. As had been indicated in Britain (similar to the rest of the allies), ‘the Government accept as one of their primary aims and responsibilities the maintenance of a high and stable level of employment after the war’ (Home Office, 1944, p. 3). To bring this about, US statesman Averill Harriman acknowledged in 1946 that the free market needed regulation: ‘people in this country are no longer scared of such words as “planning” … people have accepted the fact that the government has got to plan as well as individuals’ (quoted by Maier, 1987, p. 121). Careful planning by government was also seen as an essential prerequisite to protect democratic freedoms: ‘it is no overstatement to say that the simple choice between planning and non-planning, between order and disorder, is a test-choice for English democracy … plan we must, to save and fulfil democracy itself’ (Sharp, 1942, p. 118). This then meant that individual liberties would have to be curtailed in the interests of realizing that particular understanding of freedom. As Karl Mannheim (1940, pp. 376–377), German émigré and London School of Economics luminary, put the matter, ‘the new conception of freedom creates the desire to control the effects of the social surroundings as far as possible. This is no mere daydream, it is based on the fact that enormous advances in social technique allow us to influence the conduct of social affairs from the key positions, according to a definite plan … [to do so] we must be willing to forgo our former liberties … From now on men will find a higher form of freedom in allowing many aspects of their individual liberties to be determined by the social order laid down by the group.’ As an example of what this meant in practice,
new government compulsory purchase powers of land from individual owners in 1948 in the UK were addressed as follows in an editorial in The Times (1948, p. 5, my italics): ‘the British people almost without knowing it are embarking upon one of the greatest experiments in the social control of their environment ever attempted by a free society. They are putting old individual liberties aside for the common good.’
These guarantees of certainty and security that would cement the ‘common good’ into the social fabric of the post-war democracies ensured that commitments to full employment were accompanied by expanded welfare frameworks. Reliance on the provision of soup kitchens run by charities in times of hardship, as pre-war, was over. Now, it was intended that the state itself would take responsibility for and look after its citizens in need or in hardship. In the US, as President Kennedy (1962, p. 103) later proclaimed, ‘public welfare programmes … must strengthen and protect the vulnerable in a highly competitive world.’ The Food Stamp Act 1964, for example, in that country was intended to ‘raise levels of nutrition among low-income households’ by ensuring an ‘abundance of food.’ The Social Security Amendments Act 1965 created Medicaid—states were empowered to give financial assistance to those wanting medical assistance if they met its eligibility requirements. Claimants rose from 680,000 in 1960 to 4.4 million by 1975, an indicator then of successful governance.
The administration of these state-provided welfare frameworks alone meant that public sector employment rapidly expanded (and in itself became a desirable safe haven, marked by annual increments of salary, promotion opportunities, and pension entitlements). Civil servants increased in Britain from 340,000 to 720,000 between 1931 and 1955. And in the initial post-war years, working in the public sector was accompanied by status and prestige—this was work that would help to remodel and rebuild societies that had been fractured by war. In 1957, Which Magazine in the UK reported that ‘nearly every occupation nowadays, whether the army, the police, the stock exchange or even advertising, likes to portray itself as a “social service”: they publicise and promote themselves … as being just as public-spirited as anyone else’ (quoted by Sampson, 1971, pp. 656–657).
The rebuilding also involved material and physical reconstruction in forms intended to strengthen social cohesion. New housing estates took their cue from Ebenezer Howard’s (1902/1946, p. 44) aspirations for ‘the social city,’ with wide, tree-shrouded avenues, homes, public gardens, and parks that became central to government planning in the UK: ‘large public buildings would be at [its] centre: town hall, library, museum, concert and lecture hall, the hospital. Here, the highest
values of the community are brought together—culture, philanthropy, health, and united cooperation.’ And it included the rekindling of family life. This would provide an important pillar of support for everyday security while at the same time help restore the nation’s strength and health through repopulation. Indeed, it was as if contributing to the goal of repopulation had become a civic duty and responsibility, with state support and guidance on hand if needed towards this end: ‘parenthood itself must become a central interest and duty; and the family and the primary group of workfellows and neighbours must become a vital core in every wider association’ (Mumford, 1945, p. 214).
Meanwhile, government investment in science and expertise became one of the guarantors of the bright future thought to lie ahead for citizens in democratic society: ‘Great universities … engaged in federally funded research, and innovations first pioneered with defence spending were encouraged to find civilian outlets. The achievements were perhaps most remarkable in the emerging digital sciences and information and communications technologies, including computer science, transistors and integrated circuits, microprocessors, the Internet, robotics, machine learning, and artificial intelligence’ (Sachs, 2018). Scientific achievements continued to advance the possibilities of human existence, while simultaneously curtailing risks to it: from the discovery of the Big Bang theory of the cosmos in 1961 to what was regarded as one of the greatest achievements in human history, the American moon landing in 1969, to the creation of test tube babies in 1979. And all along, the state’s commitment and support for science and expertise brought dramatic improvements to public health. The post-war era became one of mass immunization—against polio especially, with vaccine rates among children and infants from the early 1960s to the 1980s between 93 and 95 percent in the US. The success of vaccines was such that US Surgeon-General William H. Stewart maintained in 1969 that ‘the time had come to close the book on infectious diseases’ (Snowden, 2019, p. 385).
The levels of taxation necessary to pay for the new array of state services also meant that this was an era of narrowed social divisions, with the effect that, as Galbraith (1958, p. 70) put the matter, ‘the display of purely ostentatious outlays … is now passé … it is much wiser to take on the protective coloration of the useful citizen, the industrial statesman or even the average guy.’ Meanwhile, the high levels of trust in the central state that existed for a good part of the post-war era seemed to confirm the general acceptance and legitimacy of this mode of governance. In the US, a 1964 opinion poll indicated that 77 percent of respondents trusted the federal government ‘always or most of the time.’1
Citizens were also to be protected from abuses of state power— another aspect of stability and security. Criminal law had been used extensively in Nazi Germany to legitimize the prosecution, punishment, and the elimination of those who, in some way or other, were brought to the attention of the Nazi authorities as ‘enemies of the people.’ To prohibit the operation of criminal justice to suit the political aims of the state, the 1948 UN Declaration of Human Rights had restated what amounted to fundamental principles of classical criminology. In particular, there should be no punishment unless a crime had been committed. Punishment should then be finite, fixed, and certain, which led, inter alia , to the steady phasing out of indeterminate prison sentences in the Anglo-American world by the 1970s (Bottoms, 1977). The main arguments for them were that such sanctions would prevent crimes that might be committed in the future rather than act as a retributory response to crimes already committed. Or they would protect the public against those who would otherwise put their well-being at risk if released from custody.
Now, however, such flimsy justifications were torn up, in the name of protecting human rights. It was recognized that there was then no way of knowing whether or not future crime would be committed (see Baxstrom v. Herold [1966]). The US sexual psychopath laws— psychiatric detention until ‘cured,’ followed by legal punishment (in effect, two punishments for the same crime)—were thus declared unconstitutional in 1956. By the same token, status offences in that country were also largely abolished during the 1950s and 1960s (Pratt, 2020). The great sores of homelessness and begging that had previously been in place on the social body had anyway been largely removed by the new welfare measures. In the UK, the Home Office (1974, p. 19) reported that ‘with the advent of social security and unemployment benefits and other advantages of the welfare state, it is clear that begging is now on a much smaller scale.’ Meanwhile, the rehabilitation of criminals steadily gained momentum in penal policy over vengeful, excessive punishments that greatly exceeded the harm of the crime committed. But when, in the 1970s, rehabilitation was found to lead to abuses of state power (see, for example, Martinson, 1974), the emphasis shifted to penal policies explicitly guaranteeing the newly prescribed rights of lawbreakers in the form of the ‘back to justice’ movement (von Hirsch, 1976).
The direction of the criminal justice reforms also reflects the connection between academic experts and government at that time. In the US, the country’s Model Penal Code of 1962, intended to standardize penal law, ‘brought the best and brightest in academic law into the process of substantive criminal law reform’ (Zimring, 1996, p. 253). A Harvard law
professor became the executive director of the 1966 President’s Crime Commission. More generally, the combination of expert knowledge on the one hand and a dedication to public service on the other became a requirement for political and policy-making careers. At this juncture, ‘the idea of the nation being run by entrepreneurs or even of a businessmen’s Cabinet, was inherently absurd … no civil servant or politician should be allowed to practice the kind of risk-taking that could lead to bankruptcy [and] the aggressive and nomadic instincts of the entrepreneur would and should always be at odds with the protective territorial role of the state’ (Sampson, 1982, p. 330).
Notwithstanding inevitable levels of discord and oppression that lay obscured behind these sepia-tinted windows on the past—racism and gross gender inequalities especially—the overwhelming sentiment in political and public discourse was that Western freedom, as this concept had been developed and understood post-1945, would indeed deliver a bright future for its fortunate citizens. A steady but seemingly inexorable improvement in their living standards become proof of this. In the UK, a Daily Telegraph opinion poll in 1961 comfortingly found that 91 percent of 16- to 18-year-olds agreed with the opinion that ‘the world will be a better place in 10 years’ time.’ Inevitably. Without a doubt. With the greatest certainty. For those living in democratic society, this was the only future then imaginable.
How Western freedom had come to be understood when the Berlin wall fell
By 1989, ‘freedom’ remained a concept that beckoned enticingly to citizens from the Eastern Bloc, but it was now understood in terms of individual liberty rather than state-provided guarantees of certainty and security. And it was further understood in terms of the ability of individuals to make vast fortunes for themselves rather than be content with the ‘slow lane’ pace of life Galbraith had inferred to be a characteristic of post-war society. In the late 1970s, the British periodical New Society had opined that ‘very few sincerely want to be rich. Most people in Britain neither want nor expect a great deal of money. Even if they could get it, the vast majority do not seem prepared to work harder for it: most of our respondents thought we should work only as much as we need to live a pleasant life. It seems clear that the British today prefer economic stability to economic growth’ (Forester, 1977, p. 158). Yet, in stark contrast, the 1980s saw the publication of the first ‘rich lists’ for the US, UK, New Zealand, and Australia: being rich had suddenly become a medal to be worn with pride. The celebration of wealth was
further reinforced in popular culture in television programs such as Dallas and Lifestyles of the Rich and Famous, which ran from 1984 to 1995. Similarly, television quiz shows—such as The Weakest Link now took on a winner takes all format rather than offering modest prizes to all contestants.
These important changes in everyday life had their roots in the work of neo-liberal scholars such as Friedrich Hayek and Milton Freidman. For them, the inevitable growth of the post-war state’s administrative responsibilities had blurred the distinction between the totalitarian East and the democratic, freedom-loving West. Hayek (1944, p. 10) had warned in advance that ‘for at least twenty-five years before the spectre of totalitarianism became a real threat, we had progressively been moving away from the basic ideas on which European civilisation has been built … We have progressively abandoned that freedom in economic affairs without which personal and political freedom has never existed in the past.’ Thereafter, Friedman (1962, p. 201) argued that the threat to Western freedom was not restricted to the Eastern Bloc. What he saw as the insidious growth of non-accountable state bureaucracies also jeopardized this prize: ‘the one threat is obvious and clear … from the evil men in the Kremlin … The other threat is far more subtle. It is the internal threat coming from men of good intentions and good will who wish to reform us … they are anxious to use the power of the state to achieve their ends and confident of their own ability to do so.’
From such quarters, there was an insistence on a much smaller, deregulated central state, lower rates of direct taxation and greatly reduced welfare provisions (increasing numbers of welfare claimants were now understood as an indicator of moral decay and dependency rather than of successful governance, see Murray, 1984). Individuals would be given greater freedom of choice, but would simultaneously have to accept greater responsibility for their mistakes and pay whatever the penalties might be for them. This new mode of governance was most vividly put into practice by UK and US governments led by Margaret Thatcher and Ronald Reagan in the 1980s. In addition to urging Gorbachev to ‘tear down the wall,’ Reagan (1981) maintained that ‘government is not the solution to our problem; government is the problem.’ Rather than planning the economy, their program of government insisted that controls aimed at protecting its citizens from making their own choices about the course of their lives should be removed: individual risk-taking was to be welcomed rather than restricted. If economies were deregulated, it was thought that the ensuing freedoms would give rise to initiative, enterprise, and zeal, which post-war government restrictions had largely suppressed.
Neo-liberal evangelists scorned what they saw as timorous fears and anxieties about the removal of state protection that the post-war mode of governance had put in place. The British economist Samuel Brittan (1973, p. 17) claimed that ‘nearly all the products of civilisation—arts, sports, and recreations, just as much as running water, telephones or labour-saving gadgets—have been invented and sold to people who were not spontaneously asking for any of them, but were glad to have them when they arrived. It is part of the function of a market economy to suggest new possibilities to people which they are then free to accept or reject.’ And for Charles Handy (1989, p. 7), author of The Age of Unreason , ‘discontinuous change is the only way forward for a tramlined society, one that has got used to its ruts and its blinkers and prefers its own ways, however dreary, to untrodden paths and new ways of looking at things.’ Certainly, the embrace of free-market economics during the 1980s did indeed bring about huge increases in personal wealth for some. And this was well-advertised in ostentatious displays of extravagance in the form of ‘individuality, self-expression, and a stylistic self-consciousness. One’s body, clothes, speech, leisure pastimes, eating and drinking preferences, home, car, choice of holidays, etc., are to be regarded as indicators of the individuality of taste and sense of style of the owner/consumer’ (Featherstone, 1991, p. 83). And yet, among such new found opportunities for personal enrichment, pleasure, and economic and social advancement that had become available in democratic society, the seeds were being sown for the growth of forces that would seek to undermine, erode, and, in some cases, destroy the democratic order altogether. How did this happen?
While the return to free-market economics brought such alluring possibilities into existence, it also led to increased social divisions and tensions: there was very little for the inevitable losers that the economic reforms left behind. And it did not take long for many of them to become much more visible—it was during the 1980s, while ostentatious displays of wealth were becoming normalized, that homeless people and beggars at the other end of the social spectrum began to populate public space again. But, it was reasoned, individuals had been left free to manage their own risks; those who managed them badly had to live with the consequences, while the rest of the world passed them by, giving them disdainful looks as they came across them. Here, then, were some of the first signs of the results of government having a much more limited role in the management of everyday life, instead of one intended to build a society where modest prizes, but prizes available to all nonetheless, would be guaranteed.
But notwithstanding the annoyance and offence the homeless, the beggars, and the like might give to passers-by, they remained outside the grasp of criminal law during the 1980s. Neo-liberal politicians were certainly prepared to use criminal law to provide stronger protection from lawbreakers, especially those involved in robbery and mugging (see, for example, Wilson, 1975). Criminal law would also be used when necessary to protect individuals from organizations such as trade unions that tried to impose uniformity and conformity across the workplace rather than allowing them to choose their own courses of action over matters such as salaries, union membership, and strike action. But while adherence to the rule of law was central to this neo-liberal polity, the scope of criminal law was intended to be narrow. Its role in democratic society was as a reactive rather than a preventive force. ‘Status offenders’ were now beyond its scope, as, indeed, were some of society’s most dangerous criminals who might reoffend in the future. Indefinite sentences had been taken off most penal agendas: it would be unethical to punish crime that had not yet been committed, as well as impossible to predict if it ever would be. Hayek (1960, p. 206) had insisted that ‘while the chief means of coercion at the disposal of the government is punishment, the principle “nullum crimen, nulla poena sine lege ” [“no crime, no punishment”] must be respected.’ To extend the rule of law beyond such limits— to extend it to again criminalize street people, for example—would transfer too much power and authority to the state, as had been regularly demonstrated in the administration of justice in Eastern Bloc societies. The rule of law was an indissolvable characteristic of the Western democratic order, an inviolable guarantor of the rights of individuals against those who would otherwise oppress them, but one operating within a carefully restricted orbit. It must also be applied independently of the state rather than being used to extend the power of the state. Brittan (1973, p. 92) thus maintained that law was not a plaything for governments, to be shaped and manipulated for party political purposes: ‘laws [should not] be changed at a moment’s notice whenever a particular effect displeases some ruler … The more fundamental the laws, the more difficult they should be to change.’
Meanwhile, Western freedom had come to be understood much more as allowing its citizens the right to make their own choices about the course of their lives independently of the state rather than the state directing their lives for them. And the deregulated economies of the West now offered alluring tantalizing possibilities of riches and pleasures for their fortunate citizens. Was there anyone mourning the dramatic fall of the Berlin wall in 1989 other than Stasi officials and their equivalents elsewhere in the Eastern Bloc?
The 2016 Washington Post editorial: democracy in danger
Moving on to the 2016 Washington Post editorial, all the previous optimism that had been synonymous with the triumphs of Western democracy has disappeared. The collapse of the Berlin wall did not represent ‘the end of history’ after all. Indeed, the 2016 editorial was signposting the shape of a new political era—one where the democratic order itself was in danger of being torn down, amidst dramatic realignments of the political map. New, right-wing political parties had emerged across Europe, while US Republican and UK Conservative parties had been taken over and transformed by their far-right members. Those rancorous seeds sown in the 1980s had come to noxious fruition.
Whatever the local differences and points of origin, what runs through these political realignments is a suspicion of immigrants, hostility to supra-national organizations, espousals of economic protectionism, and a disdain for the previous dedication to public service that had been associated with post-war political aspirations. Furthermore, these new political forces proclaim that the very act of channeling a career through some form of public service that interchanges with politics inevitably leads to corruption and inefficiency. For them, it has been this that has created a self-serving ruling ‘Establishment’ of mainstream politicians and others involved in the administration of government—civil servants and officials from the judiciary, state broadcasting organizations, and so on. And as this Establishment has embedded itself in political power, these new political forces claim, so the safety and security of both individual citizens and the nation state itself have been endangered: by seemingly uncontrolled immigration, the free movement of labor, and the globalization of trade amidst the primacy given to market forces. Here is the way to destroy local industries or allow local wages to be undercut while simultaneously undermining the cultural identity of the nation, these angry voices shout. Weak responses on law and order from the Establishment are thought to have further jeopardized the well-being of the nation and its citizens. In his bid for the US presidency in 2016, Donald Trump thus proclaimed himself to be ‘the law and order candidate … we must maintain law and order at the highest level or we will cease to have a country, 100 percent … [while his opponent Hillary Clinton was] weak, ineffective, pandering’ (Nelson, 2016).
The way out of this quagmire thus necessitates power being entrusted to strong leaders who usually present themselves as anti-politics politicians who display contempt for the values and norms of the democratic order. This makes them appear as outsiders, seemingly untouched by the corruption and incompetence of their Establishment opponents.
The Return of the Strong Men
Before striving for political power, some have had backgrounds as comedians (as with Beppe Grillo, leader of the Five Star Movement in Italy), real estate magnates, and media celebrities (such as Donald Trump) or are otherwise able to demonstrate their non-Establishment credentials through maverick careers not involving any form of public service (Boris Johnson in the UK was a journalist who was sacked for fabricating a report for his newspaper and who also made regular appearances on political satire television programs). The more these would-be leaders and ‘strong men’ (men in nearly every case) can demonstrate their difference from elites in the Establishment, the more this then secures their legitimacy to rule, at least in the eyes of their supporters.
Where do these supporters come from? Many bear the marks of the divisions that neo-liberal polity exacerbated but largely left unattended. They include those who are attracted by promises to re-route their nation away from the multi-cultural consequences of large-scale immigration, to have it based again around the dominance of white, Christian masculinity; those threatened by a growing lassitude given to sexual orientation and prominence of gender equity and those who want law and order to be more forcefully addressed. And they include all who have been left behind in the course of restructuring, such as those working in sunset industries; and those who have become suspicious, through their regular perusal of internet sources, of all the members of the Establishment supposedly involved in ‘deep state’ enterprises; and so on.
The new strong men on the political stage of democratic society vow to listen and attend to such grievances. They offer remedies that move beyond the boundaries of the rule of law and other trappings of democracy that they say failed to prevent the nation’s decline. Where they gain political power, democratic norms and conventions that would otherwise restrain their authority can then be pushed aside. Demons from the 1930s, thought to have been expelled forever, have thus resurfaced. Demagogues once again claim that only they can be the saviors of their nation, at a time when it faces maximum peril from enemies both within and beyond its borders. They are at the forefront of what has become, in the early twenty-first century, a sustained populist assault on the democratic order.
What is populism?
Populism refers to the moods and voices of distinct segments of the population who see themselves as worthy, authentic citizens but who feel aggrieved because of their perceptions that they have been ignored
by governments and their officials while other, more undeserving or unwanted groups—such as welfare claimants or undocumented migrants—have been allowed to flourish at their expense. Their angry voices, or those who claim to speak on their behalf, are usually heard on talk-back radio, in the tabloid press, or on Fox News television and like stations: channels of communication far beyond the reach of the Establishment and the mainstream media but which provide fuel for conspiracies that then become a rallying cry for more direct action against the supposedly corrupt democratic order. As such, populism represents ‘an ideology of popular resentment’ (Shils, 1956, p. 100) against the ruling Establishment. And it challenges the legitimacy of the existing framework of political power in democratic society. As Ernesto Laclau (2005, p. 177) observes, populism is not a reform movement, nor one which seeks to preserve the status quo through modifications to the electoral process. Instead, ‘populism presents itself as both subversive of the existing state of things and as the starting point for a more or less radical reconstruction of a new order.’
That said, the extent of this new order will be dependent on the particular scope and extent of populist forces and the field in which these emerge and operate. A narrow brand of populism—penal populism— that became a precursor to the full assault of populist politics on the democratic order primarily sought to radically reconstruct the penal system. Beyond this terrain, the status quo remained largely untouched. Indeed, it will be argued in this book that the intended function of penal populism was exactly that: leave the status quo untouched and allow the neo-liberal restructuring of those societies that brought it into existence to continue. And so it did until it became subsumed within a more general populist politics. The nature of this resurgent populism then confirms Laclau’s argument. The populist political parties that have emerged across democratic society in the early twenty-first century are indeed intent on at least subverting and undermining, if not bringing down altogether, the democratic framework of their particular society. It has no sacrosanct value for them.
Of course, it could be argued that at almost any time in modern history it might be possible to find such dissent. But for populism to be a prominent political force rather than a collection of sad and angry forces on its fringe, then, as Laclau (2005, p. 85) argues, the most important prerequisite for this is a breakdown in social cohesion, on a national scale. This is usually reflected in unfulfilled demands from a significant section of the population that is met by unresponsive state power or rather a significant and vociferous section of the population who then claim to speak for the general public, as if this then
gives them an exclusive mandate to challenge the existing structure of political power: ‘it is a partial component [of the social body] which aspires to be conceived as the only legitimate totality’ (Laclau, 2005, p. 81). On this basis, populism can be a characteristic of both the political right and the left. Indeed, its associations with the latter have a lengthy history. For example, the US People’s Party was launched in 1892. This was principally an agrarian movement formed to oppose the growing power of urban corporations in that country. Words from its founding document would not be out of place in contemporary populist discourse: ‘we meet in the midst of a nation brought to the verge of moral, political, and material ruin. Corruption dominates the ballot-box, the Legislatures, the Congress, and touches even the ermine of the bench. The people are demoralized …’ (quoted by Laclau, 2005, p. 201). Contemporarily, left-wing populism has also enjoyed electoral success in Greece (the Syriza movement) and Spain (the Podemos party).
It remains, though, that the manifestations of populism across the Western democracies in the early twenty-first century veer overwhelmingly towards the political right. Why should this be so? The main reason for this lies in the nature of the grievances that populism currently feeds on. There is considerable antagonism towards those who make up the political Establishment, that is, mainstream political parties, and the economic consequences of the neo-liberal politics they have been associated with. In addition, though, there is opposition to the cosmopolitan reordering of everyday life that is contemporaneous with this economic trajectory. And it would seem to be this cultural dimension that now leads populist politics to the right. One of the main populist criticisms of the EU, for example, is that its rights of settlement for citizens within this Bloc fuel unwanted immigration, thought to threaten both individual and national identity. Contemporary populism is also pushed to the right by the way in which crime and punishment issues have become central features in its discourse. For populists, the dangers posed by crime and the weakness of criminal justice elites in responding to it now necessitate pushing criminal law beyond its democratic safeguards and limits: only by so doing, will it be possible to protect the public from the catalog of enemies that now threaten them.
Even so, the criminal justice system is only one modality of control being used against the concentration of public enemies that populism has in its sights. Penalties, barriers, threats, inducements, disqualifications, and cronyism—appointing the loyal but under-qualified or the unqualified to positions of power—have variously severed
and undermined the very structure of government in democratic society. Thus, civil servants can be tested for their allegiance to the strong man—if they fail, they can be weeded out; walls can be built to keep out unwanted asylum seekers, while those who do find their way across borders can be rounded up and shipped out to distant countries with highly suspect democratic traditions that are paid for assisting with this removal service. Demonstrators against the strong man’s regime can be variously outlawed or have their protests broken up by military force if necessary. And the credibility of political opponents is no longer merely criticized and undermined; by virtue of them being opponents, they may be threatened with prosecution and imprisonment.
At the same time, there is a constant tension between populist politicians and liberal elites working to maintain democratic norms, rules, and values in the operation of the criminal justice process. This is more than long-standing disagreements between the political right and liberal elites about how much punishment is needed for crime. Indeed, there is recognition among these elites that these new modalities of governance and control for hunting down or silencing enemies are not only outside the democratic framework but also are part of a more general movement to dismantle it. Judges and ‘liberal lawyers’ regularly find, as a consequence, that they too have been added to the growing list of populism’s ‘enemies of the people.’ All this is in the name of the ‘cleansing’ that is apparently needed to restore the nation’s sovereign purity—but in reality, firmly cementing the power of the strong man. One of the great ironies of this new era is that populists often claim to be protecting democracy when corroding its very fabric themselves.
The remainder of this book addresses the question of how all those triumphal notions of freedom in 1989, guaranteed by our commitment to the democratic order, have come to be under such threat from these populist forces. It focuses primarily but not exclusively on the emergence and development of populist politics in the Anglo-American democracies that have been in the forefront of this renaissance (particularly the UK, the US, and New Zealand). It also shows the interconnections and overlaps between developments in this cluster of societies and the rise of populist politics in other Western democracies. Again, while local contingencies shape the specific form populism takes in a particular society, there are common threads as well.
As Chapter 2 shows, those Anglo-American democracies that moved furthest down the route of neo-liberal restructuring during the 1980s and beyond set in train divisions, anxieties, and insecurities that populism has since been able to feast on. These tensions, brought about or exacerbated by the restructuring, created the conditions for the emergence of what has come to be known as penal populism. Governments were prepared to accede to populist demands in relation to crime control, tearing punishment loose from its democratic moorings, while in so doing reaffirming their own political legitimacy. This then allowed them to continue with their restructuring agenda across the rest of the social field.
Chapter 3, however, shows that penal populism was unable to sustain its task of bolstering social cohesion to a sufficient level of stability. The twin consequences of the 2008 global fiscal crisis and growing immigration from Eastern Europe, the Middle East, Africa, and Latin America shattered faith not just in neo-liberal restructuring but in the democratic order itself. As a consequence, penal populism came to be absorbed within the much broader canvas of populist politics that has since emerged. The tumultuous year of 2016, which saw a majority in favor of the Brexit referendum in the UK and the election of Donald Trump as US president, signaled the growing international momentum that populism was gaining.
Nonetheless, Chapter 4 shows how the democratic order came to have an unlikely savior, in the form of the COVID-19 virus. While the pandemic brought devastation to individuals and societies, the very strategies necessary to counteract it all helped to undermine fundamental pillars on which populism had been built. And when risks to public health began to outweigh crime risks, making the law-and-order issues that populism thrives on largely redundant, the politics of hate and destruction that it espouses suffered important political reversals.
Chapter 5, however, argues that the democratic order remains fragile, notwithstanding an additional lifeline thrown to it by Vladimir Putin. His war on Ukraine has met the remarkable courage and resilience of the Ukrainian people, led by Volodymyr Zelensky, himself, ironically, an anti-establishment figure, but one who was elected to take his country out of autocratic corruption and towards the values of democratic society. The war has strengthened the forces of the Western democratic order, as Putin vividly demonstrates what the alternative to this is likely to involve. But while such contingencies have given it protection, given it protection, its
fragility will remain so unless the structural inequalities that paved the way for contemporary populism are addressed, in the face of new challenges from further pandemics and climate change.
Note
1 In Australia, 51 percent of those polled in 1969 ‘trusted government to do the right thing,’ and in Canada, the result was 57 percent in 1965 on the same issue. In 1964, 50 percent of the British public thought their leaders were ‘honest.’
2 Penal Populism and Public Protection
Populism is an expression of public resentment against existing political processes that are thought to allow elite groups—civil servants, bankers, academics, and the liberal clergy and such like—to influence government in the development of policies which favor either the already privileged or the undeserving (or both) against the interests and wishes of ‘ordinary people.’ Penal populism , however, addresses the way in which lawbreakers are thought to have been favored in policy development at the expense of crime victims in particular and the law-abiding public in general by elite groups working in the criminal justice arena. This brand of populism feeds on expressions of anger, disenchantment, and disillusionment with criminal justice elites—liberal judges, lawyers, and academics are seen as responsible for inverting what, commonsensically, should be the priorities of any criminal justice system: protecting ‘ordinary people’ who do not break the law and punishing those who do, or who otherwise put public well-being at risk. These sentiments are then represented as ‘public opinion’ (even though they are manifestly not so in any social scientific sense of this term) in outlets for them such as the tabloid press and talk-back radio and, from the early 2000s, social media.
The populist renaissance began after a decade or so of the restructuring of economic and social life during the 1980s. Governments in Anglo-American societies, especially in the UK, US, and New Zealand (Roberts et al., 2003), were prepared to embrace and follow these supposed representations of ‘public opinion’ on crime and punishment. This was because issues of crime control had become one of the most obvious illustrations of a legitimacy deficit between governments and their electorates. If not arrested, this was likely to lead to a serious threat or challenge to the rules of political power in the form of a legitimation crisis (Beetham, 1991). To prevent this, governments began moving penal policy in the direction of the demands from
DOI: 10.4324/9781003262855-2
populist forces, sometimes working in conjunction with them, sometimes working in collaboration with them, notwithstanding that the hitherto inexorable rise in post-war crime in the Western democracies was coming to an end (Tonry, 2014; Zimring, 2007). A new axis of penal power began to shape policy, at the expense of the previous one between governments and influential elitist advisers, but with the new reality of declining crime largely missing from this discourse. Zimring (1996, pp. 253–254) thus observed that in the US, ‘there is now a large gap between law professors and the legislative process … Most of the problem is that there is no demand for what experts have to offer, which is information about the implications and consequences of policy choices … when citizens come to believe that no special expertize is implicated in criminal justice decision-making, then separation of power will no longer allow the expert deference.’
Nonetheless, not all members of the ‘professoriat’—certainly not in the US—lost the influence they might previously have had on penal development. James Q. Wilson, a Harvard professor and adviser to the Reagan governments on penal policy, became a notable exception, leading a cluster of similar others who championed populist demands for tougher and more extensive sanctions, usually based on common sense and anecdote rather than research.1 Thus, for Wilson (1975), the most reliable source of information about crime was not rigorous social scientific inquiry but, instead, the opinion of ‘taxi drivers’— they knew local streets best and saw and heard what was happening in them much more clearly than comfortably cloistered experts.
Five causes of penal populism
There were five characteristics (explained below) to the legitimacy deficit that had opened up between governments and their electorates. It was their convergence that made possible the emergence of penal populism.
Growing public anxiety and insecurity
The program of neo-liberal theorists, ideologues, and politicians involved individuals having more freedom of choice, with the trade-off being that governments would no longer run to their rescue in troubled times. Indeed, it was thought that learning from mistakes would actually spur on risk takers to success: ‘entrepreneurs, the successful ones, have on average nine failures for every success … getting it wrong is part of getting it right. Change is now more chancy, but also
