Power and crime: a theoretical sketch

ABSTRACT

The article contains a sociological theory of power and crime, demonstrating how crime is socially constructed, relative to power. It is argued that crime is socially constructed differently when power structures are either legitimate or illegitimate, and when power is either coercive or based on authority. Legitimacy has both a sociological and normative meaning, which are not the same. While the emphasis is sociological, the article also contains a normative theorization of crime, relative to political power. The normative aspect hinges on the distinction between dominating power, which is zero-sum, and enabling power, which is positive-sum.

KEYWORDS:

• Crime
• power
• legitimacy
• authority
• coercion

1. Introduction

Power is a family resemblance concept, which changes meaning relative to different language games (see Haugaard 2010, 2020, pp. 1–17). The same can be said for the concept of crime. Both the words ‘power’ and ‘crime’ are conceptual tools, which have slightly different meanings within the theoretical context of, what I shall term, the sociological language game (the is language game), and normative political theory (the ought language game).

In terms of structure, this article will be divided into several parts, as follows: 1) the article briefly explores the words ‘power’ and ‘crime’ as signifiers in language games. I argue that crime has 2) a sociological dimension and 3) a normative dimension. 4) The article explores crime when power is both sociologically and normatively illegitimate. 5) The article examines the social construction of crime when power is sociologically legitimate but normatively illegitimate. 6) The article discusses crime when power is normatively legitimate. 7) A short conclusion, emphasizing a couple of key points.

1.1. ‘Crime’ and ‘power’ as signifiers in the sociological and normative language games:

Words, such as crime and power, are conceptual tools that enable us, as observing social scientists, to make sense of social order. Power and crime are socially constructed signifiers, or words, that refer to signifieds in the world-out-there. For the social sciences, the world-out-there is itself a social construction, which creates a double hermeneutic effect, whereby signifiers, which are social constructions, refer to signifieds that are also social constructions. Within such a reality there are no foundationally objectively correct definitions. Rather, words are conceptual tools, used within local language games, devised in order to make certain social phenomena visible. Each language game is a paradigm, as described by Kuhn (1977), where concepts gain meaning relative to each other, within self-contained language games, relative to specific problems to be solved.

In the social sciences, the two most significant language games are sociological theory, which explores the is-aspect of social order, and normative political theory, which analyses the ought-aspect. These divisions should be considered ‘ideal types’ in the Weberian sense (Weber 1978, pp. 20–2). Ideal types are a distillation from reality that gets to the essence of some phenomenon but that rarely exist in the world-out-there in a pure form. Ideal types are conceptual tools that enable the social scientist make certain aspects of social order visible, relative to a paradigmatic problematic. Because ideal types rarely exist in their pure form in the empirical world-out-there they are scalar concepts. When we say a given society is, for instance, ‘capitalist’ that society is never capitalist through and through, rather it is more capitalist that another society which is predominantly something else (feudal or tribal etc.)

One of the central problematics in the study of social power is to explain the relative acquiescence of the less powerful in unequal power relations. Key to explaining this phenomenon are the sources of power used, which primarily are coercion and/or legitimacy. As we shall see, while both sources do occur together, there is an ideal-type scale of power primarily based upon coercion to power derived from legitimate authority. Crime is essentially a socially constructed signifier that refers to the violation of the structured-order-of-things of a society. Thus, crime is a resistance to power structures. This makes the relationship between crime and power, as either primarily coerced or legitimate, particularly prescient. As we shall see, because legitimacy has a very different meaning sociologically and normatively, crime shifts in meaning relative to the sociological and normative language games.

2. Crime in the sociological language game

As has been argued by Durkheim (2014, pp. 30–49), as a sociological phenomenon crime is present in all societies. Crime is a social construction that refers to a collective judgment concerning the norms of society. The signifier ‘crime’ refers to action that violates the legitimate social norms of a collective social order.

Sociologically, unlike in everyday understanding, when power structures are perceived as legitimate, the objective of punishment of a crime is not so much to correct or deter the criminal, it is for the members of a society to reaffirm, within their collective consciousness, the shared social norms that they consider legitimate (see Durkheim 2014, pp. 30–49, Lukes 1973, pp. 160–1; 260–2).

When a system is considered legitimate by the members of a society, the judgment that the social order has been violated, thus a crime committed, is relative to the collective consciousness of a community, which is experienced by the social actor as ‘practical knowledge’ (Haugaard 2020, pp. 70–84). Practical knowledge is tacit knowledge, a kind of natural-order-of-things, which defines the reasonable for a collective. In this regard social orders are essentially normative orders, with crimes understood as violations of that normative order.

As we are about explore in greater depth, in coercive power relationships, unlike in Durkheim, when the less powerful members of a community consider the order-of-things illegitimate, then (so-called) ‘crimes’ are not violations of a shared moral order. In these situations, there may be acquiescence, but not legitimacy.

3. Crime in the normative language game

Normatively, crime does not refer to the practical knowledge of the observed society, as in the above. Rather, it refers to the observing political theorist. In the sociological language game, the judgment that a crime has been committed is relative to the socially constructed order-of-things of the members of that society. In the normative language game, the signifier ‘crime’ refers to a violation of a hypothetical order-of-thing that is constructed in the mind of the observing political theorist as normatively desirable for society. As the observing political theorist is also a social actor, their desired social construction will invariably be influenced by the collective consciousness in which they were socialized. However, the observing political theorists will wish to claim that they have somehow transcended, ameliorated or taken account of such contingent subjectivity (see Jaeggi 2018), so that their normative position is not merely subjective opinion.

4. Power

In the empirical social science literature, there is significant debate on whether power refers simply to a capacity or the actual exercise of power (for instance, see Dahl 1957, Morriss 2002, Dowding 2017). For the purposes of this essay, the word ‘power’ on its own refers to the actual exercise of power, whereby an actor A, makes B do something that B would not otherwise do. What enables A to do this, what makes A powerful, are the power resources of A. So, ‘power’ refers to an actual happening, while ‘power resources’ refers to the capacity for action that an actor has, which I later also refer to as ‘dispositional power’. Obviously, this is somewhat at variance with everyday usage, where people refer to power resources simply as ‘power’. The reason for making this distinction is Dahl’s (1957) point that by and large (there are exceptions), resources need to be activated by social agents for them to have an effect upon the behaviour of the less powerful.

There are two significant power resources that we focus on for the purposes of this essay (there are more types of power resources than these). In political systems, the two most significant power resources are violence-cum-coercion and authority. Violence in its pure unmediated form treats the other as a physical object to be manipulated. Pure violence is not that usual. The more common use of violence is as the basis for a threat of sanctions or punishment, directed at the less powerful to make them do something that they would not otherwise do, which is coercion. The exercise of power, backed by the use of coercion, is what Weber had in mind with his definition of macht, as the ability to overcome resistance (Weber 1978, p. 53). Coercion works upon the consciousness of the social subject by an appeal to their calculated fear of punishment or deprivation. When coercion is successful, the less powerful complies because of cost benefit calculation of the relative advantages of doing what they desire versus the cost of punishment.

Coercion is a relatively crude power resource in the sense that there is always actual or potential resistance, which is overcome. The less powerful will defy coercion if either the coercion is insufficient in severity or the less powerful calculate that their non-compliance can be done furtively, thus avoiding punishment. Coercion begets resistance and, in the longer term, is potentially revolutionary. For this reason, it is in the interests of the powerful to preference the use authority, rather than coercion.

Authority is a resource that is based upon subjective perceptions of legitimacy. The less powerful complies because he or she believes that the powerful has a right to command or, what Weber terms, a belief in legitimacy (Weber 1978, p. 213). The exercise of power through the use of authority does not beget resistance. Quite the contrary, the more authority is used the more stable social order becomes. I would argue that what Arendt famously described as power, which she claimed is the opposite of violence (Arendt 1970: 50–56), is power that is based upon authority, as a resource.

Authority is essentially performative. As argued by Austin (1975, pp. 22–3), a person who issues a command performs a given position of authority, and those who are commanded are the audience, who either respond appropriately, deeming the command ‘felicitous’, or they may deem the command ‘infelicitous’, in which case they undermine the legitimacy of authority. When the less powerful obey the command, they reproduce, or confirm-structure,¹ the social structures of the powerful actor’s authority. If an unarmed police officer directs cars right or left, and the car drivers drive as commanded, those drivers confirm the felicity of the police officer’s authority, and thus reproduce it. In contrast, when a highway robber threatens someone with a gun, commanding, ‘your money or I shoot’, that compliance does not confirm-structure the authority of a highway robber. Authority is based upon a belief in the legitimacy and right of those in authority to command as they do and when the command is obeyed that belief is reinforced (see Haugaard 2018). This belief may be well founded, in the interests of the less powerful but it may equally be contrary to their interests. As argued by Gramsci (1973), hegemony would be an instance where a specific class identifies with the interests of another dominant class, through socialization into the practical knowledge of the latter class, and therefore the less powerful class views the interests of that dominant class as legitimate for society as a whole.

From a sociological perspective, authority is entirely oriented towards the legitimacy beliefs of the compliant social subject. If a social actor complies because of a belief in the legitimacy of the command or commander: that is authority. It may well be the case that the observing sociologist does not share these beliefs, maybe even regards them as deeply illegitimate normatively. Furthermore, as we shall see, legitimacy is not the same as mere acceptance. Often social actors confirm-structure social practices that they consider illegitimate out of an acquiescence born out of practical knowledge of structural constraints.

5. Power and crime: a scale

Power exists on a scale from pure coercion to pure authority. On this scale, we will explore the relationship between power and crime, where: 1) power is illegitimate, both sociologically and normatively, 2) power is legitimate sociologically but not normatively, and 3) power is legitimate normatively.

With regard to this scale, it is important to understand that position 2, where there is sociological legitimacy combined with normative illegitimacy, is not necessarily less dominating than position 1. In a way, the ultimate in successful domination is to get the less powerful to believe their domination is legitimate – maybe even as emancipation or freedom.² The scale is constructed relative to stability, from coercion, where conflict is highly visible, to a mid position where there is acceptance but there is a latent conflict of interests,³ to the position where legitimacy is highly stable because it is normatively defensible.

6. The social construction of crime when power is illegitimate, both sociologically and normatively

The ideal type of sociologically illegitimate power is kleptocracy. In such a system the powerful exercise power-over purely for the purposes of enhancing their own power-to, with total disregard for the needs, wants or interests of those who are commanded to obey. In kleptocracy power is zero-sum, where the gain of the powerful is at the expense of the obedient less powerful (on the variable sum nature of power see Read 2012). As there is limited gain for the less powerful, compliance is either forced, through direct violence, or is coerced, through the threat of violence or deprivation. A master slave relationship is the real life social relationship that comes closest to the ideal type of coercive power. European feudalism has many aspects of such a kleptocratic relationship. The feudal elites were heavily armed, with exploitation dependent upon the ability of powerful overlords to coerce their serfs through control over the means of violence. As argued by Tilly (1985), the early modern state-building process was essentially a monopoly of violence by state-builders who created a protection racket while socially constructing themselves as representing the law. In the 20^th C. some authoritarian systems would also qualify as coming close to the ideal type. Although, many totalitarian systems had some sociological levels of legitimacy, through the use of ideology, fascist and communist, which makes them, in part, the second type (legitimate sociologically – to be discussed). Even with regard to feudalism, there were legitimizing ideological social constructions, such as the ‘Great Chain of Being’ and ‘blue blood’. To what extent these rationalisations were simply told by the powerful to themselves as self-justification or actually internalized by the less powerful, is hard to gauge. To the extent to which they were internalized by the less powerful, these exercises of power would be legitimate, sociologically. However, if purely used by the elite for self-consumption as self-justification, then the power resource is coercion.

Where the sole reason for compliance is violence/coercion, so-called ‘crimes’, are essentially acts of resistance. Coercion is relatively crude because the less powerful will avoid compliance at any moment they can do so. Consequently, surveillance has to be constant to prevent crime.

As the powerful define the rules of the game, any such non-compliance is a crime against the kleptocratic order-of-things. In instances of pure coercion, the dominated do not internalize this order-of-things as part of their practical consciousness. Hence, crime and punishment do not have the legitimizing quality described by Durkheim. Rather, deterrence is the objective of punishment.

When the source of power is largely coercion, punishment of the crimes is often fierce and cruel, as the criminal is socially constructed as making war on those with greater power. An exemplar would be the execution of Damiens in 1757 for regicide, which was a public enactment of war between the sovereign and the body of Damiens (Foucault 1979, pp. 3–7; 48). The social construction of the crime as an act of war against the powerful means that crime is understood as potentially revolutionary. Therefore it is of huge symbolic importance for the sovereign to demonstrate absolute victory by the annihilation of the criminal. The excess of violence serves to demonstrate the impossibility of changing the kleptocratic order-of-things. However, ironically, the excess of punishment of criminals is symptomatic of the weakness of this type of rule because all acts of violence and coercion continually create potential resistance and revolutionaries. Thus, this is a highly unstable form of power-over, which constantly begets resistance, often in the form of crime. As recently observed by Kenneth Roth of Human Rights Watch, ‘Some cite … unabashed oppression as evidence of rising autocratic power, but in fact it often represents the opposite – an act of desperation by dictatorial leaders who know they have lost any prospect of popular support.’ (Roth 2022).

In purely coercive power relationships, punishment does not serve to reinforce legitimacy relative to practical knowledge. However, the excess of punishment of crime has a social ontological aspect,⁴ which reinforces social order. Extreme violence combined with surveillance can be used to create fundamental ontological insecurity in the social subject with the consequence that they can become incapable of agency and therefore unable to resist through crime. As Solomon Northup observes in his account of slavery, the objective of slaver violence is to break the spirit of slaves, so they will not have the agency, or will, to revolt (Northup 2012, pp. 170–3). Furthermore, extreme violence in response to crime creates a kind of ‘social death’ (Patterson 1982) of the social subject, which renders them unable to have the kinds of social ties necessary for a successful revolution.

As Scott (1990) argues, in cases of extreme domination acquiescence often gives the appearance of ideological incorporation of the dominated, as they go through the rituals or enunciate the mantras of the ideology of the dominant. However, the dominated have a kind of dual consciousness, whereby they learn the public performance of dominant ideology while retaining a backstage practical knowledge of a revolutionary counter-ideology. The latter only becomes visible when the less powerful are together, at a safe distance from the powerful, or in the moment of actual revolt. In this regard, it is important to understand that the confirm-structuration of dominating social structures does not necessarily mean that the confirm-structurer considers those social structures legitimate. Compliance is out of structural constraint. The social actors believe, often with good reason (gained from experience of failed resistance), that the disparity of power between the powerful and the less powerful is so great that resistance is pointless. On the surface, the acquiescence that arises may have the appearance of legitimacy through ideological incorporation, as it is based upon a practical knowledge of social order and is reproduced routinely. However, that practical knowledge is more a resigned acceptance of the order-of-things, rather than a fuller endorsement of the order-of-things as the natural-and-right-order-of-things. As the practical knowledge falls short of a belief in legitimacy, there is a latent conflict present.

In social practice, a latent subaltern ideology of resistance often manifests itself through social practice through everyday petty crimes.⁵ Coercively exploited workers may pilfer during the process of production. In the street the coerced less powerful may engage in surreptitious acts of vandalism. A high prevalence of, so-called, ‘petty crime’ is symptomatic of coercive power relations, with low levels of legitimacy. While appearing small, petty crime suggests a potentially revolutionary power relationship and is symptomatic of a subaltern discourse, running counter to apparent acquiescence.

The types of rationalisation that the powerful construct to justify their domination of the less powerful serve as a justification for the designation of an act of resistance as ‘criminal’. Typically, the person who resists a highway robber is not socially constructed as a ‘criminal’ (the Robin Hood narrative is a possible exception), while the persons who resist kleptocratic rulers are socially constructed as ‘criminal’ within that order-of-things. The kleptocratic rulers create a kleptocratic order-of-things, which those who resist have violated. For instance, at this moment, the democratically elected leader of Myanmar, Aung San Suu Kyi, is being tried as a ‘criminal’ (BBC 2021). The military rulers do not present a front-stage performance of persons who overthrew democracy, thus are themselves criminal relative to the democratic order-of-things. Rather, San Suu Kyi is the ‘criminal’ who violated the norms of a social order that they have socially constructed. In such a situation, the ideology that gives legitimacy to the signifier ‘criminal’, with reference to San Suu Kyi, is (or may be) shared by the powerful but will not be so by the less powerful (or foreign commentators – BBC 2021). Similarly, the autocratic leader of Kazakhstan, Kassym-Jomart Tokayev, has called in the help of Russian troops, to suppress protestors, who he termed ‘bandits’ and ‘terrorists’ (Walker and Bisenov 2021). The social function of the dominant discourse is for the home consumption by the elite, as self-justification. As in all situations of coercive power, many of the less powerful may present a front-stage performance of endorsing that ideology, but this is acquiescence, which is weaker than sociological legitimacy.

6.1. The social construction of crime when power is legitimate sociologically but not normatively:

Legitimacy in the sociological language game is defined as such relative to the beliefs of the less powerful. Power that is legitimate relative to the beliefs of the less powerful is not necessarily legitimate within the normative language game. The third dimension of power concerns the processes whereby social actors’ epistemic beliefs render dominating (normatively) power relations legitimate. It is one of the great sociological conundrums of the study of power that the dominated often perceive their own domination as legitimate. This was the conundrum that Gramsci dealt with using the concept of hegemony and was the target of Lukes (1974) account of the third dimension of power.

The third dimension of power concerns how unequal power relations are legitimized on the epistemic level, which works in a number of ways. Most of social actors’ knowledge of social life is carried at the level of practical knowledge, which is a subconscious⁶ knowledge of social life. Social actors take for granted the natural-order-of things, which often renders compliance to the power-over of the powerful a virtually automatic response. As social order is often interpreted as a moral order (the way things are is the way things should be) criminal acts appear as the violations of the natural-order-of-things. By virtue of being a criminal, the social actor is a social deviant, thus isolated. If the natural-order-of-things is widely shared, in a relatively homogenous or non-pluralist society, crime is perceived (by the majority, although not by any deviant minority group) as a cognitive failure that results in moral failure.

In most societies, social praxis that accords with the socially constructed rules-of-the-game confers high social capital, which in turn confers status authority. As I have argued elsewhere (Haugaard 2020, pp. 156–160), based upon Bourdieu (1989) and Elias (1995), the formation of the modern state was also associated with a class competition over cultural capital. In the early modern period the aristocracy tried to distance themselves from the rising bourgeoisie by developing cultural capital, in the form of distinction in manners, dress and general self-restraint. The bourgeoisie copied the aristocracy, developing their cultural capital. Slowly, the pursuit of distinction through the acquisition of cultural capital moved down the social hierarchy. Overall, the ability to structure the norms of cultural capital created a mode of social advancement, additional to the merely economic. Conversely, failure to use, or flawed reproduction of, the shared norms to structure social practices, manifest by non-conformist behaviour, confers low cultural capital. As crime is a failure to structure correctly, criminal behaviour is often associated with low cultural capital, even stigma – typical instances would Romani, Traveller and immigrant populations of Europe.

Reification is another process of three-dimensional power legitimation of social order. Essentially, social structures are made stable by obscuring their social constructedness. If social structures are understood to be made, by implication they can be unmade, as observed by Foucault (1988, p. 36) with regard to social critique. Conversely, when it is deliberately obscured that social structures are made, then it is not self-evident that structures can be unmade. In order to stabilize normative illegitimate social structures, to make them sociologically legitimate, it is in the interests of the more powerful to reify social structures, rendering the social constructedness of social structures invisible.

In traditional societies, the sacred is used to reify social structures. The socially constructed social order is presented as created by a deity, who is a transcendental being. Any violation of the social order becomes a criminal act that offends against the will of God. In a theocratic reified society, offences against the divine-order-of-things are a subset of blasphemy. Those who punish criminals who transgress consider themselves to be doing God’s work, thus there is virtue to be gained from punishment. This fact makes the punishment of the criminal not only popular with the powerful but often attracts the powerless into public punishment of the offender, which is highly functional to social stability, as it mobilizes the less powerful into ritual acts of reinforcement of the order-of-things. Recently, mob blasphemy killings in Pakistan (Balloch and Ellis-Petersen 2021) would be close to this ideal type.

Even in modern societies that are not so explicitly theocratic (where blasphemy has disappeared as a crime), new forms of the sacred are socially constructed that confer legitimacy (Alexander 2011, Haugaard 2020, pp. 102–4). Often the trial and punishment of those who transgress these sacred norms attracts much popular attention, which serves as a force of social integration. In contemporary society certain sex crimes are considered a violation of the sacred and the punishment of such criminals attracts a lot of media attention. These are instances where the coercion of the criminal creates a functional feedback loop to legitimacy.

As I have argued elsewhere (Haugaard 2020, pp. 114–17), Nietzsche’s famous ‘death of God’ hypothesis is really a sociological claim to the effect that as interpretative beings, human subjects have replaced God with scientific Truth (with a capital T). Both God and Truth claims are modes of reification. Rather, than embracing the freedom to realize that truth (with a small t) is a social construction, which should be used a conceptual tool to enable social actors (power-to), Truth is seen as transcendental and universal, which are qualities that are used to reify structures of domination. As a tool of reification, Truth appears external to social relations, as a claim to something universal, which transcends social construction. So, if social policy is justified relative to Truth there is a suggestion that this is not some conventional, socially constructed, social policy. Rather, the policy appears to transcend convention and appeals to pure Reason (with a capital R). So, disagreement with such policies, and attendant Truth claims, become socially constructed as inherently irrational. Consequently, there is a perceived association between crime and irrationality.

In this context, it should be noted that not all uses of truth are reifying in this manner. When truth is recognized in the form of a fallible hypothesis, open to refutation by the force of better argument or evidence, that is a non-reifying use of truth (with a small t) (for more detail see Haugaard 2020, pp. 114–21). However, in everyday life most social actors tend to view truth as transcendental and infallible (Truth), which is a misperception that is useful for the purposes of reification.

As presented by Foucault (1979), much of the modern discipline presupposes these kinds of Truth claims. The advent of the social sciences, including criminology and psychology, entails the creation of a ‘normal’ social subject, as a Truth claim, relative to whom actual living social subjects are measured. Through this reifying use of Truth, in the early 19^th C., there emerged a whole series of minor crimes, likened to irregularity of behaviour, such as crimes of time (lateness), inattention, impoliteness, and sexual indecency (Foucault 1979, p. 178). Deviance became a crime relative to what appeared as a universal social order that was scientifically grounded in the language of Truth. The transcendental Truth claim disempowers any resisting social subject by characterizing them as essentially irrational.

In this conceptualization, there is, of course, a sliding scale from what is deemed deviant, thus metaphorically or socially criminal, to those actions that become criminal in law. With respect to homosexuality, for instance, it was criminal both socially and legally in the 19^th C, but slowly became non-criminal in most Western democracies through the 20^th C. However, it still retained the stigma of social crime until the latter part of the 20^th C. In 21^st C, this has changed, through the legalization of such institutions as gay marriage.

Currently, during the Covid-19 epidemic, states have responded to the pandemic with a whole set of norms and restraints, which would be inconceivable without legitimization through appeals to science. Consistent with scientific justification, the criminals who violate this new order-of-things are characterized as ‘ignorant’ and prone to ‘conspiracy theory’ (for instance Bartlett 2021). Anisen (2022) argues that Covid restrictions are part of a wider trend whereby liberal capitalism is being transformed into a kind of ‘surveillance capitalism’ (Zuboff 2019). However, while it is correct from a sociological perspective that state responses to the pandemic do represent a significant increase in power-over, legitimized by science, it is an open question whether the use of science is reifying (as the pandemic is real) or whether the restrictions are normatively justified (as there is a shared power-to objective – combating an epidemic and keeping the hospitals working), which brings us to the next section.

6.2. The social construction of crime when power is normatively legitimate:

While I don’t have the space here to develop a comprehensive normative theory of power and crime, I can give an indication.

As I observed earlier, any political theorist invariably draws upon an internalized practical consciousness, derived from the collective consciousness. The theorist considers this ‘common sense’ foundational in the weak sense that it is impossible for them to reason without it. For me, now speaking as a political theorist, this foundational part is the loosely Kantian moral position that persons are an end in themselves and therefore of equal moral worth (Allen et al. 2021, pp. 517–18, Korsgaard 1996). In terms of the development of the European collective consciousness, this has roots in the Greek and Roman distinction between a citizen and a slave: a citizen exists for their own ends, while the slave exists for the purpose of the ends of others. However, contrary to the Classical world-view, in the modern-democratic-order-of-things all persons are citizens and slavery is inherently morally wrong (Pettit 2012, Haugaard and Pettit 2017).

These assumptions make it morally wrong; therefore, normatively undesirable, or criminal, for a social actor to be used as a means to an end, either by more powerful individuals and/or by the collective as a whole.

As I don’t have the space to develop a fully fledged theory, I will simply discuss legitimacy and crime relative to power. Pragmatically, power structures are tools. Social subjects are tool users, and among those tools are the social structures of political power. These structures enable both power-to (the power to do something) and power-over (the power of A to get B to do something that B would not otherwise do) (see Dahl 1957, Allen 1999, Haugaard 2020, pp. 18–36).

Power structures are normatively desirable to the extent to which they serve the purposes of all social subjects, all of whom are of equal moral worth. It is important to understand that power-over is not necessarily dominating. As any parent or educator will know, the parent–child or educator–student relationships involve a lot of power-over, which can be dominating, but part of being a successful parent or educator is learning precisely how to exercise power-over in a manner that is facilitating (power-to) to the less powerful responder. The same applies to complex organizations and politics, while power-over is often dominating, it is not necessarily so. Normatively, legitimate power-over should serve the interests of both the more powerful, commanding power-over, and the less powerful, obeying. In order to make sense of this, we must distinguish between episodic power (which refers to the momentary exercise of power) and dispositional power (which refers to the long-term power resources of social actors)⁷. Normatively, it is legitimate to exercise power-over episodically, if the less powerful gain dispositional power resources from obedience.

Typical of such dispositional empowerment would be the tragedy of the commons. Essentially, the more powerful are given authority by the less powerful to enable the group overcome a collective actor problem. When the less powerful are commanded episodically not to overgraze the commons, and punished for doing so, that power-over is in their interests relative to dispositional power-to to have a shared commons. Yet, episodically, each actor is tempted by their short-term interests, which are at the expense of the collective interests. Acting on their immediate interests is a violation of the social order-of-things that is in their dispositional longer-term interests. As the order-of-things is in the interests of the less powerful, it is normatively acceptable to term violation of such a normative order a ‘crime’. Criminal acts try to gain episodic advantage while still benefiting from the dispositional power created by the rest who are compliant.

Organizations, including state bureaucracies, are created not only for overcoming tragedy of the common situations but also as tools to enable social actors to pool their power resources; to enable them to accomplish power-to tasks that they could not otherwise when acting singly. In other words, organizations are shared sources of dispositional power. Again, episodically, such organizations entail power-over. Those with authority in an organization exercise power-over the members. This is normatively legitimate as long as the power-over is used for the shared dispositional power purposes that the organization was set up for. With reference to the previous example of the pandemic, if the state controls citizens for the purposes of overcoming a shared threat, in the form of Covid-19, that constitutes entirely legitimate power-over. If so, resistance can be termed ‘criminal’, normatively. However, if, for instance, the ban on public gatherings is not really for the purposes of preventing Covid-19, rather to prevent democratic participation, preventing a political opposition from mobilizing, as in Hong Kong, Myanmar and some East European countries (Sesco 2021), then the power-over is illegitimate normatively, and acts of resistance are criminal only within sociological language game. These are, of course, ideal types and on a scale. In real life, in states with high levels of democracy and therefore openness to dissent, the lockdown comes closest to an exercise of power-over for the power-to purposes of managing a pandemic. Conversely, in societies where power is largely coercive, and dissent prohibited, Covid-19 lockdowns are largely a convenient way of silencing of opposition in a manner that appears normatively legitimate (thus conferring sociological legitimacy) but is actually normatively reprehensible. In between these extremes, lockdowns have elements of both. In real life, normative legitimacy is not binary: it is on a scale. Actual societies are more or less normatively legitimate, rarely entirely legitimate or illegitimate.⁸ The same applies to democracy: political systems are more or less democratic, thus on a scale (Hyland 1995). In ascertaining the purpose of power-over a partial, although not complete, guide is the type of resistance that a specific exercise of power-over elicits, as observed by Foucault, resistance can be used as a ‘chemical catalyst so as to bring to light power relations, locate their position, and find out their point of application and the methods used’ (Foucault 1982, p. 780)

Briefly, democracy is essentially a set of structural tools for managing power-over conflicts in such a way that everyone is treated as an end in themselves. As we saw, in the kleptocratic order-of-things power-over is zero-sum, the winner’s gain is entirely at the loser’s expense. In democracy, power is positive-sum, which creates the condition of possibility that everyone gains something from the democratic contest. The winner in an election exercises episodic power-over the loser. However, this is legitimate as long as that power-over does not undermine the dispositional power-to resources of the loser, which enables them to contest the next democratic election. So, for instance, it is legitimate for the winner to exercise power-over by implementing a given health or environmental policy, but it would be illegitimate (criminal) for the winners to implement a policy that curtails free speech as that would undermine the opposition’s dispositional power.

The democratic system essentially empowers (power-to) social actors in such a manner that they can manage inevitable social conflicts (power-over) in a manner that respects the equal moral worth of all citizens. The democratic process is a channelling of social conflicts into a structured set of power-over conflicts, with a clear set of rules of the game, or order-of-things, that preserves the power-to dispositions of all players so that, even when they lose, they can still play again (for more detail, see Haugaard 2020, pp. 186–217). So, relative to this framework, the following would be, currently politically pertinent, crimes against the democratic order-of-things: not recognising defeat when adverse electoral results are in; creating a partisan judiciary; making voting more difficult for a specific sector of the population; removing freedom of speech or assembly; controlling who can present themselves for election; characterising certain viewpoints as ‘unpatriotic’ or instigated by ‘foreign agents’, therefore illegitimate and ‘criminal’.

7. Conclusion

This essay is just a short sketch, analogous to the kind of charcoal sketch that artists sometimes draw on a canvas before they paint a picture. It is a guide, which I hope will be useful to the readers of this wonderfully rich, textured account of power and crime, contained in this special issue.

I particularly wish to emphasize that what is criminal within the sociological language game is not necessarily so normatively. As we have seen, what is socially constructed as a crime in a kleptocracy and in a society with strong three-dimensional power bias is not necessarily a crime in the normative language game. I briefly sketched the contours of crime relative to power from a normative perspective in order to demonstrate that even though crime is a social construction this does necessarily entail a kind of nihilistic relativism, whereby crime refers merely to subjective opinion. The socially constructivist framework of sociology does not necessarily invalidate the critical aims of the political theorist, although it does qualify them, by pointing out that the political theorist cannot reason from nowhere because normative theory is always situated in practical knowledge that owes a debt to a collective consciousness.

Note on contributers

Mark Haugaard is Professor of Political Science and Sociology at the National University of Ireland, Galway, Ireland. He is the founder editor of the Journal of Political Power, published by Routledge, and the book series, Social and Political Power, with Manchester University Press. He has published extensively upon power and his most recent publications includes: The Four Dimensions of Power: understanding domination, empowerment and democracy, 2020, Manchester University Press.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Giddens (1984) combined agency and structure by arguing that social structures are reproduced when social actors ‘structure’ social structures. While a move in the right direction, away from structuralism, I argue that this is too voluntaristic. For social structure to be reproduced there must be interactive validation, by other social actors, of acts of structuration, which I refer to as confirm-structuration (see Haugaard 2020, pp. 40–3). In the example of the traffic policeman (Dahl 1957), the police officer structures their authority power structures by pointing the car in a direction that it would not otherwise go, while the driver confirm-structures those social structures by driving as commanded. However, if the responding drivers were to ignore the order, then the social structure would not be reproduced, which is what happens when authority collapses.

2. This is a point of overlap between Lukes and Foucault, as both argue that the ultimate manifestation of power-over is to make the social subject misperceive their own domination as in their interests, emancipation or freedom.

3. This is as in the third-dimension of power, where conflict is latent – see (Lukes 2021, p. 34)

4. For readers interested in the dimensions of power, I term the social ontological aspect of power the fourth dimension of power, see (Haugaard 2020, pp. 172–185). On the third-dimension of power – see (Haugaard 2020, pp. 70–142). Haugaard (2021) is a shorter account of the four dimensions of power.

5. This is based upon the sociology of everyday resistance (see Baaz et al. 2017).

6. Please note that practical knowledge should not be described as unconscious because social actors can make it conscious, if required in critical situations (see Haugaard 2020, pp. 73–75).

7. On episodic and dispositional power see Wrong (2009) and Clegg (1989).

8. Even a kleptocratic ruler can be just and fair to a select few, hence the saying that ‘there is honor among thieves’. The reason is, of course, that the kleptocratic ruler cannot rule on their own, so they need some supporters to whom they appear legitimate – this point is made by Sharp (2010).