Tag Archives: sociology

Indigenous Pākehā?

I wrote this in late 2010 for Sociology 417: Comparing Ethnic Relations in Settler Societies at Victoria University of Wellington.

May be interesting to those of us who are Pākehā and have often wondered whether we really belong in Aotearoa.  I certainly found it interesting to research, due to what it says about my own identity.  Critiquing your lecturer is always fun too – though he actually comes off pretty easily compared to his friends.

Watch out for the sneaky mention of my flatmate Chris in a footnote.

Indigenous Pākehā?
How plausible and beneficial is the notion that ‘Pākehā’ is indigenous to Aotearoa-New Zealand?

Amongst settler societies, a rather unusual feature of Aotearoa-New Zealand is the tendency of members of the settler-descendent ethnic majority to refer to themselves with a term taken from a minority indigenous language (Spoonley 2005: 102).  This use of ‘Pākehā’ as a self-identifier for fair-skinned New Zealanders is a relatively recent development (Pearson & Sissons 1997: 64), with Michael King’s bestselling ‘ethnic autobiography’ Being Pakeha (1985) the first landmark text on the topic.  As at 1996, ‘Pākehā’ is only claimed by a minority of “potential Pakeha” (Pearson & Sissons 1997: 65-66), but the term is widely known, elicits strong reactions in wildly varied directions, and was even briefly included as an ethnic option in the 1996 census (Spoonley 2005: 102).  As the subtitle of King’s book suggests[1], Pākehā self-identification has largely come about as a response to the ‘Māori renaissance’ of the 1970s and 1980s, and increasingly vocal assertions of Māori sovereignty (Spoonley 1991b).  However, it can also be seen as a result of changing political relations and demographics, whereby Aotearoa-New Zealand and its ‘European’ people are increasingly separated from Britain (Pearson 1989: 68-69).  This prompts a desire for a New Zealand term to help create a New Zealand identity (Spoonley 1991a: 154-155).

One strand of this growing ‘Pākehā’ discourse has seen some self-proclaimed Pākehā positing a ‘Pākehā ethnicity’[2], and some, notably Michael King himself, have even referred to Pākehā as a second indigenous culture or people[3].  So how much credence should we give this bold claim, and how helpful is it to use this language?  Essentially our task is to examine what ‘Pākehā’ is, what ‘indigenous’ is, and the extent to which they match up.

Defining Pākehā

Avril Bell notes that Pākehā is a difficult term to define positively; attempts to do so often end up saying more about what Pākehā isn’t than what it is (Bell 2004a: 51-52).  In the original Māori usage, Pākehā simply meant ‘white person’ (Motus 1986: 19).  It probably derived from pakepakehā – mythical fair-skinned beings – but was being applied to European people by 1814 in the Bay of Islands, and was common across many iwi by the 1830s[4] (King 2004: 168-169).  In contemporary Māori usage, Pākehā continues to be used for any ‘white’ people, not just New Zealanders (Mulgan 1989: 19, Bedggood 1997: 84).  Contrary to popular belief, there is little evidence that Pākehā is or was an inherently derogatory term in Māori (Pearson & Sissons 1997: 69); however, it is primarily a racial definition which does not necessitate national or cultural considerations.

The term is used rather more narrowly in Aotearoa-New Zealand English, and particularly in the academic literature promoting the term since the 1980s.  While definitions are by no means clear-cut (Pearson 1989: 62-63), a rough consensus seems to be developing around Paul Spoonley’s definition of Pākehā as “New Zealanders of a European background whose cultural values and behaviour have been primarily formed from the experiences of being a member of the dominant group of New Zealand” (Spoonley 1988: 63-64).  The main difference here from Māori usage is that it restricts Pākehā to New Zealanders only; “[i]t involves a nationalist as well as an ethnic claim” (Bell 1996: 147-148)[5].  Indeed, this nationalist claim is arguably the more important one for Pākehā New Zealanders, many of whom reject ethnic labels altogether in favour of simply being ‘New Zealanders’ (Bell 1996: 145).  Even those who accept Pākehā classification do so as an attempt to “derive their identity primarily from their New Zealand location and experience” (King 1991: 7).  This means that, although Pākehā self-identification is “tinged with self congratulation” for embracing an indigenous term that constructs itself as “the Other to Māori’s normality”, Pākehā have “in a sense … colonised the term” for use as a nationalist signifier (Bedggood 1997: 84, Bell 1996: 154).

This self-congratulation corresponds to Spoonley and King’s idea that self-identifying as Pākehā is an inherently political claim that “implies a set of political views and social obligations … namely those associated with biculturalism” (Spoonley 1991b: 162).  Spoonley even goes so far as to assert that “Pakeha identity is typically associated with other political identities at the liberal/radical end of the political spectrum” (1995a: 105).  David Pearson and Jeff Sissons surveyed ‘potential Pākehā’ in 1996 in order to examine this supposition that Pākehā self-identity indicates membership in a progressive ‘intellectual vanguard’ (1997: 64).  Sure enough, they found a link between Pākehā self-naming and support for bi-culturalism, but a “surprisingly weak” one (1997: 79); strong enough for Paul Spoonley to take it as tenuous confirmation of his view (Fleras & Spoonley 1999: 85,98-99), but weak enough that Janet Bedggood cites it to downplay the assumption (1997: 83)[6].

Apart from a political statement as Spoonley uses it, can Pākehā be considered an ethnicity?  Hal Levine provides a “simple and minimalistic definition” of ethnicity as “that method of classifying people … that uses origin … as its primary reference” (Levine 1999: 168).  This causes immediate problems for Pākehā ethnicity, which is often based on downplaying or eschewing origin in favour of the primacy of current location; ironically in stark contrast to Māori notions of identity (Pearson 1989: 69).  Pākehā, particularly those who are well-versed in New Zealand history such as King (2004), tend to find less to brag about in their origins than Māori.

Other, more complex, definitions consider origin only part of ethnicity.  Both Pearson and Spoonley consult Anthony Smith’s criteria for an ethnic community; a collective name, myth of descent, history, distinctive culture, association with a specific territory, and sense of solidarity (Pearson 1989: 61-62, Spoonley 1991b: 155-156).  The descent, history and territory are reasonably unproblematic, but the other three run into problems.  We will discuss culture in due course; Bedggood focuses on the lack of a common name and sense of solidarity (1997: 83).  Well before Pearson and Sissons’ research confirmed it, Spoonley was aware that the majority of white New Zealanders do not accept the ‘Pākehā’ name, and worried whether this opposition would “rule out the possibility” of a Pākehā ethnic group (1991b: 159).  Pearson points out that universal acceptance of the name is not necessary if it is being used as an ethnic categorisation, so long as the categoriser is happy to assign it collectively to them (Pearson 1989: 66).

So what of a sense of solidarity?  Pearson and Spoonley identify that this is the criterion which separates an ethnic group from an ethnic community (Spoonley 1991b: 156).  The bi-cultural sentiments that Spoonley associates with Pākehā self-naming are vital to his proposal of Pākehā ethnicity, and not just as his primary explanation for why some Pākehā embrace the term and others spurn it (Spoonley 1988: 64)[7].  He also advances this commitment to bi-culturalism as the sense of solidarity necessary to qualify Pākehā as an ethnic community (Spoonley 1991b: 159).  However, as Bedggood points out, according to political polls, consensus opinion amongst Pākehā is, if anything, in opposition to Māori claims and bi-culturalism (1997: 84).  Pearson and Sissons’ research backs this up; showing that the majority of Pākehā, even those who choose the Māori term for themselves, are “distinctly unsupportive of biculturalism and tino rangatiratanga” (Pearson & Sissons 1997: 79).  This would seem to indicate that a solidarity around bi-culturalism is a long way off, despite observable movement in that direction by the likes of church groups; Bedggood asserts that “[t]o claim ethnicity for this process is self indulgent and misleading” (1997: 88).

Only if ‘Pākehā’ is taken to be a much smaller group can there be said to be a “clear sense of solidarity … expressed as a commitment to power sharing in a bicultural Aotearoa” (Spoonley 1991b: 159).  A major limitation of Spoonley’s description of Pākehā identity is that it lacks the language to clearly separate this ‘intellectual vanguard’ from the larger, dominant group of ‘potential Pākehā’[8] who certainly do not share this commitment (1991b: 167).  He assigns both groups the name Pākehā at various points throughout his many writings on the topic, leading to a rather schizophrenic definition of the concept.  At one point he is even “in the disturbing position of seeing Pakeha as being the dominant ethnic group, restricted to a particular (probably minority) group [and] not an ethnic group, in the same chapter” (Bedggood 1997: 86).  He insists upon describing a dominant bi-cultural Pākehā identity that simply does not match up to present realities.  Bedggood observes that “[h]is project … to convert people to biculturalism … is underpinned by the recognition that people are not already bicultural.  Yet he continually asserts a Pakeha ethnicity, premised on biculturalism” (1997: 87).

David Pearson provides what Bedggood deems a “more sophisticated argument” – certainly a clearer one – of “incipient ethnicity” (Bedggood 1997: 83).  He has “no difficulty in using the term ‘Pakeha’ as a category”[9], but “there are problems in assessing [sic] Pakeha a group status, and they are most assuredly not a community” (Pearson 1989: 70).  However, a community may be “in the making” (1989: 64).  Spoonley, attempting to resolve his inconsistency through narrative rather than definitions, follows a similar line of reasoning and proposes that Pākehā is undergoing what Michael Banton has dubbed “ethnogenesis”; the development of a new ethnic identity (1991b: 155).  Later, he adopts Marxist philosopher Étienne Balibar’s theory of ‘fictive ethnicity’, proposing that Pākehā identity in its current form represents “the initial stages of establishing the fictive ethnicity of the dominant group”, of which “self-critical” political engagement is “perhaps the most significant element” (1995b: 54-55).  This does not escape the attention of fellow Marxist Janet Bedggood, who points out that by portraying ‘fictive identity’ positively, Spoonley is missing Balibar’s point, which aims to “discredit a negative, neo-racist fictive ethnicity synonymous with national identity” (Bedggood 1997: 86-87).  Fictive ethnicity for Balibar is not a benign way for a dominant identity to “move beyond … a ‘mode of oppression’” (Spoonley 1995a: 110); quite the reverse.  It functions hegemonically to naturalise and universalise the ideology of the dominant classes[10].

Perhaps, therefore, Pākehā is “not ethnicity but hegemony”; an ideology of dominance, and a people united by a historic goal of colonising these lands and a present concern to maintain the status quo of “writing-dominated, private decision-making, hierarchical procedures” (Nairn 1986: 17-18).  This certainly problematises the notion of Pākehā as a ‘distinct shared culture’, another of Smith’s criteria for ethnic community.  Pearson finds himself “a little dismissive of intellectual attempts … to discover the Holy Grail of Pakeha uniqueness”, partly due to the reluctance of such attempts to acknowledge that “Pakeha ethnicity as a social form is a culture of dominance” (1989: 66).  Moreover, such cultures of dominance are nothing special around the world; Pākehā culture is “just another colonial Anglo-Celtic offshoot” (Bell 2004b: 131).  Bruce Jesson reiterates that “there may be a few distinctive things about the Pakeha way of life, but they are not profound” (Jesson 1986: 15).  In the context of our imported, and increasingly globalised, modern capitalist worldviews, “jandals, kiwifruit and pavlova” seem rather superficial cultural distinctives (Bell 2004b: 131).  Even Hamish Keith who insists that “the Pakeha culture can only be defined as indigenous” concedes somewhat paradoxically that “like any new culture … it is … largely an appropriated one” (Keith 1987: 76).

More elusive still is the ability to distinguish Pākehā culture from Aotearoa-New Zealand national culture.  Roy Nash, in his “outburst” on bi-culturalism, contends that the idea of separate and distinct Māori and Pākehā cultures is a fundamental misunderstanding of our society (Nash 1990).  While the Māori people “continues to maintain institutions that constitute it as … a partial society at least” (1990: 103), there are no exclusive Pākehā institutions.  The two cultures were separate at the first point of contact, but as the nation developed, there was no need to retain specifically Pākehā economic, political and cultural institutions.  The national institutions are already based on ‘Pākehā hegemony’, and thus serve Pākehā interests more than adequately.  Pākehā also never organise themselves as ‘Pākehā’; only rarely as Scots, Dutch and so on (1990: 103-107,119).  What this adds up to is that Pākehā culture is basically indistinguishable from the national culture.  Immigrants learning to speak English[11], ‘bring a plate’ and ‘DIY’ are not absorbing ‘Pākehā culture’, but Aotearoa-New Zealand culture.  A consequence of imposing your culture on everyone else is that you no longer retain a monopoly on it, which may mean dominant groups can never be ethnic groups under Smith’s definition.  Paul Spoonley actually hints at this blurriness in noting that “[t]he interest in Kiwiana that has emerged since the 1990s is equally a celebration of Pakeha icons” (2005: 103), and pointing out that all the elements of King’s description of Pākehā culture are also “part of a national sense shared by Pakeha and Maori” (Spoonley & King 1986: 7-9).

In the light of Nash’s ‘outburst’, a more accurate depiction of Aotearoa-New Zealand’s ‘two cultures’ is a national (capitalist, scientific, democratic) culture – not ethnically bounded but inevitably favouring Pākehā – and a Māori culture/sub-culture which, by virtue of its marginal position, is distinguishable (Nash 1990: 119-120).  This picture could be expanded to include further ethnic sub-cultures, but certainly not a Pākehā one.  The dominance of the Pākehā/national culture pushes it “beneath the level of consciousness” where it is not always recognised as culture by members of the dominant group, but merely seen as natural or universal (Bell 1996: 148-149)[12].  This development of a national identity which ignores ethnic and historical specificities, expressed as “we’re just New Zealanders”, is a more appropriate example of Balibar’s ‘fictive ethnicity’ concept (Bell 1996).

Bell also compares the development of a fictive ethnicity to Ernest Renan’s idea that nations are always founded on forgetting founding acts of violence.  This “social amnesia” can be observed in social institutions such as schools, resulting in “generations of school children raised to believe in the ‘harmonious’ race relations of New Zealand and to respond negatively to anyone who suggests otherwise” (Bell 1996: 150-153).  Nandor Tanczos observes that growing awareness of historical injustice is threatening a Pākehā peace built on “the myth of exemplary race relations and ‘One New Zealand’” (Tanczos 2004).

Another myth “deeply embedded in the Pakeha psyche”, though perhaps less deep for the generations who have grown up in the neo-liberal era, is the idea that Aotearoa-New Zealand is an egalitarian society of equal opportunity (Consedine 1989: 172).  King observes that this was a major factor attracting “both [his] grandmothers” to settle here, and has become an important facet of Pākehā identity (King 1991: 11-12).  However, in practice, this operates more as a dogged insistence that ‘there is no class in New Zealand’ than a desire to truly make it so (Steven 1989: 31).  Bob Consedine and Rob Steven claim that the “egalitarian myth” has served the interests of dominant classes; firstly to attract settlers like King’s ancestors, and subsequently to divert attention away from the real inequality that does exist (Steven 1989, Consedine 1989).  This dangerous potential of identities built on over-optimistic myths reflects worryingly upon Spoonley’s promotion of bi-cultural values as a central feature of Pākehā identity.  We could be “putting down new layers of hypocrisy” after Māori radicalism has shattered less subtle forms (Jesson 1986: 15).

Bedggood supports much of Nash’s account, but points out that this terminology of ‘Pākehā hegemony’ seems to jar with his overall contention that there is no separate Pākehā culture.  Her solution is to replace ‘Pākehā’ with ‘capitalist’, which is also more in keeping with Gramsci’s original meaning of hegemony as the interests of capital (Bedggood 1997: 89).  A similar point is made by Pat Shannon:

what people seem to be describing when they use terms like ‘Pakeha’ are not ‘European’ values and institutions … but … English capitalist [ones] … which have been imposed not merely upon the Maori but also upon the Welsh, Scottish, Irish and indeed upon the English working class itself.  What are often called ‘Pakeha’ features of our society – beliefs in individualism and competition, bourgeois laws and legal structures, privatised family forms – I would define rather as ‘capitalist’ (Shannon 1986: 21, emphasis original).

Shannon associates ‘Pākehā’ with very different political values than Spoonley; values which correspond more to the reality of Aotearoa-New Zealand society than its hopeful myths.  Shannon’s socialist political identity leads him to reject Pākehā self-identification, rather than embrace it like Spoonley’s ‘intellectual vanguard’ (Shannon 1986: 21).  It is vital that, whatever term they use to describe themselves, Pākehā people acknowledge the history of their identity.  The presence of white people, a modern nation-state and their associated culture on this archipelago is the product of a specific history of domination and class interests both in the metropole and the settler state.  Celebrating the product of domination is a dangerous game, as gratifying as it may be for Pākehā self-esteem.  Spoonley walks a fine line here in proposing that Pākehā identity is “self-critical” (1995b: 54), though it can equally be perceived as self-congratulatory (Bedggood 1997: 84), and critical of those other, racist ‘non-Pākehā’ Pākehā (Bell 1999: 135).  Jesson suggests that the solution to Aotearoa-New Zealand’s ethnic injustice is not a tame compromise and tolerance between the two existing cultures, but “an onslaught on the Anglo-American bias of the dominant culture” that has created the injustice (Jesson 1986:16).   If Pākehā were to “join… the tangata whenua in battle against the exploiting, metropolitan non-culture that parasites the New Zealand spirit” (Keith 1987: 76), this could also help to produce the authentically distinctive culture that has hitherto remained elusive.

Another reason Shannon refuses to name himself Pākehā, or even European, is that he considers it a “biologically based and therefore racist term” (Shannon 1986: 21).  This brings us full circle to the original, simple Māori definition of Pākehā as simply ‘white person’.  Unlike Pākehā culture, there is a clear separation between Pākehā people and other Aotearoa-New Zealand nationals, because unlike Pākehā culture, Pākehā identity includes a visible “badge of recognition” (Pearson 1989: 63); namely, fair skin.  This biological bottom line is more vital to the functioning of Pākehā than many of the proposed ethnic criteria, such as myth of common origin.  All white people, even those who hail from outside Britain such as Ariadna Motus (1986: 19-20), can become “political descendants” of the colonising British within a generation or two (Bell 2004a: 16).  Motus’ participation in the Ukrainian community rules her out of Spoonley’s ethnic definition of Pākehā, which “excludes those who continue to practice a minority group ethnicity” (Spoonley 1988: 63-64).  But her experience of being effectively Pākehā, as well as her research that finds fair skin as “crucial” to Pākehā, lead her to conclude that “Pakeha is primarily a racial definition” (Motus 1986:19-20).  This inconvenient racial – potentially racist – element is fundamental to whatever Pākehā is, and even worms its way into ‘race-free’ ethnic definitions, albeit concealed in phrases like ‘European descent’ and ‘dominant group’[13].  Pākehā is thus perhaps best described as a ‘racial-national’ designation.

Examining indigeneity

Unsurprisingly, ‘indigenous’ too is a highly contested term.  ‘Normal’ dictionary definitions of indigenous or ‘native’ simply denote birth in a particular place, and have been most insistently applied to Pākehā people by political scientist Richard Mulgan.  He suggests that the exclusive use of ‘indigenous’ by the descendants of colonised peoples is a co-option[14] of the ‘normal’, simple meaning of indigenous, whereby settlers who ‘put down their roots’ in a new place can, and do, become native (1989: 20-21).  Ironically, given Mulgan’s job, this understanding of indigeneity is in polar opposition to many political descriptions, which tend to set the bar of indigenous status much higher.  Most notable among political definitions of ‘indigenous peoples’ is that of United Nations rapporteur José Martinez Cobo, which has been the UN’s unofficial ‘working’ definition since 1986.  Cobo posits as prerequisites for indigeneity “a historical continuity with pre-invasion and pre-colonial societies”, a distinctive and non-dominant position in the national society, and an ethnically-centred identity (Pelican 2009: 55); all of which rule out Pākehā.

Ideas of indigeneity within the social sciences tend to fall somewhere in between these poles.  David Pearson cites Stanley Lieberson’s definition of an indigenous group as “any group capable of maintaining some minimal form of social order over several generations, rather than a necessarily ‘aboriginal’ population” (Pearson 1989: 65).  He is willing to grant that the ‘ethnic category’ of Pākehā is indigenous in this sense, in order to distinguish established settlers from recent immigrants; provided that a distinction between indigenous and aboriginal or tangata whenua is also maintained.  The latter can apply only to Māori.  On a conceptual level, Pākehā is an indigenous word that originates in Aotearoa-New Zealand, and is mostly used here to apply to a specifically New Zealand category of people.  It is therefore reasonably unproblematic on a purely definitional basis to apply the word ‘indigenous’ to the concept of Pākehā, if not necessarily its people or its culture (Pearson 1989: 65, Spoonley 1988: 69-70, Keith 1987: 76).

Meanwhile in anthropology, Adam Kuper has problematised the idea of calling anyone indigenous.  His 2003 article ‘The Return of the Native’ suggests that the concept of indigenous peoples is a successor to romantic, essentialist, and ultimately racist notions of the ‘primitive’ (Pelican 2009: 53-54, Kenrick & Lewis 2004).  He believes that the distinctiveness of indigenous peoples is constructed to allow some groups to assert privilege over others, and that the particular image of indigenous people leads to hypocrisy when, for example, South African Boers claiming indigeneity are not allowed to participate in international indigenous gatherings.  A downplaying of the difference between ‘indigenous’ and other New Zealanders is often implicit when Pākehā draw attention to the fact that all New Zealanders were originally immigrants, or even colonisers of supposed pre-Māori peoples (Bell 2004a 53-54).

Kuper’s article garnered significant criticism, but also considerable approval from anthropologists who highlight the “imaginary and construed” nature of indigenous identity (Pelican 2009: 54).  Other anthropologists have expressed the feeling that indigenous is an indefinable concept (McIntosh, Colchester & Bowen 2002: 23).  Determining who is and is not indigenous is rarely a clear and simple task, particularly in African and Asian contexts where local equivalents to the concept of indigeneity often conflict with one another, as well as with legal designations of indigenous status.  During the deliberations for the UN Declaration on the Rights of Indigenous Peoples, the African Group expressed concern that the lack of an official definition of ‘indigenous peoples’ in the declaration could lead to conflict, while the African Union responded that a universal definition was neither possible nor useful (Pelican 2009: 55-57).  The stakes of being deemed indigenous or not are very high given the uncertainty of the concept, but the most damage seems to be done when minority groups are denied indigenous status; often justified by similar logic to Kuper (Kenrick & Lewis 2004: 6-7).

Justin Kenrick and Jerome Lewis believe that Kuper has misrepresented the indigenous peoples’ movement, as well as the concept of indigeneity.  They consider that indigeneity can be non-essentialist if it is perceived relationally, as it is by African indigenous people themselves (2004: 6-9).  This relational focus reflects both the indigenous worldview of belonging based on relationships rather than abstract legal status, and the idea that “‘indigenous’ describes one side in a relationship between certain unequally powerful groups of people … not the quintessential primitive as Kuper misleadingly suggests” (2004: 9).  Ian McIntosh affirms that the term indigenous can only be used in describing “a subjugated ‘first people’ with respect to their oppressors” (McIntosh, Colchester & Bowen 2002: 23).  On these grounds, classing Pākehā as indigenous would be inappropriate.  Kuper’s example of the Boers claiming indigeneity is illustrative, given that until recently, the Boers were a oppressing group in South Africa, whose dominance was partly justified by such claims[15].

Moreover, McIntosh points out that identifying indigenous groups implies the existence of non-indigenous groups.  If all peoples are considered indigenous, the concept becomes meaningless (McIntosh, Colchester & Bowen 2002: 23-24).  Mulgan’s rather low bar of indigeneity could lead to this situation.  He states that to “Vietnamese boatpeople”, Pākehā are just as indigenous as Māori (Mulgan 1989: 20).  But there is no reason why these ‘boatpeople’ cannot put down their roots (or moorings) in Aotearoa-New Zealand, and become just as indigenous as anyone else.  The ability for Māori to lobby for specific claims as indigenous people will therefore be swept away as the floodgates of indigeneity are opened.  Counterbalancing this risk, Mulgan does reserve the term ‘aboriginal’ for Māori (1989: 21), and King points out that Māori claims derive from the Treaty of Waitangi and historic grievances, not from the concept of indigeneity (1991: 9-10).

Another understanding of indigeneity is advanced by Te Ahukaramu Charles Royal, who describes indigenous as one of three major worldviews.  As opposed to Western and Eastern views which glorify the abstract and the internal respectively, indigenous worldviews see humanity in “a seamless relationship with nature which includes seas, land, rivers, mountains, flora, and fauna” (Cunningham & Stanley 2003: 403).  Ranginui Walker simplifies the equation even further by proposing that there are only two types of cultures; indigenous and metropolitan (Walker, quoted in Keith 1987: 75).  Stressing the indigenous connection to land – which is also expressed in the Māori phrase ‘tangata whenua’, people of the land – emphasises the impact of displacement and land alienation suffered by colonised peoples (Greenland 1984).  ‘Indigenous by worldview’ is an interesting concept because it indicates that certain Pākehā individuals could seek to become indigenous by changing their mindsets, without necessarily granting the entire Pākehā population wholesale indigenous status.

Generalised and romanticised images of indigenous ways of life have been fetishised at least since Jean-Jacques Rousseau and others discussed the ‘noble savage’ (Rousseau 1754), and amid the growing criticism of modernity, particularly its environmental impact, “learning from these ‘real people’ is seen to be crucial for the survival of humanity” (McIntosh, Colchester & Bowen 2002: 23).  To Europeans such as Rousseau, these images of indigeneity can be held at an arm’s length.  In settler societies, indigenous people are far more present.  Moreover, the image of the indigenous is tied up with notions of authentic belonging, and leads to a Pākehā envy of “some of the things Māori seem to ‘have’ – a secure claim to this place, a clear sense of cultural distinction” (Bell 2004b: 131).  Settler literature has reflected a desire to “become native” by “going native” (Goldie, quoted in Stafford 2005: 162).  Literary critic Terry Goldie has described this as ‘indigenisation’, a symbolic or rhetorical process whereby white settlers attempt to produce this sense of authentic belonging, and validate their usurpation of indigenous land.  This “psychologically devious need” is satisfied by appropriating the values of the indigenous culture (Dominy 1995: 370).

Michèle Dominy examined South Island high country farmers’ submissions to the Waitangi Tribunal, which was considering returning their leased Crown land to the Ngāi Tahu iwi as part of a Treaty settlement.  Some of the farmers’ statements could be seen as “claiming tangata whenua feelings” (Dominy 1995: 369) through emphasising a spiritual connection to the land.  One farmer explained how his identity was shaped by his relationships to the land and its people, a feeling “that the Maori people would understand” (1995: 366).  Another proposed that, because Ngāi Tahu had not settled on and worked the land, perhaps the true indigenous people of the area were the farmers, who “consider themselves to have the indigenous feeling of the high country” (1995: 363).  Generally the farmers were sympathetic to Ngāi Tahu’s claim, so long as they did not lose their farms, so the situation “does not fully fit Goldie’s description of a white strategy of indigenization in which land is penetrated and native claims are rejected” (1995: 369).  However, they do seek to establish a “discourse of authenticity” based on belonging and commitment to the land (1995: 370), expressed in terms more reminiscent of stereotypical Māori worldviews than Pākehā ones.

Where suggestions of Pākehā indigeneity are based on a connection to land, they can be threatening to Māori status as tangata whenua.  Michael King does not claim the label tangata whenua for himself, and denies that Pākehā indigeneity “supplants that of the tangata whenua” (1991: 19-20).  However, he does emphasise that he “identifies as intimately with this land … as anybody Maori” (1999: 239); he has “no other home, no other turangawaewae, any more than Maori do in the Cook Islands, Tahiti or Samoa” (1991: 9).  Richard Mulgan does believes that Pākehā deserve the label ‘tangata whenua’ according to its original Māori meaning, because the only other alternative is being permanent manuhiri – visitors – in their own home.  Mulgan cites a former Race Relations Conciliator, Hiwi Tauroa, who referred to Pākehā as the ‘new tangata whenua’ and Māori as the ‘old tangata whenua’ (Mulgan 1989: 21-22).  Then-prime minister Jim Bolger laid claim to a tangata whenua connection with the land in 1995:

“I am as much tangata whenua – I was born here – as anyone else and I will never give that up because I can’t.  You can’t be born twice.  We love the land with the same intensity and the same emotions” (Bolger, quoted in Bell 2004a: 56).

Taking on Māori lifestyles could be seen as the ideal form of settlement, whereby settlers make Aotearoa-New Zealand their home on the terms of the host, in direct opposition to imposing their own worldviews on Māori.  But in practice, this adoption of Māori worldviews is highly selective; western legal and economic systems are given primacy, and a ‘tangata whenua’ connection to land is typically only expressed rhetorically when belonging or land ownership under these systems is under threat.  Bolger’s espousal of an intense emotional connection to ‘tēnei whenua’ only came about as a reaction to some particularly spirited Māori activists, and was an attempt to “equalise his status as settler with theirs as indigenes” (Bell 2004a: 56).  In this context, there is a fine line between showing solidarity and support for indigenous values and colonising them, as with the word Pākehā itself.  Perhaps this is an inevitability in systems of dominance.  If Pākehā truly want to learn from indigenous collective, ecological worldviews, they will need to adopt a position of humility and powerlessness, which may require separating themselves from the dominant system and its hegemonic individualism, even though that system is their ‘home’ and what brought them here.

Espousals of Pākehā indigeneity are not necessarily fuelled by spurious motives of downplaying rival Māori claims; the likes of King and Spoonley genuinely wish to advance a Pākehā identity based on positive relationships with Māori, as does Avril Bell.  However, Bell believes that invoking the concept of the ‘white native’ belies these benign political intentions, and works as “a continuation of, rather than break with, Pākehā practices of domination” (Bell 2004b: 135).  She explains that while Māori belonging is based on a relationship with the land, Pākehā belonging is based on a relationship with the Māori people, and that asserting an independent relationship to the land removes Māori from their rightful place in this picture.  It also ignores the history of colonisation, whereby the moment of Pākehā commitment to this land – which to King is the point at which Pākehā became indigenous – is also the moment of Māori alienation from the same land (Bell 2004b: 132).

Bell demonstrates that claims to Pākehā indigeneity are inevitably pregnant with political meaning, far more so than the purported bi-cultural political statement of Pākehā self-identity.  Pearson acknowledges that whatever can be said on a purely conceptual level, the notion of Pākehā indigeneity places us on “dangerous political ground” (Pearson 1989: 65).  Some anthropologists who regard the concept of indigeneity as fully constructed still grant that it can be useful as a legal tool, as it has real and significant political meaning (Pelican 2009: 53-54).

Perhaps the most important lesson to be drawn from Michel Foucault’s discussion of ‘power-knowledge’ (Foucault 1975 and elsewhere) is that determining the truth of a proposition within certain discourses is not enough.  We must also critically examine the political framework that constructed the discourses, and tends to be reinforced by truth-claims made within it.  Kenrick and Lewis’ relational view of indigeneity, and Bell’s insistence that we acknowledge what Gramsci calls the “‘traces’ of history” in our identity (Bell 2004b: 122) imply a ‘genealogical’ view of which Foucault may approve.  This reveals that the concepts of both ‘indigenous’ and ‘Pākehā’ arose from a history of European capitalist colonisation.  From this perspective, ‘should Pākehā be called indigenous?’ is a far more important question than ‘can Pākehā be called indigenous?’.  It implies an examination of not just whether the truth-claims surrounding Pākehā identity are consistent within this regime of knowledge, but also the effect that the claims have on the overall knowledge-regime of Pākehā-dominated capitalist modernity.

Bell has advanced the most extensive case that the truth-claim of ‘indigenous Pākehā’ reinforces this hegemony.  King’s language of the ‘white native’, and associated observations that we are all originally immigrants and all have skeletons of oppression in our cultural closets, may be innocuously motivated and factual enough, along with Spoonley’s idea that Pākehā are both colonisers and colonised.  But they can have the effect of “undermin[ing] any challenging Maori political voice” (Bell 2004a: 56), as well as the Māori people’s own indigenous status and the political leverage that it can provide in the remedying of colonial injustices (2004b: 133).  Its implicit downplaying of the ‘traces’ of history, also does not help Pākehā address ongoing issues of colonialism; instead it “may work to deny any historical complicity with colonisation, at the same time as Pakeha proclaim their critique of it” (1996: 156).

Ultimately, the ‘question behind the question’ of Pākehā indigeneity is whether Pākehā really belong in Aotearoa-New Zealand.  This is the heart of the matter for King (1991: 20), for Mulgan (1989: 21), for the high country farmers (Dominy 1995: 365), for Bell and for me.  Bell professes that the question of Pākehā authenticity is central to her identity, and “would like to be ‘at home’ here, but not at the continuing expense of Maori, the indigenous New Zealanders” (Bell 1999: 123).  Since then Bell has looked at the ‘ontological dilemma’ of Pākehā identity in several recent articles and her PhD thesis.  She often illustrates the dilemma with comedian Ewan Gilmore’s quip that “I have no claims to anything in Britain, and there has been no Māori blood in the family, so I have no identity” (Gilmore, quoted in Bell 2009: 147).  This ontological ambiguity of “human remnants of that [colonising] power … left adrift on their own in the Pacific” (Keith 1987: 75), cannot be simply resolved by declaring that settlers are indigenous, because this does not deal with any of the history that created the ambiguity.  Indeed, this may simply lay a new veneer of harmony over a troubled post-colonial society, after the Māori renaissance has stripped the old one away (Jesson 1986: 15).  Moreover, it risks giving an impression of belonging and legitimacy to the colonial history, capitalist mode of production, and individualist values which brought the people and culture that became Pākehā to Aotearoa-New Zealand.

Not Pākehā but tangata tiriti?

In August 2004, a debate in Parliament touched on many of the issues which have been raised here.  The debate was called forth by a speech from then-race relations minister Trevor Mallard, who announced that he and other Pākehā were indigenous, citing Michael King (Mallard 2004).  Mallard’s espousal of Pākehā identity was at odds with then-prime minister Helen Clark who calls herself a “New Zealander, full stop”, and his speech was considered an “obvious ploy to woo Pakeha voters … by affirming … their indigenousness” (Armstrong 2004).  Green MP Nandor Tanczos pointed out Mallard’s divergence from the United Nations working definition of indigeneity, to “collective groans from other parties” and a swift rebuff from Mallard[16].  Tanczos continued, however, to affirm that Pākehā do belong in Aotearoa-New Zealand, but not because we are indigenous or tangata whenua.  Affirming a point King made elsewhere (King 2004: 167), Tanczos noted that our presence is authorised by the Treaty of Waitangi, and therefore we can be called ‘tangata tiriti’ (Armstrong 2004).

This phrase was proposed by high court judge Eddie Taihakurei Durie in 1989, who pointed out that the treaty is “not just a Bill of Rights for Maori. It is a Bill of Rights for Pakeha too”; specifically, the right for Pākehā to be here (Durie, quoted in Peet 2007).  From the perspective of identity and authentic belonging, the Treaty is more important for Pākehā than Māori, who would be indigenous and tangata whenua even without a treaty.  ‘Tangata tiriti’ a far better indicator of belonging for white New Zealanders than convoluted attempts to establish an ethnicity and then demonstrate that that ethnicity is indigenous; not least because it does not just apply to white people.  It is a non-ethnic description which applies to all non-Māori New Zealanders, because although the Treaty was signed with the British Crown, the resulting nation-state has allowed (some) multi-cultural immigration.  ‘Tangata tiriti’ therefore avoids both kinds of rhetorical discrimination; rendering Māori indigenous status meaningless by universalising it, and perpetuating a bi-ethnic discourse which leaves no room for ‘other’ migrants.

The dichotomy of tangata whenua and tangata tiriti could be seen as representing not two ethnicities, but two distinct worldviews; one emphasising relationships to land and community, and the other prioritising legal documentation and political representation of individuals.  This is perhaps an accurate depiction of the two peoples at the time of signing the Treaty, but may present problems for tangata tiriti who wish to cast off these modernist worldviews and learn from indigenous ways, or indeed vice versa for tangata whenua.  More importantly, however, ‘tangata tiriti’ does justice to Bell’s suggestion that “any project to enhance Pākehā belonging must focus primarily on relationships with Māori (in the past as well as the present)”, not a problematic quasi-indigenous relationship to often-illegitimately-acquired land (Bell 2004b: 135).

If Pākehā can be said to promote bi-culturalism because it uses a Māori word and dislodges Pākehā from their discursive position as ‘normal’ New Zealanders, tangata tiriti does all this and more.  The internal reference to the Treaty does not carry the same self-congratulatory danger as Spoonley’s vision of Pākehā ethnicity, because it does not indicate membership in a certain progressive subgroup boldly forging a new ethnicity; it is a simple acknowledgement of the relatively uncontroversial notion of what legitimises our belonging here.  Of course, the level to which this is controversial depends entirely upon how well the Treaty is being honoured, which means legitimacy of belonging and a ‘home’ in Aotearoa-New Zealand is inextricably tied to the honouring of the treaty (Tanczos 2004).  When the view that “The Treaty is a Fraud” predominates (graffiti quoted in Pearson 1990: 223), the onus is on tangata tiriti to prove it wrong.  Tangata tiriti is thus a dynamic identity, which is contestable as the Treaty is, but is also able to strengthen itself through improving relations with tangata whenua; and in a far less problematic way than Spoonley proposes for Pākehā ethnicity.

So is it still worthwhile retaining the concept of Pākehā?  Due to its biological bottom line of white skin, Pākehā racially divides the tangata tiriti, excluding non-white New Zealanders.  Consequently, Pākehā is a useful concept when – and perhaps only when – we want to describe a racially divided tangata tiriti.  If ethnicity and racism are ignored, tangata tiriti could lapse into another form of ‘we’re just New Zealanders’, a fictive harmonious tangata tiriti ethnicity, which perhaps cannot homogenise Māori, but can ignore the history of power relations between Pākehā and other non-white immigrants such as the Chinese.  The national culture created by the Treaty is dominated by particular types of people; the rich, the male, and – importantly – the white; we ignore these divisions at the peril of those who do not fall into these categories.  In light of artist Coco Fusco’s axiom that “[t]o ignore white ethnicity is to redouble its hegemony by naturalising it”, Bell proposes a “progressive potential” of Pākehā to undermine this naturalisation, by explicitly acknowledging Pākehā as one specific set of people (Bell 1996: 153).  The concept of ‘Pākehā’ is useful not as a contrived indigenous majority culture, but as an acknowledgement of Pākehā dominance within the multi-ethnic national culture.


Pākehā as a concept (or conundrum) can be considered indigenous according to some definitions, though perhaps not the content which the concept encompasses (variously; certain people, certain cultural traits, certain values).  The claim to Pākehā indigeneity is primarily a bid for belonging for settler-descendants, who have no other tūrangawaewae – place to stand – but whose footing is not as secure as that of Māori.  It is unhelpful for Pākehā to seek to establish authentic belonging through membership in a certain ethnic (or racial-national) group; particularly if this group is said to be indigenous or tangata whenua.  A more healthy concept to denote the belonging of non-Māori New Zealanders is tangata tiriti.  However, it is useful to acknowledge the dominant position of Pākehā within tangata tiriti.  As long as the Aotearoa-New Zealand nation-state has existed, it has contained inherent (indigenous?) ethnic divisions, which create a dominant ethnic category, most readily identified by white skin and national culture.  Pākehā is as good a word as any to describe this dominant group, but we do not belong on these islands because we are Pākehā, we belong because we are tangata tiriti.


Armstrong, John (2004). ‘Who’s indigenous? The only certainty is Luigi’, The New Zealand Herald 04/08/2004. Retrieved from http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=3582082

Bedggood, Janet (1997). ‘Pakeha Ethnicity?’, Sites: A Journal for South Pacific Cultural Studies 35, 81-100.

Bell, Avril (1996). ‘‘We’re Just New Zealanders’: Pakeha Identity Politics’ in Spoonley, Paul; Pearson, David & Macpherson, Cluny (eds) Nga Patai : Racism and Ethnic Relations in Aotearoa/New Zealand, Palmerston North: Dunmore Press, 144-158.

_______ (1999). ‘Authenticity and the project of settler identity in New Zealand’, Social Analysis 43(3), 122-143.

_______ (2004a). Relating Maori and Pakeha : The politics of indigenous and settler identities, Palmerston North: Massey University (unpublished PhD thesis).

_______ (2004b). ‘‘Half-castes’ and ‘White Natives’: The Politics of Māori-Pākehā Hybrid Identities’ in Bell, Claudia & Matthewman, Steve (eds) Cultural studies in Aotearoa New Zealand : identity, space and place, Melbourne: Oxford University Press, 121-138.

_______ (2009). ‘Dilemmas of settler belonging: roots, routes and redemption in New Zealand national identity claims’, The Sociological Review 57:1, 145-162.

Consedine, Bob (1989). ‘Inequality and the Egalitarian Myth’ in Novitz, David & Willmott, Bill (eds) Culture and Identity in New Zealand, Wellington: GP Books, 172-186.

Cunningham, Chris & Stanley, Fiona (2003). ‘Indigenous By Definition, Experience, Or World View: Links Between People, Their Land, And Culture Need To Be Acknowledged’, British Medical Journal 327(7412), 403-404.

Dominy, Michèle D. (1995), ‘White Settler Assertions of Native Status’, American Ethnologist 22(2), 358-374.

Foucault, Michel (1975). Discipline and punish : the birth of the prison (tr. Alan Sheridan 1977), New York: Vintage Books.

Fleras, Augie and Spoonley, Paul (1999). Recalling Aotearoa : Indigenous Politics and Ethnic Relations in New Zealand, Auckland: Oxford University Press.

Greenland, Hauraki (1984). ‘Ethnicity as Ideology: the Critique of Pakeha Society’ in Spoonley, Paul; Macpherson, Cluny; Pearson, David & Sedgwick, Charles (eds) Tauiwi : Racism and Ethnicity in New Zealand, Palmerston North: Dunmore Press, 86-106.

Jesson, Bruce (1986). ‘Race and Identity: Looking the Other Way’, Sites 13, 14-16.

Keith, Hamish (1987). ‘Towards Pakeha Identity’, New Zealand Outlook 2, 74-76.

Kenrick, Justin & Lewis, Jerome (2004). ‘Indigenous Peoples’ Rights and the Politics of the Term ‘Indigenous’’, Anthropology Today 20(2), 4-9.

King, Michael (1985). Being Pakeha : an encounter with New Zealand and the Maori renaissance, Auckland: Hodder and Stoughton.

_______ (ed) (1991). Pakeha : The Quest for Identity in New Zealand, Auckland: Penguin Books.

_______ (1991). ‘Preface’ and ‘Being Pakeha’ in King, Michael (ed) Pakeha : The Quest for Identity in New Zealand, Auckland: Penguin Books, 7-22.

_______ (1999). Being Pakeha Now : Reflections and Recollections of a White Native, Auckland: Penguin Books.

_______ (2004). The Penguin History of New Zealand, North Shore: Penguin Books.

Knox, Chris (1991). ‘Soft and White’ in King, Michael (ed) Pakeha : The Quest for Identity in New Zealand, Auckland: Penguin Books, 187-197.

Levine, Hal B. (1999). ‘Reconstructing Ethnicity’, The Journal of the Royal Anthropological Institute 5(2), 165-180.

Mallard, Trevor (2004). ‘We are all New Zealanders now’. Retrieved from http://www.scoop.co.nz/stories/PA0407/S00504.htm

McIntosh, Ian; Colchester, Marcus & Bowen, John (2002). ‘Defining Oneself, and Being Defined as, Indigenous’, Anthropology Today 18(3), 23-24.

Motus, Ariadna (1986), ‘Being a Pakeha’, Sites 13, 19-20.

Mulgan, Richard (1989). Māori, Pākehā and Democracy, Auckland: Oxford University Press.

Nairn, Ray (1986). ‘Pakeha: Not Ethnicity but Hegemony’, Sites 13, 17-18.

Nash, Roy (1990). ‘Society and Culture in New Zealand: An Outburst for 1990’, New Zealand Sociology 5(2), 99-124.

Pearson, David 1989. ‘Pakeha ethnicity: concept or conundrum?’, Sites 18, 61-72.

_______ (1990). A Dream Deferred: The Origins of Ethnic Conflict in New Zealand, Wellington: Allen & Unwin.

_______ & Sissons, Jeffrey (1997). ‘Pakeha and Never Pakeha’, Sites: A Journal for South Pacific Cultural Studies 35, 64-80.

Peet, Katherine (2007). ‘Treaty is about rights of all NZers’, The Press 11/10/2007. Retrieved from http://www.stuff.co.nz/archived-stuff-sections/archived-national-sections/korero/24642

Pelican, Michaela (2009). ‘Complexities of indigeneity and autochthony: An African example’, American Ethnologist 36(1), 52-65.

Rousseau, Jean-Jacques (1754). ‘A Dissertation On the Origin and Foundation of The Inequality of Mankind and is it Authorised by Natural Law?’ (tr. G.D.H. Cole). Retrieved from http://www.marxists.org/reference/subject/economics/rousseau/inequality/index.htm

Shannon, Pat (1986). ‘Faith ‘n Begorrah – Tis it Pakeha You’d be After Callin’ Me?’, Sites 13, 21-25.

Spoonley, Paul (1988). Racism and Ethnicity, Auckland: Oxford University Press.

_______ (1991a). ‘Being Here and Being Pakeha’ in King, Michael (ed) Pakeha : The Quest for Identity in New Zealand, Auckland: Penguin Books, 146-156.

_______ (1991b). ‘Pakeha Ethnicity: A Response to Maori Sovereignty’ in Spoonley, Paul; Pearson, David & Macpherson, Cluny (eds) Nga Take : Ethnic Relations and Racism in Aotearoa/New Zealand, Palmerston North: Dunmore Press, 154-170.

_______ (1995a). ‘Constructing Ourselves: The Post-colonial Politics of Pakeha’ in Wilson, Margaret & Yeatman, Anna (eds) Justice & Identity : Antipodean Practices, Wellington: Bridget Williams Books, 96-115.

_______ (1995b). ‘The Challenges of Post-Colonialism’, Sites 30, 48-68.

_______ (2005). ‘Becoming Pakeha: Majority Group Identity in a Globalizing World’ in R. Patman and C. Rudd (eds) Sovereignty Under Siege? : Globalisation and New Zealand, Aldershot: Ashgate, 97-110.

_______ & King, Michael (1986). ‘Being Pakeha: An Interview with Michael King, May 1986’, Sites 13, 6-13.

Stafford, Jane (2005). ‘Going Native: How the New Zealand Settler Became Indigenous’, Journal of New Zealand Literature 23(1): Special Issue: From Maning to Mansfield: Writing New Zealand 1829-1920 (2005), 162-173.

Steven, Rob (1989). ‘Land and White Settler Colonialism: The Case of Aotearoa’ in Novitz, David & Willmott, Bill (eds) Culture and Identity in New Zealand, Wellington: GP Books, 21-34.

Tanczos, Nandor (2004). ‘Tangata Whenua, Tangata Tiriti’.  Retrieved from http://www.greens.org.nz/features/tangata-whenua-tangata-tiriti

[1] Being Pakeha : an encounter with New Zealand and the Maori renaissance (King 1985).

[2] See the debate in Sites 13 (1986), 18 (1989) and 35 (1997), for example.

[3] As far as I can tell, the only formal texts that have advanced this claim at any substantial length are Michael King’s autobiographical works (1985, 1991 (ed), 1999) and Richard Mulgan’s ‘ordinary person’s’ guide to ethnicity and democracy in Aotearoa-New Zealand (1989).  Since most of the opposition has centred around the claim of Pākehā ethnicity rather than Pākehā indigeneity, seemingly the only person to have refuted the Pākehā indigeneity claim at length is Avril Bell, initially in 1996 but more extensively in her PhD thesis (2004a) and a chapter on New Zealand hybrid identities (2004b).

[4] The relative homogeneity of te reo dialects no doubt aided the development of a common term, as opposed to other settler societies with more diverse aboriginal peoples.

[5] Ethnicity and nationalism are often nearly indistinguishable concepts (Nash 1990: 108), or at least have “amorphous linkages” (Pearson 1989: 66), but in this case, Pākehā ‘ethnicity’ does not neatly correspond to a Pākehā nation, but includes Aotearoa-New Zealand nationality as a necessary (but insufficient) component.

[6] An interesting feature of the research, not noted by Pearson and Sissons who focus mainly on the difference between those who always call themselves Pākehā (9.5%) and those who never do (52.2%), is the difference between the ‘always Pākehā’ group and the slightly smaller ‘sometimes Pākehā’ group (7.1%).  Most strikingly, while the ‘always Pākehā’ receive significantly more information about race relations from interactions with family and friends, and significantly less from television or radio, the ‘often Pākehā’ receive the average amount of information from family and friends, but more than average from television or radio and less than average from newspapers and magazines (Pearson & Sissons 1997: 66,71-72).  This seems to indicate that the ‘always’ and ‘often’ groups represent two rather different ‘types’ of Pākehā; one ‘intellectual vanguard’ with a lot of interaction with Māori and a staunch commitment to the term, and another group, less insistent on their identification as Pākehā, who are distinctive only in their preference for newer forms of media.  Perhaps the latter group represent young people who have grown up since the vanguard began to make its mark, and for whom the word is more mainstreamed and less of an active political statement.  This may be an interesting area for future research, especially as such a cohort will have markedly grown since 1996 when the research was carried out.

[7] Perhaps in light of Pearson and Sissons’ ‘weak link’, this position has been somewhat softened in Spoonley’s more recent writings (2005: 102).

[8] Tellingly, both of these phrases have been lifted from sources other than Spoonley.

[9] Incidentally, this is how I am using the term; as a categorisation of white New Zealanders, without necessarily assigning that category any other status or characteristics.  Sometimes I will use Pearson and Sissons’ language of ‘potential Pākehā’  where it is necessary to distinguish this category from the smaller group of self-naming Pākehā.

[10] Bedggood’s criticism on this point is warranted, and Spoonley seems to have responded by quietly dropping his references to Balibar and ‘fictive ethnicity’ from a central place in his account (Spoonley 1995b) to occasional passing mentions (Fleras & Spoonley 1999: 81,92,99), and falling back to his earlier language of ‘ethnogenesis’ (1999: 83).  On the other hand, Bedggood is quite wrong to accuse Bell of making the same mistake (Bedggood 1997: 87).  Bell uses Balibar’s concept rather differently, referring to an unhealthy ‘just New Zealanders’ national ethnicity, to which Pākehā is a subverting alternative (Bell 1996: 150-153).

[11] Even the much-touted ‘Pākehā accent’ (Spoonley 1991b: 166) is shared by many Māori and ethnic minorities.

[12] Musician Chris Knox describes his Invercargill childhood “surrounded totally by people like myself: white, or, as I assumed at the time, normal” (Knox 1991: 187).  Knox (1991: 193), King (1991: 18-19) and other autobiographical pieces in King’s 1991 collection describe becoming aware of their Pākehā/New Zealand culture only when they left the nation.

[13] My flatmate, born to a third-generation New Zealand Gujarati mother and an English immigrant father, fits almost all the ethnic criteria for Pākehā identity advanced by the ‘intellectual vanguard’.  He only falls outside of Spoonley’s definition because he does not identify as ‘part of the dominant group of New Zealand’ (ethnically, at least), and, like Motus, identifies to some extent with a minority ethnicity.  But, crucially, his exclusion from the dominant ethnic category is ensured by his dark skin, not his minority ethnicity; Gujarati ethnicity excludes him from Pākehā while Ukrainian ethnicity does not exclude Motus.  My flatmate is a potent example of this biological bottom line; to be part of the dominant group, and to be Pākehā, you must be white.

[14] “… the term ‘indigenous’ has been pre-empted [sic] by the movement … ” (Mulgan 1989: 20).

[15] Spoonley also cites the Boers, seemingly without irony, as his example of the birth of an ethnic group; “the Boers developed a very clear sense of ethnicity and peoplehood as the result of their experiences in South Africa and their commitment to a particular religious and racial view of the world” (1988: 63 & Fleras & Spoonley 1999: 83).

[16] Aotearoa-New Zealand governments have often shown resistance to UN approaches to indigeneity; being one of only four states in the UN General Assembly to vote against the Declaration on the Rights of Indigenous Peoples in 2007 (Peet 2007).


Why punishment?

I wrote this throughout 2010 for Criminology 416: The Sociology of Punishment at Victoria University of Wellington.  It’s a bigee… but I like it.  It asks the question of why we respond to crime with punishment.  There’s also an appendix at the end which asks if there could be a better way; arguably the most interesting part.

You can click the little numbers and they take you to footnotes down the bottom.

Why punishment?

Punishment is “some harm, pain, or evil that is conditional upon the failure of a person to comply with the wishes of the sovereign” (Wacks 2006: 24).  Definitions of punishment typically consist of these three criteria; A) infliction of pain or deprivations, B) in reaction to an individual deemed responsible for a crime, C) a claim of authority to do so[1].

The combination of A and B makes punishment inherently retributive, even when it is defended by other reasons such as deterrence or reform.  But without C – retribution without authority – it would more commonly be called ‘revenge’; the word ‘punishment’ is typically only used when it is undertaken by someone claiming authority to manage and administer the retribution.  A and C without B – pain imposed arbitrarily rather than retributively – is simply tyranny; it is not punishment unless it is reactive.  The B criterion also specifies that punishment is targeted at an individual; the individual deemed responsible for the crime or norm violation.

Punishment is often seen as the natural response to crime, but breaking it down into these criteria we can see that there can be other responses to crime that are non-punitive (removing the A criterion), non-authoritarian (removing the C criterion) or non-individualist (adjusting the B criterion).  This study explores the question of why, among all these possibilities, punishment is our main response to crime.  Attention is restricted to punishment as part of criminal justice systems; other forms of punishment such as parental discipline or workplace regulation will not be discussed.

Explanations of why punishment happens have usually been placed in two broad categories: utilitarian reasons – we punish in order to achieve positive consequences, largely inspired by Jeremy Bentham; and justice reasons – we punish because it’s fair and right, which has its modern root in Immanuel Kant (von Hirsch 1992: 55).  To this we can add a third category, functional reasons – we punish because it is essential for the functioning of society, most famously exemplified by Émile Durkheim.  These traditions are not mutually exclusive; arguments and, particularly, populist sentiments often consist of some combination of these defences (Mathiesen 2000: 111-115).

Punishment for utilitarian reasons

This line of thinking claims that punishment can prevent or reduce crime.  Of course, punishment cannot prevent the crime to which the punishment refers; this has already happened and cannot be reversed.  The most punishment can hope to achieve is to prevent future crimes; through rehabilitation, deterrence or incapacitation.


Rehabilitation defences for punishment consist of the idea that punishing people can reform them into better individuals: replacing the traits that led them to crime with ‘Protestant ethic’ traits that will make them benign and contributing members of society and economy (Mathiesen 2000: 53). Rehabilitation has lost popularity since the 1970s; partly alongside the displacement of the welfare state by neo-liberalism (Brownlee 1998: 322), partly amid human rights concerns (Bottoms 1995: 19-23), partly to appease populist punitive sentiments (Brownlee 1998: 333-335) and partly because it became apparent that prison rehabilitation simply does not work (Hawkins 1983: 117-118).  Thomas Mathiesen outlines how ineffective attempts at rehabilitating while punishing are (2000: 27-54).  While some treatments have a modest effect, they are typically the ones which involve treating prisoners well.  More punitive rehabilitation techniques, such as aversion therapy, are extremely counter-productive (Mathiesen 2000: 178n.).  A major barrier to rehabilitation that treats people well is the principle of ‘less eligibility’, originally articulated by Bentham and considered by Rusche and Kirchheimer to be the “leitmotiv of all prison administration down to the present time [1939]” (Hawkins 1983: 100).  This attitude, still pervasive in popular opinion if not always in policy, insists that the punished should be treated more harshly than the un-punished poor.  While this is justified for the sake of deterring the latter, it has the unintended effect of “barr[ing] all true rehabilitative possibilities” for the former (Rotman 1986: 1031).

In order to understand in more detail why punishment is so unsuccessful at rehabilitation, it is helpful to evaluate how well punishment deals with the reasons why crime happens.  Because punishment is inherently individualist, and the selection of individuals is on a blame basis, it cannot reflect explanations for crime which attribute blame to wider societal factors (Mead 1918: 595-596).  Mathiesen notes that this shows “we do not take seriously our ideology emphasizing that crime is … at least partly conditioned by a context of complex social forces impinging on the individual” (2000: 28).  Rehabilitation can only hope to affect the ‘individual’ side of these social forces; the society to which they return remains unchanged.  The main crime explanations which emphasise individual characteristics are lack of moral fortitude or virtue (Knepper 2001: 253-277), lack of social or self-control (146-148), social learning (156-158), and biological or psychological positivism (63-134), along with rational choice which cannot be rehabilitated, only deterred.

Modern punishment has largely abandoned attempts to preach morality to prisoners, beyond obedience and discipline; any moral improvement is left up to the punished themselves (Garland 1990: 260-261).  However, punishment is not neutral to moral reform, it actively works against it.  William Godwin points out that the lesson of punishment is “Submit to force, and abjure reason.  Be not directed by the convictions of your understanding, but by the basest part of your nature, the fear of personal pain, and a compulsory awe of the injustice of others” (1793: 121-122).  Émile Durkheim also acknowledges that punishment “cannot touch the moral life at its source” (Garland 1990: 44), and Friedrich Nietzsche that “punishment tames human beings, but it does not make them ‘better’” – in fact, it hardens them against guilt and shame (1887).  All three stress that punishment can at best produce instrumental, coerced results, and that coercion is highly unsuitable for cultivating virtue.  If anything, punishment encourages solving problems with force, which is what many offenders are already being punished for.

Another possible contributor to punishment’s failure to inspire moral improvement is its reliance on modern Western concepts of morality.  Whether Kantian, utilitarian or rights-based, modern morality is perceived as an individual’s performance with respect to a set of abstract ideals or principles, attainable by reason devoid of particularity and emotion (Goldberg 1993: 223).  There is no need in this formula for relationships, and accordingly, punishment does not facilitate the punished relating to their victims and hearing how they have hurt them (Christie 1977: 8).  Prison chaplain Jim Consedine believes this is the main reason for the “hardening of the arteries of emotion” and lack of remorse he has observed in prisoners (1995: 162-163).  Criminal and penal proceedings are such abstract, rationalised affairs that there is little room for cultivating shame, which affirms the offender as a moral agent capable of change (Braithwaite 1989: 72-73).

With regard to control and social learning, Peter Kropotkin observes that the technique of modern punishment attempts to break the will of a prisoner, which works against self- and even, paradoxically, social control.  “Where will he find the strength to resist the first impulse of a passionate character, if, during many years, everything has been done to kill in him the interior force of resistance, to make him a docile tool in the hands of those who govern him?” (Kropotkin 1887: 126-127).  On the contrary, prisons are often seen as “universities of crime” (Kropotkin, cited in Ward 2004: 41), contributing to the formation of a criminal culture and a rejection of would-be-rehabilitators (Mathiesen 2000: 46-53).  The form of punishment would have to be greatly altered before it became a vehicle for positive social learning.

Biological and psychological explanations for crime are similarly ill-served by punishment.  Rehabilitation does not affect biology or genes, and enforced medical ‘rehabilitation’ such as frontal lobotomies is, thankfully, deeply out of favour; as is biological determinism itself (Thigpen 1985).  More benign psycho-medical treatment can only very loosely be made consistent with punishment and certainly does not require it.  As for the extent to which ‘at risk’ behaviour can be attributed to developmental issues, research into resilience against this finds that what is most beneficial is developing attachment, achievement, autonomy and altruism in youth (Brendtro & du Toit 2005: 44-46).  None of these are particularly well-served by punishment after the fact.  Indeed, existing forms of punishment work against these factors in many ways, and at least in the case of autonomy, even the most nurturing of rehabilitation would seem to be at odds with building resilience so long as it is coercive.

Given the failure of rehabilitation to address the causes of crime, it is not surprising to learn that punishment actually increases crime rather than reducing it (Mathiesen 2000: 105,176).  Prison can be more accurately said to “dehabilitate” than rehabilitate (Mathiesen 2000: 53); or as acknowledged by British Conservative politician David Waddington, “prison is a very expensive way of making bad men worse” (Ward 2004: 46).  Rather than ‘prison will do him good’, an axiom that fits better with the situation of punishment is that “the success of violence has been short-lived… It has led to greater violence” (Gandhi 1960: 182).  Punishment runs completely counter to effective rehabilitation.

Of course, rehabilitation does not try to reform individuals for their own good as much as for the good of the social order.  This utilitarian focus and lack of autonomy makes rehabilitation highly questionable from a human rights point of view (Bottoms 1995: 19-20).  Regardless of whether punishment is ‘successful’ in preventing recidivism, it consists of an attempt to indoctrinate the individual into the ‘disciplined’ values conducive to capitalist society (Foucault 1975: 135-228, Mathiesen 2000: 53).  Due to the high degree of control, the prison can be seen as the most effective social institution to experiment with a more overt form of the cultural hegemony present throughout society (Foucault 1975: 293-308, Garland 1990:  111-124).

In either case, the ‘dehabilitating’ effect of punishment becomes a self-perpetuating cycle that does not serve the interests of wider society any better than those of the punished individual, if reduction of crime is taken to be the goal.  Reflecting on the alarming rise in the United States’ prison population in recent decades, David Cayley laments that “the more Americans who are manhandled by the criminal justice system, the more there are whose behaviour seems to justify and demand this treatment” (cited in Ward 2004: 43-44).  Punishment is such a consistent failure at reducing crime that it begs the question of what its real intention is.  Michel Foucault has theorised that modern punishment’s real instrumental goal is not to reduce crime but to create delinquency, which serves the interests of the dominant classes (1975: 277).  We will return to this.


Deterrence theories assert that punishment is an effective way of dis-incentivising crime, either for the punished themselves (individual or specific deterrence), or for onlookers (general deterrence) (Knepper 2001: 36).  Mathiesen identifies a strong ‘general prevention paradigm’ permeating societies which takes for granted a ‘common-sense’ general deterrent effect (2000: 55-58).  There is also a “legal superstition”, common in the ‘law and order’ movement, that harsh penalties will provide an individual deterrent effect (Rotman 1986: 1031).  These attitudes were demonstrated recently in New Zealand by corrections minister Judith Collins who surmised that the new ‘three strikes’ legislation will give would-be-criminals “food for thought” and “likely … some deterrent effect” (Hartevelt 2010).  However, academic studies find scant evidence for such effects.  Even proponents of general deterrence ultimately have to fall back on ‘common-sense’ reasoning based on their own personal experience (Mathiesen 2000: 58-59,64).  In the case of three strikes, a study into similar legislation in California found that its deterrent effect accounted for at most 1-2% of crime reductions in following years, although proponents have been quick to claim credit for the entire decrease (Vitiello 2002: 268-278).

Deterrence theories imply a rational-choice behavioural theory, whereby crime is a rational response by individuals to costs, benefits and opportunities.  Deterrence, affecting only these rational calculations, is at most a partial solution to crime as it does nothing about its myriad other determining factors.  Rational-choice theories have been popular amongst economists (Becker 1968, Cornish & Clarke 1986), who currently have a tendency to portray the human as a purely rational utility-maximising individual agent, but human motivations are far more complicated than this (Dupré and O’Neill 1998: 154).  19th century economist Karl Marx warned against this “delusion … to substitute for the individual with … multifarious social circumstances pressing upon him, the abstraction of ‘free-will’” (Marx 1853).  While rationality may be a major aspect of the ‘ideal’ capitalist personality (Weber 1905), it seems that it is relatively minor for the disadvantaged social groups most likely to become the targets of punishment.  The deterring message sent by punishment has been found to be weakest precisely for the groups who are most drawn to crime (Mathiesen 2000: 73-75,104).  Given the reliance of general deterrence proponents on ‘personal experience’, they ought to pay more heed to the admitted “danger in generalizing from oneself” (Johannes Andenæs, cited in Mathiesen 2000: 73).  Educated, middle-class criminologists and policy-makers ought to take note that the strong deterrent effect they may observe amongst themselves and their own social groups is far weaker, if not totally neutralised, in the people that it is actually intended to deter (Consedine 1995: 36).

Strictly speaking, what deters is not the current punishment but the looming threat of future punishment; the current punishment merely serves to communicate this threat (Knepper 2001: 37).  Thus, individual deterrence relies on the subjective perception of the ‘cost’ of crime rising after the subject has experienced punishment.  This is by no means certain; it could work the other way as people are absorbed into prison cultures.  The rare and marginal deterrent effects that have been found by some researchers have resulted from a perceived probability of a sanction rather than severity of that sanction; as predicted by the classical penal reformers (Mathiesen 2000: 60-63; Knepper 2001: 36-37).  Invoking the idea of deterrence to justify ‘tough on crime’ policy like ‘three strikes’ thus completely misses the mark.  If anything, deterrence research supports raising detection rates alongside a less severe and more efficient punishment such as fines (Graham 1981, Garland 1990: 95-96).  To raise probability of punishment, actual punishment would have to increase, so a form of punishment which promotes recidivism is certainly not what is called for.  This is precisely what we have with prisons (Mathiesen 2000: 105), and it outweighs any possible deterrent effect punishment could have.

If there is any point in trying to tweak the costs and benefits of crime, this does not necessarily have to be done through punishment.  An alternative could be to seek greater socio-economic equality in society; if money and power were more evenly distributed by the legitimate economy, individuals would stand to gain less from crime.  Perhaps rational choice is most useful not as a defence of punishment, but as part of explanations of the link between inequality and crime (Merton 1938, Wilkinson & Pickett 2010: 129-144).


Modern punishment, in keeping with modern capitalist values, has seen deprivation of liberty become the common ‘currency’ of punishment (Knepper 2001: 42, Garland 1990: 115-116).  Prison has grown from a temporary pre-trial holding cell to become the dominant punishment in and of itself.  Capital punishment, where it still exists, is now the extreme deprivation of liberty with physical pain minimised, rather than the extreme of bodily damage as formerly (Foucault 1975: 11).

Incapacitation is unique amongst the rationales for punishment in that it is irrevocably tied to deprivation of liberty; ‘getting criminals off the streets’ so that they cannot offend.  Incapacitation theory is predicated on a constructed dichotomy between liberty and safety; the idea that certain people are ‘dangerous’, and will unleash chaos, conflict and crime if given too much freedom (Bottoms 1995: 33).  This principle of limiting liberty for safety is the basis of ‘social contract’ theories of the state, particularly that of Thomas Hobbes (Knepper 2001: 38), but in arguing for imprisoning or executing people, the deprivation of liberty is taken to extremes.  This essentially fascist view of human nature is of course not applied to the general population, but only to criminals, or perhaps only a certain subset of particularly dangerous recidivists (Mathiesen 2000: 90).  The non-punished public in democratic New Zealand does not seem averse to sub-democratic rights for prisoners, if open comments on news websites are any indication (3 News 2010).  This “de Tocquevillian irony” (Garland 1990: 40-41) can be partly explained by observing that the dominant discourse of morality in the West has become one of ‘rights’, whereby people are valued only insofar as they are granted recognition by legal-political systems.  Those who do not honour social contracts can be deemed “‘extrinsic’ to rights entitlement” even alongside a discourse of ‘universal’ or ‘human’ rights (Goldberg 1993: 217-222).

Incapacitation obviously does not cure crime totally, and its advocates thankfully do not go as far as trying to eradicate liberty altogether to achieve this.  The debate becomes one of selection and extent; deciding who to lock up, and for how long, to achieve the best equilibrium between safety and liberty.  Incapacitation proponents often claim that if a small group of persistent recidivists, who commit the lion’s share of crime, are taken out of circulation, a significant amount of crime will be prevented (Mathiesen 2000: 95).  Indeed, a reduction in crime that is disproportionate to the reduction in liberty, and thus a worthwhile trade-off.  Then-MP David Garrett claimed his flagship ‘three strikes’ legislation would target these “bad bastards” (Torrie 2010).

However, observations from Sweden and the United States show the disproportionality going the other way.  Significant changes in prison populations led only to marginal changes in crime rates, far weaker than other concurrent determining factors, and further reductions would require “at least 10 to 20 per cent increases in inmate populations for each 1 per cent reduction in crime” (Mathiesen 2000: 92-93).  Both experiences, from very different penal cultures, gave the same picture; one produced a modest reduction in crime that was dwarfed by the cost in lost liberty, and the other achieved an increase in liberty that far outweighed the modest cost in increased crime.  If liberty and safety could be graphed the way economists graph costs and revenues, the ‘elasticity’ of the curve would seem to indicate that reducing incapacitation would be more efficient than increasing it.  When this reasoning is instead used to justify increasing sentences through policies like ‘three strikes’, it can lead to massive, compounding increases in prison populations (Mathiesen 2000: 94).

The ineffectiveness of incapacitation strategies is partly because current techniques for predicting who is most likely to commit crime are highly inaccurate.  Many false positives and negatives are inevitable, and it is difficult to know when someone is ‘safe’ enough to release (Mathiesen 2000: 86-87,94, Christie 1977: 11-12).  The inherent uncertainty of predictions means that punishment severity can be highly inconsistent with actual ‘dangerousness’, and certainty inconsistent with the seriousness of the official punished crime.  This raises serious ethical issues, as punishments which ‘fit the crime’ (Knepper 2001: 36) are supplanted by punishments which fit the calculations of computer models.

Under the incapacitative rationale, punishment is a response to individuals rather than acts, and insofar as crimes enter the picture, it is hypothetical future crimes that are relevant rather than tried and convicted past crimes.  In both these aspects, incapacitation “breaks fundamentally with the basic principles of penal law” (Mathiesen 2000: 88).  Without the caveat that there be some past crime to which the punishment can officially pertain (Mathiesen 2000: 89), this would not be punishment at all, but merely a very selective and autocratic method of governance.  This gels with the rise of ‘managerialism’ in recent decades, whereby “penology is neither about punishing nor rehabilitating criminals, it is about identifying and managing unruly groups” (Feeley and Simon, cited in Bottoms 1995: 32).  Tellingly, Garrett advertised ‘three strikes’ as “equally a protective measure” as a punitive one (Gower 2009).  This reasoning of “punishment upon suspicion” should be subject to suspicion itself as it has been used to justify tyranny throughout history (Godwin 1793: 119), and can be considered the moral equivalent of George W. Bush’s ‘pre-emptive strike’ (Chomsky 2002).

More worrying still is the consideration of which types of people will be predicted as dangerous, regardless of how accurate the predictions turn out to be.  The groups of people most likely to be selected for incapacitation are by and large groups who are already disadvantaged by society; the poor, the unemployed, drug users, and the previously punished; even race could potentially be used as a predictive factor (Mathiesen 2000: 101-103).  The 2006 New Zealand Crime and Safety Survey found that the predictive factors for criminal activity are the same as those for crime victimisation (Workman 2009: 12).  This ruthless logic conflates oppression with ‘dangerousness’, and compounds it with reduced freedom.  Punishment is morally reprehensible if it consists of enslaving the margins for the sake of safety for the centre.

Punishment for utilitarian reasons: Ethical issues

Punishment for utilitarian reasons will inevitably clash with conceptions of justice and ethics.  Utilitarianism is a highly questionable ethical system.  It may be possible to support some instrumental goals of punishment without subscribing to the totality of utilitarian ethics, but it does necessitate accepting some of its precepts, such as the primacy of ends over means and the ability to ascertain the ‘good’ in a society by measuring and totalling certain tangible statistics of the individuals comprising it.  Only in these individualised, rationalised, scientific modern times could an ethical system based on these notions rise to the prominence it has (Goldberg 1993: 214-219).

Ironically, despite its individualist conception of humanity, utilitarianism fails to properly value the human individual; Kant rejected utilitarian punishment because it treats the individual as a means to an end (von Hirsch 1992: 59).  This end may be for the individual’s ‘own good’ if it helps break him/her out of the cycle of crime and punishment.  Yet in a capitalist democracy, rehabilitation, like incapacitation, is more about the safety of the majority and the smooth functioning of the economy.  Meanwhile, individual deterrence, like its general variant, is aimed at bringing down the overall crime rate to maintain the stability of society in its current form.  Marx, following Kant and Hegel, denies a right to “punish me for the amelioration or intimidation of others (1853).  This criticism of utilitarian punishment has become all the more potent with the rise of ‘managerialism’ (Bottoms 1995: 24-34).  Contra pre-modern law focusing on communities, and modern law focusing on atomic individuals, managerialism is a product of ‘bureaucratic-administrative’ law, whose “presupposition and concern is a non-human abstracted ruling interest … of which human beings are subordinates, functionaries, or carriers” (Kamenka and Tay, cited in Bottoms 1995: 27).

As well as tensions with justice and rights, utilitarian motivations will inevitably clash with the stated rationale for punishment, which is backward-looking; pertaining to past offences.  Utilitarian strategies, aimed at preventing future crime, are inherently forward-looking.  In many ways, these utilitarian strategies for social order are inconvenienced by the necessity of a retributive element.  They do not need it to achieve their goals; they need it because the level of power over someone’s life necessary to punish him/her is only permitted by law after she/he has been convicted of a crime.  Using punishment for instrumental goals thus goes beyond the mandate of punishment, to be administered as a sentence for past crimes with proven guilt (Mathiesen 2000: 87-89).

Punishment for utilitarian reasons: Effectiveness issues

The utilitarian defences also fail on their own terms as punishment is shown to do more harm than good (Mathiesen 2000: 105,176).  This was acknowledged at least as far back as Marx, who believed history makes it abundantly clear that “since Cain the world has neither been intimidated nor ameliorated by punishment.  Quite the contrary” (Marx 1853).

The insights of labelling theory provide still more reasons to be sceptical of the notion that punishment – which necessarily involves labelling people as criminals – will reduce crime (Braithwaite 1989: 16-21).  Procedures of reintegration to remove this criminal label after punishment are sorely lacking.  Modern punishment provides ceremonies of shame and denunciation, but no corresponding ceremonies of social restoration upon completion of the punishment; this is left up to the individual to achieve for him/herself (Mathiesen 2000: 28-29).  Indeed, the lower status of the punished is maintained in many ways; formally through legal limitations on convicted criminals, and informally through societal stigma.  John Braithwaite denies that all forms of shame and labelling necessarily increase crime, but agrees with the labelling theorists that stigmatisation – shame without reintegration – leads to high crime rates (1989: 55, 99).

We should not over-emphasise the counter-productive nature of punishment; on the whole, crime trends are independent of trends in punishment policy (Mathiesen 2000: 173n.).  The main issue is that punished criminals are returned to an unchanged society in, at best, the same condition as when they were removed from it, and yet a different result is expected.  Any crime-reduction strategy that functions on the level of punishment is doomed to miss the point; structural and socio-economic factors dwarf punishment’s individualist impact on crime rates.

Punishment for justice reasons

So much for the utilitarian defences of punishment.  But surely, it will be argued, punishment is fair and just.  Perhaps it doesn’t cure crime, perhaps it even makes it worse; but that sad fact doesn’t mean we should do away with punishment.  When someone commits a crime against society, it is only right that they be made to suffer by society in return.  A ‘just deserts’ approach to punishment, which prioritises justice over utilitarian concerns, has been influential in Western criminal justice since the 1970s (Bottoms 1995: 19), but has its roots much earlier.  Kant and Hegel believed that punishment of the criminal is really “an act of his own will”, the natural and proper “negation of his negation” (Hegel, cited in Marx 1853).  The correct response to crime is conditioned by the criminal; it is to respond in kind, to sink to his level.  This is demanded by justice, which must be maintained as “if justice succumbs, the existence of man on earth no longer has any value” (Kant, cited in Mathiesen 2000: 24).  Popular conceptions of justice agree that not to punish, to ‘let them get away with it’, would offend universal human sentiments of justice.

However, justice is not a fixed and universal notion; it is socially constructed.  Although it is a concept found across many cultures, it can take very different forms.  Anabaptist theologian Chris Marshall contrasts Greco-Roman justice, from which Western ideals of justice are largely drawn, with ancient Semitic justice.  While Greco-Roman justice is perceived in relation to a set of abstract norms and is symbolised by Lady Justice’s scales, Hebrew justice is seen as a process of restoring relationships with and within community and is symbolised by a river.  Justice according to Hebrew formulations requires mercy – which is in tension with Western justice – but it does not always require punishment (Marshall 2001: 43-53).  Jim Consedine identifies similar restorative elements in Māori justice systems (1995: 81-97), and John Braithwaite discusses many other cultures which have held restorative conceptions of justice (1999: 1-5).  It is therefore possible for our societies and communities to move towards an idea of justice that is inimical to punishment; opposing punishment requires reformulating justice, not abandoning it.  The idea of restorative justice is making slow but significant inroads into our criminal justice systems, and throwing the link between justice and retribution into doubt (Braithwaite 1999, Consedine 1995: 157-172).

Even within exclusively Western conceptions of justice, punishment has significant problems.  It is not at all clear how much punishment is required to attain a balance of the hypothetical scales.  Although desert advocates often champion ‘universal’ values of justice, they have no universal method for converting crime into the currency of punishment (Bottoms 1995: 20-23, Mathiesen 2000: 117-132); the notion that this is even possible can be attributed to commodification (Garland 1990: 113-115).  Evaluations of how much punishment someone deserves are subjective and tend to be harsher from those who are more abstracted from the situation (Bottoms 1995: 40).  Moreover, the same crime can earn vastly different penalties in different societies, at different times, or under different policy-makers.  Evaluating the harm felt by a given punishment is just as slippery.  In theory, imprisonment can be measured by the length of the sentence, but there are many other pains and variables involved, which will be experienced differently by every prisoner (Mathiesen 2000: 132-138).  Moreover, as we have seen, prison continues punishing long after the designated ‘fair’ sentence, and is likely to compound itself.  Fines are also inconsistently experienced, in a more straightforward way; they are regressive, hitting the poor harder than the rich (Foucault 1975: 232).

Even if crime and punishment could be accurately measured, punishment would not amount to a complete restoring of the scales.  Firstly, it only acts upon the relatively low proportion of crimes that are actually apprehended and convicted (Garland 1990: 59n.).  Secondly, it consists only of lowering the scale of someone deemed guilty of lowering the scale of another.  It does not include raising the scale of the victim; even if vengeance is often falsely conflated with ‘victims’ rights’ by retributive justice advocates.  Restorative justice advocate Kim Workman observes that “successive governments had done very little for victims”[2], and that the interests of victims are often tied up with the interests of offenders; punishment helps neither (Workman 2009: 7-13).  Compensation or reparation for victims exists in some jurisdictions, but punishment exists in all (Galaway & Rutman 1974).  Rather than making positive changes in the lives of offenders and victims, punishment is entirely based on delivering pain or deprivations; especially with the decline of rehabilitation.  The use of punishment to balance scales ultimately means adding more pain to the picture; attempting to balance harm with more harm rather than replacing it with good.  This can be seen as hypocritical (Tolstoy 1894) as the “medium … undercut[s] the message” (Garland 1990: 45).

Distributive and retributive justice

Looking more holistically at justice, we must take into account the two aspects of Western justice; distributive or social justice as well as retributive (Marshall 2001: 43, Mathiesen 2000: 115-116).  It is clear that the scales of social justice are far from balanced in our societies.  Social justice has become less of a political priority in recent decades amid the hegemony of neo-liberalism’s ultra-capitalist ideology (Larner 2000).  The ideal of ‘from each according to his ability, to each according to his need’, which held at least some sway during the welfare state era, is being swamped by the philosophy of ‘each according to his ability should look after himself’.  This ideology’s version of distributive justice is that resources should be distributed by ‘hard work’ and success in the economy.  Like a modern-day version of Euthyphro’s ethics, ‘justice’ and ‘desert’ are simply whatever distribution the gods of the market come up with; just as contemporary morality is defined by whatever ‘rights’ the gods of legal authority come up with (Goldberg 1993: 220-221).  To balance the scales of distribution is to interfere with this new vision of desert, with personal freedom and responsibility, and with competition-based production incentives.

Crime, too, can be perceived as that which interferes with the market’s distributive whims; by destabilising society, property and economy[3].  ‘Property crime’ is not property inequalities, and the compounding tendency of these inequalities through the institutions of wage labour, rent and interest; these are above reproach because the gods of the market willed them.  Property crime is when somebody has the audacity to interfere with the gods’ distributions through theft; though outside of the prism of legal definitions, property itself is functionally equivalent to theft (Proudhon 1840).  ‘Crime against the person’ is not the creation of poverty, it is not marketing designed to foster dissatisfaction, it is not social exclusion, it is not even violence when that violence is blessed by political authorities.  It is only that which actively violates someone’s ‘rights’, which are defined narrowly enough to permit many forms of exploitation (Glenn 2000: 2).  Marx stated that “punishment is nothing but a means of society to defend itself against the infraction of its vital conditions” (Marx 1853) – in this case, private property and the rule of the state.  This selective definition of crime is itself a strong argument against the justice of punishment (Consedine 1995: 38-39).

Conversely, the desire to balance the retributive scales has not waned in recent years.  If anything, it has becoming more pronounced with neo-liberalism (Workman 2009: 4-7), as inequality and individualism have eroded a sense of community (Wilkinson & Pickett 2010: 49-62), and lowest-common-denominator appeals to ‘getting tough on crime’ have been discovered as an effective political football (Bottoms 1995: 39-40,47-48).  Indeed, the more distributively unequal a society is, the bigger its lust for harsh retribution (Wilkinson & Pickett 2010: 145-156)[4].

In fact the relationship between distributive and retributive justice is far closer than it appears.  Structural inequalities lead some to crime, and therefore to punishment, more than others (Mathiesen 2000: 74).  Robert K. Merton pointed out the role played by “culturally defined goals”, and the ability to achieve them, in the creation of crime (1938: 672-673).  Capitalist culture relies on a near-universal desire for maximising wealth, justified as a means to fuel competition for scarce resources.  The more unequal and competitive the society, the more people there will be who accept this goal but are denied the ‘legitimate’ means of achieving it.  It is inevitable that some of the people who miss out will resort to illegitimate criminal means instead.  The culture that creates a lust for wealth (‘the root of all evil’) is to blame at least as much as these ‘innovating’ individuals (Merton 1938)[5].  Moreover, it is not just property crime that is influenced by distributive injustice; there is also a well-established relationship between relative deprivation and violence (Wilkinson & Pickett 2010: 134-135).

Punishment is unable to make any moves to promote income equality, reform class systems or address structural inequalities.  Social justice is kept completely separate from criminal justice in public policy, despite their interrelation in society.  The failure of punishment to confront social causes for crime compromises its justice as well as its effectiveness, as the individual is exclusively expected to pay for a rupture that she/he did not exclusively cause (Marx 1853).  In fact, punishment itself is one of the social causes for crime, as it promotes recidivism (Mathiesen 2000: 105).  The cycle of crime and punishment is a vicious one indeed, especially with policies such as ‘three strikes’ that exponentially increase punishment.

Punishment, therefore, inevitably falls more heavily on those who are already disadvantaged, and compounds distributive injustice in the name of promoting retributive justice.  Institutional injustices work significantly against the poor at every stage of the process, from the shaping of morals and laws to the likelihood of apprehension to the severity of sentencing, and even the salience of enduring criminal labels (White and Habibis 2005: 135, Newbold 2000: 251-257).  The demographics of New Zealand prisoners clearly demonstrate that poor and marginalised people suffer the bulk of punishment (Consedine 1995: 30)[6].  These groups are already most likely to be victims of crime (Mathiesen 2000: 146, Workman 2009: 12); punishment is yet another harm which predominantly victimises the poor. Mathiesen’s critique of imprisoning people based on determining factors (2000: 102) can be taken as an overall critique of punishment wherever injustices affect crime statistics.  If it is unjust to punish people directly for being poor or marginalised, a society which leads poor and marginalised communities to crime and then proceeds to punish them for it is equally unjustifiable.

It is appropriate to refer to punishing communities rather than just individuals.  While in theory punishment targets individuals only, no member of society lives in total isolation.  It is inevitable that families and communities will be affected; effectively punished for committing no crime themselves (Ferraro et al. 1983: 575-576).  Partners of people sent to prison experience a variety of emotional and financial strains (Deane 1985), and the family is subject to stigmatisation (Condry 2007). Moreover, having a parent imprisoned raises the chances of children later committing crime and being directly punished themselves (Bonhomme, Stephens & Braithwaite 2006).  Traditional Māori justice processes were criticised by colonial administrators for “innocent persons being made to suffer for the faults of others” (Consedine 1995: 87), but this was an acknowledged aspect of Māori notions of collective responsibility for offence and restoration (Consedine 1995: 95).  In the individualistic Western system, the silent ‘externalities’ borne largely by dependants are an inexcusable aberration.

Capitalist states seek justice by delegating the market to repay good with good, and punishment to repay bad with bad.  As we have seen, the latter is as fraught with structural imbalances, and as ineffective at bringing justice, as the former.  Jeffrey Reiman summed up the combined injustice of these institutions as “the rich get richer and the poor get prison” (cited in Knepper 2001: 193).  Retributive justice makes little sense when it is sequestered from the distributive injustice that permeates crime and punishment.  As distributive justice declines in society, punishment fails to check this decline; if anything, it contributes to it.  Punishment is also highly ineffective at promoting restorative justice (“healing the effects of crime” – Consedine 1995) as it is based on bringing harm rather than good; as Jim Consedine puts it, “you cannot punish and reconcile at the same time” (1995: 157).  Whatever conception of justice is preferred, punishment is better seen as a force for injustice than justice.

Punishment for functional reasons – Durkheim and the penal passion

There is obviously a disconnect between the widespread perception that punishment is just and effective, and the reality which renders such perceptions rather hollow.  This disconnect opens up more questions which help to refine the overall question ‘why punishment?’: Why do governments punish – are they mistaken about its benefits, or are powerful interests earning some spurious benefit from punishment?  Why does the general public have such a strong support for punishment – are we mistaken, are we being deliberately fooled, or are all our justifications merely smokescreens for a subconscious penal instinct we cannot excise from ourselves?  Is the former a product of the latter, or the latter a product of the former?

Émile Durkheim’s answers to these questions provide an explanation for punishment that does not require it to be just or effective; for him, the perception is sufficient, which gives his theory an immediate advantage given what we have observed.  Durkheim rarely discusses the idea of justice, and he acknowledges that punishment is highly ineffective at crime control (Garland 1990: 43-44).  Instead, he assigns punishment “a functional importance for society which far outweigh[s] its contribution as a means of controlling crime” (Garland 1990: 26, emphasis added).

For Durkheim, punishment is not a means to an end, but “simply occurs in the nature of things” (Garland 1990: 32) as the response of the conscience collective[7] to violations against its moral order.  Governments punish as a direct result of the public thirst for punishment, which is the natural reaction of the human psyche when it witnesses crime.  However, in the process of punishing, the conscience collective is able to express and reinforce its symbolic authority after crimes have threatened it.  This performs the important task of maintaining social solidarity, and keeping societies from becoming ‘demoralised’ (Garland 1990: 42-43).  Thus, punishment is both normal and functional.

Durkheim’s theory is consistent with utilitarian justifications insofar as it proposes a definite beneficial consequence of punishment.  However, he believes that to find this benefit, we must look far beyond the standard utilitarian goals, whose uses have been “exaggerated beyond all reality” (Durkheim, cited in Garland 1990: 43).  The real use of punishment – no less than the sustaining of society as we know it – does not result from the “petty calculation of social controllers” but is the “spontaneously functional effect” of condescending to the outraged conscience collective.  David Garland calls this Durkheim’s “paradox of higher utility” (Garland 1990: 33).  Meanwhile, Durkheim shares with justice motivations a focus on morality, however he expects punishment to communicate morality rather than to enact it (Garland 1990: 45-46).  This idea of punishment as a ‘moral message’ overlaps somewhat with the goals of general deterrence (Mathiesen 2000: 65-75).  Communicating an appearance of safeguarding justice against crime is far more achievable than the ambitious goal of actually restoring justice in all cases, not least because most crime is not apprehended or punished (Garland 1990: 59n.).

For Durkheim, what ignites and fuels this functional process is “passion … the soul of punishment” (Durkheim, cited in Garland 1990: 31).  This penal passion is “a sense of outrage, anger, indignation, and a passionate desire for vengeance”  aroused in onlookers whenever the collective conscience is violated (Garland 1990: 30).  For Durkheim this is a natural reaction of all healthy consciences, though others have been less optimistic about the penal instinct.  Freudian psychoanalysts have understood it as a socially acceptable outlet for otherwise frowned-upon emotions such as aggression and vengeance (Garland 1990: 65).  Nietzsche views it as vicarious sadism, particularly attractive for those who are not usually given opportunities to hold power over others (1887).

George Herbert Mead agrees with Durkheim that punishment can and does “unit[e] all members of the community in the emotional solidarity of aggression” (Mead 1918: 591).  However, unlike Durkheim, Mead insists upon counting the “great and at times disastrous” cost of this form of solidarity (592).  The penal passion “inevitably brings with it the attitudes of retribution, repression, and exclusion” (590), provokes a negative and unquestioning “respect for law as law” (585) and has “failed utterly” at addressing the causes of crime or reforming criminals (588).  Mead’s description of the penal passion is a powerful critique of punishment, rather than a defence (Garland 1990: 77).

Mead ultimately denies that the penal passion is a universal or healthy method of solidarity, and suggests that it is far better for communities to unite around “the interests which spring up around the effort to meet and solve a problem” (Mead 1918: 596-597).  Mead holds out hope, even amid a world war, that we can move towards an approach to crime which focuses not on vanquishing our ‘enemy’ the criminal, but on “reconstruct[ing] the social conditions” that lead to crime (602).  He says that the energy once channelled into finding scapegoats to blame for plagues is now directed into medical research and practice, and believes we can take a similar approach to crime without losing the solidarity of a shared solution.

Punishment for functional reasons – Girard and scapegoating

Anthropological philosopher René Girard’s account of the ‘scapegoat mechanism’ in history and myth expands upon this last thought in a way which can be fruitfully compared to Durkheim’s theory.  Girard describes how in times of escalating conflict, peace and solidarity can be found through the blaming, targeting and punishing of a scapegoat; which is the normal, unconscious culmination of the conflict.  The chosen scapegoats are typically marginal people, “outsiders of one type or another” (Girard 1987: 87) who are not the true source of the tension, but also cannot appear totally innocent if the blame is to be accepted (98).  This cathartic act of collective punishment quenches the community’s anger and forges a new sense of solidarity as a previously divided community unites against its contrived enemy (90-92).  This means, paradoxically, that although the scapegoat did not cause the conflict, punishing her/him can put an end to it; reassuring the community that their choice was a good one (121).

The main focus of Girard’s inquiry is to uncover this scapegoating mechanism in mythological and cultural texts (Adams & Girard 1993: 13).  Following Freud’s observation of “some kind of collective murder” as the dominant theme of primitive religion (Girard 1987: 121), Girard argues that a story of scapegoating is the root of all societies’ foundational myths.  The explicit acts of collective murder are obscured to greater or lesser degrees in the retelling (102); culminating in philosophy which, abstracted from narrative, can hide its scapegoating origins deepest of all (Adams & Girard 1993: 19)[8].  Regardless of this particular claim, similar scapegoating practices can be observed in other spheres of life; he compares it to the portrayal of wartime enemies (Girard 1987: 90), and draws the same analogy as Mead about the lynching of ‘witches’, Jews and foreigners during the Black Plague (87).  More usefully for our purposes, Girard’s theory has been applied to criminal punishment, and particularly the penal passion (Yoder 1995).

Girard parallels Durkheim in attributing punishment to spontaneous and collective public feeling, and in claiming that the solidarity of all societies throughout history has relied on punishment.  Indeed, he states rather patronisingly that Durkheim “had some inkling” of the scapegoat mechanism (Girard 1987: 127).  However, Girard’s account of the penal passion also provides important correctives to Durkheim’s functional analysis.  Girard exposes the hypocrisy of punishment by revealing that although it is portrayed as “the just punishment of a guilty criminal”, its target is “chosen more or less at random, or for reasons completely alien to the misdeed he supposedly committed” (79).  He attributes the real conflict primarily to ‘mimetic desire’, of which the rest of society is at least as guilty as the scapegoat[9].  This has obvious parallels to Merton’s idea of ‘culturally defined goals’.  He also casts doubt on Durkheim’s assumption that punishment is a healthy base of solidarity, as it is ultimately based on hypocrisy and a cover-up of the unpleasant truth.  Because scapegoating does not deal with the real conflict but only temporary neutralises it, it is a cycle that is doomed to repetition, until communities can find an alternate paradigm to live by (Yoder 1995: 2-3).  In this, Girard’s description of the ‘scapegoat’ mechanism arguably provides a better explanation for the ongoing, futile practice of criminal punishment than it does for one-off murders buried deep in the past that created a solidarity sufficient to build entire societies on.

If nothing else, the warning Girard presents about humanity’s potential for hypocritical scapegoating is highly pertinent to penology.  Indeed, punishment seems inevitably destined to some degree of hypocrisy so long as it targets select individuals.  Durkheim may be right in insisting that functioning societies require a collective morality to bind them together, and that this must be expressed through public ritual and ceremony.  If so, an honest, non-scapegoating approach to these rituals would need to reflect Aleksandr Solzhenitsyn’s idea that “the line dividing good and evil cuts through the heart of every human being” (1973: 168).  If we distance ourselves from the viewpoint of ‘criminals’ and ‘non-criminals’ we can more easily see that crime is not something done by certain deviant individuals.  Decisions to commit crime are largely situational, and anyone could potentially become a criminal in the right circumstances (Mathiesen 2000: 103).  We would be better off changing the circumstances.  However, the practice of punishment insists upon ignoring circumstances and drawing the line of blame in between people, galvanising ourselves against self-critique and self-reform as we point the finger at scapegoats.

The penal ideology and power

Given that much of Durkheim’s thought has fallen out of favour (Garland 1990: 26), perhaps the most valuable aspect of his penal theory is its acknowledgement of the strong public support for punishment.  It is certainly true that there is a strong penal ideology permeating entire societies; an ideology comprising the ‘penal passion’, the ‘general deterrence paradigm’, the ‘myth of redemptive violence’[10] and the strong emphasis on retributive justice even while social justice is languishing.  The system of criminal law and punishment enjoys a broad consensus of support across all classes (Braithwaite 1989: 38-43).  This support is not a dispassionate one; the public have a keen emotional interest in ‘seeing justice done’, which for Durkheim is about witnessing the reassertion of the moral authority of the conscience collective (Garland 1990: 55-74).

Most penological literature since Durkheim has neglected this penal passion and assumed punishment is “a strategic measure undertaken by the state” for mainly instrumental reasons (Garland 1990: 61).  Durkheim’s account is in obvious contrast to that of Foucault, who saw punishment losing its former ‘spectacle’ nature and becoming increasingly rationalised and privatised.  While ideology is important for Foucault, it is a rational ideology of ‘discipline’ rather than a passionate punitive one, and it is imparted from above upon ‘docile bodies’, rather than rising up from the people’s collective sentiments (Foucault 1975).  Garland  synthesises the two by proposing that there is still a spectacle aspect to punishment, but it is mostly restricted to the apprehension and conviction (1990: 71-74).  The courtroom is still a public ritual, but unlike previously, punishment promptly leaves “the public and moral arenas” (73) after sentencing, leaving the actual outworking of punishment to more technical forms and aims.  However, the problem of where the penal ideology ultimately springs from is still a highly pertinent one.

While Durkheim sees it as a straightforward expression of the collective values of ‘society’, he ignores the fact that the ‘social order’ is precarious, a product of continual renegotiation and conflict.  Rather than taking the conscience collective for granted, it is more accurate to talk of a ‘dominant moral order’ (Garland 1990: 51-54)[11].  The upshot of this is that we should not necessarily assume, as Durkheim does, that the penal ideology is a natural and inevitable part of the human psyche.  An important corrective has been developed within the Marxist tradition, with its idea that “the ruling ideas of each age have ever been the ideas of its ruling class” (Marx & Engels 1847).  The public support for punishment may be a product of cultural hegemony and derive from ruling interests’ desire to punish, rather than the other way around; Garland believes that the two are “mutually interacting and conditioning” (1990: 54).

So what benefit would the powerful gain from cultivating a penal ideology?  Marx and Engels argue that the lumpenproletariat or ‘dangerous class’ serve to divide the working class against itself and are inclined to become a “bribed tool of reactionary intrigue” (1847), but this is not specifically related to punishment.  Early 20th century Marxist historians George Rusche and Otto Kirchheimer do focus on punishment as “one element within a wider strategy of controlling the poor”, alongside factories, poor laws and the labour market (Garland 1990: 91).  They assert that the development of penal policy, rather than being a process of humanisation, has largely been a factor of the demands of the labour market (Garland 1990: 89-110).  Foucault follows Rusche and Kirchheimer in much of this, but gives a wider explanation of the use of modern punishment; for him it is more about creating ‘delinquency’ to distract from the illegalities of the powerful, and creating ‘docile bodies’ conducive to control and surveillance by the all-encompassing force of ‘discipline’ (Foucault 1975: 135-228,257-292).  More recently, Anthony Bottoms has coined the phrase ‘populist punitiveness’ to describe the use of punishment by politicians, who are increasingly finding in the neo-liberal era that they can woo voters with rhetoric of getting ‘tough on crime’ (Bottoms 1995: 39-41, Workman 2009: 5).

Much of this is largely situational, with political and economic élites capitalising on specific opportunities presented to them.  But there are other benefits of punishment for the powerful, which do not necessarily reflect a conscious “conspiracy of rich men” (More 1516); after all, policy-makers themselves are members of the public and may really believe that they are bringing justice or preventing crime.  Since Durkheim, it has become common knowledge that rituals such as punishment build solidarity and reaffirm collective sentiments, but anthropologists are divided about whether this is “a latent function (signifying the cunning of social institutions) … [or] a conscious objective (signifying the cunning of the authorities who stage and perform the rituals)” (Garland 1990: 76).

The fear of crime and the assumption of punishment legitimises the state as a necessary punishing agent.  In modern times, states co-opt conflicts, and people look to governments and professionals to save them from crime and criminals, rather than sorting out conflicts amongst themselves (Christie 1977).  Thomas Hobbes based his theory of the state on the necessity of a powerful ‘mortal god’ to enable societies to move from the perpetual conflict and violence of the state of nature to a state of order (1651).  Fuelled by the myth of redemptive violence, this assumption that the state protects against conflict and chaotic violence is an important source of support for the state even when individual policies are unpopular.  As acknowledged by Marxists as well as Durkheim, each successful punishment ceremony serves to further strengthen the ideological support for the current form of society (Garland 1990: 124).

Of course, the modern state is characterised by a monopoly on violence (Weber 1919).  The state – and its punishment – consist of the very same substance they are ostensibly controlling.  Hobbes’ ‘mortal god’ concentrates and orders violence rather than eliminating it.  In fact, by concentrating violence in powerful centralised bodies, it can increase to levels far beyond the realms of what is usually thought of as crime; war, slavery and genocide are some of the more extreme examples.  A focus on punishment as legitimised and necessary violence shifts attention away from the majority of violence; the kind of violence that results more from obedience than disobedience (Zinn 1990: 128).  The scapegoating and demonising fear of criminals, deviants, enemies, witches, communists or terrorists may be a spontaneous collective phenomenon as Girard asserts, but it is nonetheless manipulated by the powerful for their own ends.  Protection against these ‘enemies’ gives the state a paternalistic justification for its coercive bodies – police, courts, armies and prisons – which are “necessary, before all things, for the defence of governments from their own oppressed and enslaved subjects” (Tolstoy 1894).

By justifying the state, the punishment ideology also protects current unequal distributions of resources and power, which would be impossible without the state and law to protect property rights (Garland 1990: 117, Godwin 1793: 131, Rousseau 1754).  The public’s support for punishment, stemming from its promise to protect them against violence, is extended to all law, which is “nine-tenths concerned with upholding a radical division of property” (Hay, cited in Garland 1990: 120-121).  The collective upswelling of penal passion to defend the sacred cow of property overtakes an objective analysis of how to “make property serve its functions in the community”, and this unquestioning passion becomes a tool of the propertied (Mead 1918: 589).  As we have seen, these unequal distributions and these ‘beati possidentes’ cause far more damage than what is conventionally labelled and punished as crime.  This connection between state and property is self-perpetuating, as power is wielded by “an almost inevitable alliance between business and politics, between money and power” (Newbold 2000: 33).

Righteous indignation is a powerful and essential response to an unjust and violent world; but the penal ideology misdirects this indignation away from power structures, property and injustice, which are the real sources of conflict, towards marginal individuals, who are already its victims (Garland 1990: 77).  Even if the penal passion is a natural human reaction rather than a hegemonic ideology, “the fear of blue-collar crime justifies a legal and judicial system in which the problems of society are blamed on a largely impotent criminal underclass, while the ravages of the rich, the respectable and the powerful go largely unaddressed and unnoticed” (Newbold 2000: 257).

It is apparent that although punishment is only dubiously beneficial from the perspective of controlling crime or bringing justice, it is highly ‘functional’ for the dominant moral order of societies.  Whether punishment demonstrates the power of the sovereign as with Foucault’s analysis of pre-modern punishment, or makes power anonymous as with his analysis of modern punishment, it consistently supports the interests of the powerful (Foucault 1975).  It seems that we finally have an adequate answer to ‘why punishment?’.  Contrary to popular opinion, but acknowledged in different ways by Marx, Durkheim, Weber, Foucault and many others inside and outside of sociology, punishment is best explained as a “political tactic” (Foucault 1975: 23).


The natural follow-up question is ‘is it worth it?’  Kropotkin points out that we are constantly being told of the supposed benefits of punishment, but only rarely do its proponents attempt to weigh them up against “the degrading effect of these penalties upon humanity” (1886: 115).  The only definite and clear reason for punishment is the maintenance of the state’s monopoly on violence; we could perhaps be generous enough to include some marginal and inconsistent crime control effects, and a perception of justice and safety amongst the public.  On the other side of the ledger, we have the tendency of punishment to promote recidivism and thus compound itself; the replication of wider societal injustices; the reliance on exclusively individual, hypocritical explanations for crime; and the indiscriminate legitimising of the status quo.  Punishment also does severe damage to individuals; a famous account is that of Gresham Sykes who talks of “the pains of imprisonment” in a maximum security prison; deprivation of liberty, goods & services, heterosexual relationships, autonomy, and security (Mathiesen 2000: 132-135).  To this can be added the continuing pain of punishment when not followed by reintegration, and the suffering of families and communities alongside the punished individuals.

Punishment represents real harm caused to real people – both ‘criminals’ and otherwise – for the sake of abstracts such as the state and ‘moral order’.  Durkheim’s ‘paradox of higher utility’ accepts that punishment is futile at its ‘official’ purposes, but insists that it is necessary for its functional role.  This Hobbesian presumption that authority must be maintained leads to the totalitarian contention that any harm done to human beings and human communities is justified as a means to the end of supporting the state.  The question of whether this is a worthwhile trade-off will depend on our opinion of human nature.  We could agree with Hobbes that humans are inherently competitive and cannot thrive without a punishing Leviathan to keep us under control, or with Kropotkin that the societies who thrive best are based on free co-operation rather than competition (Kropotkin 1902, Karlberg 2003, Wilkinson & Pickett 2010); and “for that very reason, suffer less from antisocial activity” (Ward 2004: 41).  At the very least, these observations should cause us to question our penal ideology, and ask ourselves whether there is another way.

– Caleb Morgan, 20/10/2010.

APPENDIX: Another way?

Punishment is not a solution to crime.  Both are symptoms of the same problems; unjust and alienating economic, political and social arrangements, and the willingness of people to use force to get what they want.  If we want to solve our conflicts and escape from the repeating loop of crime and punishment instead of reinforcing it, we must abandon punishment and seek more creative responses.  The punishment ideology makes it difficult to imagine crime going unpunished without disastrous consequences.  However, most crime already goes unpunished, as it is not caught – particularly, crime of the powerful (Garland 1990: 59n., Newbold 2000: 251-257).  Disastrous consequences are as likely to flow from punishment, and the structures and inequality it supports, as from lack of punishment.

Of course, we should not replace punishment with a gulf of nihilistic disregard for justice.  Harm, oppression and violence in all their forms should be exposed, shamed and passionately denounced.  This should be done from the clear perspective of a community committed to doing good not harm itself; with a mindset that good done to one person filters throughout all of society, rather than that what is given to one is taken away from the others.  Our righteous indignation should be encouraged when appropriate, but directed against actions rather than people; “hate the sin and love the sinner” (Braithwaite 1989: 101).  The people and structures responsible for harm should be identified, but with the focus not on inflicting a balancing harm and then returning to the status quo, but on analysing what exactly went wrong and what can be changed to make it less likely to happen again.

For individual people exhibiting anti-social behaviours, this should be geared towards guilt, apology and repentance, and met with reintegrative shaming (Braithwaite 1989: 64-107), forgiveness, and continual acceptance as a member of the community; “the word ‘criminal’ should be taboo from our dictionary. Or we are all criminals” (Gandhi 1960: 222).  For restitution, people should be encouraged and assisted by their communities to participate in restoring victims’ situations, and reforming themselves and their societies.  This will no doubt be a more rewarding ‘repayment to society’ for all concerned than the meaningless suffering of punishment.  Of course, the failure of prison rehabilitation should forewarn us against ‘encouraging and assisting’ coercively.

It is imperative that any ‘micro’ focus should not be undertaken at the expense of dealing with ‘macro’ socio-economic and structural factors.  Structures, the silent offenders under our current system’s rush to scapegoat a human individual, should not be let off so easily.  Structural change should be a normal part of reacting to conflict.  Punishment distracts us from this as it sees punishment as the solution, but when a body has a disease, we do not punish the part showing the symptoms and then consider the problem solved.  We seek to manage and minimise the damage in that part of the body, and more importantly, to heal the underlying illness before it affects other parts of the body.  As Marx put it, “is there not a necessity for deeply reflecting upon an alteration of the system that breeds these crimes, instead of glorifying the hangman” (1853) – or the prisons, or even restorative justice if it does not look as wide as systems?

Above all, people must be our priority.  “Punishment has become something the dominant group in society imposes on those of little status and power who are not in a position to challenge its fairness or its usefulness” (Consedine 1995: 19).  Seeking alternatives to punishment is ultimately an act of compassion to these people of little status and power.  This should be part of an overall philosophy of looking after each other throughout our lives;  encouraging attachment, achievement, autonomy and altruism from youth, rather than only acting after a crisis (Brendtro & du Toit 2005: 44-46).  When crises and conflicts do occur, solutions should be focussed on improving the situations of the people involved; first the victim, but also the offender, other people in similar situations to the offender, the community as a whole, and the relationships in between them all.  Insofar as they are willing and able, these people should be given the opportunity to work together on the solutions, in hopes that the community can be improved from the experience.

This approach will be best undertaken at a grass-roots level with a ‘think globally, act locally’ approach.  This may mean that change will happen more slowly, but it will be more authentic.  People opposed to punishment should seek to change their own attitudes and embody alternative responses themselves first, rather than waiting for police, courts or prisons to change.  The state is slow to listen and even slower to change, and has powerful stakes in the punishment status quo (Garland 1990: 114).  It also tends to co-opt, compromise and dominate alternative justice practices when they are introduced alongside the state’s system (Hudson 1993: 39-41).  Alternative justice approaches should consciously seek to remain outside of the state’s apparatus.  The state is most likely to change its justice system if it sees independent alternatives working better.

What will it take in our lives to shape communities where conflict and interpersonal harm is less likely to happen, and when it does, it is more likely to be dealt with in a healthy way, rather than offloaded to the penal establishment?

We must actively work against the individualist values which are conducive to the interests of political and economic élites, and regain community values on a personal and local level (Christie 1977: 12).  We must be willing to give up some of our individual privilege in order to combat this dominant worldview.  We must be willing to give up some of our individual comfort to look after people in our communities – particularly the most marginalised – instead of fearing or mistrusting them.  And we must be willing to give up our ‘right’ to revenge when we are harmed.  As long as an individualist, capitalist, defensive mindset dominates communities, punishment will remain the dominant way of dealing with crime and conflict in those communities.

We end with two quotes from alternative justice advocates of the last two centuries, which indicate the kind of dreaming that will be necessary to make positive change this century in our own contexts.

With this last statement, as with most of the others I have made, I raise many more problems than I answer.  Statements on criminal politics, particularly from those with the burden of responsibility, are usually filled with answers. It is questions we need. The gravity of our topic makes us much too pedantic and thereby useless as paradigm-changers.

– Nils Christie (1977: 9-10)

As soon as the prisoner is released, the comrades of his former life wait upon him … And what a contrast between the fraternal reception of the brotherhood of ‘magsmen’ and the reception on behalf of ‘respectable people’ … For them the liberated prisoner is something plague-stricken.  Who of them would invite him into his own house, and merely say, ‘Here is a room, there is work for you; sit at this table, and be one of our family’?  He needs the most fraternal support, he is most in need of a brotherly hand stretched out to him.  But, after having done all in our power to make him a foe of society, after having inoculated him with the vices which characterize prisons, who will tender him the brotherly hand he is in need of?

– Peter Kropotkin (1887: 127)


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[1] Wacks (2006: 24); also “the imposition of something that is intended to be burdensome or painful, on a supposed offender for a supposed crime, by a person or body who claims the authority to do so” (Stanford Encyclopedia of Philosophy 2008)

[2] Workman does note some improvement with the Victims’ Rights Act 2002, though the combined legislative changes in that year were a “mixed bag” (Workman 2009: 8).

[3] Russian Marxist legal theorist E.B. Pashukanis describes convincingly how the legal and penal form of capitalism corresponds to its economic relations, and argues that the two strands are mutually supporting and have dialectically shaped modern society (Garland 1990: 111-118).

[4] This paradox is represented most starkly in New Zealand by the ACT political party (ACT New Zealand 2010), which styles itself “The Liberal Party” due to its laissez-faire approach to distribution, but holds a “zero tolerance” approach to crime and a highly retributive penal policy.  Yet our entire society has moved in the same directions, to varying extents.

[5] Merton’s theory has been criticised for not taking into account white-collar crime (Newbold 2000: 14), however the limitlessness of the ‘culturally defined goal’ of wealth accumulation ensures it strains against the rich as much as – and sometimes more than – the poor. Corporates benefit from fostering dissatisfaction amongst all classes; the chimera of ‘keeping up with the Joneses’ always just out of reach, for as soon as it is achieved, marketers lose the consumer demand that accompanies this dissatisfaction.

[6] Lest it be assumed that this is merely an unfortunate corollary to the fact that the poor do more damage to society, and thus deserve more punishment, it should be observed that in reality the rich and powerful, who would seem to have the least ‘need’ for crime, do the most damage.  Edwin Sutherland influentially found in 1940 that 90% of US corporations qualified as ‘habitual criminals’, a situation that has not changed (Newbold 2000: 36).  White-collar crime has been estimated to be as much as 40 times more damaging than blue-collar, largely because the rich have the power to commit crime on a much larger scale (Newbold 2000: 44).  This scale is not reflected in correspondingly longer sentences (Newbold 2000: 38-39).  The legalised damages of the rich and powerful, which the law protects rather than punishing, are also worth considering.

[7] “The concept of the conscience collective is never fully elaborated in Durkheim’s work … It is described as ‘the totality of beliefs and sentiments common to average citizens of the same society’ and … forms ‘a determinate system which has its own life’” (Garland 1990: 50).

[8] Girard’s built-in proviso that the scapegoating will be obscured means that this claim is difficult to either prove or falsify.

[9] ‘Mimetic desire’, which Girard sees portrayed most honestly in fictional literature, is desire produced through imitation.  Conflict arises from multiple imitators desiring the same object.  Unanimous punishment provides a way out of this conflict as it focuses mimetic desire upon the scapegoat and allows all desires to be simultaneously satisfied (Girard 1987: 121-129).

[10] Walter Wink defines the myth of redemptive violence as “the story of the victory of order over chaos by means of violence”; the assumption that violence is a necessary and inevitable solution to human conflict, order must be imposed violently from above, and “whoever conquers must have the favour of the gods”.  Wink points out the ubiquity of this message in entertainment media, most obviously in children’s television, and argues that this myth is the dominant religion of Western society (Wink 2007).

[11] “’Society as a whole’ does not exist, except in the fantasies of the jurists.  In reality we are faced only with classes, with contradictory, conflicting interests” (Pashukanis, cited in Garland 1990: 113).

Who are the real criminals?

I wrote this one in ~June 2008 for Sociology 218: Crime and Justice at the University of Canterbury in Christchurch.  Facebook discussion here: http://www.facebook.com/note.php?note_id=17025664796

“Examine the global dimensions of corporate crime and demonstrate why this form of offending constitutes one of the most serious threats facing contemporary Western economies”.


If asked to picture a criminal, most of us would have an image of a rough-looking, lower-class young male. It may be an American thug inspired by crime fiction, or a gang member of Māori or Pacific Island ethnicity as seen on the news. Crime in the media, and ostensibly in the statistics, is dominated by uneducated, uncivilised, unstable people from the low socio-economic levels. However this is not an accurate reflection of the true scope of criminal activity. Although crime amongst the lower classes is undoubtedly a serious problem, it is not commonly known that crime committed by the rich and powerful amounts to a much larger problem.

What is thought of as “traditional crime” are things like assault, robbery, drug-dealing, rape – all of which are most prevalent among the lower classes. This is known as “blue collar crime”. It is simple, easy to understand and convenient; it allows people to identify a lumpenproletariat, a “rabble” class of lazy, unemployed, uneducated low-lives with little respect for law, private property or their fellow citizens. The opposing category of crime, dubbed “white collar crime” by Edwin Sutherland (1949), is less intuitive. White collar criminals, rather than inhabiting the lower rungs of the social ladder, occupy positions of status and power in society. They are businesspeople or public servants; professionals who, if perhaps not liked by everyone, at least garner a certain level of respect and an air of legitimacy. They are seen to be working hard, succeeding, contributing to the economy. Because of the nature of corporate crime, it is not always obvious to tell when their success spells harm for others, and when their illegal or unethical activity is causing financial, environmental and societal damage. Despite a lower profile to its blue-collar cousin, the reality is that white collar crime is a substantial problem around the world and one of the most serious threats facing contemporary Western economies.


Much corporate crime is not performed by corporations per se, but by individuals working within them, whose position enables them to rip off the company and/or its customers, often to the tune of millions of dollars or more. Corruption and crime by individuals working for governments is also widespread in contemporary Western economies (White and Habibis 2005, p. 168); ranging from President Nixon’s Watergate scandal to anonymous civil servants ripping off the taxpayer on a small scale, usually undetected.

Nick Leeson was a derivatives trader for Barings Bank, Great Britain’s oldest merchant bank, in the 1990s. He worked his way up to the position of Chief Trader, before his investing started going horribly wrong. He covered up his losses with false records and client accounts, only to lose more and more. Eventually he fled the country after having lost US$1.3 billion, undetected by his company. The bank was forced into liquidation, meaning its investors lost all their savings, and 1200 employees lost their jobs. He was apprehended in the end, but the damage was irreversible (Ibid, pp. 124-125).


A larger category of corporate crime is that performed by corporations themselves, in the pursuit of profit. Individuals obviously do contribute to the crime, but they are in service to the company instead of embarking on the crime for their own individual purposes. However, “the line between the two can be blurred” (Ibid, pp. 124). Glasbeek likes a corporation to an “invisible friend”, (2002, pp. 6-7) which people can blame for their actions. They are able to distance themselves from their actions by saying things like “I’m just doing my job”. Whatever the reason, it is apparent that when large amounts of people and large amounts of money get together to try and do business, crime or other unethical conduct is very likely to occur.

White and Habibis (2005, pp. 126-127) divide corporate crime into four main categories: financial and prudential offences, offences against consumers, offences against employees, and environmental offences. All of these have the potential to cause massive amounts of harm, and although pharmaceutical, oil and motor vehicle companies tend to be the worst corporate offenders (Ibid, p. 125), many companies engage in them. One example of an environmental offence is that of chemical company Dupont. Dupont made a greaseproof covering for paper packaging. Unfortunately, the coating turned out to be an “indestructible chemical that causes cancer, birth defects and other serious health problems in animals” (Mokhiber & Weissman 2005). They discovered that the chemical was entering water supplies across the United States. However, they continued producing the product, covering up the studies for over 20 years, until it was finally brought to the attention of the Environmental Protection Agency. By this stage the chemical had entered the bloodstreams of 95% of American citizens, and it’s there to stay. It is impossible to tell how many cancers and birth defects it has caused, and will cause (Ibid).

This may sound “too bad to be true”, but crime and other misconduct by corporations is very common, and has been for some time. Edwin Sutherland, in his groundbreaking book White Collar Crime (1949) which gave rise to the phrase, studied seventy of the largest corporations in the United States (Ibid, pp. 17-28). In an average of 45 years of operation, he found that they had an average of 14 law violations each. Sixty percent of the companies had been convicted in criminal courts, and they had an average of four convictions each. He pointed out that in many states, persons with four convictions are known as “habitual criminals” (Ibid, p. 25). Sutherland’s study was not an anomaly; similar studies since have consistently shown that corporate crime is not only common, it is normal for companies to engage in it (White and Habibis 2005, p. 128).

Corporations are legally considered to be people, although unlike people, they cannot easily be imprisoned or punished. Also unlike most people, companies do not have any moral qualms about what kind of behaviour they will engage in. The way companies are designed is that their sole motivation is profit maximisation; in fact a corporation is “legally bound to put its bottom line ahead of everything else, even the public good” (The Corporation 2003). All employees, including company directors, must serve this one goal, telling themselves that they are not acting by choice but simply doing their job, and delegating all responsibility to their “invisible friend”. The problem is, the invisible friend does not have the any of the safeguards of conscience, empathy and socialisation that hold human beings back from causing harm and committing crimes. The film The Corporation (2003) compares the personality of corporations to that of a psychopath. The typical corporation meets all of the World Health Organisation criteria of a psychopathic personality, and an FBI consultant on psychopaths says that “in many respects, the corporation of that sort is the proto-typical psychopath” (Ibid).

Another fundamental difference between corporations and people is that they have far more power. In fact, their power is more comparable to that of nation-states: of the 100 largest economies in the world in 2000, 51 were companies and only 49 were countries (Shah 2002). Companies, however, tend to be far less democratic and more hierarchical than the liberal democracies that contemporary western economies ostensibly aim to be. The single-minded, amoral profit motivation of companies, combined with their lack of democracy and accountability and ever-increasing wealth and power, is a recipe for disaster, and it is little wonder that corporate crime is such a widespread problem in contemporary western economies.


Because of the huge sums of money involved, on a strictly financial level corporate crime dwarfs all conventional property offences. Indeed, a single act of corporate crime in a nation can cause more financial damage than all conventional crime in that nation for an entire year, combined (White & Habibis 2005, p. 130). A study in the 1980s showed that “for every dollar taken by conventional crime, about 40 dollars were stolen by criminals wearing suits and ties” (Newbold 2000, p. 44). Money taken from the individual also causes indirect, but very real, damage to people surrounding the victims; “for every person injured by the collapse of a company, ten others – wives, children, creditors and their families – are seriously affected by it” (Charles Sturt, cited in Newbold 2000, p. 45). It also harms economies in general, which affects most everyone in a society (Newbold 2000, p. 45).

Moreover, damage from corporate crime is far more than just financial. White collar crime is often seen as victimless (White & Habibis 2005, p. 131); even though a lot of money changes hands, which can be people’s life savings and place them in serious hardship, people can still tend to downplay the amount it affects people when compared to blue collar crimes like assault, where the damage is immediately obvious. However, nothing could be further from the truth. Environmental crimes cause immeasurable, often irreversible damage to flora, fauna and people living nearby; when the Exxon Valdez oil tanker ran aground in 1989 thirteen thousand miles of shoreline was polluted, with mass deaths of wildlife (Ibid, p. 132). Likewise health and safety crimes such as that perpetrated by Dupont can harm and kill “literally millions” (Ibid, p. 131) of people, and have long-ranging effects which are often not discovered until years later when it is too late to do anything about it.

Perhaps worst of all, white collar crime is not simply a matter of rich people ripping other rich people off. The victims of corporate crime are often poor people, and when they are victims, they are less equipped to deal with the damage as they cannot afford health and legal costs. Many financial crimes such as bribery and corruption “represent a transfer of wealth from the poor to the rich, even though it may not be a visible one” (Ibid, p. 133). Women and ethnic minorities also suffer disproportionately from corporate crime. Just like with blue collar crime, “it is those at the bottom of the socio-economic ladder who are most adversely affected” (Ibid).


The enormous impact of white collar crime is well documented, but the amount of attention given to it in the media and academia is disproportionately small. As such, the public discourse tends to largely ignore white collar crime as a common or serious occurrence. White and Habibis (2005, p. 120) identify that there does tend to be short-lived media coverage of sensational events such as company collapses, but not the same ongoing coverage of things like health and safety violations as there is with blue collar crime. In addition, “Public debate about ‘law and order’ continues to focus on traditional rather than white collar crimes” (Ibid, pp. 120-121). Interestingly, the academic literature also turns a relatively blind eye to corporate crime. This may be because acknowledging the true extent of white collar crime would force sociologists to abandon certain criminological theories which only apply to the blue collar sector; as “the existence and extent of white collar and corporate crime challenges any simplistic explanation of crime in terms of poverty or psychological pathology” (Ibid, p. 128)

Worse still, the justice system also gives tends to downplay corporate crime and give white collar criminals an easier deal than their blue collar counterparts. Although white collar crimes are usually far more damaging, they are also far less likely to get caught, and when they are caught, receive far lighter sentences. Nick Leeson, whose billion-dollar heist ruined thousands of investors and employees, was only sentenced to six years imprisonment. He was released after four, and has now made a small fortune writing and speaking about his experiences (Ibid, pp. 124-125). “The number of businesspeople in prison is tiny … Their time in prison is generally short, despite the damage caused by their actions. Often they eventually return to well-paid jobs in the business sector” (Ibid, p. 137).

The situation with crime by corporations is even more grim. Many health and safety violations, even those that cause widespread damage, injury and death, are treated as accidents. Other serious offences are covered by administrative rather than criminal law. This means softer penalties and avoiding convictions (Ibid, p. 135). Dupont were caught and fined $16.5 million; the largest fine the Environmental Protection Agency had ever dished out under toxic chemical law. However, it equalled less than half a percent of their average annual profits for just one of their products (Teflon) during the period they were covering the violation up. This was corporate crime on a massive scale and yet Dupont were barely given a slap on the wrist.

The unlikelihood of being caught is not helped by the fact that policing resources are grossly inadequate for the scale of the damage. In New Zealand, the Serious Fraud Office, which is dedicated to large-scale fraud offences, only receives 0.6% of the funding dedicated to blue collar crime (Newbold 2000, p. 45). Even so, the SFO has been reasonably successful in catching corporate criminals. Unfortunately, the department is now being disbanded, to be replaced with a police unit dedicated to organised crime (Trevett 2007). The entire situation leads Slapper and Tombs to declare that at all stages of the legal process, from the ideology behind forming laws, to specific sentences to those found guilty, corporate criminals are treated differently from “conventional” criminals. They say this “point[s] consistently towards the conclusion that most forms of corporate and organisational offences are relatively decriminalised” (cited in White and Habibis 2005, p. 135).


This can partly be explained by the “invisible” nature of corporate crime; many crimes are never discovered, and others are not discovered for years, as opposed to assault or burglary which are easily noticed (White and Habibis 2005, p. 134). Even when a misdemeanour is identified, the complexity of corporate law means it is often difficult to ascertain whether a criminal offence has been committed, and it can also be very costly and time-consuming to convict (Newbold 2000, p. 32). However, these factors can only go so far in explaining the vast class inequity in the justice system, and do not explain the relatively light sentences when corporate criminals are found guilty, nor the media’s focus on blue collar offences. In order to see the larger picture, we must look at the influence of money and power on government, the justice system, and public opinion.

In a capitalist democracy where there is freedom of speech but the loudest voices are the ones with the most money, the increasing power of corporations inevitably has an influence on the democratic process and the forming of policy. Glasbeek (2002, pp. 111-112) points out that although we may expect the media to hold the government and corporations to account, they are in fact corporations themselves. The mass media in Western countries is provided by an oligopoly of several large corporations, who are themselves part of huge multinational conglomerates with stakes in all sorts of industries. In addition, the bulk of their income is made by selling advertising to other corporations. When our media providers are so deep in the heart of the corporate system, it is little wonder that they turn a relatively blind eye to its offences.

Meanwhile, corporate interests engage in what can best be described as legitimised government bribery, through campaign contributions aiming to “stabilize the field of corporate activity” (Glasbeek 2002, p. 110). Corporations have a huge influence over governments in what Naomi Klein calls “a system that erases the boundaries between Big Government and Big Business” (Klein, p. 15). This “corporatist” form of governance has been becoming more powerful since the lasses-faire revolution of the 1980s, but it is nothing new; powerful institutions have always had common goals and banded together against the powerless when it suited them.

This all adds up to what Greg Newbold refers to as an “almost inevitable alliance between business and politics, between money and power” (2000, p. 33). This rings true in New Zealand, where the Business Roundtable holds considerable sway over governments, and other capitalist nations such as the United States, where corporate campaign donations play a huge role in influencing policy. This is the main reason why corporations and white collar individuals manage to get away with so much unethical and irresponsible behaviour in the pursuit of profit; and when they do run foul of the law, manage to be punished so lightly; it is a simple matter of bias for the powerful against the powerless. Often, the connection between political, corporate and coercive powers is too obvious to ignore, as in the case of the Bush administration bailing out Exxon Mobil from legal action in 2002. The International Labour Rights Fund, a US-based lobby group, was suing them on behalf of 11 villagers from the Acheh region of Indonesia, whom had been the victims of severe human rights violations at the hands of the Indonesian army (TNI) which Mobil had hired to provide security in the region. The case was never brought to fruition however, as the US State Department arranged for the case to be dismissed. This is not surprising, as Exxon Mobil were the second-largest donors to George Bush’s re-election campaign (Morse 2007, pp. 79-83).

Even when the judiciary is able to stay separate from the legislative and executive branches of government, they are still not free from inherent class biases. As White and Habibis (2005, p. 134) point out, judges have a shared social background with corporate criminals and are likely to look upon them with more sympathy than working-class defendants. This means that even in the rare cases when the law is adequate and the crime is clear, white collar criminals are still likely to receive lighter sentences than they perhaps ought to. As Bob Dylan (1965) pointed out in The Lonesome Death of Hattie Carroll, the belief that “the ladder of law has no top and no bottom” is a myth.


Corporate crime is a problem of far greater dimensions than most people realise. Not just members of the public, but governing bodies, law enforcement agencies and academics all tend to downplay the impact of corporate crime. It causes many times more damage than traditional or blue collar crime. Yet law enforcement of corporate crime is woefully inadequate, meaning that most corporate and white collar criminals either get away with their offending, or are punished far more lightly than conventional criminal. The reason for this bias is that the institutions and individuals with the most power in society stack the law and justice system in favour of themselves and their own class, both consciously and subconsciously. Because of the vast extent of corporate crime, and the lack of effort to stop it, it constitutes one of the most serious threats facing contemporary Western economies, and will continue to do so until the structural injustice supporting it is removed.


Glasbeek, HJ 2002, Wealth by Stealth : corporate crime, corporate law, and the perversion of democracy. Between the Lines, Toronto.

Klein, N 2007, The shock doctrine : the rise of disaster capitalism. Henry Holt, New York.

Mokhiber, R & Weissman, R 2005, ‘The 10 Worst Corporations of 2005’, Multinational Monitor, vol. 26, no. 11, Retrieved May 26, 2008, fromhttp://multinationalmonitor.org/mm2005/112005/mokhiber.html

Morse, V 2007, Against freedom : the war on terrorism in everyday New Zealand life. Rebel Press, Wellington.

Newbold, G 2000, Crime in New Zealand. Dunmore Press, Palmerston North.

Pickett, KHS 2007, Corporate fraud : a manager’s journey. John Wiley & Sons, New Jersey.

Shah, A 2002, The Rise of Corporations. Retrieved 26 May 2008, fromhttp://www.globalissues.org/TradeRelated/Corporations/Rise.asp

Sutherland, EH 1949, White Collar Crime. Holt, Rinehart and Winston, New York.

Trevett, C 2007, ‘SFO victim of criminal intent’, New Zealand Herald, 15 September. Retrieved May 26, 2008, fromhttp://www.nzherald.co.nz/topic/story.cfm?c_id=124&objectid=10463653

White, R & Habibis, D 2005, Crime and society. Oxford University Press, Melbourne.

The Corporation 2003, videorecording [DVD], Big Picture Media Corporation, Vancouver.

Dylan, B 1964, The Times They Are A-Changin’, audiorecording [CD], Columbia Records, New York.