The currency of justice

Chapter 5
The currency of justice

Unlike liberty, money can be digitized. For this reason, we may anticipate that while there are limits to how many people may languish in prisons, the domain governed through monetary sanctions – and especially through regulatory fines – is likely to continue to expand almost exponentially. It is not difficult to imagine a world in which each behavioural transgression committed, or each degree of licence taken, is registered electronically and billed to us electronically together with the usual warnings, disclaimers and conditions that accompany most market transactions. Along with our other bills, fees and taxes, these fines will be paid electronically as well. It is a scenario already substantially in place with respect to traffic regulation. While it can be pushed into a paranoid imagery of technocratic despotism, as Deleuze (1995:175) sometimes envisages it – from another viewpoint, it is quite consistent with a vision of freedom associated with consumer societies. Money is sufficiently ubiquitous that these impositions almost may be taken for granted. While a constraint on our power to spend, fines of this sort do little or nothing to constrain or threaten our liberty, nor is it intended that they do so. Such sanctions govern through ‘freedom of choice’ – indeed we may think of them as a technology of such a freedom. As responsible consumers we pay for our choices and for the routine mistakes and failures of foresight that characterize everyday life. Regulatory fines are thus quite consistent with governing the consumer society that has come into being since the end of the Second World War and has burgeoned in the past 30 or 40 years.

This is all the more the case, because such monetized regulatory governance is consistent with the emergence of risk as a telos of consumer societies. As Jonathan Simon (1987) noted, because it governs through categories and distributions risk can offer a form of moral tolerance that is more relaxed than government through disciplinary techniques, and better fitting for social relations governed increasingly by consumer-led markets. Government through speed humps, seat belts, insurance, CCTV, parking fines, and so on is not so much interested in ensuring the conformity of each individual to a right-thinking norm. It does not touch the ‘soul’ of the subject. Rather its concern is with the secure distribution of behaviours and things. Individuals are left to ‘float’ within a monitored space in which deviance is less the problem than riskiness, in which conformity is less to do with moralized norms than with the potential for harm. Here, money is also put to work, as the commodities we buy are already risk-proofed through manufacturing standards, vendor licences, health and safety regulations, customs regulation and so on. Such governance works to constrain and shape behaviour not through visible coercion and intrusive examination, but seemingly through our own consuming desires. As risks increase, fines, prices, fees, premiums all tend to increase. Other, less risky and less expensive choices become more attractive. Money becomes a way in which risks are rendered governable and through which freedom of choice is shaped and expressed. Money sanctions, and especially regulatory fines and compensatory damages, are a part of this complex and almost seamless circuitry through which such governance works.

This diagram maps roughly onto the contours of ‘control societies’ discussed by Deleuze (1995). In both, government increasingly is immanent within the circuits and flows of freedom of choice. The subjects of government are not so much the unique individuals constituted and governed through still robust disciplinary practices, but instead are fragmented dividuals that are the stuff of databanks, pattern recognition software, markets and a plethora of other distributions. The distributions are primary and the dividuals – consumers, drivers, homeowners, taxpayers – are the component means through which the distributions are governed. As William Walters (2006:192) has summed it up

But the fact that money can be digitized not only allows it to act as another – often merging – conduit or circuit related to control but also it allows for more than the relatively crude mechanisms of blocking and filtering flows. In the circuits where regulatory fines and penal damages are deployed exclusionary manoeuvres of the sort outlined by Deleuze and Walters are the techniques of last resort, mobilized only when the more porous mechanisms of pricing are not adequate for security. Money in its various regulatory forms allows for more subtle, graduated and variable processes. Like prices, regulatory fines and penal damages have the effect of slowing down and speeding up flows, of shaping the volume of distributions by degrees, and of making actions less or more attractive through price modulation. Such friction or resistance can be increased or decreased in tiny increments if required, creating an admission price or a money penalty fewer and fewer would be prepared to pay until the optimal distribution is achieved.

Only where risk is deemed unacceptable does exclusion cut in. In the case of regulatory fines, this rarely takes the form of general incapacitation or loss of liberty. Such drastic resort as imprisonment is often virtually impossible and always proportionally rare as the back-up to this sanction. Far more frequently, the exclusionary back-up sanctions deny access to a privilege, to some right of access to things and places or to the performance of certain specific (and often purchasable) rights. In Deleuze’ examples, this is epitomized by the denial of digitized credit. In the case of regulatory fines, it is more frequently exemplified by other forms of specific incapacitation such as licence endorsement, suspension or cancellation, closure of premises, impounding of cars parked in tow-away zones, and so on. Again, much the same applies with penal damages, for once products become sufficiently risky that they generate more than the occasional tort action, more restrictive regulation is likely to cut in, in the form of prohibitions on manufacture, suspensions of import licences and so on. Such incapacitations and exclusions do not threaten our liberty; they erode particular and ‘surplus’ freedoms, often in the name of risk reduction. Correspondingly, they do not bear upon us as individuals, as would be the case with loss of liberty or criminal conviction that bear upon the whole legal and social entity. Instead they bear upon that aspect of us that is licenced or privileged – the relevant dividual. The ‘dividualisation’ of the subjects governed by this sanction and the articulation of this to a dividualisation of sanction (for example, impersonal fines backed by licence cancellation) is one facet of this governmental tactic. The risk-creating dividual is incapacitated, but the individual of which this dividual is merely a facet or fragment, remains at liberty. For the same reasons such regulatory fines can become anonymous – targeted at owners, proprietors, drivers and so on, and accordingly can be monitored, delivered and expiated privately and anonymously.

Bentham’s felicity calculus is hard at work in this diagram of governance, not so much by inflicting pain through withdrawing necessities as he envisaged, but by the denial of those pleasures that circulate in the surplus economy of desire. Regulatory fines have been deliberately designed in this fashion, to be paid ‘on the spot’. Damages are simply built into prices that we elect to pay. In the case of regulatory fines, to the extent that they appear as ‘only money’, as touching upon the money that flows almost unnoticed through our hands on a daily basis, they do not necessitate the time and resource-consuming administrative paraphernalia associated with trial and court hearings. By progressively dislocating these penalties from the threat of imprisonment in default of payment, it became possible to streamline their processing. Financial and other incentives are put in place to encourage the maximization of administrative throughput, offering deductions for prompt payment, penalties for late payments, fees for exercising a right to contest the notice, steeper fines if unsuccessful, and so on. The court or tribunal hearing appears as another optional service for which the user pays. Conversely, in this genealogy inability to pay emerged as a much lesser problem than with penal offences and offenders. Some mechanisms were put in place to take account of this, notably time-to-pay, the instalment system of the consumer economy. But this was not the shibboleth that it became in criminal justice, because in planning terms regulatory fines were aimed at consumers, retailers and others imagined as able to pay, rather than at the poor who may well default. Indeed, in many jurisdictions, the difficulties associated with criminalizing are further etiolated as the whole process of regulatory fining is carried out in the private sector – for example, where monitoring traffic offences and infringements (which, remember, make up 90 per cent of regulatory fines) is contracted out to security companies. The revenue generated by such fines, fees and penalties thus may either create a revenue-neutral ‘state’ regulatory system that is thereby almost infinitely expandable, or a sector of private industry in which opportunities for profit are associated in proportion with the increased policing of security.

If this scenario represents the realization of one of Bentham’s dreams – a self-funding system of pecuniary security based on the fine – another aspect of this imaginary of wholly monetized justice was likewise to appear within a century of his death. For Bentham, it will be recalled, the distinction between civil and criminal law was of little importance. Both delivered pain and should be regarded therefore as part of a system of punishment. In large measure, this view was far from being as outlandish as it now appears. In the nineteenth century damages were primarily regarded as punitive. Damages were part of a liberal project to shape and foster the responsible liberal subject. Certainly, they provided compensation, and Bentham among others lauded this state of affairs. But the primacy of punishment was indexed by the fact that the law’s focus on establishing negligence and similar faults as the basis for liability to pay and for entitlement to receive damages, meant that compensation became harder to get than had previously been the case. As Bentham recognized, the nineteenth-century law of damages thus had much in common with the penal fine: damages were sheeted home to the individuals responsible for creating harms, and by and large there was little or no insurance available to soften the blow.