➡︎ read the rest of this Forum
Concepts, Comparisons, Conjunctures: Reflections on Law and Order Leviathan
David Garland*
I’m grateful to the forum contributors – to José, Patricia, Katja, Rocío, and Sara – for their generous readings of my text and for raising such interesting issues. In the essay that follows, I offer some responses to their questions, focusing on topics that seem most useful for future work.
Theory
In her characteristically thoughtful and thought-provoking essay, Katja remarks that “the book’s theoretical framework … feels strangely atheoretical” noting that, in contrast to Punishment and Modern Society: A Study in Social Theory (Garland 1990), Law and Order Leviathan (hereafter, Leviathan) contains no extended conversations with the great social theorists.
With due respect to Katja, I think this confuses theory with theorists, and ideas with authors. The theory that Leviathan develops is indebted to Marx, Durkheim, Weber, Polanyi, Hall and Soskice, Rob Sampson, Wolfgang Streeck, and others, as the book’s endnotes and bibliography make abundantly clear. And there is no shortage of theoretical concepts appearing explicitly in the text itself – structural determination; relative autonomy; intermediating processes; state capacity; social control; collective efficacy; solidarity; social background; bandwidth of variation; and so on – each of which is carefully introduced and explained. But whereas Punishment and Modern Society was a book about theoretical ideas, Leviathan is a book that puts these ideas to work to explain a puzzling phenomenon. Theory here is a resource, not a topic.
Generalizability
Katja also asks, how generalizable is a theory developed to explain a case that is so clearly extraordinary? If America’s penal state is a comparative outlier, can an explanation of its determinants have relevance for other cases that fall within the normal range?
I suppose we will have to wait and see, if and when my framework is taken up by other scholars and applied elsewhere, as I hope it will be. But I should point out that my approach is, in fact, grounded in concepts and findings that first emerged in research on the political economy-punishment relation in countries other than the US. And that in tracing how these processes work in the US case, I hope to have extended and refined that theoretical approach, rather than rendering it solipsistically American.
Penal Control
Rocío points to the prominence of “penal control” in my analysis, asking how that concept is defined, and whether it is truly distinct from the more familiar idea of retribution. Let me try to explain why that is, and respond to her question regarding retribution.
In my usage, penal control refers to a specific mode of exercising penal power that aims not to exact retribution, or extract resources, or correct behavior – though these may be ancillary purposes – but instead to impose restrictions, restraints, and various forms of incapacitation or disqualification that limit the freedom of movement and range of action of the person subject to them. Conceptually, this idea clearly overlaps with the more familiar (though somewhat narrower) concept of “incapacitation.” And, as Rocío points out, because penal controls impose suffering, they also overlap with, and can form an element of, retributive punishments that aim to give offenders their “just deserts.” But as a technique of penal power, penal control observes none of the limiting proportionality principles that retribution, properly so-called, is bound to respect. As Clint Eastwood’s character remarks before shooting the sheriff in Unforgiven, “deserve’s got nothing to do with it.”
The aim of penal controls is not to do justice but to manage risks and deal with dangers by imposing coercive restraints, with little regard for fairness or the liberty interests of offenders. And even if, as Rocio remarks, “the American public has a very severe notion of what is proportional” there is nothing remotely proportional about the sentence enhancements and collateral consequences that play such a large role in the American penal state. The imposition of penal controls may also function as a form of deterrence, though again, the two are not identical. For example, many of the controls involved in collateral consequences – such as deportation, or exclusion from federal housing – are “invisible punishments” largely unknown to the general public. They are evidently not designed with deterrence in mind.
Leviathan claims that the signature characteristic of the American penal state is the ubiquity of penal control. It argues that penal control operates as a fundamental imperative, both in sentencing practice and in the culture of law enforcement, providing the current system with its practical logic. This is important as a descriptive matter, distinguishing the current US system from the penal states of other nations and other times. But the ubiquity of penal control also enables us to identify the roots of the system, providing a vital clue as to its explanation. That the US penal state is obsessed with penal control points to the fundamental cause of this extraordinary system which is, or so I argue, the chronic deficits of America’s mainstream social controls, both perceived and actual. As I show in the book, these social control deficits are a community-level effect of the structures of America’s post-1960s political economy – above all, its labor market, its welfare state, and the Federal government’s urban policies, exacerbated in their consequences by the widespread availability of guns. The penal control-social control framework that flowed from this hypothesis, forms a key part of the theory that, as José and Patricia point out, underpins the book’s analysis.
A New Moment?
A thought that emerges quite powerfully in Katja’s essay, and also in the one by José and Patricia, is that Leviathan may be addressing a conjunctural phenomenon that has already been overtaken by events. They suggest that we are entering a new moment, a new present – an emerging conjuncture that is defined in large part by immigration control, but also by a diminishing rate of incarceration – and which, accordingly, requires a different kind of analysis.
It is clearly important to attend to current developments, and to be aware of how changing circumstances pose new challenges and possibilities for analysis. And in punishment and society scholarship, there has always been a focus on the current moment, on the claim that we have broken with the past, on the singularity of the present. Beginning with Foucault’s Discipline and Punish and continuing with the new penology, the culture of control, the new Jim Crow, and neoliberal penality, the trope of the newly-emergent configuration has been a persistent one – despite Foucault’s later warning that we should hesitate before declaring that our present is somehow special. José and Patricia may be correct to suppose that “a new shift is currently unfolding, awaiting examination.” And Katja is certainly correct when she observes that immigration enforcement has become the leading edge of the US state’s coercive apparatus. But have these novel developments swept away the long-standing phenomenon that Leviathan sets out to analyze and explain? I don’t believe so.
It’s true that my account of the structural roots of America’s penal Leviathan focuses on the zenith of penal state expansion (the peak year being 2008) and on the post-1960s developments that led up to it – though I insist that America’s penal state, like its political economy, were comparative outliers throughout the 20th century and before. But the arrangements I describe (in some detail in chapter 3) have by no means disappeared, even if the direction of travel has shifted and their intensity somewhat abated. In other words, there are deep continuities as well as novel developments. And surface movement often occurs while structural conditions remain unchanged. My concept of a “bandwidth of variation” is designed to register this fact.
In the United States in recent years, political emphasis and federal enforcement effort have shifted from crime control to immigration control. And in some states, though not in others, there has been a relaxation of penal controls. But we should bear in mind that the US nevertheless remains a clear outlier on each of the penal state dimensions that the book analyzes. So, when Katja remarks that Leviathan has “remarkably little to say about the current political situation,” readers should bear in mind that the terms “current” and “situation” are somewhat ambiguous.
Immigration and the US Penal State
Katja writes that “it is difficult to address the nature of punitiveness … without understanding the urgency of immigration as a political issue.” She also suggests that the US Leviathan, today, is increasingly defined by the draconian enforcement of immigration controls. This is obviously correct. But in Leviathan, I am not aiming to understand punitiveness in all its forms, nor to explain everything that the US state does. I am trying to explain why America’s penal state (not the American state as a whole) is an outlier on a series of clearly-specified dimensions.
Leviathan defines the penal state as
the legal and institutional arrangements, as well as the personnel and physical infrastructure, through which duly constituted government authorities exercise “penal power” – the general term I use to describe the power to police, to prosecute, to surveil, to punish, and to control. … Each involves the use of legal authority, backed by force, by an agent of the state against an individual who is suspected, indicted, or convicted of a criminal offense (p 31).
Under this definition, the enforcement of immigration law falls outside the scope of the penal state, except where immigration law violations are brought under the criminal law. One could, of course, define the penal state more broadly, in ways that encompass immigration enforcement. But the definition I use more closely accords with the conventional divisions of law, governmental authority, and institutional arrangements, in the US and elsewhere, making it more useful for comparative purposes.
Excluding immigration enforcement from my analysis of America’s penal state was thus a choice I made for practical reasons. Generally speaking, immigration controls and their enforcement do not form part of the criminal law. And the politics of immigration control and the organization of immigration enforcement are distinct from those of crime and punishment, though of course the division between the two is increasingly blurred and subject to contestation.
For decades now, US immigration issues have run alongside, and overlapped with, crime control, and the detention of people charged with civil immigration offences, and of asylum seekers, has become a massive carceral undertaking. America’s current president, his Republican party, and the rightwing media routinely conflate crime control with immigration control, characterize undocumented migrants as criminal, and authorize a shockingly lawless policy of enforcement and mass deportation. Nevertheless, the law, the politics, and the underlying issues are not the same and should not be reduced one to the other.
Katja asks how my analysis of the law-and-order Leviathan would change if immigration issues were to be included? Not having researched the issue, I’m unable to speculate. But I very much hope that someone – ideally Katja herself – will write a book about this soon.
Criminology and the Sociology of Punishment
Sara, Katja, and Rocío all commend the fact that my analysis in Leviathan encompasses both crime and punishment, thereby bringing the sociology of crime and penal sociology into conversation. Such a dialogue is surprisingly rare in the current literature, for reasons that have more to do with the disciplinary boundaries and academic divisions of labor than with the nature of real-world processes. The founding principle of the sociology of punishment is an assertion of the autonomy and distinctiveness of its object of study. Beginning with Emile Durkheim, scholars in this field have rejected the conventional assumption that penal laws and penal practices are determined by the exigencies of crime-control, insisting instead that punishment should be analyzed as a distinct social institution, with its own causes, consequences, meanings, and functions.
But that autonomy is always only relative. Analytically, one can isolate the practices of punishment, studying their character, form, causes, functions, meanings, and so on. And this is largely what the sociology of punishment does. But in the study of actual penal states, the facts of crime, crime rates, criminal events, and their representation in politics, the media, and popular culture, generally play an important part in shaping criminal law and its enforcement. So, while some writers have previously insisted that rising crime rates in the US played no role in creating mass incarceration and a monstrous penal state, it is widely accepted today that the post-1960s spike in rates of homicide and violent crime was a key factor prompting shifts in public opinion, in party political attitudes, and subsequently in penal state practices.
Comparisons
Rocío makes a nice point when she says that, if the US is an outlier on so many dimensions, perhaps it is not a member of the group with which it is being compared! And Sara also raises the question of what the most appropriate comparator group might be. So, let me say a word or two about the problem of comparison.
Leviathan is not a comparative study that systematically compares two or more nations in detail. It is, instead, a study that highlights the ways in which America’s policing and punishment regimes differ from those of other comparable nations, and undertakes to explain why. The comparison group I use is that of non-US developed nations: most often the nations of Western Europe together with Canada, Australia, and New Zealand. This is, of course, a ‘most similar nations’ comparison, contrasting the United States to other developed, affluent, liberal-democratic countries, the set with which it is most often compared and, for policy purposes, is most relevant.
Different comparator groups would present the United States in a different light. Regarding rates of lethal violence, or police killings, the US is much closer to South American nations than to European ones. In 2025, the US homicide rate of 5 per 100,000 was lower than 18 of 21 South American and Caribbean nations, which ranged from 1.3 to 68 per 100,000. By contrast, Western European rates range from 0.3 to 1.3 (see https://www.statista.com/). In terms of incarceration rates, the US rate (750 per 100,000 in 2008) most resembles authoritarian regimes such as Stalinist Russia or Maoist China, though Brazil’s rate of incarceration, at over 400 per 100,000 is approaching US levels, and some very small nations such as El Salvador, Rwanda, and Cuba have exhibited rates in excess of that.
Lisa Miller’s work-in-progress is developing comparisons between the US and Latin America with respect to state formation and violence. And John Clegg and Adaner Usmani have a forthcoming book that considers the US in a global context, having gathered data on policing and incarceration from most of the world’s nations over long spans of time. So before long, we should be in a better position to consider how different comparisons produce different results.
Structural Determination and Individual Agency
As Rocío points out, Leviathan sets out a structural analysis but it also considers patterns of individual agency and the relationship between these two levels of analysis. As I argue in the book, the fact that social structures exert a determining influence on the rates of violence exhibited by a group or a place is entirely compatible with the existence of a degree of agency on the part of members of that group or residents of that place, some of whom will choose to employ violence, others of whom will not. Of course, the choices of these individuals will be more constrained than those of individuals in groups and places less affected by adverse structural conditions, but choices remain nevertheless.
Rocío wonders what normative implications flow from this, which again, is a good question that I don’t feel able to answer without further study. Suffice it to say that my approach, like the causal story I set out in Leviathan, would operate at two levels: ameliorate the structural conditions; extend additional consideration to those adversely affected by them.
Finally, Sara raises the policy question of how, given my structural analysis, one might go about tackling America’s chronic problems. As usual with my work, I have more to say about the social causes of the phenomena in question than about the policies that might be used to address them. But I would point readers to the book’s Epilogue, which outlines the political and policy implications that, at least in my opinion, flow from the book’s analysis. And remind them that, because not every root cause problem requires a root cause solution, the present moment, bleak as it is, nevertheless holds definite possibilities for intervention and progressive change.
* New York University.
Suggested Citation: David Garland, “Concepts, Comparisons, Conjunctures: Reflections on Law and Order Leviathan,” MCLR+ (crimlrev.net) (Aug. 24, 2026) (https://crimlrev.net/2026/08/24/concepts-comparisons-conjunctures-reflections-on-law-and-order-leviathan-david-garland/)