Rethinking the Symbolic-Instrumental Distinction: Meanings and Motives in American Capital Punishment
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Description
This chapter uses Kit Carson’s article, ‘Symbolic and Instrumental Dimensions of Early Factory Legislation’ as a critical tool with which to discuss the use of ideas of ‘the symbolic’ and ‘the instrumental’ in the literature on American capital punishment in the contemporary period. Carson’s 1974 article follows Joseph Gusfield in arguing for the importance of the symbolic aspects of criminal law and legislative campaigns. Carson insists that the symbolic and instrumental dimensions of law-making are not only co-present, as Gusfield had observed, but also intermeshed and interactive. Thus, social groups who initially support a piece of legislation for ‘instrumental’ reasons (e.g. because they anticipate that the new regulations will bring them economic benefits) may come to oppose that legislation if its evolving ‘symbolic’ meanings come into conflict with the groups’ values and self-conceptions—if, for instance, the law comes to be seen as inhumane or associated with disreputable groups. Carson argues that symbolic meanings are an emergent property of the legislative process rather than an intrinsic one. According to his account, symbol-formation occurs in the context of an interactive struggle of interpretation and counter-interpretation, against a background of pre-existing conflicts and cultural commitments that provide a basis for reference and association. The symbolic meanings of an issue are not the basis for social struggles as much as their unplanned outcome. History matters. The symbolic meanings of a law or a policy are not given in advance and fixed for all time. Issues take on new meanings and associations in the course of events. Like Clifford Geertz and Max Weber, Carson takes symbolic meanings to be mutable and formed in the course of social interaction rather than pre-given and static. He argues for the importance of detailed historical analyses to trace the events, contingencies and convergences out of which new symbolic meanings take shape. His essay is an exemplary piece of work in which theoretical and historical analysis go hand-in-hand in an argument that is developed with elegance, subtlety and sophistication. In the 30 years since Carson published his essay, the tendency to think about the symbolic aspects of action has become well established in social science and in socio-legal studies. The ‘cultural turn’ has re-oriented sociology, historical work has focused more than ever on matters of culture and actors’ meanings and expressive theories of law have become prominent in the legal academy. This re-orientation has made the study of symbols and symbolic action much more common but also somewhat less precise. The subtlety and care of Carson’s work are not always in evidence, nor is the precision with which he defined his concepts and applied them to his material. Thirty years on, we have followed Carson’s lead but have not always fully absorbed the lessons that he has to teach us. This chapter will discuss a field of research in which symbolism in general and the symbolic/instrumental distinction in particular are frequently invoked by socio-legal scholarship—the study of capital punishment in the United States. It will use Carson’s analyses as a point of departure in an attempt to identify the problems to be explained, to clarify the conceptual issues involved and to refine the kind of analysis that ought to be brought to bear. It will also carry forward Carson’s call for historical and theoretical specificity by suggesting that we must forge new conceptual tools if we are to properly understand the various ways in which ‘the symbolic’ and ‘the instrumental’ (as well as other forms of action and communication) feature in the institution of capital punishment. An inquiry of this kind seems timely. In recent years, it has become commonplace to discount the ‘instrumental’ efficacy of capital punishment and to consider America’s capital punishment laws and litigation as largely ‘symbolic’ in motive and character. Commentators point to the death penalty’s limited impact as an instrument of crime control; to the limited protections of legal rules that are designed to provide the ‘reassuring symbolism of legal doctrine’ rather than to confer any more robust rights to the defendant; to the restricted role of instrumental (as opposed to symbolic) considerations in shaping public attitudes and to the marked contrast between public enthusiasm for enacting death-penalty statutes and institutional reluctance to enforce them. These observations frequently prompt the conclusion that the system is oriented to symbolic rather than to instrumental ends—that capital punishment is all symbol and no substance.
Source Publication
Governance and Regulation in Social Life: Essays in Honour of W. G.Carson
Source Editors/Authors
Augustine Brannigan, George Pavlich
Publication Date
2007
Recommended Citation
Garland, David W., "Rethinking the Symbolic-Instrumental Distinction: Meanings and Motives in American Capital Punishment" (2007). Faculty Chapters. 663.
https://gretchen.law.nyu.edu/fac-chapt/663
