Governing Risks

600 Pages·2006·109.59 MB·English

by  Pat O'Malley (editor)

Governing Risks
The International Library of Essays in Law and Society
General Editor: Austin Sarat
Titles in the Series
Law and Religion Law and Social Movements
Gad Barzilai Michael McCann
Police and Policing Law Colonial and Post-Colonial Law
Jeannine Bell Sally Merry
Law and Society Approaches to Cyberspace Social Science in Law
Paul Schiff Berman Elizabeth Mertz
Law and Families Sexuality and Identity
Susan B. Boyd and Helen Rhoades Leslie J. Moran
Rhetoric of Law Law and Poverty
Marianne Constable and Felipe Gutterriez Frank Munger
International Law and Society Rights
Laura Dickinson Laura Beth Nielsen
Law in Social Theory Governing Risks
Roger Cotterrell Pat O'Malley
Ethnography and Law Lawyers and the Legal Profession, Volumes I and II
Eve Darian-Smith Tanina Rostain
Legal Lives of Private Organizations Capital Punishment, Volumes I and II
Lauren Edelman and Mark C. Suchman Austin Sarat
Courts and Judges Legality and Democracy
Lee Epstein Stuart A. Scheingold
Consciousness and Ideology The Law and Society Canon
Patricia Ewick Carroll Seron
Prosecutors and Prosecution Popular Culture and Law
Lisa Frohmann Richard K. Sherwin
Intellectual Property Law and Science
William T. Gallagher Susan Silbey
The Jury System Immigration
Valerie P. Hans Susan Sterett
Human Rights, Law and Society Gender and Feminist Theory in Law and Society
Lisa Hajjar Madhavi Sunder
Regulation and Regulatory Processes Procedural Justice, Volumes I and II
Robert Kagan and Cary Coglianese Tom R. Tyler
Crime and Criminal Justice Trials
William T. Lyons, Jr. Martha Merrill Umphrey
Governing Risks
Edited by
Pat O'Malley
Carleton University, Canada
Routledge
S 111 Taylor & Francis Group
LONDON AND NEW YORK
First published 2005 by Ashgate Publishing
Published 2017 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
605 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
Copyright © Pat O'Malley 2005 For copyright of individual articles please refer to the
.
Acknowledgements.
All rights reserved. No part of this book may be reprinted or reproduced or utilised
in any form or by any electronic, mechanical, or other means, now known or
hereafter invented, including photocopying and recording, or in any information
storage or retrieval system, without permission in writing from the publishers.
Notice:
Product or corporate names may be trademarks or registered trademarks, and are
used only for identification and explanation without intent to infringe.
British Library Cataloguing in Publication Data
Governing risks. - (The international library of essays in
law and society)
1. Risk management - Law and legislation 2. Risk -
Sociological aspects 3. Risk perception 4. Crime prevention
I. O'Malley, Pat
340.1'15
Library of Congress Control Number: 2005936508
ISBN 13: 978-0-7546-2507-0 (hbk)
DOI: 10.4324/9781315253893
Contents
Acknowledgements vii
Series Preface ix
Introduction xi
PART I RISK, POLITICS AND INEQUALITY
1 Theodore J. Lowi (1990), 'Risks and Rights in the History of American
Governments', Daedalus, 119, pp. 17-40. 3
2D eborah A. Stone (1989), 'At Risk in the Welfare State', Social Research, 56,
pp. 591-633. 27
3 Lealle Ruhl (1999), 'Liberal Governance and Prenatal Care: Risk and Regulation
in Pregnancy', Economy and Society, 28, pp. 95-117. 71
J4o nathan Simon (1988), 'The Ideological Effects of Actuarial Practices', Law and
Society Review, 22, pp. 771-800. 95
PART II RISK, PRIVATE LAW AND JUSTICE
5 Lawrence M. Friedman and Jack Ladinsky (1967), 'Social Change and the Law
of Industrial Accidents', Columbia Law Review, 67, pp. 50-82. 127
6 Kenneth S. Abraham and Lance Liebman (1993), 'Private Insurance, Social
Insurance, and Tort Reform: Toward a New Vision of Compensation for Illness
and Injury', Columbia Law Review, 93, pp. 75-118. 161
Ge7o rge L. Priest (1990), 'The New Legal Structure of Risk Control', Daedalus,
119, pp. 207-27. 205
Ja8n e Stapleton (1995), 'Tort, Insurance and Ideology', Modern Law Review, 58,
pp. 820-45. 227
PART III RISK, CRIMINAL LAW AND JUSTICE
Pa9t O'Malley (1992), 'Risk, Power and Crime Prevention', Economy and Society,
21, pp. 252-75. 255
10 Jonathan Simon (1998), 'Managing the Monstrous: Sex Offenders and the New
Penology', Psychology, Public Policy and Law, 4, pp. 452-67. 279
11 Kelly Hannah-Moffat (1999), 'Moral Agent or Actuarial Subject: Risk and
Canadian Women's Imprisonment', Theoretical Criminology, 3, pp. 71-94. 295
12 Hazel Kemshall and Mike Maguire (2001), 'Public Protection, "Partnership" and
Risk Penality', Punishment and Society, 3, pp. 237-64. 319
PART IV RISK, UNCERTAINTY AND ECONOMIC LIFE
13 Pat O'Malley (2000), 'Uncertain Subjects. Risks, Liberalism and Contract',
Economy and Society, 29, pp. 460-84. 349
14 Gary Wilson (2000), 'Business, State, and Community: "Responsible Risk
Takers", New Labour, and the Governance of Corporate Business', Journal of
Law and Society, 27, pp. 151-77. 375
15 D. Knights and T. Vurdubakis (1993), 'Calculations of Risk: Towards an
Understanding of Insurance as a Moral and Political Technology', Accounting,
Organizations and Society, 18, pp. 729-64. 403
16 Roy Kreitner (2000), 'Speculations of Contract, or How Contract Law Stopped
Worrying and Learned to Love Risk', Columbia Law Review, 100, pp. 1096-138. 439
PART V RISK, HEALTH AND TECHNOLOGY
17 Nikolas Rose (1998), 'Governing Risky Individuals: The Role of Psychiatry in
New Regimes of Control', Psychiatry, Psychology and Law, 5, pp. 177-95. 485
18 Nikolas Rose (2000), 'The Biology of Culpability Pathological Identity and
Crime Control in a Biological Culture', Theoretical Criminology, 4, pp. 5-34. 505
19 Françis Ewald (1999), 'The Return of the Crafty Genius: An Outline of a
Philosophy of Precaution', Connecticut Insurance Law Journal, 6, pp. 47-79. 535
Name Index 569
Acknowledgements
The editor and publishers wish to thank the following for permission to use copyright material.
American Psychological Association for the essay: Jonathan Simon (1998), 'Managing the
Monstrous: Sex Offenders and the New Penology', Psychology, Public Policy and Law, 4,
pp. 452-67. Copyright © 1998 American Psychological Association. Reprinted with permission.
Australian Academic Press Pty Ltd for the essay: Nikolas Rose (1998), 'Governing Risky
Individuals: The Role of Psychiatry in New Regimes of Control', Psychiatry, Psychology and
Law, 5, pp. 177-95.
Blackwell Publishing for the essays: Jane Stapleton (1995), 'Tort, Insurance and Ideology',
Modern Law Review, 58, pp. 820-45; Gary Wilson (2000), 'Business, State and Community:
"Responsible Risk Takers", New Labour, and the Governance of Corporate Business', Journal
of Law and Society, 27, pp. 151-77.
Columbia Law Review for the essays: Lawrence M. Friedman and Jack Ladinsky (1967), 'Social
Change and the Law of Industrial Accidents', Columbia Law Review, 67, pp. 50-82; Kenneth
S. Abraham and Lance Liebman (1993), 'Private Insurance, Social Insurance, and Tort Reform:
Toward a New Vision of Compensation for Illness and Injury', Columbia Law Review, 93,
pp. 75-118; Roy Kreitner (2000), 'Speculations of Contract, or How Contract Law Stopped
Worrying and Learned to Love Risk', Columbia Law Review, 100, pp. 1096-138.
Connecticut Insurance Law Journal for the essay: Françis Ewald (1999), 'The Return of the
Crafty Genius: An Outline of a Philosophy of Precaution', Connecticut Insurance Law Journal,
6, pp. 47-79.
Elsevier for the essay: D. Knights and T. Vurdubakis (1993), 'Calculations of Risk: Towards an
Understanding of Insurance as a Moral and Political Technology', Accounting, Organizations
and Society, 18, pp. 729-64. Copyright © 1993, with permission from Elsevier.
MIT Press for the essays: Theodore J. Lowi (1990), 'Risks and Rights in the History of American
Governments', Daedalus, 119, pp. 17—40. Copyright © 1990 American Academy of Arts and
Sciences; George L. Priest (1990), 'The New Legal Structure of Risk Control', Daedalus, 119,
pp. 207-27. Copyright © 1990 American Academy of Arts and Sciences.
Sage Publications for the essays: Kelly Hannah-Moffat (1999),' Moral Agent or Acturial Subject:
Risk and Canadian Women's Imprisonment', Theoretical Criminology, 3, pp. 71-94. Copyright
© 1999 Sage Publications, by permission of Sage Publications Ltd; Hazel Kemshall and Mike
Maguire (2001), 'Public Protection, "Partnership" and Risk Penality', Punishment and Society,
3, pp. 237-64. Copyright © 2001 Sage Publications, by permission of Sage Publications Ltd;
Nikolas Rose (2000), 'The Biology of Culpability Pathological Identity and Crime Control in
a Biological Culture', Theoretical Criminology, 4, pp. 5-34. Copyright © 2000 Sage Publications,
by permission of Sage Publications Ltd.
Social Research for the essay: Deborah A. Stone (1989), 'At Risk in the Welfare State', Social
Research, 56, pp. 591-633.
Taylor & Francis Group for the essays: Lealle Ruhl (1999), 'Liberal Governance and Prenatal
Care: Risk and Regulation in Pregnancy', Economy and Society, 28, pp. 95-117; Pat O'Malley
(1992), 'Risk, Power and Crime Prevention', Economy and Society, 21, pp. 252-75; Pat O'Malley
(2000), 'Uncertain Subjects. Risks, Liberalism and Contract', Economy and Society, 29, pp. 460-
84. Copyright © 2000 Taylor and Francis Ltd. http://www.tandf.co.uk/journals
Every effort has been made to trace all the copyright holders, but if any have been inadvertently
overlooked the publishers will be pleased to make the necessary arrangement at the first
opportunity.
Series Preface
The International Library of Essays in Law and Society is designed to provide a broad overview
of this important field of interdisciplinary inquiry. Titles in the series will provide access to the
best existing scholarship on a wide variety of subjects integral to the understanding of how
legal institutions work in and through social arrangements. They collect and synthesize research
published in the leading journals of the law and society field. Taken together, these volumes
show the richness and complexity of inquiry into law's social life.
Each volume is edited by a recognized expert who has selected a range of scholarship designed
to illustrate the most important questions, theoretical approaches, and methods in her/his area
of expertise. Each has written an introductory essay which both outlines those questions,
approaches, and methods and provides a distinctive analysis of the scholarship presented in the
book. Each was asked to identify approximately 20 pieces of work for inclusion in their volume.
This has necessitated hard choices since law and society inquiry is vibrant and flourishing.
The International Library of Essays in Law and Society brings together scholars representing
different disciplinary traditions and working in different cultural contexts. Since law and society
is itself an international field of inquiry it is appropriate that the editors of the volumes in this
series come from many different nations and academic contexts. The work of the editors both
charts a tradition and opens up new questions. It is my hope that this work will provide a
valuable resource for longtime practitioners of law and society scholarship and newcomers to
the field.
AUSTIN SARAT
William Nelson Cromwell Professor of Jurisprudence and Political Science
Amherst College