BMCR 2022.12.14

Command and persuade: crime, law, and the state across history

, Command and persuade: crime, law, and the state across history. Cambridge: The MIT Press, 2021. Pp. 480. ISBN 9780262045629 $34.95.



If, writing in his study in Renaissance Florence half a millennium ago, Niccolò Machiavelli advised rulers to learn when to use force and when to persuade, Peter Baldwin would counsel his readers to focus on the nonviolent aspects of state power. This not because he reckons force unimportant, but because the state has become so powerful that its main business pertains to the second half of the Florentine’s opposition. Command and Persuade, the main title of Baldwin’s book, is also counterintuitive. For one might, together with no lesser an eminence than Plato, think persuasion anterior to the command; in the dialogue Laws, the lawgiver prefaces each command or law with a persuasive preamble.[1] Baldwin’s ordering affirms the opposite. If the command has been given, what role is left for persuasion? The answer has to do with the subjects of the law, the citizens, who have been shaped by the state, civil society, and through their own agency to need little persuasion to obey; when ‘seen over a long historical sweep’, Baldwin writes, ‘law and self-discipline have run in tandem’ (10). Here also lies the normative concern which motivates his effort: ‘Today, we are governed by more law than before…Despite our ever better-mannered and docile citizenry, law remains the workhorse of social control’ (353). BMCR readers who share this concern as well as scholars with an interest in longue durée accounts of the evolution of law and the state should find the book useful; additionally, those among us working on more specific topics like crime and punishment will find Baldwin to be a generous interlocutor.

What Baldwin understands by ‘the state’ is a five-thousand-year-old institution that began with the dawn of sedentary life; it took the state approximately four millennia to assume its role as a law enforcer and punisher (4-5, 16; see 313). This construal goes nicely with Baldwin’s encyclopedic knowledge. Whether it is narrative-enriching trivia, such as capital punishment taking its name from the Roman practice of beheading criminal members of the elites (142), or theoretical insights about the nature of punishment, such as the profound connection between deterrence and prediction (206), the author’s erudition is on full display. Baldwin identifies conceptual breakthroughs in the development of the law, such as treating crime as an offense against the community, not just individuals (57), and watershed moments such as the state’s takeover of the judicial role once played by the family in the settling of disputes (100). His endnotes, too, are a treasure-trove for the interested reader and are considerable in length (357-444).

The book’s organization, however, does not do justice to the depth and breadth of the author’s knowledge. First, it comes across as undecided between a thematic and a chronological arrangement. The chapter titles are indicative: ‘Crime’s Ever-Expanding Universe’ (chapter 1) and ‘Why Punish?’ (chapter 6) take up themes in jurisprudence and the sociology of law, while ‘Crime before the State’ (chapter 2) and ‘From Retribution to Prevention’ (chapter 11) follow a chronological logic, tracing the historical separation of sin from crime and the development of the state’s view of crime, respectively. One is tempted to say that there are two books here, one that tells the story promised in Baldwin’s subtitle – ‘Crime, Law, and the State across History’ – and another that has one eye on the present, engaging with philosophical, sociological, and jurisprudential theories of crime and punishment. That said, bookending these chapters with a brief overview of the argument in the Introduction and an extended restatement of it in the Conclusion, lends the book some much-needed coherence.

Baldwin’s encyclopedic knowledge coupled with his strong authorial voice can weigh heavily on the reader. The main culprit is in the form of consecutive single-paragraph litanies, one random and representative instance of which follows. While documenting the blending of sin and crime, the author begins from a one-sentence claim about the ancient Greeks punishing the sins of arrogance and extravagance; moves momentarily to 1650s England where adultery went from being a church court offense to a felony, adding that it is still technically illegal ‘in many US states’; next, by way of a parallel, to how usury ‘went from sin to crime to big business’; followed by a data blitz of sixteenth and seventeenth century European legal approaches to infanticide in England, Scotland, Denmark, Norway, Germany, and France (44-45). It is hard to know what to do with these examples other than to be awed by the author’s knowledge – the next paragraph moves on to a discussion of trial by ordeal (45-46). What is more, the epistemic value of examples is not without limits, as Meno discovers in Plato’s eponymous dialogue. Just as one cannot arrive at a characterization of virtue by multiplying examples of virtuous behavior, multiplying the examples of the intertwining of sin and crime does little to clarify what sin and crime are.[2] Baldwin becomes more persuasive when he foregoes the litany. For example, in a tour de force on preventing crime in the homonymous subsection, the subtleties of the history of prevention emerge as he deftly guides the reader to see its connection to today’s grievous practice of profiling (226-235).

In the tradition of the seventeenth-century English philosopher, Thomas Hobbes, who argued that human collectivities need a Sovereign with undivided and unlimited power to keep them in awe, Baldwin makes it plain that the state’s growing power explains why today Western nations enjoy unprecedented domestic peace. The state defanged self-help legal systems (16-18) and tamed the extralegal violence of vendettas and duels (46, 101); the lack of non-state options through which to settle conflict and the state’s assumption of a judicial role both testify to its power. As the author convincingly shows in his discussion of treason, an inchoate crime where the very intent is an offense, the state’s response is determined by the extent of its power: in ancient times or sixteenth-century England treason was punishable by death, whereas modern states, being much more powerful than their ancient and early modern counterparts, rarely invoke it in their prosecutorial forays (74-75; for inchoate crimes see 215-225). The state is no longer threatened by a crime that challenges its very existence, nor will it be so long as democracy subsists. As Baldwin explains, the historical focus of treason moved ‘from sovereign to sovereignty, from ruler to state’ (86), its significance dissipating when its logic was exposed as self-defeating in the era of representative democracy. But it is the ‘softening of sanctions’ that best evidences the magnitude of state power (6). The overwhelming majority of today’s transgressors of the law are either imprisoned or forced to pay a fine (the devoted discussion of ‘Fines’ is excellent, 123-131); what is more, both punishments occur away from the public eye, rather than in the spectacular fashion of punishing to which the earlier, weaker state was prone. If the state has nothing to fear from criminal acts, how does it fulfil its role as enforcer and punisher? By turning its attention to prevention or the risk of crime and the creation of crime resistant environments (287). Hence why contemporary penal codes are ‘an absolutist ruler’s wet dream’, as Baldwin’s somewhat indelicate characterization would have it (353).

Baldwin’s state is thoroughly personified. We read that it ‘it resented private parties poaching on its turf’ (18); that it ‘jealously guards its monopoly on violence’ (50); that it ‘adopt[ed] a rehabilitative ambition’ (236); and that it ‘drilled into its subjects’ minds, seeking to ferret out intentions and anticipate crimes in the making’ (245). The instances could be multiplied. The personification helps the reader see the state as an actor with its own interests, akin to the Hobbesian Sovereign. Like that Sovereign, Baldwin’s state is a god upon earth with no equal.[3] By ‘shouldering responsibility for punishing public wrongs, the state thus took over the role first played by God’ (62), he writes. And like the self-moving God, Baldwin’s state encounters little problem in motivating itself.[4] It is here where one realizes that personifying the state can mislead.

Endowed with an excess of agency, Baldwin’s state encounters no real obstacle either in the tussle between private and public interest, or in conflicting interests within the state, say between the civil service and cabinet ministers. To replace existing persons with a fictional representative can make it difficult to find the locus of sovereignty in the first place. For example, the answer to the question of ‘who governs the American people?’ is vexed if one wants to avoid responding tautologically (i.e. ‘themselves’); the legislative branch is elected by them, the executive indirectly so, and the judicial not at all. This is not only because of the separation of powers but also because it is not obvious where the locus of sovereignty lies in a federal system of government like the United States. It is because of such indeterminacy that eighty years have elapsed since Congress exercised its constitutional power to declare war.[5] The author’s capacious understanding of the state and his personification of it allows him to elide these problems.

As members of civil society, Baldwin notes, we have imposed upon ourselves the tall, strict demands of self-control (7), aiding and abetting the state’s desire for model citizens (9 et passim). It is this model, self-disciplined citizen – the one accustomed to being commanded first and persuaded later – about whom Baldwin frets. There is little that is aspirational and even less that is idealistic in the understanding of human nature at work here; when there is an opening for such a view, for example, in the discussion of the prison as rehabilitative institution (in the subsections ‘Prison’, 135-138 and ‘Rehabilitation and Discretion’, 235-241), the author does not linger. Perhaps, then, it is best to treat Baldwin’s book as a salutary warning. As the only guarantor of security in town, the state has expanded its power ‘with more subtlety and ever less force’ (1); the state has encroached upon action and thought alike, ‘narrowing evermore the turf on which we are expected to control ourselves’ (11). For the paradox the book establishes, namely, that increased self-restraint among citizens brings increased state intrusion into their lives, is only temporary; the ‘powerful omnipresent modern state’ (20) will see to that.



[1] Plato, The Laws, trans. Tom Griffith, ed. Malcolm Schofield, Cambridge University Press, Cambridge, 2016. The dialogue is one of Baldwin’s go-to texts when he discusses ancient law and punishment: 14-15, 49, 70 et passim.

[2] Plato, “Meno”, trans. G.M.A. Grube, in John M. Cooper, ed. Plato: Complete Works, Hackett, Indianapolis/Cambridge, 1997, 71e-72c.

[3] A turn of phrase which appears atop the Leviathan’s frontispiece as a quote from Job, 41:33 where the suffering patriarch bears witness to the Almighty. The frontispiece is printed in full in Thomas Hobbes, Leviathan, ed. J.C.A. Gaskin, Oxford University Press, Oxford, 2008, 2.

[4] The will features on both sides of Baldwin’s argument, the individual and the state: ‘the more we discipline ourselves, the more law the state trains on us…We are caught more and more in an unforgiving forcefield between expanding formal prohibitions and stricter requirements for personal mastery’ (10). While the historian is aware of the long debates about human and divine will, he does not engage them.

[5] Against Bulgaria, Hungary, and Rumania on June 3, 1942. “All the Previous Declarations of War”, The Atlantic August 2013.