By P.A.J. Waddington
The British Society of Criminology annual conference was held this year at the University of Wolverhampton and its centrepiece was to hold a trial of criminology. Presided over by His Honour, Judge Michael Challinor, both the ‘prosecution’ and ‘defence’ wore wigs and gowns, and there was the usual bout of examination and cross-examination of witnesses. Of course, it was a ‘rigged’ trial because the ‘jury’ comprised nine criminologists appointed by their criminological peers. ‘Turkeys’ still avoid voting for Christmas!
It was great fun, but the debate raised a fundamental point: whether criminology as an academic discipline was artificially constrained within boundaries imposed by the criminal justice system. The prosecution, led admirably by Professor Steve Tombs, argued passionately that it was; whereas the defence, led equally splendidly by Professor Loraine Gelsthorpe, argued that criminologists had felt no constraints in venturing beyond the confines of the criminal law and those who offend against it. So, it was essentially a bidding contest in which each side strove to establish how extensive was the reach of criminology.
In my view, criminology is and should be confined by the criminal justice system. Why? Because the criminal justice system is a fascinating institution of the modern state.
Professor Tombs and his witnesses were quite correct in drawing attention to the arbitrary inclusion of certain acts within the definition of criminality despite causing only modest harm, whereas other acts that were equally, if not more, injurious were excluded. This is neatly illustrated by the law on drugs. The former government chief advisor on drugs, Professor David Nutt, lost his position in 2009 because he had the effrontery to truthfully observe that consumption of cannabis is much less harmful to the consumer than is a pint or twelve of strong lager. It is absurd that the state criminalises one and not the other.
What this should teach us is that the state is not concerned with harm per se. After all, if it was in the business of harm minimisation it would abstain from the performing the task that remains the exclusive province of the state, namely warfare. States are and always have been the really big killers on the planet. States are not a cosy club to which we subscribe in return for essential services. States rule their populations and do so by force if necessary. It is all very well for ‘world leaders’ to heap opprobrium on President Assad, but how would they respond to a revolutionary movement in their own domains?
So why does the state criminalise some acts and not others? It does so to achieve public order, without which it cannot function. On the face of it, a person who steals from another is engaged in a purely private quarrel. What has it got to do with the state? Well, the person who has lost may seek to recover those losses by direct means, i.e. taking the lost items back. Such ‘tit–for–tat’ may itself create public order problems, with people grabbing what they consider to be rightfully theirs. However, it is unlikely to stop there: ‘theft’ engenders not simply a redistribution of wealth, but a sense of grievance and not one that affects the victim alone. Restitution of loss is unlikely to quench the sense of grievance. For instance, people who are burgled often feel a deep sense of insecurity. What needs to be restored is not simply the pecuniary loss, but the sense of rightfulness that we call ‘justice’.
When the state began to burgeon into its modern form around the 17th century, so the law began to burgeon, not simply to regulate behaviour in an increasingly complex society (at which the law is conspicuously ineffective — look at speeding on the roads), but to contain the passions released by the sense of grievance felt by those on the losing end of some types of interpersonal conduct that we designate as ‘crime’. When we are victimised, the state steps in (usually in the guise of a police officer) and says to us, ‘Don’t worry. We’ll look after this’. The state is not displaying its compassion for its citizens; it is preventing us from ‘taking the law into our own hands’ — something about which legal institutions are extremely jealous.
Many criminologists bemoan the eruption of what they call ‘moral panics’. The truth is that such ‘moral panics’ are the driving force of the criminal law and its institutions. Once the state decides that it can shoulder the woes of its citizens, it opens an opportunity for ‘moral entrepreneurs’ to stimulate public passions against an increasingly wide range of social wrongs. I doubt if many criminologists would describe William Wilberforce’s campaign to end the slave trade as a ‘moral panic’, but Wilberforce was a model ‘moral entrepreneur’. Contemporary campaigns to deal more harshly with those who commit domestic violence or crimes against women are also the product of agitation by ‘moral entrepreneurs’ who have convinced the public that a man should not be entitled to give his wife ‘a good hiding’ if she errs. And they are quite right to do so, too!
When Professor Tombs and his witnesses complained that there are harms ignored by the criminal law, they are correct. Indeed, one might say that there is a limitless array of harms of which only a tiny proportion become recognised as ‘crimes’. It is when those ‘harms’ become matters of public concern, through ‘moral panics’ or ‘moral entrepreneurship’ that the state will seek to curb such passions by stepping in and saying ‘We’ll look after this’. Making something a crime enables politicians to give the impression that they are ‘doing something’ about a problem, no matter if it proves entirely ineffective or even counter-productive.
None of this, it seems to me, invalidates the study of the products of this process. Yes, it is ‘socially constructed’ but so too is the category of ‘harm’ for one person’s ‘harm’ may be another’s ‘unfortunate consequence’. If the state or a conclave of criminologists were to adjudicate on what qualifies as ‘harm’ or not, it would still fall prey to the attentions of ‘moral entrepreneurs’, acting as conduits of public outrage.
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Image credit: Gavel on old law book. UK flag in the background. © ericsphotography via iStockphoto.