Contrasts in Criminal Justice: Getting from Here to There

Getting from Here to There

David Nelken

• Publisher: Routledge
• Year: 2018
• Print ISBN:
  9781138722194
• eBook ISBN:
  9781351759083
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This title was first published in 2000:  This text tackles the issues raised by comparative research into criminal justice on other cultures. How far does criminal justice reflect general culture? Can collaborative research overcome the problem of translating incommensurable concepts? What are the possibilities for "virtual comparisons"? How do we tell difference? The authors, drawn from a range of countries, offer reflections on international differences in the process of trial and punishment.

Part I
Introduction

1
Just Comparing

David Nelken

Introduction

The contributors to this volume – all of whom work in thefieldof comparative criminal justice – were asked to provide examples of their research which gave special attention to the methods by which they arrived at their findings. The chapters they have supplied are full of interest, but they need some presentation if this collection is to be more than the sum of its parts. In the first of these introductory chapters I shall therefore try to demonstrate why there is a need for better reflection on the aims, issues and methods of comparative criminal justice and in the next chapter I shall concentrate on the principal questions of epistemology and research method which have shaped the organization of this volume, seeking to show how they influence the interplay between substance and method in each of the chapters.

Even the best of current English-language theorizing about crime control takes much of its sense and point from background assumptions and developments which are most at home in what Europeans term ‘Anglo-American culture’. David Garland’s important and influential analysis of the way the state is currently seeking to divest at least part of its responsibilities in this sphere (Garland, 1996) has less application in the state-centred societies of Continental Europe where, in some respects, it is only now that the state’s responsibility to protect its citizens from street crime is becoming a top priority. Much the same can be said for many of the main arguments in Jock Young’s eloquent analysis of what he calls the ‘exclusive society’ (Young, 1999). Despite the many similarities at the level of practice brought about by the homogenizing and converging influences of the European Union, the debate about solidarity versus exclusion takes rather different forms depending on whether it is the representatives of the state or the members of civil society who are allocated the main role in creating an integrated sense of identity and community. If ‘penality’ is so much a matter of cultural meaning and not merely of instrumental effectiveness (Garland, 1990) it is obvious that this will vary from culture to culture. Indeed, it is fair to say that many of the important points made by these leading scholars are comparative observations about the similarities and the differences they notice in comparing Britain and the USA.

At the same time there is increasing interest in exploring wider differences in criminal justice, especially, but not only, with respect to other member countries of the European Union. There are now many valuable monographs on different aspects of the criminal process,¹ in addition to articles in both general and specialist journals. There are also the beginnings of distinct schools and approaches, whether positivist (for example, Heiland et al., 1992), interpretivist (for example, Crawford, Chapter 8 in this volume; Nelken, 1994b; Zedner, 1995, 1996), or Foucauldian (Smandych, 1999). But the standard texts in comparative criminal justice still tend to invite ‘experts’ from different countries to provide ‘national reports’, rather than get them to address what lies behind their descriptions and interpretations – which is, in any case, a difficult task to undertake without the experience of collaboration or research in different countries. With rare exceptions, even recent collections contain relatively little about the actual process of carrying out cross-cultural research in criminal justice (see, for example, Dorn et al., 1996; Heidensohn and Farrell, 1991; Robert and Van Outrive, 1993; Ruggiero et al., 1995; Ruggiero et al., 1998). At best, this question is addressed by the editors rather than by the contributors themselves (Cole et al. 1987; Fields and Moore, 1996; Findlay and Zvekic, 1993, Heiland et al., 1992). It is this attention to process which is at the heart of this collection.

If we merely juxtapose descriptions of various aspects of the criminal process in different cultures we avoid confronting the central problem of how to assess the validity and reliability of comparative work. We do little to advance the goal of explanation or understanding and provide an unsound basis for policy-making. We beg too many questions if we simply assume that the cultural object ‘criminal justice’ we know exists elsewhere.² How can we be sure we are comparing ‘like with like’, both in terms of the distinctive elements of the criminal process and of its place in the larger culture? How far does the idea of treating criminal justice as a series of decision stages which can, and should, be studied empirically, reflect Anglo-American assumption and practices?³ The argument behind this collection is that, whatever answer is given, these questions must at least be faced. For it is only by dealing with such problems of method that we can begin to respond to the sceptical charge that comparative social research is unable to overcome the incommensurability between thoughts and practices belonging to different legal cultures (Legrand, 1995). Certainly, discussions of methodology abstracted from matters of substance can easily become dull, but making substantive claims about other places without considering how we have arrived at them is only too likely to be misleading.

Comparative Law and Comparative Criminal Justice

But perhaps the job is already being done by scholars from other disciplines? Comparative sociology of law may not have found another Max Weber but research into comparative criminal justice certainly dare not ignore what is currently produced not only in sociology and anthropology but also in disciplines such as history, political science or cross-cultural psychology.⁴ In addition, however, there seems to be an obvious overlap here with the academic discipline of comparative law. The disciplinary affiliations of the contributors to this volume (both law and sociology) make it appropriate to say something more about this overlap, especially as it is difficult to find much in the way of constructive debate between exponents of sociology of law and comparative law (but see Nelken and Feest, forthcoming).

The research presented in this volume makes it clear that it would be a mistake to treat comparative sociology of law and comparative law as internally unified and competing approaches. It suggests that many of the contrasts usually made between sociology of law and comparative law are overdrawn, or at least apply only to particular representatives of each camp. Some social scientists argue that comparative law does not follow the correct protocols for sociological explanation (Feeley, 1997), but this criticism loses much of its force if one’s model of social science is based on hermeneutic interpretation and understanding of difference, rather than the explanation or prediction of variance. At least some writers nominally in one camp may have more in common with those in the other, and may make use of similar methods or concepts.⁵ Among sociologists of law, for example, there is open disagreement over whether the focus should be on social behaviour or legal ideology (Cotterrell, 1997; Friedman, 1997); nor is there consensus on whether behaviour explains culture, or whether it is only by first grasping the meaning of culture that one can interpret practice (Blankenburg, 1997; Nelken, 1997b). Some comparative lawyers strongly criticize social scientists for being too quick to relate law to reigning social interests and to existing features of social structure (Watson, 1993). But others – no less influential – recommend a bastardized version of the sociological idea of ‘functionalist equivalents’, advising students of another legal system to make it their working assumption that the foreign system will have legal rules (somewhere or other) which fulfil the same social function as that served by the rules with which he or she is familiar (Zweigert and Kotz, 1987).

Some sociologists do criticize comparative lawyers for placing too much importance on the complexities of legal texts rather than focusing on the difference rules actually make in practice. In this volume, for example, Feest and Murayama (Chapter 3) suggest that an innocent person runs .a similar high risk of miscarriage of justice under very different sets of rules and procedures. But many of the important insights of sociology of law come from trying to work out the relative importance of ‘law in books’ and ‘law in action’ as evidence of conflict and change in society.⁶ Social scientists can readily acknowledge that, even in practice, law, including criminal law, does not necessarily always correspond to reigning interests and social structure (Nelken, 1987, 1990). Indeed, the only way to explain the political scandals in Italy known as Tangentopoli is by emphasizing how and why the criminal law can become distanced from the interests of the powerful – at least in certain cultures and under given circumstances (Nelken, 1996).

However, whilst we should not exaggerate their disagreements, there are many ways in which research carried out by comparative lawyers is sufficiently different from comparative social science for both to have much to gain from each others’ approaches. On the one hand, for example, comparative lawyers rely mainly on historical, philosophical and juridical analyses. These scholars are well aware that legal and other rules are not always applied in practice and that legal outcomes do not necessarily turn out as planned. But the sociological significance of such evidence is usually ignored in favour of processing it normatively, as an example of deviance or ‘failure’, to which the solution is typically a (further) change in the law. Social scientists, on the other hand, are more interested in what does happen rather than what should happen, looking beyond written rules and documents to the structures and ‘infrastructures’ (Blankenburg, 1997) which shape the repeated patterns of everyday action. Nevertheless, their approach also carries risks. The importance given to the present rather than to the past or future of law can block an appreciation of law’s character as a bearer of tradition which makes the past live in the present. The determination to take practice more seriously than protestations of ideals can sometimes lead to an underestimation of the law’s role as a representation of ‘counterfactual’ values (Van Swaaningen, 1998, 1999), especially in some legal cultures. (The reader must decide how far the chapters included in this volume avoid these opposite errors.)

A second set of considerations – which brings us even closer to the concerns of this volume – relates to the status of the experts or practitioners who are usually the direct or indirect source of claims about other cultures. In all cultures, descriptions of social and legal ideas carry political implications – in some cases, even issuing directly from particular political or social philosophies. When we think of experts in own culture we will normally, without much difficulty, be able to associate them with a given political or policy position. But what knowledge do we have about this factor when we rely on experts from abroad? In much of the comparative law literature there seems to be little recognition or discussion of the extent to which those relied on for descriptions of the aims or results of legal reforms are themselves part of the context they are describing, in the sense of favouring one position rather than another. In Italy some academics and practitioners are notoriously pro-judges, others are anti-judges (Nelken, 1996). In France some commentators are strongly against importing ideas from the common law world, whereas others are less antagonistic (Garapon, 1995). In Japan some leading academics are involved in fierce controversy over the need for greater rights-consciousness in their country, and this clearly shapes their arguments about present-day legal culture there (Feldman, 1997). Others are against such developments. The list could go on.

Moreover, cultural variability means that the problem faced here is not always quite the same. In some cultures it is considered appropriate for an academic to identify and be identified as a member of a group. In playing the role of what Gramsci called an ‘organic intellectual’ your prime duty is understood both by your allies and by your opponents to be the furtherance of a specific group ideal (the relationship between academia and politics in Italy and in Latin America are the examples with which I am most familiar, but there are many others). In consequence, in such societies the issue of social and political affiliation is one of the first questions raised (even if not always openly) in considering the point and validity of academic criticisms of current practices and of corresponding proposals for reform.

In other cultures, however, the approved practice is to do one’s best to avoid such identification. In some cases this just makes the process of establishing affiliation more elusive. Alternatively, the extent of political consensus, or of admiration for allegedly neutral criteria based on ‘results’ or ‘efficiency’, may be such that academics are indeed less pressed to take sides. Or intellectuals may simply count for less politically! There is no suggestion here that these considerations do not apply to social scientists as well as to legal experts; it is itself a cultural variable whether or not legal academics are more likely to be engaged in persuasive, rather than descriptive, endeavours, or more or less directly involved in shaping the criminal justice system. The point is that, without knowledge about their affiliations and an understanding of the role responsibilities of affiliation in the culture under investigation it can be difficult to decide what credit to give to the arguments of any expert opinion about criminal justice.

Even if we assume that our sources are not ‘partial’ (or, better still, if we try to make proper allowance for this) there still remains the problem that experts and practitioners are undoubtedly part of their own culture. This is, after all, why we consult them. But this also means that, as insiders, they do not necessarily ask or answer questions pertinent to the outsider researcher (and may not even have the basis for understanding such questions). Thus, in many ways, their descriptions – and also their criticisms – will also belong to their culture. But, without some other means of understanding the culture, we will not be alert to this.

Take, as an example, someone from an ‘Anglo-American’ background (as Continental Europeans might say) who is reading through an insider’s account of the results of the famous New Code of Criminal Procedure introduced in Italy during the late 1980s. This insider viewpoint is likely to be influenced by a widely shared cultural approach in which the role of criminal law is associated overwhelmingly with what in Anglo-American parlance is called ‘due process’ (Nelken, Chapter 9 in this volume). As compared to analyses by writers with a common law background, the evaluation of the outcome of this reform is less likely to turn into an assessment of how it has affected the necessary balance between the potentially incompatible exigencies of ‘due process’ and ‘crime control’. Instead, a series of criticisms will make it seem as if the problem is the continuing lack of ‘due process’. Typical insider complaints concern the extent to which the powers of judges and prosecutors under the older inquisitorial system have survived this reform and the attendant need to further increase the rights of the defendant in the interests of finally arriving at a ‘just trial process’.

At the level of some pre-trial practices there may still be less protection of the accused than in common law countries (although in other respects these protections may be stronger). But what these insiders rarely criticize is the fact that Italy has grafted an extreme version of the accusatorial process (as seen from an Anglo-American perspective) on to their pre-existing system. It is still assumed that most defendants will have trials, defendants are all still allowed a second trial on the facts, defendants can lie in their own defence, and so on. Little interest is shown in the ‘workability’ of such a demanding version of the accusatorial process, least of all in relation to the way it works in those countries from which it has been borrowed. Perfecting the ideal is all-important, and a clear line is drawn between questions of principle and what are deemed to be unacceptably pragmatic reasons for compromising ideals.

It is not only the values animating expert criticism which tend to express and reproduce a given legal culture; the same applies to the arguments used to make such assessments. The relative lack of interest amongst legal academics in Italy (and many other civil law countries⁷) in criticisms based on descriptions of the everyday functioning of legal institutions is undoubtedly linked to the lack of a tradition of empirical research in studying criminal justice. But there is a further consequence of the lack of an empirical tradition in civil law countries. Within such societies much of the empirica...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Series Preface
• PART I: INTRODUCTION
• PART II: VIRTUALLY THERE
• PART III: RESEARCHING THERE
• PART IV: LIVING THERE
• Index