Crime and Modernity

Continuities in Left Realist Criminology

John Lea

• Publisher: SAGE Publications Ltd
• Year: 2002
• Print ISBN: 9780803975576, 9780803975569
• eBook ISBN: 9781446225561
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

?Lea has produced a serious and scholarly contribution of great interest to criminologists (whether "critical "or not), to post graduates, as well as the more advanced undergraduate. This is a book that is well written, absorbing, thoughtful and thought provoking? - The British Journal of Criminology

Crime control is in crisis. Not only have levels of crime risen but, more important, crime is increasingly regarded as a normal aspect of the social and economic system rather than disruption or deviance. The blurring boundaries between the criminal and the normal are evident in a number of areas from the activities of multinational corporations to the life of the inner city.

In this book, John Lea develops a broad historical and sociological overview relating the rise and fall of effective crime control to different types of social structures. It traces the process of modernisation and industrialisation from the eighteenth to the mid twentieth centuries which established the social preconditions for effective control and management of criminality. In the early years of the present century it is clear that these preconditions are now being progressively undermined as industrial society undergoes profound changes in its direction of development. The result is traced through a variety of types of criminality and the progressive debilitation of existing institutions and processes of crime control.

A major feature of this book is its wide scope and imaginative application of historical and theoretical perspectives on modernisation and capitalist social development to the contemporary problems of controlling a wide variety of crime. It represents a significant contribution to the ability of criminology and the sociology of crime to confront the dilemmas and controversies of the twenty first century.

1

Practical Criminality

In his essay entitled ‘Who thinks abstractly?’, Hegel provided us with the following description:

A murderer is led to the place of execution. For the common populace he is nothing but a murderer. Ladies perhaps remark that he is a strong, handsome, interesting man. The populace finds this remark terrible: What? A murderer handsome? How can one think so wickedly and call a murderer handsome; no doubt, you yourselves are something not much better! This is the corruption of morals that is prevalent in the upper classes, a priest may add, knowing the bottom of things and human hearts. One who knows men traces the development of the criminal’s mind: he finds in his history, in his education, a bad family relationship between his father and mother, some tremendous harshness after this human being had done some minor wrong, so he became embittered against the social order . . . and henceforth did not make it possible for him to preserve himself except through crime. There may be people who will say when they hear such things: he wants to excuse this murderer! … This is abstract thinking: to see nothing in the murderer except the abstract fact that he is a murderer, and to annul all other human essence in him with this simple quality. (Hegel 1817/1965: 116–17)

Hegel’s aim here was to show that the common-sense view of abstract and concrete thought is the inverse of reality. The criminal appears as a very ‘concrete’ phenomenon: the murderer on the tumbril, the defendant in the dock. However, in order to focus on this one aspect of his identity, his criminality, others have to be suspended and annulled. His criminality has to be abstracted out from the complex of other characteristics which make him what he is and be regarded as dominant. In the criminal trial, of course, some of these other characteristics, such as his unhappy childhood, may re-enter the frame in a subordinate role as mitigation. While they do not influence the initial characterisation of our individual in terms of his crime, they represent a move towards a more concrete and many-sided view of his nature. For Hegel concrete reality is not something we start off from, readily given to observation, but which we arrive at as a conclusion.

But the important point for us here is that this process of abstraction is the foundation stone of modern law and criminal justice. All societies have some notion of ‘crime’ and individual redress of interpersonal conflicts and harms. But in pre-modern society this is usually integrated into other social relations such as status and kinship, etc. It might be one thing to rob or kill a member of your own family, another to rob or kill a stranger; one thing for a nobleman to harm a peasant and something quite different for a peasant to harm a nobleman or a priest. The focus on the criminal identity of the individual was less sharp and was still locked into other contexts and characteristics of the individual. It was of course much harder to think abstractly in a society where nearly all social relations were interpersonal ones of status and submission. By contrast, in modern society where a large proportion of relations are ones involving passing strangers, or individuals whose relationship centres around a single dimension of work or economic exchange, it is far easier to think of people abstractly because we know so little about them anyway. So when they kill, it is the killing that defines them. If a mediaeval king or the lord of the manor killed, then it was hard for all those under his personal rule to forget that even though he had killed, he was still the king or the lord of the manor.

The assumption that criminality is largely an individualistic response, which does not have to be individualised by the powers that be, is easily made. Most social mechanisms involve the actions of individuals in one way or another but it does not follow that it will be the individual who is constructed as the responsible agent as opposed to families, communities, ethnic groups or more impersonal market forces. Older, pre-modern forms of ‘crime control’ such as ethnic warfare, feuding, vendetta, etc., testify to the essential modernity of criminalisation and its link to the emergence of the notion of the free individual and the abstract legal person. In addition, and again this is easily taken for granted, crime is usually seen as an episodic disruption of an otherwise harmonious ongoing process. This is linked to its nature as individual act rather than ongoing institutional or social process.

It is also linked to the existence of the other, the stranger. In the closed mediaeval village community in which the status of all individuals was known and integral to their being, harms and wrongs had to be dealt with in terms of their status rather than through its negation. Conversely, those from outside the community tended to be feared and ‘criminalised’ quite irrespective of their actions. Modern society makes possible the re-production of individuals as ‘criminal other’ even before the judge, let alone the state, has decreed it. Modernity provides the resources and possibilities for this in the notion of the free individual as abstract person, half-way, as it were, to criminalisation. The issue for the modern court is whether the right individual has been taken: the one who actually committed the offence. If so, the status as criminal is assured automatically by their actions. The degradation ritual of the court confirms what has already taken place as a social interaction. Alternatively, because criminalisation has already occurred as a social fact, the modern court – at least in the more progressive jurisdictions – need not overly preoccupy itself with such ceremony and can become an altogether more ‘humane’ place.

Thus the process of abstraction – we might call it the criminalising abstraction – which establishes the identities of those who violate the criminal law as criminals irrespective of other characteristics they might have, that leaves, in the words of the great eighteenth-century jurist Cesare Beccaria, ‘no further care to the judge than to examine the acts of citizens and to decide whether or not they conform to the law as written’ ([1764]1996: 7), is not simply a logical process. The content of abstraction, what is included and what is excluded, who can in actual practice be criminalised, is a social, historical and political process. It is a question of power and imagery. On the one hand the emergence of the rule of law, the doctrine that all killers from the king to the merchant to the landless peasant, will be treated as murderers in the same way by the courts is rightly held to be one of the great achievements of modernity, of the Enlightenment. Its historical precondition is the emergence of the doctrines of individualism and universal human rights. These were based in turn on the ascendancy of capitalist market relations in which individuals related increasingly as abstract legal persons, citizens, buyers and sellers of commodities, bearers of rights and obligations irrespective of other differences and characteristics. Without this the rule of law would be impossible in anything other than a tautological sense. Law is the counterpart of political economy (see Fine 1984; Pashukanis 1978). On the other hand, however, the content of the criminalising abstraction is never free of the imagery and practice of power. Who can be criminalised; who is virtually ‘pre-criminalised’ irrespective of their actions; and who can only be criminalised with great difficulty, if at all, irrespective of what they do. These forces, at play within the relationship between formal criminalisation and the substantive character of criminals, reintroduce the older issues of social status and identity into the newer abstractions. Modernity is contradictory from the outset. It is not simply a break from the past but its reworking into new configurations.

The rule of law and legal equality is also the counterpart of the modern democratic state. Modern states are democratic in so far as the people, through their representatives and with the departure of God and the king, become the ground of the legitimacy of the state and its laws. The state as the most powerful agent in society, freed from direct appropriation by powerful individuals or social groups, is thus in a position to apply the criminalising abstraction consistently. The powerful state, supreme power within its national territory – and frequently beyond its borders – is an aspect of the dual nature of modernity. On the one hand modernity brings the emancipation of the individual from the hierarchical ordering of feudalism and, on the other, the need to secure social order by regulating this process through the various apparatuses of law, discipline and regulation. Hence modernity, as it developed in western Europe during the eighteenth century, is a dual process of liberation and disciplinisation (Wagner 1994). The modernity of criminalisation lies precisely in its subordination of the freedom of the individual to the interests of social stability. It is achieved by the criminalising abstraction which singles out individuals, annuls other aspects of their character and circumstances – be it social status, life history or control over resources – and holds them responsible for their actions in accordance with a general rule of law that recognises their right, as free individuals, to equal treatment. However, since capitalist modernisation is carried, initially, by a particular social class, the bourgeoisie, those freedoms, and also the potential criminalisation of their misuse, are not distributed evenly.

This gives modernity a decidedly dark side. As far as criminal justice is concerned, the criminalising abstraction is, firstly, never entirely consistently applied. It is subject to key exclusions. Some, such as women in the marital relationship, are effectively precluded from claiming victim status in the case of violence from their husbands, while the working class bears throughout the early stages of modernity the status of the already criminalised having, for the bourgeoisie and its magistrates, no other identity than the criminalising abstraction itself – in the form of the dangerous classes.¹ Simultaneously the upper echelons of the bourgeoisie by virtue of their social status are able to deflect the rigours of criminal justice to a considerable extent. The content of the criminalising abstraction varies. The poor working-class criminal takes on an exaggerated animal status as brute while the female offender is defeminised as ‘mad’. But quite apart from exceptions and exclusions, the very working of a system of universal human rights and legal rules serves to reproduce as well as ameliorate the substantive social inequalities and injustices alongside which they function. The Napoleonic Code, which in its impartiality prevented rich and poor alike from sleeping under the bridges of Paris, is the best known illustration. The enlightened magistrate responds by taking into account the poverty or other disability of the offender as mitigating circumstances at the stage of sentencing. Of course what circumstances count as disability or weakness is itself an issue of power. The Victorian moral reformer could look with sympathy upon the poverty of the poor waif who stole a loaf of bread. By contrast only very recently have such problems as long-term violence by husbands to wives, when the latter turn to what would otherwise be simple premeditated murder, begun to be regarded in a similar light.

It is nevertheless a mistake to see the development of criminal justice and the criminalising abstraction as simply the perfection of a mechanism of repressive social control. The importance of seeing modernity as a process involving simultaneously mechanisms of liberation and disciplinisation (Wagner 1994) is that neither must be seen as entirely obliterating the other. Indeed each affects the working of the other. If the exclusions mentioned above give a hollow ring to wide areas of so-called liberation, the working of the mechanisms of discipline and regulation have to come to terms with the dynamics of liberation. One side of this is that the masses benefit from the rule of law and the criminalising abstraction. As far as the working class was concerned the rule of law, as the historian Edward Thompson put it, was ‘an unqualified human good … [which] … while it did mediate existent class relations to the advantage of the rulers … mediated these class relations through legal forms which imposed, again and again, inhibitions upon the actions of the rulers’ (1977: 264-5).

At the same time the masses have to be progressively brought into and mobilised as part of the process of control and regulation itself. This is well understood in areas such as the progressive extension of the franchise and the legitimation of independent working-class organisations such as trade unions and labour parties. Also understood is the area of social policy (in the most general sense of the term) as the development, during the late eighteenth and nineteenth centuries of a concern with governmentality (Foucault 1979, 1991); with the mobilisation of a wide range of disciplinary mechanisms, including private institutions such as the family to secure participation and conduct, in a process of essentially self-regulation or ‘self-carried power’ (Foucault 1977: 201).

Traditional jurisprudence and political science have conspired to see criminalisation as the unproblematic application of clear categories of criminal law exhaustively analysable as discourses and practices of the state including, where changes in the boundaries of criminality are at issue, through the formal legislative process. Such a focus is one-sided. The state remains of course the central institutional locus of the criminalising abstraction precisely because it rises above the particularities and conflicts of society. But it is effective only to the extent that its actions are reproduced and reinforced by a whole complex of attitudes and behaviours in society as a whole. Criminalisation involves much more than the agencies of the state, including their informal and discretionary modes of operation. It is more accurate to say, with Nicola Lacey, that the ‘very subject matter of criminal law and criminology appears to slip through our fingers as “criminalisation” is revealed as consisting of a number of interlocking social practices whose operations leave the boundaries of “criminality” anything but precise’ (Lacey 1995: 17). These practices, like the informal and discretionary mode of operation of criminal justice agencies, should not be seen as imperfection or dilution of criminalisation but rather its essential dynamic. It cannot function in any other way. The working of criminal justice cannot be properly understood except as a set of social relations of which the state is only one component, albeit a very powerful one. This becomes clear if we consider two important arguments which at first sight appear to move off at a tangent. The first concerns the practical boundaries of criminalisation and the second the issue of alternatives to criminalisation as a response to individual conflicts and harms.

Reconstructing crime

The understanding that criminalisation is governed by the substantive inequalities of power in modern society can lead obviously to the attempt to find a new set of foundational principles from which to deduce what activities are crime. It takes the form of an attempted return to one side of the dualism of modernity; the discourse and practice of liberation and the inalienable human rights that are its foundation. The motive for such a strategy, among criminologists, is usually one of discontent with the idea of subordinating the subject matter of study to whatever the actually existing criminal law, with its biases and power effects, happens at a particular time to define as crime.

One of the classic formulations, within Anglo-Saxon criminology, of the strategy of reconstruction was provided by Herman and Julia Schwendinger who argued that radicals should reject existing criminal law in favour of a wider definition of crime as violation of basic human rights:

Basic rights are differentiated because their fulfilment is absolutely essential to the realisation of a great number of values … [hence] the right to racial, sexual and economic equality. The abrogation of these rights certainly limits the individual’s choice to fulfil himself in many spheres of life. These rights therefore, are basic because there is so much at stake in their fulfilment. It can be stated … that individuals who deny these rights to others are criminal. Likewise social relationships and social systems which regularly cause the abrogation of these rights are also criminal. If the terms imperialism, racism, sexism and poverty are abbreviated signs for theories of social relationships or social systems which cause the systematic abrogation of basic rights, then imperialism, racism, sexism and poverty can be called crimes according to the logic of our argument. (Schwendinger and Schwendinger 1975: 136–7)

In the period since the mid-1970s there has, on the face of it, been considerable progress in areas involving human rights. Many states have, for example, made renewed efforts to criminalise racist or sexist practices, and there has also appeared to be considerable progress in the criminalisation of human rights violations in the international sphere. The reappearance of war and ethnic conflict in eastern Europe, conflicts in Africa, the ending of military dictatorships in Latin America, have all provided contexts in which the notion of crimes against humanity has gained ground (see Robertson 1999). However, the practical problems facing the embryonic international institutions and those who claim to act on behalf of the ‘international community’ help to illustrate some of the problems with this position² and enable a deeper grasp of criminalisation as a social process involving, but extending well beyond, the state.

The main concern of the Schwendingers’ argument was of course less a call to action on the part of states to extend the boundaries of criminalisation than a call to radical criminologists to extend the boundaries of their studies well beyond those of the official discourses of criminal law and criminal justice agencies. One of the obvious problems was that the discipline of criminology might wander so far from what was publicly seen as crime as to leave the discipline in an ‘idealist limbo’ (Clarke 1978: 44; see also O’Malley 1988). But more important, there are severe problems facing even powerful state institutions in attempting to extend the boundaries of criminalisation in the name of human rights. To take an example current at the time of writing, the International War Crimes Tribunal based in The Hague may issue warrants for the arrest of various Balkan gangsters and warlords, and even heads of state, on charges of crimes against humanity arising from recent conflicts involving ethnic cleansing and genocide in parts of former Yugoslavia. The problems of enforcement of such warrants are of course considerable and obvious. NATO troops in the region may be a rather ineffective police force, particularly as regards tracking down individuals – not a traditional military skill. Other key practical assumptions of criminalisation become obvious by their notable absence. Normally criminal justice agencies attempting to apprehend criminals can rely on at least some sections of the public to report sightings or other information and be prepared to give evidence, appear as witnesses, etc. If, by contrast, sizeable populations vehemently reject the legitimacy of the International War Crimes Tribunal as an agent of western imperialism, characterise the individuals concerned as national heroes rather than criminals, and see charges of ‘war crimes’ simply as thinly veiled imperialist aggression led by the United States, then criminalisation as a practical process faces considerable obstacles. These are compounded if the military commanders of NATO troops in the area, mindful of other political considerations transmitted down other chains of command, refrain from seriously searching for...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface and Acknowledgements
• 1 Practical Criminality
• 2 Modernisation and Crime Control
• 3 The Frontiers of Criminalisation
• 4 The Contradictions of Modernisation
• 5 The Disintegrating Society
• 6 Varieties of Normalisation
• 7 The Decomposition of Crime Control
• Bibliography
• Index