In the previous part to Criminalisation is the Crime! I pointed to the central act of the State in understanding the nature of crime. That, for the majority of crimes resulting in incarceration, they are non-violent acts. In the case of the United States many of these offences relate to drugs, often just their mere possession or use. I also referred to the undeniable reality that some crime – indeed, much violent, physical and mental, crime – relates to complex biological and social factors. The danger in calling out a crime as a fact of biology or society is, or should be, apparent. Until we arrive at some future golden age of total knowledge the true content of criminality will elude us. This perhaps disspiriting observation should not, however, deter us from the task of peeling away the detritus of archaic understandings and customs.
We also observed, through the initial case study of Singapore (to which we will return), that the political nature of crime is one of the primary means of social control in the State’s arsenal. In its role as social arbiter, the State goes by many names: the Judiciary, jurisprudence, justice, the Courts, and so on. (All reflecting the Roman foundations of law, ius.) In the case of Singapore, the State wields the authority and power of law to mould society, punish miscreancy, and to ensure that the balance of power, between the State and the populace, is bent toward the former. This is not to single out Singapore as a singularity among the modern ‘democratic’ bureaucratic States. Indeed, Singapore falls into line within the spectrum of Anglo-American liberal democracies, albeit more overtly within the control of an authoritarian political dynasty (the Lee family and the populist party it has helmed since the 1960s, the People’s Action Party).
What was not noted was the influence of capitalism as political economy in forming the modern contours of criminality. An infamous example today is the increasing ‘privatisation’ of prison systems, in which States and their municipalities transfer the ownership, administration, and care of prisons to private corporations. Coverage of the example has been widespread (the American magazine Mother Jones in particular has documented multiple instances of this pernicious development). The privatisation of prisons follows similar logic to the sale of other State assets. The free market and private enterprise are better equipped and fiscally more efficient in managing things that are best kept away from the ineptitude of the State’s bloated bureaucracies. There may be elements of truth to this; however, the question must be then: should things – public things – necessarily be more fiscally more efficient?
Creative destruction is the popular Schumpeter refrain, but capitalism is also a creature of historical trajectory of Western civilisation’s materiality. In its consumption of objects the West has proved itself insatiable. Not only does capitalist society constantly destroy itself to create wells of capital anew, it also destroys the world in which it came into being to create a new world. This new world reflects long-held psychological urges in Western civilisation, aimed at perfection and ridding ourselves of the fear and guilt that has plagued humankind. It is insufficient to blame only our society for these emotive drives, but it is through society that these desires have been engineered into an inhuman, viral creed of transmogrifying human beings. Into what?
If capitalism is understood as the life force of the modern State, as a process of the accumulation of capital and the means of production by the State’s political and economic elite, criminality must be understood in part as a reflection of this process. Crimes such as the mere possession of drugs become more salient to a system that requires a constant accumulation of ‘capital’. Like a privatised healthcare or education system, privatised prison systems survive off the creation of human beings that are ‘digitised’ for either the creation or service of capital.
There are also non-victimizing offences, where our moral compass is to a great extent subjected to our social beliefs and practices, many of which have stood the test of time not by their innate relationship to human morality, but for the sole reason that they are institutionally—and psychologically—entrenched in our society.
That being said, drug criminalization, as one example, can relate in part to our moral sentiments, but arguably this is the end-result of several false connections. Our moral belief in the protection of life from harm is often abused in the act of condemning drugs, such as marijuana, as being harmful to life. Perhaps one might make the argument that marijuana, as a smoked substance, is harmful to life and thus a moral concern worthy of society’s condemnation. In that instance, however, there are diverging beliefs about the relationship of the community and the individual, and in our society, for better and often for worse, we have cultivated individualism and the ensuing personal responsibility for certain conduct that, without any effect on others, we can enjoy doing liberally. So despite a moral concern for human life, our society posits that it is a far more agreeable situation, and society, if personally harmful acts be permitted, perhaps within the scope of some (inalienable?) taboos.
In fact, suicide comes to mind as a questionable ‘victimless’ offence. Is this true? Perhaps, like the drug trade, suicide as an act should be understood more systematically, which would allow us to appreciate that ‘no man is an island’. Our conduct, however personal and isolated from obvious connections to others, may indeed affect other parties. Dependant children or relatives, financially, emotionally and so on, are devastated by acts of suicide; is it therefore a victimizing offence? The social implications should be adequate to give us pause, in addition to the serious moral issues.
I have followed this line of reasoning primarily because I wish to address the social impetus behind certain forms of criminalization. Where there may have been a germ of moral rationale behind the act of criminalizing certain conduct, in some instances it appears, sometimes blatantly, that criminalization has exceeded its original moral roots. Drug criminalization is apropos of this observation. Whereas the political body, ostensibly the popular electorate in a modern liberal democracy, may have had moral concerns over the health of its constituents, the political rationale for drug criminalization – and how such criminalization materializes – is another beast altogether. I will proceed by way of another short, though I believe instructive, example.
The French sociologist Emile Durkheim hypothesized that as human societies progress into more complex forms, they almost uniformly move from highly coercive systems of State power—often through State violence, e.g. capital punishment—to administrative apparatuses that punish human beings through ‘softer’ measures. His later notable French counterpart, Michel Foucault, reasoned similarly, with his notion of the transition from the ‘juridical’ State, which exercises physical coercion upon its human beings, to the ‘administrative’ or ‘governmental’ State, which relies upon diffused power through various means of control, both through what we might call the public State (Government) and the privatised State (Corporate Power). In a sense, in a highly developed society the external sovereign has become a facet of our individual personal conscience. We have internalized the Master, and despite our supposed freedom of belief and action, we are chained to an alien conscience. (Hegel, Freud and a host of other thinkers have brought us to similar observations in regards to this last point.) Nevertheless, Durkheim and others commenting on the nature of crime may have been wrong on the historical evidence.
In their edited work Durkheim and the Law (1983), Steven Lukes and Andrew Scull note that evidence suggests that, in some instances, the developing State has shifted tactics from more community-based means to methods of State violence. One instance is the case of the Anglo-Saxon judicial approach to murther—murder by any other name.
According to historical records, Lukes and Scull argue that English common law had once treated murder akin to a civil offence, where the family of a victim could be compensated financially by the criminal. If this be the case, we might surmise that the criminalization of murder illustrates the State’s standing in the stead of the victim. One could argue that this is an extension of the State assuming the role of a dispassionate arbiter, or in its capacity as the Sovereign, with the power to act on behalf of a whole human community. In this way, the crime of murder is not personal or confined to the effect on the victim and her family: murder transforms into a transgression against the body politic.
But why criminalization with coercive repercussions? This is the crux of the matter: the State monopolization on authority and power is, in itself, perhaps neither necessarily good or bad. But, as in any form of monopoly, it aggrandizes the institution thus authorial and empowered, and permits gross abuses that, without serious democratic checks, escape the logic of moral concerns and serve, in many instances, the social beliefs and practices of the ruling elite (not to forget that, in a profit-driven economy, it may also serve their financial interests).
These comments on criminality and the law consist of a collection of notes from research I undertook in 2013. As such, my musings have likely progressed or in some ways may require amending. I will leave those advancements or corrections in my thought for a third instalment.
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