Criminalization is the Crime: Part 1 - Original Sin Lies in the State

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In the 19th century, amid the turmoil of industrial capitalism's early development, French thinker Pierre-Joseph Proudhon exclaimed that 'Property is theft!' His political work is, in general, highly instructive. In particular, for those of us researching the connection between the criminalization of conduct and the existence of crime, Proudhon's remark is a fitting analogy: Criminalization is criminal!

For there to be a criminal, there must first be a crime, and for a crime to exist, there must first be an authority, namely the State, which purports to act on behalf of the public. Now, whether this means in the public interest or for the public is a different, though crucial point. Each crime recognized by the State calls upon a range of rationales for the so-called public interest. For instance, in criminalizing a drug, say marijuana, the State will muster forth an argument that draws upon moral and social concerns, as well as political and economic factors, some apparent, others perhaps hidden from first glance.

What might also escape our first glance is the very nature of criminalization. Because the State must punish a human being (after all, we can't get so theoretical as to escape this basic fact), the act of criminalizing conduct invariably creates a criminal. The drug itself or drug addiction or the fact of social anomie cannot be criminalized; instead, the person herself is criminalized and bears the brunt of the State's coercive authority to dictate the confines of proper conduct. This should be one of our central concerns as we work to understand crime in our society: how much of crime is, in fact, a reflection of our society's blind spots? This is not, incidentally, some 'bleeding heart liberal' argument that criminal law is inherently inhuman, and that criminals are largely a misunderstood class of people, subject to socioeconomic and political forces outside their control. There is some truth to these perspectives, however, and I would like to explore some of them, as they relate to our proposition that 'Criminalization is criminal!'

Now, some human acts do gain public opprobrium, due to what, if I can go out on a limb here, we might understand to be natural moral sentiments. That is an opinion reflecting a bit of Hume and a good amount of modern biology, which points out that our moral sentiments may very well have very natural, innate roots (though perhaps not as far as our genes, as some, like Dawkins, assert). We might name a few such acts that come to mind immediately, namely 'natural crimes' such as murder or rape. Without reducing the philosophical arguments too far, we might find that an act such as rape, in itself, violates a basic precept of human conduct: that we should not harm others as we would not want them to harm us (a revision of the Golden Rule!). We can call such acts victimizing offences, as they not only exist on some natural moral sentiment, but also rise from some violation of proper interpersonal conduct, regardless of the philosophical approach.

Drugs, however, are an oddity in criminal law, and expose how criminal law is a creature of politics as much as it is a product of jurisprudential development. The extent and degree of criminalization depends largely on the type of drug and the particular conduct of the offender. Pushers may be punished more severely than mere users, or they may both bear the brunt of State-sanctioned opprobrium. Some of this rationale for criminalization might transcend merely moral concerns, and reflect the immense economic, political and social aspects of the drug market. Drug production and trafficking, of course, involve the abuse of labour and innocents on a wide scale, though these facts may reflect, too, the penumbral dark side of criminalization. Nevertheless, in the United States, for example, where hundreds of thousands of its citizens are incarcerated for mere drug usage, the logic of criminalization is more difficult to draw out from any argument other than the political nature of the crime itself. That is, the criminalization of drug usage, and in particular the 'soft' drugs, such as marijuana (which is less dangerous than the ubiquitous ethanol), are political choices, often as part of an historic project of social engineering, the roots of which are lost in time.

The drug–crime–politics nexus is all very fascinating, but it is not my area of expertise. For a more engaging and informative analysis of the current situation revolving around the drug criminalization debate, take a look at Greg Denham's lecture at the recent Isocracy Annual General Meeting (http://isocracy.org/node/170). For my part, I would like to briefly recall a recent, ongoing project of mine, on the criminalization of male homosexual sodomy in Singapore; a topic which goes to the heart of our proposition, 'Criminalization is criminal!'

Just as Proudhon's original thief is the purported property owner, we will see, in the case of Singapore, that the original criminal covers its tracks by continuing to criminalize certain forms of conduct, as part of that larger, historical project of social engineering.

Social engineering and Singapore seem to go hand in hand. After all, Singapore's renowned former leader, Lee Kuan Yew, had a habit of referring to his fellow denizens as 'digits' of economic output. Honesty and State tyranny, likewise, seem to go together, but only if the State tyrant has a firm grip on public authority and power, lest honesty lead to righteous indignation on the part of the people. Whereas Stalin had to maintain overt lies to justify the Soviet Union's state capitalist, moribund economic and political system as Really Existing Communism, Lee had less troubles ideologically, mainly because he denied having any. The infamous pragmatism of the Singaporean regime, Lee's People's Action Party, which has dominated the city-state since the late 1950s, has attenuated public resistance, often coercively, such as the criminalization of vandalism in the 1960s, which was, in fact, targeted against political opponents and anti-Establishment trade unionist. For analysis on this subject, Jothie Rajah's latest work, The Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore, is indispensable reading.

Oftentimes, however, Singaporean social policies were more tenuous and subtle, though their ancillary effects, as I will argue, have been more insidiously effective in controlling the population.

One such example of these policies is Singapore's policy of family planning, which has shifted over the years from curtailing population growth to selectively encouraging, through tax credits and welfare schemes, the growth of select segments of the population (namely, middle-class Chinese). On this subject, and for some highly entertaining quotes from Lee over the years, I recommend reading Christopher Tremewan's The Political Economy of Social Control, which covers the Lee years in toto. (It is almost worth reading solely for Lee's comments, which often expose his ego and ruthless economic management more than they do any more philosophically deep vision of Singaporean society.)

But back to sodomy, if we can. Ongoing legal challenges to the city-state's sodomy law, Section 377A of the Penal Code, reflect a range of debates: religious opposition from the increasingly influential evangelical Christian Chinese population, the Victorian mores of the Singaporean ruling class, the political pseudo-pragmatism of the State, and so on. The continuing existence of Section 377A relates to each of these factors, and none can be quickly prioritized over the others without serious consideration of the facts and political calculations of the People's Action Party.

Nevertheless, there are some basic facts we can glean from the debates, in Parliament, in the (highly State-managed) public media, and in the (highly State-influenced) courts, in which there are two constitutional challenges to Section 377A, under the (highly amendable) Constitution of Singapore's Article 12(1) guarantee of equality under the law and equal protection of the law.

One such fact is that the criminalization of male homosexual sodomy in Singapore began in its not-so-distant, arguably continuing colonial legacy. Section 377A is the product of the infamous 1885 Labouchere Amendment from Singapore's former colonial master, the United Kingdom; the provision was notably used to convict Oscar Wilde of 'gross indecencies' with other men. The provision made its way into the Singaporean Penal Code in 1938, as a subset to Section 377, which criminalized all forms of sodomy – that is, any act other than vaginal intercourse, which effectively criminalized the entire Singaporean population.

The Singaporean authorities came to their senses, perhaps for legally sensitive reasons, and decriminalized heterosexual sodomy, i.e. anal and oral sex, in 2007 (which also incidentally, in effect, though it went unrecognized, decriminalized female homosexual sodomy, too). Yet, despite vigorous public debate, Section 377A remained on the books. The Government's reasoning was, essentially, that it was not yet time to make such a momentous step toward decriminalizing male homosexual sex, although Prime Minister Lee Hsien Loong (son of the older Lee) reassured the public that the State would not actively enforce the provision. Thus the Government was prepared to accept the duality of criminalization of male homosexual sodomy and non-enforcement of the provision, despite its being, according to the junior Lee himself, 'not legally neat and tidy'.

There are many facets we could explore here, but I raised the example of Singapore's continuing criminalization of male homosexual sex as a prime illustration of State machinations for power. The State, which is so eager to maintain 'social harmony' for its own political stability, continues to consider male homosexuals as criminals, though an accepted class within society. It is bemusing, legally, that the State could sanction the existence of a criminal class and not enforce its own laws proscribing the activity (of which Section 377A is one, seldom used, provision; the State more often had relied upon 'moral outrage' and public indecency provisions to entrap men). Yet it demonstrates to us how the State can subjugate human beings without even brandishing the tools of violence to which it has ready access.

The 'liberalisation' of Singaporean civil society since the mid-1990s is therefore, in the eyes of a libertarian socialist perspective, illusory. The so-called pragmatism of the Singaporean State is akin to the logic of neoliberal political economy, which asserts itself as a 'Third Way' force between untamed capitalism and State-driven socialism. Neoliberal political economy is, however, the outgrowth of immense State power, with real political and economic power vested in a concentrated elite. In the case of Singapore, the citizens are reminded, quite effectively, that it is on the State's terms, and more accurately, on the People's Action Party's terms, that social progress will be made.

It is a project where the implications are broader than just Singapore: the city-state provides a ready example given its small size, highly advanced administrative apparatus, and its well-documented, though often ignored, history of political and economic control in the hands of a small ruling elite. I look forward to updating you on the Section 377A project, specifically, and then more generally, how instructive this particular case of State power is on the future of the neoliberal State and its evolving methods of control of human beings.

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