The State, Crime, and Justice


The relationship between the modern State, crime, and justice, is an issue that many from the various isocratic political tendencies have commented on for a number of decades. Among the diversity of arguments there is a common thematic considerations however; (i) that there is a conflict between law and justice, (ii) the recognition that enforcement of criminal law can be part of a repressive State apparatus, (ii) that the very existence of "victimless crimes" are an example of such conflict, and (iv) that behavioural violations often have environmental causes. Of further debate is the methods used to resolve transgressions of behavioural norms; there is popular advocacy for retributive forms justice, involving various punishments from the application of the death penalty to incarceration. More liberal perspectives have argued for transitional incarceration with rehabilitation. A further approach in recent years has been the application of restorative justice principles.

Approaches to crime, prevention, and justice are invariably grounded in assumptions of violent propensity among human behaviour. Certainly various forms of violence (murder, rape, theft) exist throughout human societies, leading some to argue that it is innate or at least there is a degree of innateness. Sometimes such an approach is tied with an interplay between environment; Freud famously argued of an instinct in human beings towards aggression and self-destruction [1] and that the success of a culture depended on the ability to manage violent derangements, especially given that the aggressive outlet often is seemingly independent from tension that contributes to its generation (much has been written about competitive sports as a tension-releasing outlet in this regard, and the evidence of violence-generation as well). What is certain however is the enormous variation in different societies, in time and space, which indicate the massive influence of environmental factors. It is difficult to argue for a perspective of unchanging and universal degrees of violence when there is massive decline in the homicide rate over time and place [2].

Law and Justice

As a form of social tautology, crimes are whatever the State determines is a crime. Nevertheless there is a sense of a distinction between Malum prohibitum ("wrong [because it is] prohibited") and Malum in se (wrong in itself). Ideally, the principles of the latter are incorporated into the former, that is, prohibitions would exist on actions that are wrong in themselves. In reality, political processes and political economy establish prohibitions on acts which are not innately wrong, and provide allowances to those which are. Further, arising out of the mixing of Roman and Teutonic law in Britain, is the difference between civil and criminal law. Whilst the former refers to complaints initiated by an individual or organisation, typically for the purpose of identifying a particular wrong and seeking some sort of compensation, in the latter, the prosecution must be instigated and prosecuted by the State. The visceral victim often receives no restoration as such [3] because the act is legally perceived as against the State as a whole.

No system of laws will, of course, reach the point of perfect correspondence between what is wrong in itself and what is prohibited. It is from this reason that Jeremy Bentham famously argued that "Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense - nonsense upon stilts"[4]. This is not to suggest that there is not a claim to rights that arise from natural facts; Bentham himself developed the entire principles of utilitarianism on such a claim. The prospect for continuous improvement in civil rights always exists, however any such social system must have a means of input for such improvement, and the more restrictive the means of input, or the more poorly versed the deliberators on such improvements, the greater the gulf between what is wrong and what is prohibited.

The Repressive State Apparatus

It is not however failures in rationality where contradictions between law and justice occur, but also from political economy. The State (from "estate", to stand), representing the distribution of property rights, engages in a repressive system to protect those property rights from external threats (the armed forces), and internal transgressions (the police forces); "Above all, the state remains an institution for the continuance of dominant socioeconomic relations, whether through such agencies as the military, the courts, politics or the police" [5]. Through this protection the State protects itself from those behaviours which would otherwise be considered major crimes; it does not engage in murder, rather it claims to be engaging in war, it does not abduct or hold hostage, it imprisons, it does not steal but rather it taxes. Protected by the State apparatus through a particular political economy, the landlord extracts rents for private property, and without the need for social democracy, the capitalist extracts surplus value from wages.

Where political power is in the hands of the theocrats, heresy is prohibited, and the prospect of a rational legal system is weakened. Blasphemy carries the death penalty in Saudia Arabia, Iran, Afghanistan etc, a prison sentence in Russia or India, and is technically still covered by criminal law in most Australian states and territories - the last case being carried out in Victoria in 1919. Even in nominally secular states, symbolic crimes persist. In China there are numerous criminal offences for undermining national unification, insulting the national flag, and even "harmful" messages - in August last year the Ministry of Public Security announced that more than 15,000 people were arrested for crimes that "jeopardized Internet security". [6]

Abolition of Victimless Crimes

The clash between a moral universalism which recognises the inherent rights and liberties of individuals, and socially constructed laws that criminalise and violently punish, becomes immediately apparent in the notion of victimless crimes. Dating back to the founding principles of modernity, it is famously expressed by John Stuart Mill 'On Liberty', "The only purpose for which power can be rightfully exercised over any member of a civilized community, against their will, is to prevent harm to others. Their own good, either physical or moral, is not a sufficient warrant... Over themself, over their own body and mind, the individual is sovereign." [7] This principle is distinct from causing offence; what is classified as wrong is inflicting harm towards others without, or contrary to, their informed consent. Thus informed self-regarding acts and consensual other regarding acts, are considered to have no victims, and the application of a legal punishment for such activities constitutes a victimless crime, and with significant social expense.

Commonly cited examples of victimless crimes include those resources that have been spent on persecution of various sexual acts between consenting adults (e.g., homosexuality, prostitution), or the recreational use of illicit drugs. An interesting limited recent example of decriminalisation has been in Portugal, which in 2001 decriminalised drug use and personal possession, and treated addiction as a medical problem rather than a crime. Since then regular drug use has actually declined, the number of drug-related deaths has fallen by three-quarters, as has the number of HIV infections among intravenous drug users [8]. The growing campaign of sex workers across the globe to have their work decriminalised is another insightful example, where there is growing recognition that it is not the work itself that generates exploitative relationships, but rather the contextual circumstances that are in part borne from its illegality that generate the grim circumstances.

Removal of Structural Causes of Crime

The call to abolish victimless crimes is not new, and it is something that has been advocated by political liberals for many decades. Taking the matter a step further, social liberals, social democrats, and democratic socialists are also attentive to the problems of crimes which are structurally derived. By this what is meant are those where criminal propensity correlates with economic deprivation. It is insufficient in itself to argue for equality before the law for all, when a portion of the population cannot afford such equality. Anatole France expressed the problem brilliantly:"In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread." [9]

Structural causes have been presented with a high degree of empirical correlations with the 2009 publication, "The Handbook of Crime Correlates" which reviews over five hundred empirical studies on crime that have been published worldwide [10]. It is not surprising to discover that there are strong correlations between crime and social class; the poor and the unemployed are certainly several times more likely to engage in petty theft and crimes against property. They are also, especially the men, equally likely to engage in violent crimes against others. According to a United Nations Office on Drugs on Crime report of 2012 [11] which reviewed police data from fifteen countries, during periods of sudden economic stress, the incidence of robbery doubles and homocide also increases. In both absolute and relative terms, for both income and wealth, the association between crime and inequality is strong. It is notable that those countries with higher levels of social welfare and social integration, crimes are falling to the extent that prisons are closing down due to a lack of criminals [12].

But these structural crimes are not just economic, but also environmental. Backing up numerous previous studies, a publication by Macquarie University researchers and published in the Environmental Health Journal [13] looked at criminal statistics and air samples from six New South Wales suburbs over a period of thirty years, which showed that exposure to lead was associated with subsequent aggressive criminal behaviour, as lead exposure causes a loss of emotional control and impulsive behaviour. This is in addition to studies which show that early exposure to lead is associated with a six-fold increase in reading disabilities and a seven-fold increase in failing high school; themselves factors associated with criminality.

Restorative Justice and Abolishing Crime

Removing victimless crimes from the statute books and engaging in appropriate social intervention to remove structural effects are well known methods to reduce the level of criminality and the associated social costs. The relatively new approach of restorative suggests radical change to the application of of justice. Specifically, there is a growing body of evidence that shows that various approaches to justice are not especially successful at deterrence, recidivism, rehabilitation, or generating satisfactory outcomes [15]. Instead of an approach of retribution against an offender who has broken a law, American criminologist Howard Zehr's proposed in the 1990 publication "Changing Lenses - A New Focus for Crime and Justice", the concept of restorative justice, which concentrates on the harm and violation to people and social relationships, and the restitution required, with dialogue between both the victims and the offenders [14]. In a very real sense because it concentrates on restitution and restoration it converts crimes against the State to breaches of civil behaviour. In theory, crime is abolished even as a category.

Historically, restorative justice systems have also been expressed in terms of restitution by many early civilisations. A well-known example of this was the Teutonic weregild method or the Islamic Diyya, where a value was placed on person and property; if someone was injured or killed, the responsible persons would have to pay weregild as restitution to the victim's family. Apart from incorporating class notions of varying value of different people (for example in Diyaa non-Muslims compensation rates have varied between 1/16th to 1/2 that of a Muslim), these methods also suffered a structural problem that allowed the very wealthy to engage in criminal actions that generated little sense of restoration on the part of the offender, rather like medieval Indulgences to the level of blood-money. However in more contemporary times, an income proportional method, or a day-fine, is applied for a number of more minor crimes, primarily in Finland where they have been in use since 1921, but also in Sweden, Germany, Switzerland, and Croatia.

Obviously these methods cannot succeed with all people all the time. There is a handful of individuals who are immune to social interventions or admitting errors of behaviour. In some of these cases, sadly the alternative is incarceration in a mental health facility for the pathologically insane. Also, when it comes to representatives of States who have engaged in actions resulting in hundreds of thousands of deaths, matters of restitution and restoration are more difficult. Whilst the abolition of crime in a legal sense may be possible on an individual level, it is not so clear when referring to crimes against humanity. Indeed, it may be that these are the last actions that can be called a crime under the classical system of punitive justice, for no restoration is possible when the atrocity is so great.

Towards an Isocratic Legal System

An isocratic approach to law and crime seeks to have social regulations where the principles of secular justice are implemented as a civil legal code. In recognising the ontological independence of people, regardless of majority opinion, an isocratic approach, would seek abolish all instances of asserted criminality for self-regarding actions and activities between participants who act with informed consent. An isocratic approach recognises the existence of structural effects and criminal activity, and would seek to remove these causes of criminal activity. An isocratic approach recognises that, in all but a handful of cases, anti-social activity is a product of a lack or loss of social integration. Thus, where breaches of the civil rights of others have occured, an isocratic approach seeks rehabilitation, restoration, and restitution rather than retribution.

Endnotes

1] Sigmund Freud, Das Unbehagen in der Kultur (Eng. pub. 'Civilization and Its Discontents'), Internationaler Psychoanalytischer, 1930

2] European rates have varied from the late medieval period (c20 per 100,000) to the contemporary (c1.5 per 100,000). c.f., Manuel Eisner, Long-Term Historical Trends in Violent Crime, Crime and Justice 30:83-142, January 2003, and Manuel Eisner, What Causes Large-scale Variation in Homicide Rates?, Working Paper, July 2012

3] There are various "Victims of Crime" compensation schemes in Australian laws. c.f., Ian Freckelton QC, Criminal Injuries Compensation Law Practice and Policy, Thomson Reuters, 2000

4] Jeremy Bentham, Anarchical Fallacies; Being an Examination of the Declarations of Rights Issued During the French Revolution, 1843

5] Howard J Ehrlich, Carol Ehrlich, David De Leon, Glenda Morris (eds.), Reinventing Anarchy: What are Anarchists thinking these days?, Routledge and Kegan Paul, 1979. Reinventing Anarchy, pp71

6] Reuters, "Chinese police arrest 15,000 for Internet crimes", Aug 18, 2015
http://www.reuters.com/article/us-china-internet-idUSKCN0QN1A520150818

7] John Stuart Mill, 'On Liberty', 1859

8] George Murkin, Drug decriminalisation in Portugal: setting the record straight, Transform, 11 June 2014
http://www.tdpf.org.uk/blog/drug-decriminalisation-portugal-setting-reco...

9] Anatole France, Le Lys Rouge (The Red Lily), 1894

10] John Wright, Kevin Beaver, Lee Ellis, "Handbook of Crime Correlates", Academic Press, 2009

11] UNODC, Monitoring the Impact of Economic Crisis on Crime, 2012

12] Dutch News, Five prisons to close as falling crime rate leaves cells empty, March 21, 2016
http://www.dutchnews.nl/news/archives/2016/03/more-prisons-to-close-as-f...
See also: http://www.telegraaf.nl/binnenland/25440848/__Sluiting_gevangenissen_onv...

13] Mark P. Taylor, Miriam K. Forbes, Brian Opeskin, Nick Parr, Bruce P Lanphear,. The relationship between atmospheric lead emissions and aggressive crime: an ecological study. Environmental Health. February 2016.

14] P Gendreau, C Goggin, C, FT Cullen, The effects of prison sentences on recidivism, User Report: Office of the Solicitor General, Canada, 1999

15] Howard Zeher, Changing Lenses: A New Focus for Crime and Justice (3rd edition), Herald Press, 2005 (FP 1990)

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