- The Brixton Disorders: Report of an Inquiry by the Rt Hon. the Lord Scarman
HMSO, 168 pp, £8.00, November 1981, ISBN 0 10 184270 8
- Punishment, Danger and Stigma: The Morality of Criminal Justice by Nigel Walker
Blackwell, 206 pp, £9.95, August 1980, ISBN 0 631 12542 6
- Punishment: A Philosophical and Criminological Inquiry by Philip Bean
Martin Robertson, 215 pp, £12.50, August 1981, ISBN 0 85520 391 9
- Dangerousness and Criminal Justice by Jean Floud and Warren Young
Heinemann, 228 pp, £14.50, October 1981, ISBN 0 435 82307 8
- The Abuse of Power: Civil Liberties in the United Kingdom by Patricia Hewitt
Martin Robertson, 295 pp, £15.00, December 1981, ISBN 0 85520 380 3
One of the sombre gratifications of war, as we have had recent occasion to discover, is solidarity. War taps a longing to still the quarrels of ordinary life for the sake of something in common. This is a more pervasive longing than we like to admit. Even those who speak out against war are not immune to its lure. ‘Jingoism’ is a word used to condemn the enthusiasms of others, but also to ward off their fatal attraction. Since 1945, the quarrels of peacetime in Britain have been made to seem that much more mean and interminable by the memory of wartime solidarity. Now that we have peace of a sort again, the same nostalgia preys upon the business of taking up the old quarrels.
One of the bits of old business to take up again is crime and riot. In the distant days before the Falklands war these topics were rarely out of the headlines. In the wake of the war, it seems clearer that this talk was about solidarity, about that mysterious thing ‘the social fabric’ and whether it can contain its own murderous divisions. More and more these days, our thinking about crime and riot seems grounded in a pessimism about the possibility of solidarity in the modern city. Crime figures are the carriers of anxieties fixated on something larger than crime itself. The Scarman Report, for example, reads street crime as a product of the enviousness of a ‘materialistic society’. What is implicit is a vision of a society in decline, unable to contain envy and aspiration within the picket fences of race and class yet failing to open up sufficient mobility to absorb frustration.
Crime statistics also figure as key terms in arguments about the impact of post-war prosperity, the welfare state, and youth income and sexual freedom upon authority relations between the generations. The post-war boom, however brief, however unequally enjoyed, did something to deference. Crime statistics seem to prove this. Ours has become a ‘violent society’, these statistics seem to say. There must be some truth in this, but there is a lot of promiscuous generalisation as well. Riot, street crime, vandalism, disorder in the classroom, even pushing in the bus queues are assembled together in an ominous chain of signification. These may seem to have common causes, common perpetrators, but their real connections remain obscure. This does not prevent them from being lumped in with terrorism and political assassination as the grist for a historical narrative of decline. Some of the more extreme versions are easy to parody. ‘In the old days before the war’, so the story goes, villains came quietly when arrested, cheerfully holding out their hands for the cuffs and announcing, ‘It’s a fair cop, guv’ (instead of shooting it out with the police); kids were off the streets by nightfall and didn’t give their Mums and Dads any back-talk; everyone knew their neighbours and there was no pushing in the great queue of life. When assembled like this, the myth dissolves like the blancmange that it is. Not even the most sardonic observer of the current law and order debate, however, can be wholly immune to this nostalgia or to the historical anxieties which are being expressed, in fractured form, in the call for more policemen on the beat or the reintroduction of capital punishment. Panics about crime are a displaced discourse on the rationality of the social future. They are most keenly voiced by the victims rather than the beneficiaries of social change, by the working class rather than the thrusting young professionals. Yet in this economic twilight, not even the fortunate can afford to be sanguine about the future of civility in public places. If anxiety about crime is a displaced expression of a more general historical pessimism about the future of civic life, then much more than ‘community policing’ will be required to restore confidence in the street life beyond our bolted doors. Likewise, the recent calls to imprison rapists and execute terrorists and murderers of policemen draw on deeper yearnings than simple vengefulness. They contain a plea that society use punishment to demonstrate what it stands for.
Law and order panics have been recurrent episodes in urban society for over two hundred years, spasms of revulsion at the moral opacity of the invisible hand. As moral entities, market societies command enthusiasm only in the paroxysm of war. The rest of the time, almost everyone turns out to have a quarrel with the law of supply and demand – the Left because people don’t get what they need, the Right because people don’t get what they deserve. Only the disabused secular centre of political opinion has been able to endure and even enjoy the liberty of a society which lacks a moral teleology. Yet even those who are aware that society is too large, too divided to act with one mind tend to believe that at least in punishing society does stake out some ultimate commitments. If panics about crime trigger a yearning for the Durkheimian solidarities of collective moral judgment, they also tap the immense appeal of the idea of individual moral responsibility.
Public opinion seems to be taking its revenge on post-war social science for the sociological reductionism which seemed, in criminology especially, to explain away the possibility of moral agency and moral iniquity. The exculpatory environmentalism of criminology has even worked its way into criminals’ vocabulary of motive. The furore in 1980 over Charles Richardson’s letter to the Times focused on the way this artful rogue weaved potted criminology into his self-exoneration. In the Sutcliffe case, the public, widely welcomed a verdict of criminal responsibility and appeared to get some amusement from the judicial humiliation of the psychiatrists who sought to portray him as the hapless victim of his own impulses. The tide is running strongly against vocabularies of exculpation and strongly for the language of moral responsibility.
The political beneficiaries are obvious. Both Reagan and Thatcher’s electoral successes owed something to their ability to couch an appeal to the lower forms of self-interest in the moral rhetoric of individual initiative and personal responsibility. Now the Prime Minister’s monopoly on the moral register is more than ever an electoral advantage. Those who deride the ethics in her economics and in her law and order policy as petty-bourgeois individualism do so at their peril, and those who try to ‘play the law and order card’ by attributing the upsurge in crime to her policies may find themselves trumped by the seductive fundamentalism which insists that criminality is a choice to do evil.
The resurgence of this moral conception of crime has been mirrored, in academic debates on the philosophy of punishment, by a revival of retributivism. As Nigel Walker and Philip Bean make clear in their lucid guides to these debates, it is Kant and Hegel, rather than Bentham and Beccaria, who are winning the arguments these days. Retributivism seems to speak to that yearning for society to speak as a moral actor. As an argument, it also honours the offender. It presumes that crime is an act of the sovereign will, and maintains that punishment is the expiatory cleansing of guilt which allows a free subject to return to full citizenship. As Simone Weill said, ‘the only way of showing respect for somebody who has placed himself outside the law is to reinstate him inside the law by subjecting him to the punishment ordained by law.’ It is a sign of how much the intellectual landscape has changed that only twenty years ago such high moral discourse might have struck most liberals as mystical claptrap. Today, as both Walker and Bean demonstrate, retributive argument is no longer the monopoly of the religious and the conservative. Disillusion with deterrence, alarm at the invasive abuses of the rehabilitative ideal and the remoralisation of discourse on crime have combined to engender a new sort of progressive retributivism, seeking to sever its association with ‘an eye for an eye’ and attempting to ground punishment as a process honouring the will of the criminal. These liberal retributivists, who include, with some reservations, Philip Bean himself, use retributivist argument against the whole well-meaning apparatus of rehabilitation: parole, indeterminate sentences and compulsory treatment programmes. They favour the decarceration of minor offenders and the shortening of most custodial sentences in order to pare punishment down to its symbolic essentials: denunciation of the morally repugnant and retribution for it. Having jettisoned an ‘eye for an eye’, however, retributivists need to set out a philosophically defensible set of alternative equivalences between punishment and crime. This problem of equivalence is at the centre of the recent interest in rape. The outrage expressed when an offender was merely fined was essentially retributive in form. The crime had not received what it deserved. Yet what exactly is rape worth to us? Five years? Ten years? An arm and a leg? Most retributive arguments fail to answer these questions and the virtuous indignation at the root of retributive thinking is apt to encourage a spiral of inflationary sentencing.
A second difficulty with retribution, as both Bean and Walker point out, is that while it may seem to provide adequate justification for the punishment of the mala in se, acts evil in themselves, it fits less well as a justification for the punishment of mala prohibita, acts merely prohibited by law. Kant may persuade us that it would be our duty to execute the last murderer even if we were the only two souls left alive on earth, but he would have more trouble persuading us to punish the last person defaulting on payment of their parking tickets. For the mala prohibita deterrence seems a more appropriate justification. A third difficulty with retribution – indeed with all justifications of punishment – concerns the issue of dangerousness. Jean Floud and Warren Young make a careful philosophical defence of the necessity of preventive detention for a limited number of offenders who have been found guilty, served their sentences and seem likely to revert to acts of violence if released. On retributive grounds, it would be unjust to keep someone in prison after they have paid the price for their crime, but it takes a very resolute retributivist indeed to insist that Peter Sutcliffe, for example, deserves release once he has paid his debt. None of these problems floors the retributive case, as Nigel Walker points out, but they do suggest that we should be on guard against the idea, which retributive thinking encourages, that the philosophical issues of punishment are simple enough if we follow the force of our moral feeling. It is this high moral feeling which is abroad at the moment, thirsting for victims on which it can express its longing for social stability and moral order.
Both Bean and Walker’s books are calming antidotes for these ruthless enthusiasms. Patricia Hewitt’s The Abuse of Power illuminates another curious aspect of the current law and order debate. One might have expected that the remoralisation of the language of crime and punishment would go hand in hand with a remoralisation of attitudes towards the legal rights of defendants and inmates. If punishment is seen as a moral ritual, then public commitment to these rights ought to be revalorised as a moral duty. Yet these requirements of simple consistency do not seem apparent to Chief Constables, newspaper editors and politicians. As Patricia Hewitt makes clear, those who speak loudest for the use of the law as an instrument of moral symbolisation seem to regard habeas corpus, the legal safeguards on the arrest powers of the police, the defence challenge of police evidence in courts and the public control of police expenditure and public order policy as unfortunate obstacles, and not as the stuff and substance of the law as a set of moral practices. The same people who want to increase the use of imprisonment to demonstrate what ‘our’ values are seem to care little that the conditions in our prisons betray what ‘our’ values are only too clearly. Commitment to justice ought to be indivisible: it rarely is. Perhaps this is due in part to the ruthlessness which lies at the heart of all strong moral conviction. Justice is an insatiable virtue. In Kafka’s story ‘The Penal Colony’, the harrow’s myriad needles picked out the words ‘BE JUST’ on the flesh of its judicial victims. It worked on unceasingly, long past the sixth hour when the look of radiance and expiation finally shone through the tortured faces of its victims; it worked away, indeed, until it had cut its message right through their bodies, and they were torn off the machine and cast into the bloody ditch.