Crime and Morality: The Significance of Criminal Justice in Post-modern Culture

187 Pages·2000·18.141 MB·English

by  Hans Boutellier (auth.)

CRIME AND MORALITY
CRIME AND MORALITY
The Significance of Criminal Justice in
Post-modern Culture
by
Hans Boutellier
Ministry of Justice, The Hague
and
Vrije Universiteit, Amsterdam
KLUWER ACADEMIC PUBLISHERS
DORDRECHT I BOSTON I LONDON
A C.I.P. Catalogue record for this book is available from the Library of Congress.
ISBN-13:978-90-411-1955-1 e-ISBN -13: 978-94 -009-0013-4
DOl: 10.10071978-94-009-0013-4
Published by Kluwer Academic Publishers,
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The translation of the Dutch edition was supported by a grant from the
Netherlands Organization for scientific Research (NWO).
Cover Design by Hans Meiboom
Printed on acid-free paper
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© 2000 Kluwer Academic Publishers
Softcover reprint of the hardcover 1st edition 2000
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TABLE OF CONTENTS
Preface by Michael Tonry
Foreword to the Translation
1 Morality, Criminal Justice and Criminal Events 1
Criminality and the Norm 4
Morality and Culture 6
Morality and Post-Modernism 9
Criminal Law and Morality 11
Solidarity and Victimhood 15
2 Morality and Criminal Justice Policy 19
The Discovery of Petty Crime 21
Social Control and Opportunity 23
Normative Shift 25
Comments 27
Social Inequality and Crime 29
The Van Dijk-Jongman Controversy 32
Conclusion 36
3 Morality and Victims 41
Crime as a Moral Problem 41
The Victimological Twist 47
The Rediscovery of the Victim 50
Victimology 52
Victim Surveys 54
Victimless Crime 56
Victim Support 58
The Victimalization Process 62
}
vi
4 Victimalization of the Sexually Abused Child 71
The Ambivalence 72
The "Discovery" 74
Sexualization 77
The Sexual Revolution 79
Feminism 81
Individualization of the Child 84
From Fantasy to Reality 87
Conclusion 91
5 The De-victimalization of the Prostitute 95
From Regulation to Brothel Prohibition 96
Hygienism 97
Feminism 99
The Brothel Prohibition 100
A Psychological Problem 102
A Sexual Variation 105
The Second Feminist Wave 108
The Rediscovery of the Victim 109
An Ordinary Occupation 112
Conclusion 114
6 Solidarity or Virtuousness; Rorty versus Macintyre 117
MacIntyre's Virtuous Community 118
Rorty's Ironic Solidarity 122
The Moral Subject 127
MacIntyre'S Narrative Subject 127
Rorty's Split Subject 129
MacIntyre versus Rorty 132
Liberalism and Solidarity 134
Conclusion 138
7 Criminality and Liberalism: Some Closing Comments 141
The Issue of Crime 142
Criminology 145
Criminal Justice Policy 147
vii
Normative Liberalism 149
The Normative State 152
Normative Upbringing 155
Conclusion 157
References 159
PREFACE
By Michael Tonry
This ingenious book brings greater clarity to understanding of conundras
of crime, criminal justice, and crime control policy in Western societies
at the beginning of the third millenium. Why has public anxiety about
crime not declined in the late 1990s in parallel to declines in crime rates?
Why do so many people believe that punishments are generally too soft
when many of the same people would prefer punishments in individual
cases that are less harsh than are commonly imposed? Why does populist
punitivism play so prominent and growing a role in politics in many
places? Why most conspicuously in the Netherlands and the United
States but also in other Western countries have imprisonment rates risen
rapidly over the past quarter century even when crime rates were falling,
and despite insistence by most criminologists and criminal justice offi
cials that harsher penalties have few or no crime-reducing effects?
Insight into all these questions can be gained, J.e.J. Boutellier in
structs, if we recognize that, in our pluralist, post-modernist time, crimi
nality is commonly viewed as a moral problem and responses to criminal
ity have come to occupy a central position as enunciators of common
values. In an inchoate or immanent way, "the public" understands this,
even when the agents and agencies of the state do not. Thus modern
technocratic approaches to criminal justice, that attempt to rationalize,
regularize, and de-emotionalize crime and responses to it, have been
moving in the opposite direction from public sentiments and needs,
which want to emphasize the immoral quality of crime and to draw moral
lessons from it.
In admirably multidisciplinary fashion, Boutellier draws on the ideas
and writings of philosophers, post-modernist social theorists, classical
sociologists, and criminologists to show that crime and criminal justice
perform somewhat different functions in our than in other times. In Durk
heim's time, it may have made some sense to imagine a gradually evolv
ing collective conscience, and to conceptualize criminal law primarily as
a secondary socializing institution that expressed and reinforced the mor-
x
al values of particular times. In our pluralistic and polyglot time, it is
much more difficult to imagine a single overriding, widely shared set of
cultural values for a whole society, and in our self-styled post-modernist
era, it is impossible credibly to argue for the existence of transcendent
truth or a common cosmology. Many writers on post-modernism, having
reached this point, then wallow in nihilism or despair or parochial poli
tics. Boutellier, instead, argues that there are broadly-shared common
values that abhor personally harmful actions - cruelty, undeserved suffer
ing, humiliation, harm infliction, exclusion - and that crime and criminal
justice provide a "basal negative point of reference for a pluralistic
morality."
To express this new function, Boutellier creates the concept of "victimal
ization of morality". This is the process by which actions or harms come
to be seen as metaphors about wrongful conduct. Victimalization changes
over time, as did the normative standards of Durkheim's collective con
science. Boutellier, for example, shows how child sexual abuse received
increasing penal attention in the 1980s and 1990s, and prostitution less,
as widely shared values evolved. Victimalization is not the same as vic
timization. Children have always suffered from the victimization of sex
ual abuse but only in recent decades has that suffering become a focus of
popular and state attentions, and when it did, that showed that the crim
inal law had become a mechanism for manifesting shared values that
appeals to religion or ideology or other higher truths no longer could.
All social theory is provisional and contingent, and subject to refuta
tion, and so, of course, is Boutellier's. It is nonetheless an important ad
dition to contemporary efforts to understand crime and crime policy.
Analysts of criminal law and criminal justice have often explored the
overlaps and discordances between law and morality and have long pon
dered the law's and punishment's moral-educative effects. Boutellier
does not quarrel with such analyses but moves a step further to hypothe
size that in our time crime and criminal justice have moved from ancil
lary and peripheral roles in the enunciation and reinforcement of moral
values to the center. If he is right, and to this reader his hypothesis is
plausible and his argumentation strong, it may explain why crime and
criminal justice refuse to stay within the rational bureaucratic bounds that
governments want to build for them, and provide beginning to answers to
the other questions that began this foreword. This is an important and
creative book that deserves a wide audience.
FOREWORD TO THE TRANSLATION
I am extremely pleased that this book that I put so much of myself into is
now being published in English. It is enabling me to keep a promise I
made to various of my colleagues abroad after some of the papers I
presented and the English summary of the book. Although the Dutch
version was published as far back as 1993, the themes the book addresses
are more relevant than ever. The issue of the morality of today' s culture
is mainly of such major importance because of the problems involving
social safety and the role of the criminal justice system. The original
Dutch version has been altered though in two significant ways.
A chapter about the relation between religion and crime has been left
out because it was not really called for in connection with the central
points of the book. The chapter dealt with the frequently formulated
voiced notion that the less people go to church, the more crime there is.
Based on empirical research in the field, I showed that plausible though
this notion might be, it still has only very limited relevance because in
essence it stands in the way of thinking about issues involving today's
morality. After all, the secularization of the public realm would seem to
be an irreversible process. I also deleted a section about the philosophy of
law that dealt with the relation between legal protection and instrumental
criminal justice policy. The rather abstract treatment of this theme was
too much of a detour on the way to my conclusions.
Let me briefly summarize the most important points I make in this
book. In the field of criminology, crime is generally conceived of as a
structural social problem, for example in terms of social deprivation, or
as a management problem in terms of social control. In my view, crime
should however be conceived of more than ever as a moral problem. A
criminal event is a normative occurrence and whether rightly so or not, it
is objectified in criminal law. This means that criminal justice policy
should in the first place be comprehended as a normative practice, as a
matter of justice and justification.
From a normative perspective of this kind, it is clear why the victim
has come to playa central role in criminal legislation, criminal justice