Penal Abolitionism: a celebration

115 Pages·2010·17.488 MB·English

by  Vincenzo Ruggiero

OXFORD
university press
Great Clarendon Street, Oxford ox2 6dp
“ a department of the University of Oxford, To the memory of Louk Hulsman
and education by scholarship,
Oxford New York
Audd^d Cape Town Dares Salaam Hong Kong Karachi
With offices in
SomhKora, Sw.ue,]a„d Haitad Turkey IW ST
0/Oxford Univmily Pros
ui me UK and m certam other countries ^
Published in the United States
by Oxford University Press Inc., New York
© Vincenzo Ruggiero 2010
T^e moral ri^te of the author have been asserted
Database right Oxford University Press (maker)
U01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
First pubhshed 2010
Jnd vT* book in any other binding or cover
and you must impose the same condition on any acquirer
Bntish Library Cataloguing in Publication Data
Data available
Library of Congress Cataloging in Publication Data
Ruggiero, Vincenzo.
Penal^olitionism:acelebration/Vincenzo Ruggiero.
T ^jT^P^cndon studies in criminology)
references and indS^
ISBN 978-0-19-957844-3 (hardback)
justice, AdnSS^of-Ewope^' f ^ imprisonment-Europe.
3. Criminal
HV9344.A5R84 2010 '
364.6*8094—dc22
2010014008
Typeset by ^ Limited, A Macmillan Company
Pnu»du.d.eUKbyd.eMPGBuobGro„pfB<Liua„dKi„g-,Ly„u
ISBN 978-0-19-957844-3
13579 10 8642
X Contents
6. Social Christians and Mercy
Equality and Solidarity 1
Forging One’s Religion ^
The Monarch’s Mercy Introduction
Mysterious Iniquity
Liberating Theology
Pietas
124
Abolitionism has been described as a flag under which ships of
7. Abolitionist Praxis
129 varying sizes sail carrying varying quantities of explosives. Whether
The Judge and the Bum-Bailiff ^ ^ ^
accompanied by deflagration or not, abolitionism posits that the
The Unfinished and Action Research ^3^
criminal justice system as a whole constitutes a social problem
The Abolitionist Stance
in itself and that the only adequate solution to this problem is its
Law and Conflict total suppression (De Folter 1986). In order to stave off images
147 and sounds of explosions, however, it may be more appropriate
8. Mutual Aid and Cordiality to suggest that abolitionism is not merely a programme, but also
Law and Authority .an approach, a perspective, a methodology, and most of all a way
^ 155 of seeing. Surely, there is an abolitionist stance in the proposition
Tightly Knit Societies
158 that the state centralized administration of penal justice should be
The Business of Pain
replaced by decentralized forms of autonomous conflict regula­
No More Prisons ^
tion. Echoes of abolitionism are also heard when critics warn that,
Cumulative Anticipation ^ if we want to reform the penal system, we have to start a process
of collective conversion away from the traditional and conven­
9. Participation, Conciliation, and Mourning yjS
tional grammar that characterizes it. Abolitionism, finally, may
Participatory Disputes also be a source of inspiration for those who want to do away
The Tyranny of Public Opinion ^ ^ ^ with concepts such as ‘seriousness’, ‘dangerousness’, ‘culpability’,
arid with the very dichotomy underlying the distinction between
Knowledge, Proximity, and Dialogue .
‘good’ and ‘evil’. But we need a larger conceptual vault if we are
Victims
to grasp the different components of abolitionism as a school of
Making Amends 18^
thought in its widest sense. It has been noticed, in this respect,
189
Shaming and Peace that a ‘fully-fledged abolitionist theory, which encompasses all
193
the characteristics of the different abolitionist approaches to the
10. Conclusion
criminal justice system does not exist’ (ibid. 40). This book is the
199
Against Antinomian Thinking outcome of a similar awareness, and while steering far away from
Surrogate Victims of the Law the purpose of providing a unifying, totalizing, theory of abo­
litionism, it examines the multiple frameworks and backdrops,
The Disease of the Hangman
within philosophy, social theory, politics, or theology, wherein
Abolitionism as Public Sociology 2Q5
abolitionism can be located. One has only but to rejoice at the
impossibility of precisely pinning down ‘the’ theoretical or politi­
References
211 cal source of abolitionism; fortunately, its multifaceted nature is
Index
inclusive rather than exclusive, allowing anyone endowed with a
227
2 Introduction
Introduction 3
critical spirit to detect in it at least a minor aspect of their own
its members, and by sending them to prison, it breaks them up,
thought.
crushes them, physically eliminates them. Then
According to one of the most representative figures of this multi­
faceted school of thought, abofitionism is a manifestation of The prison eliminates them by ‘freeing’ them and sending them back to
society; the state in which they come out insures that society will eliminate
the general human urge to do away with and to struggle against those
them once again, sending them to prison. Attica is a machine for elimina­
phenomena or institutions of a social, political or religious nature that at a
tion, a form of prodigious stomach, a kidney that consumes, destroys,
given time are considered to be unjust, wrong or unfair. (Bianchi 1991: 9) breaks up and then rejects, and that consumes in order to eliminate what
The ‘general human urge’ in the definition provided by Bianchi is it has aheady eliminated. (Simon 1991:27)
the same urge that gave strength to the ancestors of contemporary Against this strategy of elimination, the primary challenge for
abolitionists, namely the women and men who fought against penal abolitionists may well be ‘to construct a political language
slavery, and later the campaigners who battled, and continue to and theoretical discourse that disarticulates crime from punish­
do so, for the abolition of the death penalty. But the battle also ment’ (Davis 2008: 3). However, in order to be effective, such
continues on other fronts. As Anton Chekhov (2007: 23) argued strategy will have to be accompanied by alternative conceptu­
often the correctional measures which have replaced the death alizations of crime, critical analyses of law, and radical thinking
penalty still continue to bear its most significant aspect. One does around the very nature, function, and philosophy of punish­
not have to visit Siberia, as he did, to realize that imprisonment ment. Perhaps, only a similar multi-pronged theoretical effort
may avoid the pitfalls that Bianchi (1986,1991) identifies in the
very history of abolition. For example, abolitionists of torture
to remove an offender from the normal milieu; and a person commit­
were in favour of prison construction. European philanthropists
ting a serious crime is considered to be dead just as much as in the times
when the death penalty held sway ... the death penalty has not been and benefactors studied the prison system of the United States,
sSsMtie^^*^ merely clothed in another form less repugnant to human admiring its humanity: ‘the gentle eye of the new middle class no
longer accepted confrontation with visible cruelty, and preferred
the indoor cruelty of imprisonment’ (Bianchi 1986: 149). But
Following Chekhov’s observation, imprisonment appears also
the expected benefits of imprisonment failed to materialize, as
as a logical extension and a new form of slavery. In this respect
inmates were not turned into law-abiding, productive, or respect­
see the hmpid analysis of Angela Da^ys, where prisons are seen as
able citizens.
nieans for the management of former slaves and as power mecha-
msms which tend to re-create conditions of slavery. The very construction and type of building used for imprisonment pro­
duced an annual output of wretched and destitute people, criminalised
One has a ^eater chance of going to jail or prison if one is a young black
and stigmatised, who apart from a few exceptions, were no longer fit for
man than if one is actually a law-breaker. While most imprisoned young
normal civil life. (Ibid. 150)
black men may have broken a law, it is the fact that they are young black
men rather than the fact that they are law-breakers which brings them As de Tocqueville (1956) noted, offenders remained among
into contact with the criminal justice system. (Davis 1998:105) humans, but they lost their rights to humanity; people fled them
as impure, and even those who beheved in their innocence aban­
^gela Davis (1971, 2003) fights against our ‘racial democracy’
doned them. Once released, they could go in peace, with their life
for an abolition democracy’, in a situation in which ‘the idolatry
generously left to them, but a life worse than death.
of liberty co-exists so promiscuously and comfortably with the
It took abolitionists almost three generations to recover and
privation of freedom’ (Mendieta 2007a: 293).
muster the energy for new initiatives. A propitious chance pre­
Abolitionism also fights against the ‘curious mechanism of cir­
sented itself, towards the end of the nineteen^ century, with the
cular elimination’ identified by Foucault during his visit to Attica
emergence of the medical model, when psychiatry and psychology
where he noted that society excludes certain specific types of
seemed to offer an alternative not only to imprisonment, but to
4 Introduction
Introduction 5
all other forms of punishment. Prisons could be turned into thera-
Aristotle’s thought is just the first coordinate that may help us
peutic communities. Howevei; this model of treatment entailed the
localize abolitionism, but we need many more. While in Aristotle it
supjpression of prisoner’s rights and the correspondent expansion
is inequality that hampers the flourishing of societies, in Rousseau
of the power of scientists of the mind.
(1973) it is competition that, in generating deception and violence,
In the old days before the medical model, a prison sentence was a prison prevents humans from leading a good life. Competition contrib­
sentence, and the inmate knew his fate exactly. In many countries though, utes to the loss of feelings of security among humans, and this
the enthusiasm for prison as a therapeutic community had produced the leads to a decHne in public morals, hence the growth of artificial
mdetermmate sentence, making it possible for a delinquent who behaved means of behaviour control. Abolitionists, here, would be as anti-
badly in prison to face the possibility of a much longer stay in prison than Hobbesian as Rousseau himself, in that where Hobbes indicates
the seriousness of his crime warranted. (Bianchi 1986: 150) that human anxiety and strife may be overcome through a social
contract giving shape to a state, Rousseau advocates the return
During the course of the twentieth century, after the initial enthusi-
to pre-competitive, natural human interactions. This is the second
asm for what appeared to be a process of decarceration, aboHtion-
coordinate that may help locate the abolitionist position.
ists realized that alternatives to custody were destined to become
A third coordinate may be found in Hegel’s (1952) distrust for
alternatives to freedom.
the development of commodity exchange, which according to
Abohtionism merely addressed to imprisonment may produce
the German philosopher destroyed a form of ethical totality as it
such unmtended effects. As de Haan (1990) has argued, mild penal
must have existed under natural conditions or in ancient Greece.
climates are, at least in part, the result of the judiciary’s deeply
Individuals, isolated and competitive, become excluded from the
rooted conviction that long-term imprisonment produces damag-
public sphere and learn to lose feelings of obligation to others,
mg effects. And if bad conscience makes it relatively hard to justify
thus becoming increasingly atomized (Taylor 1979). The resulting
punishment at all, a politics of bad conscience should be pursued
social pathology or ‘misdevelopment’ leads to the shaping of buff­
and maintained, making it just as difficult to justify the existence
ered selves, where individuals mark their area of intimacy and dele­
of prisons. Such politics, however, need not be polarized on pun­
gate to the authority the solution of social problems (Taylor 2007).
ishment, but include alternative views and conceptualizations of
Once they have appointed the guardians of morality, individuals
crime and the criminal justice system as a whole. The chapters that
can then devote themselves to their own material interests, and
follow present and discuss such conceptualizations as elaborated
while allowing pimitive notions to grow among them, success will
by abolitionists.
be increasingly celebrated and failure increasingly stigmatized.
H the activist ancestors of abolitionism are the men and women
There is nothing utopian in attempts to redress ‘remediable
who fought against slavery and the death penalty, their philosophi­
injustices’: abolitionists do not pursue perfect justice; rather, they
cal ancestors are harder to identify with precision. For now, I would
aim at enhancing justice. Their focus on social interactions rather
ask I’eaders to be content with a general, preliminary characteriza­
than institutions, on precise settings in which people five rather
tion. Abolitionists, I would submit, are grounded in a variety of
than official norms and extraneous professionals, locates them in
social philosophies which are primarily concerned with discussing
a specific political and philosophical tradition. According to a dis­
processes of social development that can be viewed as pathological
tinction suggested by Amartya Sen (2009), there are contractarian
or as ‘imsdevelopments’ (Honneth 2007). Among these philoso­
approaches and comparative approaches to the idea of justice. The
phies are those expressmg the view that societies should support a
former establish general, universal, principles of justice and are
rich plurality of activities, each valuable in its own right, and that
concerned with setting up ‘just institutions’. For such institutions
each person should be treated as an end, not as a mere means to
to function, total compliance of people’s behaviour is required.
the ends of others. This Aristotelian view would deny ‘that a soci­
The latter assess the different ways in which people lead their lives,
ety can be flourishing as a whole when some members are doing
actually behave and interact. A contractarian approach is described
extremely badly’ (Nussbaum 2000a: 106).
by Sen as ‘transcendental institutionalism’, in that it searches for
Introduction 7
6 Introduction
How did abolitionist views take shape? Where in social theory,
the ideal institutions capable of forging a perfectly just society. By
pohtics, and philosophy are their foundations?
contrast, a comparative approach is led by the search for social
As already alluded to, abolitionism is not only a strategy, or a set
arrangements that satisfy people in their concrete collective life.
of demands, aimed at the reduction (or suppression) of custody, it
When people across the world agitate for more global justice—and I is also a perspective, a philosophy, an approach which challenges
emphasise here the comparative word ‘more’—they are not clamouring conventional definitions of crime. Chapter 2 discusses the contri­
for some kind of‘minimal humanitarianism’. Nor are they agitating for a bution of abolitionist thinking to the analysis of key definitional
‘perfectly just’ world society, but merely for the elimination of some out­ issues. A seminal article by Louk Hulsman, published m Contem­
rageously unjust arrangements to enhance global justice. (Ibid. 26) porary Crises in 1986, is the starting point, and his arguments are
supplemented by more recent analyses provided by other aboli­
Comparison entails information, which in turn presupposes prox­
tionists. This chapter includes some suggestions about the phdo-
imity to the actors involved in the process of forging ideas of jus­
sophical underpinnings of the abolitionist argument, its radical
tice. Abolitionists lean towards this type of approach.
anti-Platonism, namely its rejection of conventional distinrtions
Some forms of human suffering may be unavoidable, and per­
between good and evil and its implicit critique of Plato’s notion of
haps cannot be remedied in some particular place or at some par­
virtue as knowledge. In the chapter it is also suggested that more
ticular time. Correspondingly, however, there are also forms of
suitable philosophical fathers for aboUtionism would be Aristotle
suffering that are needless at particular times and places. Accord­
(1977), for his distinction between justice and equity, but particu­
ing to Gouldner (1975), it is the sociologist’s job to give special
larly Baruch Spinoza (1959), for his heretical view that nothing
attention to the latter. Penal suffering is avoidable, particularly
can be bad or wrong, as everything is an aspect of the infinity of
if its ineffectiveness can be proved, and the prisoners’ standpoint
deserves to be heard not because they have any special virtue and God or nature. , j , • u* *
Juridical equality may be described as everybodys right to
not because they alone live in a world of suffering.
mobilize state institutions for the protection and safeguard of their
A sociology of the underdog is justified because, and to the extent that, well-being. In this perspective, it is, therefore, the right to inutual
his suffering is less likely to be known and because—by the very reason of coercion. Disrespect for the liberty of others amounts to the demal
his being imderdog—^the extent and character of his suffering are likely to of their freedom. The state intervenes to deny that denial ^d
contain much that is avoidable. (Ibid. 37) restore the initial situation. Coercion is therefore legitimate in t at
it denies an act which has denied the freedom of others (Ferrajoli
Similarly, Nils Christie often reminds us that all he wants to do is to
2007). Abolitionists would retort that such arguments mi^t only
reduce the amount of suffering in the world: ‘I have never known
be suitable for societies in which equal access to the law is com­
someone who wants to increase it’ {personal communication).
plemented with equal access to resources. Their critique of the law
Christie may have been particularly fortunate in his encounters,
and the criminal justice system presented in Chapter 3 is addressed
but his views and those of other abolitionists sit comfortably with
to the iniquitous societies in which we five (Holterman and van
a variety of insights found in sociology, politics, and philosophy.
Maarseveen 1980). This chapter also examines the critical responses
Abolitionism is a counter-idea put forward by cultural workers
provided by abolitionism to other key assumptions, namely that
who feel that ‘the dehvery of pain, to whom, and for what, contains
the law addresses individual rather than collective actors, and
an endless line of deep moral questions’. Philosophers, Christie
that liabihty and non-Habihty can be scientifically assessed. Here,
says, should address these questions, even those who, faced by the
the proximity of abolitionist arguments to those put forward by
complexity of problems, may conclude that not action but think­
conflict theorists is highlighted, although it is also emphasized that
ing is the only available possibility. ‘That may not be the worst
abolitionism develops its own tenets in an original manner. For,
alternative when the other option is delivery of pain’ (Christie
example, while conflict theorists hmit themselves to the crmque of
1993: 184-5). Penal Abolitionism discusses the counter-ideas, the
the criminal justice system as an expression of antagonistic values
thinking, the origin, philosophy, and achievements of abolitionism.
8 Introduction
Introduction 9
and interests operating from above, abolitionists re-appropriate
Analyses adopting a mixed approach are finally presented, par­
the very notion of conflict and turn it into a critical tool to be uti-
ticularly the concept of ‘carceral social zone’, which designates
ted from below. The chapter, therefore, focuses on the key notion
the marginalized, the underemployed, the occasional workers, the
that conflicts are hijacked by the criminal justice system, in the
petty property offenders, in other words all the excluded who con­
sense that they are taken away from the parties directly involved.
stitute the main human receptacle of contemporary penality.
The aa of hijacking by professionals entails a specific construc­
The infliction of punishment might be justified if it contributed
tion of reality hingemg on an incident, narrowly defined in time
to the maximization of happiness rather than the maximization of
and space, whereby the individual is separated from the context in
pain. Hence the need for any theorizing on punishment to consider
which the action takes place. Presenting the abolitionist critique of
its social consequences. Those who defend institutional coercion
legal professionalism, echoes of some insights offered by phenome­
in the form of punishment may advocate rehabilitative treatment,
nology and ethnomethodology are noted, particularly the idea that
may value its general or individual deterrent effect or its function
the ineanmg of crime cannot be divorced from the environment in
of incapacitation aimed at prolific offenders. Chapter 5 presents
which It arises. The chapter ends with the juxtaposition between
the abolitionist arguments against such philosophies and their
what abolitionists term the ‘industrialized’ but also sacred nature
practical outcomes. In Mathiesen’s view, for example, prison has
of current justice systems and the natural, substantial, type of jus­
no defence, not even when, in a moderate version of penal retri­
tice they advocate.
bution, offences are said to possess a ‘punishment value’ that can
Among the most critical traits characterizing abolitionist theo­
be translated into a specific amount of ‘time’. Mathiesen argues
ries and prac^ces are those concerned with the nature, function,
that time is only measurable subjectively, and that the perception
and philosophy of punishment. Chapter 4 discusses such concerns
of its entity depends on one’s proximity to those serving a prison
drawing an analytical map of views and cultures around impris-
sentence. The chapter then addresses the debate around the alleged
onment, in order to identify the theoretical enemies and allies of
evolution of punishment towards a gradual leniency, and proposes
abolitionism. It sets off with Kant’s assertion that crime makes
a definition of the exact nature of what abolitionists describe as
those committing it the property of the state, whose right to pun-
penal suffering. A section titled ‘The Manufacture of Handicaps’
ish IS therefore a categorical imperative. Kant’s rejection of the attempts to identify the real effects of imprisonment on the bodies
Idea that imprisonment should lead to the rehabilitation of offend­
and minds of those incarcerated. Returning to the analytical map
ers IS discussed, along with his notion that renouncing retribution
drawn in the previous chaptei; it is then noted that abolitionists
amounts to unpractical compassion. If in Kant the sovereign has
are more concerned with institutional rather than material aspects
a right to punish, m Hegel it is offenders who have a right to be
of imprisonment, as their preoccupations are mainly addressed to
punished. The chapter moves on to analyse the different forms of
the immoral and destructive components of the legal infliction of
wrong considered by Hegel and his view that crime and pun­
pain. The chapter concludes with an analysis of what Nils Christie
ishment are aspects of a single category or whole. The analytical
sees as potential developments in the economy which might trigger
map drawn in this chapter includes the critique levelled by Marx
change, produce solidarity, and ultimately lead to social arrange­
at Kant and Hegel and the concept of punishment as vengeance
ments more conducive to abolitionist ideas.
posited by Durkheim. Here, the intellectual vicinity of Durkheim
As remarked above, abohtionism does not possess one single
and Nietzsche is noted, while the theory of penal evolution in the
theoretical or political source of inspiration, but a composite back­
former is critiqued. There are other approaches to the analysis of
drop from which, wittingly or otherwise, it draws its arguments
prison and its functions. This chapter schematically divides them
and proposals for action. The following three chapters, therefore,
into mstitutional’ and ‘material’ approaches, namely views of
aim to locate in more detail three major figures of the aboHtion-
^prisonment emphasizing its regulatory funaion in relation to
ist school of thought in specific traditions. Chapter 6 provides an
the labour market and the productive process, on the one hand
account of the intellectual biography of Louk Hulsman, and links
and those emphasizing its mere retributive functions, on the other'
his views with some crucial passages in the Bible where mercy
10 Introduction
Introduction 11
IS advocated while judgement and retribution are rejected. The
keep in mind the workers to whom it was addressed. Chapter 8
Gospels of Mark and Luke and the Epistles of Paul seem to provide
examines the system of thought of Nils Christie, drawing a con­
an apposite theological underpinning for Hulsman’s abolitionism,
stant parallel between his abolitionism and anarchist theories
w ich^n also be assimilated to Saint Francis’s ecumenism and his
of law and authority. The similarities are astounding: Christie’s
view that thieves are not those who steal, but those who do not
critique of legal professionafism echoes the anarchist arguments
give enough to the needy. Radical theology or the theology of liber­
against the proliferation of laws, while his appreciation of con­
ation also provide significant sources of inspiration, and the chap­
flict as a resource brings to mind the anarchist idea that problems
ter connects such sources with abolitionist arguments provided
within communities can only be resolved if those involved pos­
by some giants of Western literature. With Bakunin’s anarchism
sess sufficient autonomous resources to do so. One of Christie’s
Hulsman shares the belief that the realization of freedom requires
arguments is that communities and groups, irrespective of their
that political action be conducted religiously. In some pages of
dimension, may find abolitionist experimentation possible only if
Marx, Engels, Tolstoy, and Hugo an echo is felt of Hulsman’s con­
the interactions within them are highly frequent and intense. In
cepts of redemption of punishment, self-government, mercy, and
this sense, he expresses the purest of anarchist notions, namely that
pietes Hulsman’s system of thought, in brief, is shown to display a
a better social life is experienced when communities develop social
nigh degree of syncretism.
feelings and, particularly, a collective sense of justice that grows
An equal if not a higher degree of syncretism shows the intel­
until it becomes a habit. This chapter, in brief, locates Christie’s
lectual trajectory of Thomas Mathiesen, on whose work Chapter 7
abolitionism alongside anarchist hbertarian analyses of law and
concentrates. His initial materialist approach is discussed alone
society, in total harmony with Emma Goldman’s views on the arbi­
with hs arguments for a plurafistic, interdisciplinary, sociology of
trariness of punishment, Errico Malatesta’s argument that all penal
law. The writings of Marx and Engels constitute an ideal back­
reforms will be unable to erase the principle of revenge inscribed in
ground for an understanding of Mathiesen’s work, which on the
prison systems, and Proudhon’s idea that principles of justice are
other hand draws on a number of other theoretical sources. The
constructed through experiences of interaction.
locus on offenders and prisons, and on social movements tradi­
Attracted by natural law, anarchists believed in prevention and
tionally excluded from orthodox notions of class struggle, makes
fraternal treatment of offenders, and looked to examples of self-
Mathiesen s stance an implicit critique of classical Marxism. The
help and forms of primitive restorative justice for the potential
c apter exanunes his strategy of action revolving around the idea
developments of new ways of dealing with undesirable behaviour.
of the unfinished , which also distances him from orthodox revolu­
Chapter 9 is devoted to the debate around restorative justice, per­
tionary ideas. What constitutes the originality of Mathiesen’s work
haps the major practical outcome, in terms of poficy, with which
IS the coalescence of research, action, and theorizing that charac­
abolitionist analysis can be associated. Setting off with Durkheim’s
terizes his entire careei; as an academic as well as an activist. The
notion of ‘restitutive sanction’, the chapter defines the character­
chapter, therefore, gives an account of his activity in KROM an
istics of participatory disputes, and critiques the tyranny of public
orgamzation for penal reform in which he has been involved for a
opinion. Knowledge, proximity, and dialogue are pinpointed as
ve^ long time, and of his relentless engagement in action research.
key variables informing alternative ways of dealing with problem­
Action IS inherent in the research method adopted by Mathiesen,
atic situations. It is widely acknowledged that abolitionism, while
and those researched are the prime subjects involved in research
elaborating non-conventional analyses of crime, legal systems, and
as well as m action. His radical analysis, therefore, is regarded as
punishment, has simultaneously made a significant contribution in
a tool which constantly translates knowledge about conflict into
placing the victim at the centre of the criminal justice system. This
collective praxis for those producing it.
final chapter discusses the controversies surrounding the debate on
I • ^ work. Nils Christie stands in favour of simplicity and intel­
the victims of crime and all those forms of mediation and repara­
ligibility. He says that when we write we should keep our favourite
tion intended to ‘make amends’. A brief conclusion, after summa­
aunt m mind, like Kropotkin said that anarchist literature had to
rizing the content of the book and through some supplementary
12 Introduction
theoretical observations, suggests that abohtionism, pursuing its
2
own ideas of justice, is well equipped to join the current tendency
towards a public sociology.
Authors are normally allowed autobiographical notes. Here is Crime as Trouble
mine. A few years ago, during the course of a job interview, I was
asked why m a previous book, I had opted for a subtitle such as
says m Anti-Criminology’. The colleague posing this question,
of course, was personally offended by my scepticism about the
originahty, independence, or separateness of our field of knowl­ Are crimes exceptional events? Louk Hulsman’s reply to this rhe­
edge. I was also asked the reason for my interest in international torical question takes the form of an excursus into the criminal
classical hterature and why, in another book, I used that fiterature justice system as a ‘special’ set of procedures addressed to a ‘not so
to make criminological points. When I rephed that great hterature special’ category of individuals. We are accustomed, he argues, to
can help miiunologists understand the dilemmas around law, social regarding the criminal justice system as a rational apparatus spe­
w er, and crime, I was told that the opposite was more likely to be cifically devised to respond to crime and to control or neutralize
the case. In other words, John Smith and Gennaro Esposito (ficti­ its effects. We are also accustomed to interpreting crimes as excep­
tious names of two colleagues sitting on the interview panel) were tional events, ‘events which differ to an important extent from
telling me that Dostoevsky, Thomas Mann, Cervantes, Manzoni, other events which are not defined as criminal’ (Hulsman 1986:
Baudelaire, Jack London, Victor Hugo, Bertold Brecht, and others 63). In conventional perceptions, criminal conduct is at odds with
had more to learn from them, John and Gennaro, than the other the average conduct in that it deviates from the type of interactions
way around. This book is dedicated to colleagues who do not take supposedly estabfished by the majority. Such deviation, statistically
personal offence when faced with criminological scepticism, and exceptional, is thus deemed to trigger the special responses offered
who believe that the Bible, Marx, Kropotkin, Plato, Hegel, Kant by official institutions: special events justify the special nature of
Nietzsche, and many others can teach us how to make sense and the reaction against them.
radically alter the categories, often derivative, plagiarized, or non­ According to abolitionist analysis, conducts classified as crimi­
sensical, that crowd the ancillary criminological enterprise. nal are only a small proportion of a variety of similar conducts
which escape criminalization. On the one hand, therefore, only
certain types of events are selected as specific, undeniable, self-
evident representatives of what we understand as crime. On the
other hand, the events selected are brought together in a discreet
category, as if they constituted a homogeneous group of conducts.
‘Within the concept of criminaHty a broad range of situations are
finked together. Most of these, howevei; have separate properties
and no common denominator’ (ibid. 65). What do violence within
the family and street violence have in common? Do shoplifting,
drug selling, and armed robbery belong to the same rubric of
behaviour? What makes dangerous driving similar to fencing? And
political violence to pollution? Neither the motivation of those
involved nor the techniques required, let alone the consequences
of those specific conducts, display a precise set of common compo­
nents. If we are led to analyse them by referring such conducts to a
common logical and moral framework it is because the framework
14 Crime as Trouble Anti-Platonism 15
we adopt is inspired by the criminal justice system: ‘All these events ‘radical anti-Platonism’. The ideal conversation partner, in this
have in common is that the criminal justice system is authorised to case, is indeed Plato.
take action against them’ (ibid. 65). It has been suggested that our ideas of action and responsibifity
This is not to deny that human interactions may cause consid­ are closer to those of the ancient Greeks than we usually suppose,
erable degrees of suffering to those involved: abolitionism would and that ‘if we can come to understand their ethical concepts, we
only question why some types of suffering mobilize the interven­ shall recognise them in ourselves’ (Williams 1993:10). It has also
tion of institutional agencies while others do not. Moreover, in an been noted that philosophical analyses of crime can be traced back
imaginary scale of personal hardship, the distress caused by some at least to Plato, ‘thereafter becoming a subject of theological con­
interactions of a criminal nature would not score particularly cern throughout the middle ages’, subsequently engaging‘the legal
high when compared to those of a quotidian, apparently prosaic, ponderings of Beccaria and Bentham and the scientific discourse of
nature. ‘Matrimonial difficulties, difficulties between parents and the early biological positivists’ (Arrigo and Williams 2006: 4-5).
children, serious difficulties at work and housing problems will, In Plato, the distinction between good and evil amounts to the
as a rule, be experienced as more serious.’ In brief, there is noth­ difference between those who ‘are conquerors of their desire for
ing that intrinsically distinguishes, for those directly involved, pleasure and feelings of anger’ and those who ‘are conquered by
criminal events from a variety of other unpleasant events. Most them’. Injustice, and we may assume evil, result from the mastery
episodes causing hardship are normally dealt with informally by of the soul by anger, fear, pleasure, pain, envy, and desire, whether
the individuals affected, at times with the mediatory participa­ they lead to any actual damage of not (Plato 1970: 374). The
tion of people or groups belonging to the community in which basic human faults leading to painful consequences are therefore
such episodes occur. Many conducts that generate serious harm anger and fear, but also the obtuse pursuit of pleasures and desires,
do not elicit responses from the criminal justice system, while which Plato juxtaposes to hope and opinion as attempts to reveal
those involved in problematic situations mostly attempt to find
the truth.
solutions within the context in which they arise: the family, the
group of friends or neighbours, the workplace. All this means,
Hulsman concludes, ‘that there is no “ontological reality” of
Appetites
crime’ (ibid. 66).
Of our unnecessary pleasures and appetites there are some lawless ones,
I think, which probably are to be found in us all, but which, when con­
Anti-Platonism
trolled by the laws and the better desires in alliance with reason, can in
As Nussbaum (2000a) argues, we have strong reasons to address some men be altogether got rid of, or so nearly so that only a few weak
remain, while in others the remnant is stronger and more numerous. (Plato
difficult contemporary issues by engaging in conversation with
important texts in the history of philosophy, and for each issue we 1937: 338)
are required to identify suitable conversation partners. Hulsman’s For Plato, lawless appetites emerge in sleep, when the rest of the
critique of conventional ways of conceptualizing crime is a direct soul, the rational, gentle and dominant part, slumbers, allowing
attack on the very distinction between good and evil. His state­ the ‘beastly and savage part, replete with food and wine’ to take
ment that there is no ontological reality in crime not only entails a over. In sleep instincts are satisfied and individuals are released
polemical stance against positivist criminology, it also challenges from ‘all sense of shame and all reason’; they become ‘ready for
assumptions around harmful and harmless behaviour. Moreover, any foul deed of blood’. ‘There exists in every one of us, even in
the notion that crime is not an exceptional event ultimately pits some reputed most respectable, a terrible, fierce and lawless brood
Hulsman against a whole Western philosophical tradition con­ of desires, which it seems are revealed in our sleep’ (ibid. 339).
cerned with drawing boundaries between the ‘good’ and the ‘bad’ Our appetites, howevei; are of three types, reflecting the tripar­
life. I term this challenge, which is inherent in abolitionist analysis. tite character of our soul. The first is concerned with learning, the
16 Crime as Trouble Anti-Platonism 17
second with anger, and the third, owing to its manifold forms, can­ If we had lived in that small town at that time, we would probably have
not be designated by any one distinctive name. This unnameable found it ridiculous to call in an expert of the mind to explain why the
type of appetite is distinctive for its intensity, and can be addressed killer had killed. Ridiculous because we all knew why he killed. After all,
to food, drink, love, and money. ‘There being, then, three kinds of we would not have been surprised, and we would have agreed among
pleasure, the pleasure of that part of the soul whereby we learn is friends that this was exactly what we all might have expected all along.
sweetest, and the life of the man in whom that part dominates is (Nils Christie, personal communication)
the most pleasurable’ (ibid. 372).
The difference between the experience and perception of the
Learning is therefore the only antidote to lawless appetites, two murders resides in the'nature and amount of information
while ignorance is a kind of emptiness of the soul, hampering the
the residents share about one another. So many people live in a
experience of wisdom and virtue. middle-sized modern town that it is impossible to know them all.
In addition, life is organized in ways that only allow us to hold
Those who have no experience of wisdom and virtue but are ever devoted a superficial or segmented knowledge of other beings. We have a
to feastings and that sort of thing are swept downward, it seems, and back
narrow basis for predicting behaviour outside the specific group
again to the centre, and so sway and roam to and fro throughout their
to which we belong.
lives. But they have never transcended all this and turned their eyes to the
Another example comes from the Norwegian valleys, where the
true upper region ... nor ever been really filled with real things, nor ever
traditional institutional figure of the lensmann is still operative.
tasted stable and pure pleasure. But with eyes ever bent upon the earth
A local sheriff of sort, the lensmann performs a variety of civil
and heads bowed down over their tables, they feast like cattle, grazing
and copulating, ever greedy for more of these delights. And in their greed tasks and his/her ability to function is dependent upon the support
kicking and butting one another with horns and hooves of iron they slay received by his/her fellow citizens. The lensmann may direct auc­
one another in stateless avidity, because they are vainly striving to satisfy tions, help mothers get money from absent fathers, and deal with
with things that are not real the unreal and incontinent part of their souls crime. When Christie interviewed one such institutional figure, he
(Ibid. 392-3) was told that there was no crime in the district. But during the
course of the interview several things happened that testified to
Plato s criminals are not involved in problematic interactions,
the contrary.
they are just incontinent people unable to dominate the ‘many­
The telephone rang, a lady had lost her purse: the lensmann asked his
headed beast lying in their soul. It is the law that can restrain the
assistant to drive down to the close-by cafe; the purse was found and
brutish part of our nature, by repressing the ‘foul and base things
brought back to the lady. So was the young man who was using the purse.
that enslave’ our gentle nature to the wild. There is, here, an onto­
He happened to be the lady’s son. A report came in on breaking and enter­
logical reality in crime, which is also described as a tyrant acting
ing into a store of weapons. The lensmann jumped into his cat; drove far
upon the judgement and self-control of offenders, while the law is
up into the mountains in the direction of the store, met a car high up there,
seen as the only possible response to this inbuilt tyranny. Law is stopped the car, found Ole drunk as usual, with a carload of guns he had
knowledge, crime is ignorance. Let us see how abolitionism over­ stolen just to irritate his father. He brought Ole home and took the guns
turns this axiom. to a safer depot. What a cliff-hanger story lost for the mass-media! Heli­
A murder occurs in a town inhabited by some 300,000 people, copters and anti-terrorist police might have been engaged in the crime-
and the alleged murderer is a university lecturer. A few days earfier, hunt of the century. Now, it was Ole. An old story of misery and family
the lecturer has delivered a public speech and no one in the audi­ quarrels. (Christie 1982: 73-4)
ence noticed anything unusual in the speech and in the speaker. These cases show that law, not crime, is ignorance, namely lack
The event is incomprehensible and the investigators feel the neces­
of familiarity with the events described as criminal. In this sense,
sity to entrust a team of psychiatrists with the explanation of the abolitionists, while drastically distancing themselves from Platon­
mystery. Let us now imagine another murder occurring 200 years ism, appear to embrace some Aristotehan concepts around law
before in a small town.
and justice. According to Aristotle (1977), the students of ethics