Law, Order and Retreat

Posted on December 2, 2010

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In Canada today there are two entirely different concepts of the criminal law and its function. These concepts reflect fundamentally divergent views of the nature and role of the state and of authority within society. The adherents of each of these concepts are incapable of comprehending the other: there is no space for meaningful debate of the issues, so totally different are the two domains.

To one side – let’s call it “Tough on Crime” – the function of criminal law is a balancing of accounts, a restoration of moral equilibrium. A wrongdoer owes a corresponding debt to his victims and to society. The criminal law, with its police, courts and jails, exists to extract the appropriate measure of payment for the debt, in the form of a punishment that corresponds to the severity of the wrongful act.

This approach has long historical roots deep in Greek and Roman mythology and Judeo-Christian doctrine. We see it in the Greek Goddess Themis, usually portrayed blindfolded and armed with a sword, holding the balance that represents the weighing of right and wrong, and the furies, vengeful agents of retribution.

The Tough on Crime school figuratively capitalizes the words “Law and Order.” These words capture abstract and universal principles, no doubt of ultimately divine origin.

On the other side is what might be called the “Public Safety” approach: the function of the criminal law is to make society safer, by reducing the incidence of violent or otherwise harmful behaviours. In this terrain, retribution for victims is not a part of the equation. The furies must be banished from the scene.

This school pursues law and order in lower-case form, as a pragmatic, empirically-based program for the betterment of society as a whole. It relies heavily on social science rather than theological constructs.

Capital punishment captures the distinction between the two ways of looking at criminal law: “taking a life for a life” has no meaning in relation to the science of reducing anti-social behaviours.

However, each view claims to address the goals of the other. That is, Tough on Crime claims that its Moral Sword has the effect of making society safer by deterring criminals (whether by inspiring fear of harsh penalties, or by taking criminals off the streets for long prison sentences). Similarly, Public Safety asserts that it delivers a more moral outcome, because it takes account of the social inequities that are the real source of most criminality, and recognizes the victim within every perpetrator.

However, there is absolutely no empirical evidence that Tough on Crime actually results in reduced criminality, and we have the benefit of hundreds of years of experience to evaluate that. In Tudor England, felons were routinely tortured to death by the state, with unimaginably brutal execution methods as punishment for crime, yet the period remained a violent and dangerous one. More recent evidence confirms that the extreme severity of criminal sentencing commonly practiced in the USA (including the death penalty) has failed to make the streets safer, and that demographic and economic trends have a far larger impact on the crime rate.

Each of these viewpoints is part of a larger ideological package. Tough on Crime fits into a highly conservative way of looking at the world, one that is highly deferential to patriarchal authority, one that values obedience and conformity to dominant norms. As I have noted, it is deeply rooted in religious concepts, whether or not all of its adherents are actively religious. It is deeply conservative politically.

Its underlying assumption is that all individuals are autonomous agents who make decisions about how to conduct themselves on the basis of perceived risks and rewards, that some of them choose to pursue a “life of crime” and that those individuals must pay a price for making that choice.

Does that look familiar? These are the same autonomous agents, making free choices to optimize their own interests, who people the tidy, perfect marketplace of neo-classical economics. Criminal law as a settling of accounts transforms justice into a market mechanism.

The Public Safety view is by its nature far more egalitarian, scientific and rationalist in its outlook. It takes a pragmatic approach to optimizing social conditions, and is broadly liberal or left-of-centre in its political orientation. It prefers a more collective perspective on societal phenomena, and prefers real evidence that a social strategy actually works, rather than satisfying itself with scriptural formulations and assumptions.

Over the past few years, the Tough on Crime side has gained a huge edge in the realm of public propaganda. It has gained this upper hand by default.

Nobody seems to even try to articulate the rationalist argument of the Public Safety school of thought. Liberals and social democrats in the political arena are terrified of being branded as Soft on Crime. They make constant tactical retreats, frequently supporting Conservative amendments to the Criminal Code, for example, supporting longer sentences and interfering with judicial discretion to take account of the real circumstances and context in the disposition of each case.

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Posted in: Law