Criminal law and class society
Mike Macnair reviews: Robert Reiner Crime: the mystery of the common-sense concept Polity, 2016, pp246, £15.99
Even with Holmes and Watson the state gets away with murder
There is a sense in which it is particularly appropriate to review Robert Reiner’s Crime this week, in spite of the fact that the book came out a year ago. This is because the book is largely about processes of ‘criminalisation’ and their limits: how some forms of conduct get to be ‘crimes’, while others, equally damaging to ‘victims’ or ‘society’, do not. And this week we can see working before our eyes one of the common dynamics of criminal justice systems, in the form of the high-profile of ‘acid throwing’ attacks.
The first stage of this particular dynamic is a shift in fashionsof victimisation (among perpetrators). Acid-throwing was in fashion in Victorian England,1 and subsequently went out of fashion, though it has occasionally surfaced in the context of sexual jealousy. For some reason it has recently come back into fashion.
The second stage is causes célèbres: high-profile attacks getting a lot of publicity. The third stage is an agitation in the legislature both for more severe sentences for existing crimes and for some new form of regulatory rules to make it more difficult for attackers to acquire corrosive substances. The regulatory rules will then imply new crimes.
It may be merely coincidental, or perhaps a result of the attention of reporters, that, just as proposals to increase the regulation of sales of corrosive substances are under discussion, it is reported that existing recent regulations to control the sale of knives (prompted by similar dynamics) have failed, and new and more restrictive rules are needed.2
As I said, this is by no means the only dynamic of criminalisation. A wider range is discussed by Reiner. There are, pretty certainly, other dynamics which do not quite fit into his theoretical scheme - we will need to return to this point later.
But thinking seriously about the concept of crime, criminalisation and the underlying social dynamics is to address an issue which constantly recurs in politics: acid, knives, gangs, gun control, the ‘war on drugs’, whether there should be new laws to protect members of parliament from ‘intimidation’, whether it was an ‘outrage’ for John McDonnell to say that those who died in Grenfell Tower were “murdered” ... the list is endless.
The Polity ‘Key concepts’ books are advertised as “a series of concise and accessible textbooks exploring core concepts in the social sciences. The books focus on concepts that have a high degree of complexity surrounding them, and they get to the heart of debates about meaning and usage.”3 From this point of view, Reiner’s contribution to the series does ‘exactly what it says on the tin’. It is a clear introductory textbook for social science undergraduates, which introduces some of the difficulties of the concept. The book is well worth reading as an introduction to thinking about these issues.
I flag the point that it is a textbook for social science undergraduates for two reasons. The first is that it assumes that the reader will have taken a basic ‘social science 101’ methodology course, including (for example) explanation of the basic ideas of Émile Durkheim and Max Weber. The second is that it uses unmodified ‘Harvard citation’ of whole books and articles in the body of the text to support points.
Reiner nine years ago published Law and order: an honest citizen’s guide to crime and control with the same publisher, and following very approximately the same line of argument, if in a different form. No doubt the new book is more up to date, and it also focuses more clearly on crime as a concept; but the older one, written for the lay reader and with the references in endnotes, is an easier read.
The structure of the book is very clear: each chapter approaches the debatable concept of crime from a different angle. After an introduction, chapter 1 deals with ‘Legal conceptions of crime’ - unavoidably, since at its core crime is certainly a legal category. Chapter 2 considers ‘Moral conceptions of crime’: the idea that underlying the criminalisation of some forms of conduct is at root a moral judgement. Chapter 3 could, from its content, be called ‘Sociologists’ conceptions of crime’, but is, more ambiguously, titled: ‘Everybody’s doing it: social conceptions of crime and deviance’.
Chapter 4, ‘How do they get away with it? The non-criminalisation of the powerful’, is not directly a discussion of an aspect of the concept of crime. Rather, by looking at how various more or less elite groups’ harmful conduct is not criminalised even when it is illegal, it sets up the background to the issues addressed in chapter 5: ‘The criminal justice process and conceptions of crime’. This focuses on how what counts as crime is defined by the ‘criminal justice process’ and agencies: ie, police, courts, the home office and other statistics agencies (the chapter is largely concerned with the understanding of ‘crime statistics’).
This leads, in turn, to chapter 6: ‘Media, crime and the politics of law and order’ (but in the ‘running heads’ the content is perhaps more accurately described as ‘Media and political misconceptions of crime’). Chapter 7, perhaps surprisingly, shifts the ground to consider ‘Whodunnit and why? Criminological conceptions of crime’. The chapter surveys the evolution of criminological theories (beginning in the 18th century before the invention of the term ‘criminology’ in the late 19th century), and then covers the presently debated problem of why recorded crime figures have across the western world fallen since the 1990s (though fear of crime, stoked by media and politicians, has continued to increase).
Finally, the conclusion is titled ‘Crime: a capital concept’, returning to a theme already addressed in the introduction and chapter 1. This is that “a particular modern conception of crime, distinguished from other forms of wrongdoing and troublemaking, emerged hand-in-hand with the development of capitalist nation-states” (p186).
The project of constructing crime, the perennial phenomenon of censure and condemnation of conduct, into its modern criminal law conception involved profound social transformation. It aimed to convert the use of coercive power to buttress economic social and political elites into an apparently impartial, technocratic, neutral exercise of reason on behalf of the democratically expressed popular will. This was an important element in the development of more integrated, centralised capitalist states which required high degrees of predictability in everyday conduct in labour and goods markets, and disciplined mass urban workforces for industrial production (p191).
As I said, the point goes back to the introduction and to chapter 1, on legal conceptions of crime, where Reiner writes:
The development of specifically ‘criminal’ law, as distinct from other forms of order maintenance, adjudication and enforcement of norms, is associated with the advent of modernity. To clarify this, it is helpful first to construct an ideal-type of ‘criminal law’ as it has come to be understood in modern industrial capitalist societies since the late 18th century ... (p19).
This claim about the historical modernity of ‘crime’ and ‘criminal law’ - its association with not merely capitalism, but also industrial production - thus plays a fundamental role in Reiner’s argument as a whole.
There are practical modern political implications of the point, which I referred to before. Reiner’s explanation of the present dynamics of criminalisation and non-criminalisation is driven by the theory of ‘crime’ as particularly linked to capitalism as an apparent system of depersonalised power. Hence, if this conception is mistaken or - more likely - seriously incomplete, there may well be causes of criminalisation and non-criminalisation dynamics which fall outside the framework of the theory. This has implications for political approaches to particular ‘criminalisation politics’ which should be adopted by communists, or the workers’ movement, or merely ‘leftwingers’ or ‘radicals’ (take your pick).
The modernity claim is made more theoretical and less directly historical by Reiner’s use of the Weberian concept of the ‘ideal-type’. But in fact its plausibility still does depend on its historicity. If it was plainly the case that there were legal categories of ‘crime’ and ‘criminal law’ - or categories which plainly corresponded to Reiner’s concept of ‘crime’ and ‘criminal law’ without the exact name - in antiquity and the Middle Ages, the structure of the argument would fall to the ground and need to be rethought.
The point is not quite as clear as that. But the argument is profoundly problematic.
I should say that behind Reiner’s argument here lies principally John Lea’s Crime and modernity (London 2002), which is a more elaborated argument on the issue. And behind Lea lies Michel Foucault’s Discipline and punish (1977) and History of sexuality,volume 1(1979).4 Behind some other authors Reiner cites can similarly be found Foucault’s other (later) work on ‘governmentality’ and ‘biopolitics’.
I do not, however, mean to embark here on a long polemic against Foucault. I observe merely that Foucault’s emphases on power and on ‘knowledge’ as a form of ‘power’, as opposed to political economic and class analyses, are now spectacularly dated, having grown out of the themes of the anti-managerialist ‘new left’ of the 1960s. On Foucault’s methodological assumptions and his links with the shift of part of the left from an ‘anti-authoritarian’ or anti-managerial leftism to what became after his death ‘social liberalism’, the essays in Daniel Zamora and Michael C Behrent’s edited collection, Foucault and Neoliberalism (Cambridge 2016) are useful. So too, in a very different way, is James Miller’s discussion of Nietzschean influence on Foucault in The passion of Michel Foucault (Yale 1993).
These methodological issues are posed because, for Foucault’s followers in the academy and in Eurocommunist, Blairite, ‘social movement’ and so on, politics, Foucault’s methodological claims act as an intellectual closure against alternative views. They thus bar consideration of even the possibility that Foucault’s historical claims about ‘modernity’, beginning as early as with the 1961 Folie et deraison (abridged in English as Madness and civilisation), might be simply false - grounded on an arbitrary selection of sources which could be more or less forcibly bent into shape to support his narrative.
It is tempting to pursue these issues further. But here I simply make the point of (indirect) dependence. I do so because, if we stand aside from the assumption that Foucault and similar authors give us a reliable idea of the nature of the ‘modern’ and its differentiation from the ‘pre-modern’, the possibility opens up of a more complex view of the past development of the phenomena (of crime, criminalisation, and so on) and their evolution into the recent past (commonly called the ‘present’). This will in turn give a wider range of possible political interventions in the ‘present’ (meaning, into the very near future). And this is as true of ‘crime’ and ‘criminal law’ as it is of insanity, sexuality and so on.
The English word ‘crime’ comes from the Latin ‘crimen’, whose origin is in ancient Roman law. It is there cognate with the modern ‘crime’ in the sense that it is about wrongdoing. But it is substantially broader than modern crime - there is, for example, the crimen suspecti tutoris, which is about who can and cannot be guardian of an orphan and is in modern terms ‘civil’, not ‘criminal’, law. And it is also substantially narrower: for example, furtum, theft, is a ‘delict’: the subject of a private claim by the victim for double the value of the stolen thing (or higher multiples in a different context), not (usually) called a crimen.
Andrew Riggsby, who has recently written usefully on the subject, divides the Roman law of wrongdoing into three classes. The iudicia publica (public judgments) correspond to our ‘crimes’, in the sense that the prosecution was brought in the name of the res publica,the state, though by a private prosecutor, and conviction leads to more or less severe punishment of the person convicted. The stereotypical cases are ones like treason, bribery in elections and extortion by public officials, though by the late republic (iudicia publica) extended further to - for example - sicarii (knife gangs). Alongside these were the delicta (delicts), unambiguously about wrongdoing towards individuals: theft and robbery; damage to property; insult. Here usually the individual affected had to sue (though a father could sue for insult to his children, a husband for insult to his wife). A third class was the actiones populares - regulatory offences carrying a fixed penalty, like damaging the public highway, or keeping wild animals where they might escape and so cause damage; in these, anyone could sue, but persons directly affected had priority. It is reasonably clear that iudicia publica, delicta and actiones populares were distinct categories, rather that sub-categories of a broader class corresponding to modern ‘crime’.5
So far, so good for the idea of ‘crime’ as a product of modernity.
It is, however, reasonably clear that the generalisation of crimen, as a legal category contrasted both with ‘civil’ or ‘private’ matters and with sin (peccatum) is the product in the first place of the generalising and systematising tendencies of medieval university lawyers from the 1100s onwards,6and very probably especially of the canonists (who worked on the law of the church) rather than the civilians (who taught the Roman law, and tended to stick to the Roman texts, albeit modifying their meanings).7 Indeed, a recent study by Wolfgang P Müller of the criminalisation of abortion in the Middle Ages uses this particular case as an exemplar of the invention of criminalisation as such, beginning in the 1100s.8
Perhaps we can segregate England from this process? After all, late medieval and early modern English lawyers mainly did not use the term ‘crime’ for what is now ‘criminal law’, instead talking of the ‘pleas of the crown’ - and, among these pleas, treasons, felonies and transgressiones (from around 1500 called ‘misdemeanours’). The terminology of ‘pleas of the crown’ persisted as late as the 19th century.9
That said, the ‘crime’ terminology was not unknown: the author of the treatise called Glanvill, writing around 1190, tells us at book 1, section 1: “Placitorum aliud criminale aliud civile” (‘Pleas are either criminal or civil’), and goes on at 1.2. to list crimes which belong to the crown, as opposed to the sheriffs in their county courts: being treason, fraudulent concealment of treasure trove, breach of the king’s peace, homicide, arson, robbery, rape, forgery and similar offences.10 The treatise called Bracton, written and edited in the 1230s-50s, uses both the ‘civil and criminal actions’ formula, and the ‘pleas of the crown’.11
By the late 1200s there was a separate treatise called Placita corone (‘pleas of the crown’).12 The topics covered are wounding, the widow’s prosecution of her husband’s killer, rape, robbery, aiding and abetting robbery, receiving stolen goods, theft, and petty treason in the form of parricide.
The terminology is thus commonly different from modern ‘criminal law’. And references to ‘crime’ in the Law-French reports of cases in the 1400s, and down to around 1660, are mainly on matters of ecclesiastical law (though arising in secular courts), where crimen had clear technical meanings. It is from around 1660 that ‘crime’ seems to begin to be used by common lawyers widely as a term which covers all the three classes of treason, felony and misdemeanour.13
However, when we look at the lists of what are ‘pleas of the crown’ in Glanvill or Bracton or in Placita corone - or in the later treatises, such as William Staunford’s Les plees del coron (1557) - what we find is a list of offences, capable of public prosecution, of pretty much the same shape as those which are the core of the modern criminal law. And if we consider the context of the lists in Glanvill and later authors, it is in essence one about forms of public prosecution - indictment by a grand jury, leading to trial before itinerant judges - in contrast to ‘civil actions’.
The pleas of the crown are not the same as classical Roman law crimina. They are not the same in content as either Roman iudicia publica, or the canon lawyers’ broad crimina. But the concept is pretty clearly parallel in conception to the iudicia publica and to canonist crimen. These are ‘pleas of the crown’ not because of the king’s personal interest, but because of his role as dispenser of justice and protector of public peace.
And, as far as English law is concerned - I carefully do not make any larger claim - it is clear that the core concept of what really counts as a ‘crime’ remains even today defined by the list of felonies of medieval origin.
Going back to Reiner’s ‘ideal type’ of criminal law, it has four characteristics:
- close procedural association with the state;
- punishment, not compensation, as the outcome of cases;
- the notion of individual responsibility;
- a tacit background assumption of a reasonably stable and peaceful society (p19).
The first three are all unambiguously present in medieval English pleas of the crown - unless you stipulatively define the royal government as not a ‘state’.14 As far as the fourth is concerned, we might, on the one hand, say that it is not at all clear that this assumption is actually present in modern criminal law: the criminal justice system is in modern times expected to operate in wartime (as illustrated by the 1944 Nazi deportation of the Copenhagen police, leading to large increases in property crime). And it is not clear that the modern US would count as ‘reasonably peaceful’ by modern European standards ...
On the other hand, if we do not set an unreasonably high standard for ‘reasonably peaceful’, the assumption is also present in medieval English criminal justice. In 1278-79, it was possible for a defendant sued (in civil proceedings) for trespass to plead in his defence that there was no breach of the king’s peace, because the acts complained of took place in time of (civil) war. But not enough: he had to add that the claimant was assisting the king’s enemies, and that the case had already been settled.15 Peace is assumed, unless the contrary is shown.
Here I divert slightly to Lea’s argument (in Crime and modernity chapter 2), which is more elaborate on this front. But it depends on assuming as generally correct an account of pre-modern society as characterised by intense localism, and a royal ‘sovereignty’ which sits loosely atop society and does not reach very far at all into everyday dispute-settlement. The source is Foucault, and behind Foucault, contemporaneous French authors, and further back, Marc Bloch’s Feudal society (1939). The account is possible, though perhaps overstated, for France. It certainly does not work for pre-modern England, which had by medieval standards a strong state power from an early date. Already by the 14th century it is possible to detect the ‘moral panic’ criminalisation dynamics of a ‘modern’ type in the decisions of the English parliament.16 It also probably does not work for the more urbanised parts of Europe (parts of Italy, Netherlands), where there were active city governments.17
I am not arguing that nothing changed or that modern criminal justice can be simply reduced to the perennial - thus Reiner’s peculiar Durkheimian comment that “All societies, perhaps all relationships, are characterised by deviance” (p16), or Lea’s (debatable) assertion that “People have inflicted violence on one another and appropriated one another’s personal effects since the beginning of time” (p24).
On the contrary, I have already said that the categories of ancient Roman law, as they affect what moderns (and medieval canonists) call ‘crime’, are not those of ‘crime’ in this modern and canonist sense, but ones which, as Riggsby argues, have very a different focus.
Again, Lea’s picture of the pre-modern in terms of local customary dispute-settlement only lightly touched by sovereignty works quite well for early medieval dispute-settlement, if private vengeance needed to be made more prominent in it and the timescale needed to be pushed radically back.18
In short, there is a transition to elaborated law and an increased role of states in Europe in the period around and after 1100, which builds on Roman sources and concepts, but significantly changes them. It affects Italy in the first place, England not long after, France and Germany more gradually (this is, of course, itself schematic).
Within these terms, the transition to ‘criminal law’ can indeed be part of the transition to capitalism. It has, however, to be read together with the transition to ‘civil law’ as the other side of this coin. And we have to read the transition to capitalism as itself a centuries-prolonged process of declining feudalism and rising capitalism, filled with contradictory forms.
It is not, contra Weber, about ‘modern industry’. Rather it is about the transition - through large-scale shipping as an industrial form, on the one hand, and the putting-out system, on the other - from peasant and artisan household production to wage-labour. For exactly the same reason, it is not, contra Foucault, about managerialism, ‘governmentality’ and the will to knowledge as a will to power. It is related to urbanisation and to shifts into monetised economy, also progressing in the same later medieval period.
The idea of the ‘modern’ is itself a part of this transition: writers of glosses (marginal notes) on the north Italian law-book called the Liber Papiensis (the ‘book of Pavia’) around 1100 referred to themselves as ‘moderni’ and their predecessors as ‘antiqui’.19
The historical roots of ‘criminal law’ are considerably deeper than Reiner and similar authors argue. Reiner’s account and those of authors he relies on involve a schematic contrast between the ‘modern’ and the ‘pre-modern’. What are the present-day political implications of these issues?
I am not going to go into this in depth at all, because I think that I have said enough to make the point that Reiner’s argument connecting ‘crime’ to ‘industrial capitalism’ needs rethinking. I will give, however, two examples, both connected with the problem of ‘elite impunity’, to which both Reiner and Lea refer.
The first is the relative absence of prosecutions for financial frauds. But, if we compare the UK with the USA, while the crash of 2009 has not produced many prosecutions in the US, large-scale financial fraudsters certainly have much less impunity in the US than they have in the UK: for example, the Enron fraudsters probably could not have been convicted in the UK, and Bernie Madoff would certainly have got a much less severe sentence.20
The second is more immediate. On July 11, Theresa May announced an enquiry into the ‘contaminated blood scandal’, relating to the purchase of commercial blood supplies in the 1970s and 1980s from US companies without adequate testing, leading to large numbers of patients being infected with hepatitis C and HIV.21 The pretty much identical scandal in France gave rise far more rapidly to two trials. In 1992, several managers in the blood transfusion service were convicted and jailed for the homicide offence equivalent to English gross negligence manslaughter.22 In 1999, three government ministers were tried for the same offence, though impunity was here delivered in the sense that two were acquitted and one convicted, but given no penalty.23
Impunity, then, is inconsistent. It is not that the limits of the crime concept itself necessarily imply impunity for managerial elites. In these two cases, what is visible is something specific to British (and perhaps even to English and Welsh) judicial, prosecutorial and governmental approaches.
In politics, these points have two meanings. On the one hand, getting rid of capitalist rule does not imply immediately getting rid of crime and criminal law. There will be a transition out of capitalism, as there was one into capitalism; though we can hope for a quicker one.
On the other hand, we should not be led to fatalism about the possibilities of reform of the criminal law by the connection to capitalism. There can be different varieties of criminal law under capitalism, and we can fight for a version which is more favourable to the working class.
1. KD Watson, ‘Is a burn a wound? Vitriol-throwing in medico-legal context, 1800-1900’, in I Goold and C Kelly (eds), Lawyers’ medicine, the legislature, the courts and medical practice, 1760-2000 Cumnor 2009.
2. ‘Checks failing to stem knife crime, says Rudd’ The Times July 18.
4. M Foucault Discipline and punish from the French Surveiller et punir Paris 1975; History of sexuality from the French Histoire de la sexualité: la volonté de savoir Paris 1977.
5. A Riggsby, ‘Public and private criminal law’ in PJ du Plessis, C Ando and K Tuori (eds) The Oxford handbook of Roman law and society Oxford 2016, chapter 24. For the point about the crimen suspecti tutoris see C Donahue junior, ‘The emergence of the crime-tort distinction in England’ in WC Brown and P Górecki (eds) Conflict in medieval Europe Farnham 2003, chapter 11 (pp220-21).
6. On these generalising tendencies see the essays in JW Cairns and P du Plessis (eds) The creation of the ius commune: from casus to regula Edinburgh 2010.
7. Cf RH Helmholz Oxford history of the laws of England Vol 1: The canon law and ecclesiastical jurisdiction from 597 to the 1640s Oxford 2004, chapter 12.
8. WP Müller The criminalisation of abortion in the west: its origins in medieval law New York 2012; I have so far only looked at snippets on Google Books and a couple of reviews that are available online.
9. Eg, Edward Hyde East A treatise of the pleas of the crown (two volumes), 1803. But this is a late example.
. GDG Hall (ed) The treatise on the laws and customs of England commonly called Glanvill Oxford 1993, pp3-4.
10. GE Woodbine (ed) Bracton Harvard 1968, at pp290-91, 297-98 (civil and criminal), 327-449 (tractate de placitis corone).
11. JM Kaye (ed) Placita corone London 1966.
12. This is the result of searching for the terms, ‘crime’ and ‘criminal’, in David Seipp’s online index to the medieval reports called the Year Books (www.bu.edu/law/faculty-scholarship/legal-history-the-year-books) and in the Juta-Hart CDROM version of the printed English reports. To report the search results in detail would be inappropriate here.
13. The Weberian definition in terms of a ‘monopoly of violence’ to distinguish the modern state from pre-modern sovereignties is plain nonsense, since it entails that the USA is not a modern state. Dilution to assert that the modern state uniquely claims a monopoly of ‘legitimate’ violence is circular, since it says merely that the state’s law defines what is legal.
14. Gundred of Strickland v Thomas of Musgrave (1278-79), P Brand (ed) Earliest English law reports Vol 122, pp63-65. The case was settled.
15. Some examples in WM Ormrod and A Musson The evolution of English justice: law, politics and society in the fourteenth century Basingstoke 1999.
16. See, for example, G Ruggiero The boundaries of Eros Oxford 1989; T Dean Crime and justice in late medieval Italy Cambridge 2007.
17. Eg, W Davies and P Fouracre (eds) The settlement of disputes in early medieval Europe Cambridge 1986; WI Miller Bloodtaking and peacemaking Chicago 1990. P Hyams Rancour and reconciliation in medieval England (New York 2003) makes the point that this vendetta framework persists into the later Middle Ages, alongside the development of formal law and ‘downwards’ justice.
18. CM Radding and A Ciaralli The corpus iuris in the Middle Ages Leiden 2007, pp80-84.
19. ‘Enron chiefs guilty of fraud and conspiracy’ New York Times May 25 2006; Wikipedia: ‘Bernard Madoff’ (https://en.wikipedia.org/wiki/Bernard_Madoff).
20. ‘Theresa May orders contaminated blood scandal inquiry’ The Guardian July 11.
21. ‘French convict three in case of Aids-tainted blood’ Los Angeles Times October 24 1992: http://articles.latimes.com/1992-10-24/news/mn-715_1_blood-products.
22. ‘Blood scandal ministers walk free’, BBC news March 9 1999: http://news.bbc.co.uk/1/hi/world/europe/293367.stm.