On paternalism

One of the most frustrating usages for me in the criminalization literature is the reference to paternalism - basically the question of whether or not intervention by the state can be justified against the interests or wishes of the individual to protect them from themselves. The term seems to derive from JS Mill's essay On Liberty and to me it retains a tone of stern Victorian patriarchy which feels out of place in contemporary discussion.

JS Mill: father of paternalism

But I can be more specific about why I find the term annoying. First, as I indicated above the language seems anachronistic. The state is depicted in the  role of the father or head of household who steps in to protect its charges, telling us that the prohibition is for our own good. And in the role of the father, it need not give reasons:  you must do this because I say so. One big problem with this is that it already skews the argument. Like teenagers we want to resist this paternal authority, to try out the forbidden acts for ourselves. And, not surprisingly, like teenagers acting out theorists more often than not decide that paternalism is unjustified. We might also here focus on the question of why law should be coming from the father (with apologies to psychoanalytic theory). One interesting thought experiment here might be to substitute 'maternalism' for paternalism. Instead of the stern distant father telling us that it is for our own good, this might conjure up the image of the ideal mother - caring and loving - and perhaps it might be harder to resist the idea this kind of protection is unjustified. Of course these are stereotypes, but the point is that whether it is father, mother or parent this conjures up an unlikely and outmoded picture of the state that we are, of course, justified in resisting.

Matriarchy and maternalism?

Second, it is not clear what we are talking about when we talk about paternalism. For Mill it was literally a matter of paternalism (or parentalism) - protecting children or those unable to make proper choices for themselves. But then there is slippage. We move from theorists talking about measures to protect the vulnerable, to measures to protect us from ourselves (no consent to assault, no taking drugs and so on), to measures such as the compulsory wearing of seatbelts or state regulation of risky activities. My problem here is that I have difficulty seeing how these very different kind of measures can be lumped together under the heading 'paternalism'. The first, protecting the vulnerable might just fit - though there are lot of issues about what, precisely, amounts to vulnerability in this context. The problem with the second category is that it just seems so individualist, with individual will or choice being the fundamental category - even if it we come down in favour of restriction, it is in the limiting of the will of the individual that must be justified. Freedom is understood as freedom from law, which seems to rule out the possibility that freedom might come through law - or proper consideration of many other relevant factors, like the social costs of certain activities, our mutual interdependence or any sense of the common good.

And when we come to the third category this problem is even more pronounced, in part because it seems to rely on such a sociologically naive concept of risk. In particular, with examples like seatbelts, we probably do not properly know the risks because they are so complex - the speed you drive at, the speed of others, the design of a car, of roads, of emergency response times, the availability of medical care and so on. The function of regulation here is in part to address this complexity and the impossibility of choice. Moreover, talk of paternalism just seems to wrench the whole issue out of any relevant social or political context. What is important here is not just a choice about whether or not to have law (or a criminal law), but also the role of insurance companies, of car manufacturers, of car design, the role of the state in providing health care and so on. This is not to say that we should not question or challenge the use of law or criminal law in these contexts, but only that we need to find an appropriate analytical framework - which is something that paternalism cannot provide.

On deaths at work

Cutting red tape: good for business?

The recent publication of a report on the incidence of deaths at work and changes in the Health and Safety Executive's policy on workplace  inspections makes particularly grim reading. According to the report, Low Life, there appear to be two major trends. On the one hand there is the well publicized political move to reduce 'red-tape' which makes UK businesses uncompetitive. This includes identifying certain sectors of employment which will be exempted from routine unannounced preventive HSE inspections. These are supposedly low-risk areas of work where inspections are burdensome and costly. All well and good, you might think, but it is the second trend which should pull us up in our tracks. The research demonstrates that the majority of workplace deaths occur in the sectors excluded from preventive inspections. It shows that since March 2011 there have been 258 deaths at work, of which 137 were in precisely those 'so-called' low risk areas of the economy. And this is graphically illustrated the report by the listing, down the right hand side of the page, of the names of those who have died.

Now this clearly raises a large number of important issues: how did the HSE compile its list of 'low risk' sectors? Should this list be changed in the face of the new evidence? Is economic competitiveness to be valued above human life? And what is the real balance between regulation, safety and competitiveness? But it should also make us think about the role of the criminal law in areas such as this.

Breach of health and safety regulations, particularly where leading to accidents or deaths, is a criminal offence - often punished with heavy fines. However, it has long been argued by criminologists that there is a failure to recognize the seriousness of these kinds of breaches of safety regulation and the social harm that they cause. The point is made that there are many more 'accidental' or avoidable deaths at work in any given year than criminal homicides, but that in spite of the, often demonstrably criminal, negligence of certain employers (as recognized in the penal fines) there has been a failure to see these deaths as properly caused by criminal activity. In short, it is argued that they should be classified as a form of criminal homicide.

A significant step towards the recognition of this argument was made with the passing of the Corporate Manslaughter and Homicide Act 2007. This Act created a new offence of corporate manslaughter which could be committed by a corporation which managed its activities in such a way as to "amount to a gross breach of a relevant duty of care owed by the organisation to the deceased".

So here we have one possible answer to the shortfall in inspections and the increased number of deaths at work - the criminal law in the shape of prosecutions under the new Act will step into the breach. But is this happening? Unfortunately there is little evidence to support this. In a written response to a parliamentary question in late 2012, the Attorney General reported that 141 cases had been referred to the CPS as suspected cases of corporate manslaughter, but to date there have been only four successful prosecutions under the new Act (and none in Scotland) - probably in part because the HSE lacks the resources to investigate such deaths, and if they are not carrying out routine inspections will not have accumulated evidence of systematic negligence. 

So what we seem to have is the worst of all possible worlds. The risk of death or serious injury remains high, but the possibility of either prevention (through inspection) or deterrence (through prosecution and punishment) remains low. Short term political expediency is clearly being valued above human life. The red tape that is cut may be stained with blood. 

On guns in America

I have had a couple of further thoughts on last week's post on homicide in America, prompted in part by the NRA press conference on Friday suggesting that it was necessary to have armed guards in every school. Both of these relate to the question of trust.

The first point is quite an obvious one and follows on from the conclusion about there seeming to be a relation between low homicide rates and an atmosphere of social inclusion and trust. If this is right, it is hard to see how a proliferation of armed guards is likely to be a solution. Indeed, it seems likely to me that this would create an atmosphere of heightened distrust - everyone would be viewed as a possible 'bad guy' or threat with the result that any possible short-term gains in security would be bought at the cost of longer-term insecurity and growth of distrust.

The second point is more fundamental and goes to the rationale of the right to bear arms, as recognised in the second amendment to the US constitution:

 "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

As many people have pointed out before me, the original rationale of the second amendment appears to be related to the right to raise a militia. The origins of this right can be traced to the debates of the eighteenth century about whether the state should be permitted to have a standing army and to raise taxes to support that army - in particular as the British rulers of the American colonies had taxed the citizens to support the presence of the British army. In the circumstances of 1791, it is not then particularly surprising that the new states linked freedom to the right to a militia - which thus necessitated that all prospective soldier/citizens should possess and bear arms. The broader context was thus one of distrust of the British state (and, it is worth pointing out, a situation where homicide rates were very low).

The issue now appears to be very different. It is very clear that, for some Americans at least, the issue remains that of trust in government - though now it is a domestic government which supports a standing army. The question, though, is that of how to rebuild that trust and whether the presence of guns is likely to contribute to the building of trust or further undermine it.

On homicide in America

It is just one week since the horrific shooting of school children and teachers at Sandy Hook elementary school in Connecticut. In that time a lot has been written about the possible causes of the massacre the need for gun control, and what should be done to prevent similar events occurring in the future. It is with a certain degree of reluctance that I enter this debate, for both the killing itself and the topic of gun control are highly emotive subjects, but there is nonetheless something to be learned from taking a broader perspective on these events.

Map of the world by intentional homicide rates (from Wikipedia)

A starting point for discussing this is that the rate of homicide in the US is high -  much higher than in any other affluent first-world democracy - and thus that incidents such as the Sandy Hook shooting have to be seen in this context. There has been a slight decline in the homicide rate over the first part of this century, but the overall pattern suggests that homicide rates have been higher in the US than in other western countries since the middle of the nineteenth century.

One explanation of this is often seen in the availability of firearms. A useful starting point is this map which shows rates of gun ownership and homicide by firearm worldwide. This makes it clear in a graphic way that there is some link between the availability of firearms and firearm homicides . This is hardly surprising. The availability or accessibility of certain weapons is going to be linked to violence caused by those weapons. If gun ownership is severely restricted then one would expect to see fewer homicides by firearms simply as a matter of opportunity. Thus, the map shows that while the US has one of the highest rates of gun ownership, it does not have the highest overall rate of firearm homicides. And this is something critics of proposed measures for gun control have been keen to point out: there are societies with high levels of gun ownership but a reasonably low murder rate; or conversely there might be a high murder rate in certain countries but low gun ownership - and so that murders are committed in other ways. However, it is also worth noting from the map that the percentage of all homicides committed by firearm is high in the US.Overall then gun ownership might make it easier to commit certain kinds of homicides, but do not necessarily offer a causal explanation of high rates of homicide. This might be an argument for certain kinds of gun control, as a way of reducing opportunity, but these kind of measures would not necessarily lead to a decline in the overall rate of homicide in the US.

An alternative and illuminating perspective can be found in Randolph Roth's brilliant book, American Homicide. This is a wide ranging historical survey of homicide in the US from the colonial period - when America had one of the lowest homicide rates - to the present day. Roth is sceptical of claims that the rising homicide rate can straightforwardly be linked to such factors as the relaxing of carrying concealed weapons laws or the availability of drugs or alcohol, pointing out that there are countries which consume drugs or alcohol at higher rates than the US yet have lower homicide rates. Instead he identifies four factors that are associated with low homicide rates:

• A belief in stable government and that legal and judicial institutions are unbiased;
• A feeling of trust in government and the officials who run it;
• Patriotism, empathy and fellow feeling arising from racial, religious or political solidarity;
• The belief that the social hierarchy is legitimate, that one can be reasonably content with one's place in society or the opportunities to change it, and that one can command the respect of others without resorting to violence.

These are perhaps unsurprising - people are less less likely to resort to homicidal violence when they trust in legal and political institutions, when they feel that they have a valued place in society and when all groups have equal respect and access to social goods. And interestingly they point to the importance of law - but not as a mechanism that can reduce violence through the deterrent effect of harsh punishment. Law is instead important as a background institution that can secure social expectation and opportunity and generate trust and respect between citizens.

[You can check out the data at the historical violence database]

On 'word crimes'

A curious characteristic of nineteenth century criminal law was the criminalization of language - so-called word crimes - as seen in the unholy trinity of sedition, blasphemy and obscenity. This might seem counter-intuitive: this was, after all, a period of political liberalization and increased respect for individual liberty. But paradoxically it is precisely this liberalization that lies behind the expansion of the criminal law. On the one hand, increasing political freedom and the relaxation of restrictions around the printing and publishing of books and periodicals led to anxiety about the social impact of 'subversive' speech and writing: what were the servants reading and what effect would it have on them? And on the other, the focus on individual responsibility in the criminal law made it possible to expand criminal regulation to these areas by making the intention of the author central to the question of criminal liability.

While the precise development of each of the three crimes is slightly different, there is a clear pattern. They are all old offences, which were of little practical importance until the late eighteenth and early nineteenth centuries. They were each given new life in response to social and political developments. They were used sporadically throughout the nineteenth century, particularly at moments of political and social unrest and (with the exception of obscenity) fell into a gradual decline. There are also clear structural similarities in the way that the crimes were defined in the modern law.

Tom Paine's The Age of Reason:
Seditious in 1792

The origins of the crime of sedition can be traced back to Roman law, where it was understood as a form of violent insurrection that was related to treason. But by the late eighteenth-century it had become the crime of the crime of speaking or publishing words which criticized the sovereign or brought the existing government or laws into contempt. In England the law of seditious libel was used in the wake of the French Revolution to prosecute radicals, such as Thomas Paine who had written books or given speeches arguing for political reform. In Scotland the use of the law was even more draconian, with members of the Society for the Friends of the People convicted for sedition and transported for 14 years. This use of the law was fraught with difficulties as those prosecuted would frequently argue that what they had said or written was not seditious in intent - and juries would occasionally even acquit. So as the immediate political tensions of the 1790s and the Napoleonic Wars passed, the law came to be used in a more limited way. Sedition was still used to prosecute political dissent, but instead of a general focus on the seditious content of the language, definition of the crime came to focus on the potential impact of the language to cause immediate public unrest and the the intention of the speaker or author - whether they knew or ought to have recognized that disturbance was a likely cause of their conduct. The modern crime was thus less about language that might undermine society, but language that might incite unrest. The crime was rarely used in the twentieth century and was abolished in 2009.

The Freethinker
Blasphemous in 1883

Blasphemy was likewise an old crime. Its modern origins lie in the separation from the crime of heresy in 1656. While heresy was a crime against God, it was only a crime under ecclesiastical law. Blasphemy, by contrast, was understood as a crime against human law because attacking the christian religion was seen as an attack on those bonds which held civil society together. In this form there had been occasional prosecutions of blasphemous writing in the seventeenth and eighteenth centuries, but the crime was regarded as a minor one, and of little practical importance until the prosecution of the bookseller William Horne in 1817. Although these prosecutions were unsuccessful, this established a patter for the use of the crime in the nineteenth century to prosecute writings of religious dissenters and freethinkers. The core of of the crime was less in the content of the beliefs expressed, than the tendency of the the words - the manner and context in which they were expressed - to undermine society. The last successful prosecution for blasphemy was in 1922 and the crime was abolished in 2008.

Obscene libel was also a crime at common law, but the modern law has its origins in the Obscene Publications Act 1857. This retained the common law definition of obscenity, but for the first time separated sexuality out as an area of special concern and gave the police new powers to seize and destroy obscene material. The test of obscenity laid down in Hicklin (1868) had two central characteristics. First, that the material should have a tendency to deprave and corrupt. This was directed at the effects on the individual, not necessarily as matter of literally depraving or causing immediate arousal, but of how the text or image as a whole could be interpreted and its longer term perverting effects. It was thus concerned with imagination and interpretation. Second, it was specifically directed at the need to protect those who might be vulnerable to such influences —whether women, children, or (in the notorious formulation) domestic servants. In this version the law has survived to the present day, with the test for obscenity even being reproduced in recent legislation criminalizing extreme pornography.

What do they have in common? The first thing is that the modern offences are directed less at the content of the beliefs than the tendency of the expression of the beliefs to undermine society. In each case it is recognized that it might be legitimate to express those beliefs - political or theological debate, or artistic expression - but that in certain circumstances, with a certain intent, that these forms of expression might be dangerous. It is the tendency of the beliefs to undermine society that is crucial, rather than their actual impact. In sedition and blasphemy the crime is concerned with the impact on society; in obscenity law it is concerned with thecorrupting impact on the individual. But in each case the structure of the offence is the same. And all are concerned with the imagination: the imagination of the vulnerable reader or listener, who may not be able to resist, as well the ability of the authorities to imagine the worst.

On violence and modernity

One of the aims of the civilizing process is that of reducing, even eradicating violence. According to writers such as Elias, an effect the process of state formation in western societies and the gradual change of manner and sensibilities, was that of changing our idea of civilized conduct, making modern man more humanitarian. And this insight seems to be borne out in various ways in historical studies of crime. Levels of interpersonal violence and homicide rates are in decline. There may be disagreement over the precise reasons for this development, but little disagreement over the fact that it is taking place.

What does this mean for criminal law? Again, certain parts of the story seem clear. The criminal law was used by the state as an instrument for reducing social violence. In many cases the norms already existed, and what changed was the enforcement of the law - which gradually changed the social understanding and expectation of what was permissible. Thus, forms of public violence, such as brawling, that might have been regarded as acceptable were policed more rigorously. Duelling was outlawed. Laws were passed prohibiting the carrying of weapons in public places Forms of private or domestic violence, in particular gendered violence, and violence against children such as smacking, which had been regarded as acceptable in law have been regulated by new norms or changed forms of policing. And this is matched by governmental rhetoric which declares that every person should be entitled to live their life free of violence, and so on. The governing assumption seems to be that the body is inviolable.

The problem, of course, is that this promise is unlikely ever to be delivered upon, and this may create a damaging cycle. From the perspective of the individual it creates the expectation that we can live our lives without violence or the trauma it causes - indeed the violence may be more traumatic precisely because the expectation that our lives should be violence free is so strong. So when this expectation is defeated, it translates into a demand for recompense or that something be done by the state. From the perspective of the law, the inviolability of the body persists as a norm-giving assumption notwithstanding that it is continually violated. Indeed, its failures to meet these high expectations of interpersonal security may mean that it generates new laws - the demand from victims, or putative victims, is used to demand new, ever more draconian or intrusive, laws to secure us against future harm. And so we criminalize in ever more ingenious and intrusive ways. But it is perhaps necessary to step back and reflecting the logic of this process of criminalization.

On the illegality of sodomy in the US

I have just discovered this map:

[From: http://www.motherjones.com/mojo/2011/04/map-has-your-state-banned-sodomy]

It is hard to know what to say. I have to confess that I am shocked that laws against sodomy remain on the books in so many states in the US in spite of the Supreme Court ruling in Lawrence v Texas (2003) that these were unconstitutional. Of course, it can be argued that these laws have no force, but the very fact that they have not formally been repealed has symbolic force and sends a clear message about the public tolerance of homosexual activities. Even criminalization without the possibility of enforcement is not entirely innocent.