LAW: WHAT IS IT GOOD FOR?

Criminological theory; free will; deterrence; science; reasons and causes

One may as well begin with a quote from Lewis Carroll:

'What sort of things do you remember best?' Alice ventured to ask.

'Oh, things that happened the week after next,' the Queen replied in a careless tone. 'For instance, now,' she went on […], 'there's the King's Messenger. He's in prison now, being punished: and the trial doesn't even begin till next Wednesday: and of course the crime comes last of all.'

'Suppose he never commits the crime?' said Alice.

'That would be all the better, wouldn't it?' the Queen said.

The Queen is quite correct, in at least one respect. It would certainly be all the better if the crime never occurred at all. Even career criminals, even the bentest of the bent, would prefer to live in a straight world – one in which no one ever broke the law: or, at least, in which no one else ever did. If you were the only criminal around, you’d have the same advantage over other people that cheats have at board games. Not only that, but you’d also get to enjoy all the benefits the law provides. Justice, after all, is blind. To the selfish person (and, too often, that’s all crime is: selfishness) an environment in which all of the law’s protections, but none of its prohibitions, apply, may be the most amenable of all possible worlds.

For you and me this raises all sorts of questions, both venerable and difficult. Today let’s deal with one of the best: what exactly is the law for?

The question may never have crossed your mind. That’s all right. Most of us were brought up in countries that have laws, and in which just about everyone obeys them just about all the time. They are such a fundamental part of our lives that we forget that they not only have a specific purpose but that our fellow human beings designed them with that purpose in mind. This is another way of saying that we take laws for granted.

Few of us would want to give up on laws, just as few of us would want to give up on police (there are some who would – or claim they would – although not so very many). But it’s easy to forget what a recent invention police forces are, and how tyrannical they appeared to our ancestors. Why do we have them? Why do we need them? No one answered these questions more convincingly than the gentleman we’ll start with, Cesare Beccaria (1738-94).

Beccaria is usually considered the father of Classical Criminology. I’ve written a little about it here.

A key feature of classical criminology is this: it presumes that we all make informed, sensible choices about whether or not to commit crime. One cumbersome phrase that recurs in the literature is ‘rational calculative decision­ making’. Jeremy Bentham, a follower of Beccaria, referred to ‘calculus’. Such ideas reflect the era in which these Enlightenment philosophes lived and worked.

The European Enlightenment was a period of enormous, continental, panglossian optimism. Philosophes (that’s ‘public intellectuals’ to you and me) believed in the power of reason. You might almost say they had faith in it. Reason, properly employed, ought to bring an end to all of humankind’s plagues. A shiny new way of thinking promised a halt to dark deeds and shadowy superstition.

Accordingly, Beccaria found room for two more happy suppositions: First, that human beings all possess free will; second, that they are guided by hedonism. That word ‘hedonism’ did not mean quite what we think it means today. Beccaria may have heard of Ibiza, but he certainly hadn’t heard of party drugs. Hedonism, to him, was a straightforward principle of human psychology. Our behaviour was driven by the desire to maximise our pleasure and minimise our pain.

There’s more. Classical Criminologists claimed that there was a contractual relationship between citizen and state. The contract stipulated that good citizens like you and me must give up some of our liberties in the interest of the common good. As long as we did so, the state would protect us from those rascals and rogues who did otherwise.

Criminals (and I can’t emphasise this enough) were assumed to be reasonable people, just like us. Reason had allowed them to calculate that their best opportunity to maximise pleasure and minimise pain lay in breaking the law. They did so freely, because of course they too possessed free will.

It followed that the law had just one purpose: It was to be a deterrent to criminal behaviour. In order to work properly, it had to be certain and swift: certain, because the criminal had to be confident that, if he or she did break the law, unpleasant consequences would inevitably follow; swift because delays would serve only to make law-breaking appear more attractive.

Let’s summarise for the rowdy kids at the back and not paying attention. (Why do we let them in anyway?) Classical criminologists believed that everyone was a rational decision maker. Everyone chose freely either to obey the law or to commit crime. They did so on the basis of a calculus to do with happiness. Every choice was a free choice. Hence the purpose of law was to lay a thumb on the scales and make law-breaking look less attractive than the alternative. The general philosophy is known as deterrence.

Simple and straightforward ideas, aren’t they? It’s not often an academic will produce suchy neat answers to such complicated questions. To say that Beccaria was influential is to understate the case. His ideas flooded the western world. They were especially important in France after the Revolution. They also helped guide the writers of the US Constitution. Of course, both events sprang from the fervour of the Enlightenment itself.

If Enlightenment criminology was bright and optimistic, Positivist Criminology was, well, less so.

I have written a series of newsletters about the great Italian criminologist, Cesare Lombroso. You can start here.

We usually reckon that the law should punish people only if they are responsible for whatever crime they committed. If a person slips accidentally from a roof, for instance, and happens to land on an unfortunate passer-by and injure them, we do not hold them responsible for assault. Positivist criminology indicated that some people were simply ‘born’ to be criminals. Being criminal was part of their biology. In other words, they couldn’t help it, either. Could we, then, in all conscience, punish them?

Positivist criminology came along at a time when holes were beginning to appear in the great rational edifice of Classical Criminology. It turned out there were certain problems that Classical Criminology was ill-equipped to deal with. For instance, it could not deal with crime committed by children or those with psychiatric syndromes – people who are not usually held responsible for their actions. The Industrial Revolution came and went, bringing with it changes of all kinds, among which was a dramatic increase in the crime rate. Classical criminologists watched helplessly. Positivist criminologists did not.

There was nothing we could do about crime, they argued, if it was caused (the technical word is ‘determined’). Free will didn’t enter into the equation (just as, if you slip from a roof, you can’t freely choose not to fall). For that reason, the purpose of the law could hardly be to deter crime. Deterrence simply couldn’t work. Just two options remained: the law could incapacitate criminals, so that they were no longer a threat, or it could offer them some sort of treatment. This second option is usually called reform.

MORE FROM CRIME & PSYCHOLOGY:

FREE WILL – ARE CRIMINALS REALLY RESPONSIBLE FOR WHAT THEY DO? ARE YOU?

EVERYTHING YOU NEED TO KNOW ABOUT EYEWITNESSES

Cesare Lombroso was a big believer in what he called social defence. He thought that the purpose of the law was simply to lock born criminals away safely. Its purpose, in other words, was more or less just to protect you and me. Indeed, he thought, in a world where crime was a biological inevitability, there was not always any other option.

Now, Lombroso’s biological ideas – as you’d expect from a nineteenth-century scientist – were not exactly sophisticated by today’s standards. He believed that criminals were atavistic. That meant they were throwbacks to earlier stages of evolution. Criminals behaved like Stone Age people…and they looked like them too. You could spot one by the low brow, asymmetrical face, bloodshot eyes, and a hundred other stigmata.

You won’t be surprised to learn that Lombroso’s ideas fell out of favour for much of the twentieth century before reappearing, in rather different form, in a book called Crime and Human Nature. It was followed rapidly by today’s so-called biopsychosocial criminology.

There is a distinction to make here between reasons and causes. Although we use the words interchangeably in everyday life, we really shouldn’t. They mean subtly different things.

Reasons provide explanations, justifications, or - to use a term more appropriate in the context - motives. Causes, on the other hand, tend to be more tangible, concrete, sciency. To see the difference, imagine a scenario where a suspect is being interviewed by a police officer.

‘What reason did you have for stealing the money?’ asks the officer.

‘I thought there was no one around. I believed I would not get caught. I reckoned I could get away with it,’ the suspect replies.

Now, while we may not approve of his behaviour, we are likely to agree that the suspect’s answer is an appropriate one, given the question he was asked.

On the other hand, imagine the officer asks, ‘What caused you to steal the money?’

To such a question, we might expect a different sort of answer. ‘A bad upbringing,’ our suspect replies. ‘A broken home. Lack of economic and educational opportunities in life. Criminal genes that I inherited, through no fault of my own, from my parents and their parents before them…’

This is no mere academic exercise. If the criminal commits crime for reasons, well, we may be able to appeal to his rationality. We might argue that his reasons are wrong, or mistaken, or point out that there are equally good reasons why he should refrain from crime. This is an optimistic, Enlightenment-era, point of view. It indicates that a crime-free world might be possible, so long as we all cling to reason. It may help explain the revival, in recent years, of deterrence theory among criminologists.

But you know what they say about how to define a conservative – a liberal who’s been mugged. If, instead of reasons, the criminal points to causes…well, we can’t reason the Earth out of spinning around the Sun. We can’t argue that there are good reasons for it to stop. There is no deterring crime and there never was.

What is the law for, then? According to positivist criminologists, only reform and, when reform fails, social defence. Reform is expensive (just think of all the tax money we spend on prisons that we could otherwise spend on roads, education, pay rises for politicians…) No one who has seen the state of our prisons thinks we are really serious about reform. Since deterrence cannot work, there’s no sense even trying it. Lock ’em up and throw away the key.

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