The way a society treats its criminals can be thought of as a reflection of its character. It seems banal to observe that a society’s criminal justice system reflects the broader values of that society, so allow me to unpack what I mean by that and why it is of some interest.
This begins with an acknowledgement of the essentially constructed nature of the phenomena we are describing. We may say things like ‘society’, ‘justice’ or indeed ‘criminal’ and assume we can agree on what they mean, but such categories are far from fixed — indeed, like most categories, upon closer examination they turn out to be quite fuzzy.
For instance, it is hardly novel to point out that a criminal only exists because of the law that created him. To observe this is only to remind ourselves of von Feuerbach’s maxim nullum crimen sine lege — there can be no crime without laws. We have thus already established the political nature of law and crime — it is part of the apparatus of state. Let us leave aside for our present purposes considerations of natural law and focus instead on the positive law made by states.
That such laws are a reflection of a society’s values and preoccupations is evidenced by the way they change over time. Alcohol was prohibited entirely in the US for a time, heroin was dispensed as an over-the-counter children’s medicine before it became an illicit substance and gambling was at various times outlawed before it became a major source of government taxation revenue.
Although these examples should be sufficient to make the point, it is important to note that frequently the categories of activity and people they describe are themselves social constructions. If bigamy is to be a crime, then we must first have some understanding of what we mean by ‘marriage’. If it is a crime to outrage a woman’s modesty, we must first have constructed an idea of modesty and linked it to certain social actions which are themselves placed somewhere on a related continuum of acceptable behaviour. It would be a grave (though common) mistake to assume that these terms behave as labels we can simply pin on concepts that exist ‘out there’. With Ian Hacking, we could ask, rhetorically:
Were there any perverts before the latter part of the nineteenth century? According to Arnold Davidson , “the answer is no … Perversion was not a disease that lurked about in nature, waiting for a psychiatrist with especially acute powers of observation to discover it hiding somewhere. It was a disease created by a new [functional] understanding of disease.” Davidson is not denying that there have been odd people at all times. He is asserting that perversion, as a disease, and the pervert, as a diseased person, was created in the nineteenth century. Davidson’s claim, one of many now in circulation, illustrates what I call making up people.1
This ‘making up’ of people is an essential part of how a society understands and regulates itself. The social structures and power relations by which this process occurs make for fruitful and fascinating study. Continue Reading →