Conceptual frameworks are the underpinning for any line of enquiry. They frame and constrain available options. They are the foundations on which thoughts, ideas and discussions are based.
As such they can easily restrict how we conceive not just of the world we live in, but also our imagined alternatives to our current existence. Poor conceptual frameworks can have grave consequences.
There are a number of concepts in law and criminology that need to be dissolved in order for us to properly resolve the criminal justice issues that afflict our communities.
Categories and Middle Class Exceptionalism
Over the past twenty years or so, educated middle class liberals have gone a long way to consolidate their questioning of categories and binary relations. This advance has largely taken place in lifestyle and identity politics; and especially in the realm of sexuality and gender politics.
Within sexual politics the concepts of “straight” and “gay” have been replaced by a continuum of sexual identities. This “non-binary” political framework extends into other sectors of gender politics, wherein the binary dichotomy between “man” and “woman” is broken down and sex becomes another continuum.
Middle class liberals being middle class liberals have, however, restricted their non-binary thinking. Whereas from gender to sexuality to race nuance is demanded, crime remains a black and white area.
The Threat of Radical Rethinking
To radically rethink crime, the starting point must therefore be to address this binary. Of course the reason this is defined as radical rethinking is because it would completely undermine the legal and criminal justice system. But that undermining is necessary.
The most obvious, if slightly childish, reason for this rethink is that it has happened everywhere else. Campaigners have established a plethora of new sociological categories that have now entered bureaucratic thinking with all that it entails. Yet the judicial system is largely left alone.
The binary of absolute guilt, absolute innocence and absolute victimhood retains a childish dimension to the law. Yet this dimension is a structural property of the conceptual framework of crime. Despite the efforts of so many criminologists, the concept of aetiology is rarely accepted into judicial processes. Causation rarely counts, and nuance is off the radar.
The bureaucratic necessity of this dichotomy is clear. Nuance and complexity pose such a threat to legal absolutism that they cannot be contemplated lest they undermine the certainties on which the sanctity of the court is based.
Just a whiff of aetiology sends the political forces behind law into a frenzy, as witnessed in the response to the 2011 riots. David Cameron’s explanation of the riots as “criminality pure and simple” underpinned the judicial response that saw thousands of young vulnerable people swept up in a dragnet of simple guilt.
In sensitive cases questioning the sanctity of the victim becomes an evil beyond comprehension. Explanation becomes victim-blaming, with its disruptive force presenting such a threat to simplistic certainty that it can hardly be uttered.
Occasionally a case in which the blessed victim is found to have lied is presented as an anomaly whose presence exists to confirm the certainty of usual process – it is the exception that proves the rule. Yet as covered elsewhere in this blog, we know that court processes are built around narratives and characterisations that compete for attention rather than truths that construct a complex reality.
The notion of undermining the sanctity of simplistic binaries is anathema to the legal system. Its current bureaucratic form cannot cope with grey areas, degrees, causation and nuance. Finding a defendant 33% guilty and a complainant 32% guilty seems absurd.
The bureaucratic stillness of court is contrasted with the simplistic certainty of the baying mob. Once absolute and straight-forward guilt is established, public wrath, nurtured and amplified by a cynical media, demands an equally absolute and simplistic response – punishment. The victim is compensated and the perpetrator must be ruined in order to resettle our disrupted community.
Whatever its logical incoherence, the appropriateness of the consequence of crime is clear to the public mind. The child whose mental health has been ruined by a violent home life that saw him fending for himself at 13 years old, in which the only comfort was drink and then heroin as food was occasionally stolen for sustenance can only be dealt with by having his life further ruined and through further alienation from the community around him. Then everything will be fine, surely?!
A response to that person’s actions that might offer opportunities to develop and lead a flourishing life in which criminal acts become unnecessary and then undesirable will seem absurd. It may seem absurd to propose integrating people who have been deemed to have committed crimes more deeply into their communities to create bonds rather than alienation. Yet for some reason I lack the capacity to understand how disintegration may be preferential and not the most absurd objective thinkable.
Indeed, a response such as integration makes more sense once the binary of guilt/innocence is questioned and causation is allowed for. Once the concept of the wholly evil, abhorrent convict is disrupted, then the punishment/compensation dichotomy is more easily disposed of.
The ruination that follows conviction is the spectre haunting humans punished by law. Well meaning people then move to “rehabilitate” them.
Rehabilitation is one of the more pernicious concepts in this field. It fails on every level. In the first instance, it assumes a return to habilitation, as if they should return to a place they once dwelt. So the child is to be returned to his brutal childhood and then everything will be fine.
“Rehabilitation” is self-perpetuating concept in the context of criminal justice. The criminal justice system creates the conditions in which it becomes active as a concept. Conviction dehabilitates. It all too often leads to ostraciation, unemployment, homelessness and generalised ruination. It removes people from their life routines and habitat, then probation workers and friends of prisoners work hard to re-establish and re-habilitate those who the system has further destroyed.
If we are to abandon the concept of punishment, then we don’t need to abandon the concept of rehabilitation as it will simply become redundant. Instead we would habilitate and further ground people into their communities, work, and loving relationships with those around them, which in turn would make ‘re-offending’ less likely?
Hitting the Depths of Conceptual Foundations.
The list of concepts to be reviewed goes on and on, and ultimately leads us to consider the fundamental principles on which law rests: culpability and individual responsibility. It is quite clear that liberalism as a political philosophy is absolutely dependent on the notion of the individual as a discrete rational actor, who bears full responsibility for his decisions and the circumstances in which they are made.
Without doubt capitalism further entrenches this understanding of individual responsibility, which now extends into the economic realm, justifying rewards for profit and blaming the individual for poverty.
Yet the roots of individual responsibility run much deeper. We might venture to suggest that Judeo-Christian thought places free-will at the centre of human existence. Where God may determine his His realm, He endowed the individual with the capacity to act.
This sense of responsibility was further individualised with the success of the Protestant Reformation, as worship became the duty of the individual. The individual was now expected to read the bible his- or herself. The individual is encouraged to arrive at her his or her own interpretation, and create a personal connection to God.
The fateful relationship between some forms of Protestantism, capitalism and political liberalism consolidated the Age of the Individual in which we now live.
To break the conceptual framework of criminal justice therefore entails challenging deeply ingrained systems of thought that have gained hegemonic purchase on the public imaginary.
It also requires a significant degree of coherence and very uncomfortable consistency. Even unfashionable crimes must be addressed. It does no good to reimpose binaries that establish deserving and undeserving convicts.
To impose simplicity onto the murderer, child molester, rapist or false-accuser helps nobody. Until we can address these conceptual frameworks without fear, justice reform goes nowhere.
Perhaps the most fundamental objection to this proposal is that it won’t work. Well, that is in part the point. The argument here is that the system is based on flawed social and political foundations, which will themselves have to change if we are to have a just society.