In the course of everyday life, men and women, children and adults, enter into social relationships with each other. These relationships enrich their lives and are at the heart of what it means to be human. They are the emotional and psychological foundations of what we call ‘society’.
These relationships can also be marked by conflict and antagonism. The persistent domination of women by men under the structures of patriarchy has marked most societies, modern and pre-modern. Hostility and suspicion of the ‘other’, justified by the ideologies of racism and xenophobia, has been a feature of many societies throughout human history. The exploitation by some of their social power against others – employees by employers, tenants by landlords, peasants by lords, slaves by slave owners – is seemingly endemic.
In some cases conflicts and antagonisms are accorded a specific and technical character: for instance certain interpersonal violence; certain appropriations of the property of others; certain breaches of regulatory rules. These acts, defined and prohibited by the criminal law, are referred to collectively as ‘crime’.
To say that an act is a crime if defined by the law is little more than tautological. Faced with this Jerome Michael and Mortimer Adler argued in 1933 that ‘the criminal law is the formal cause of crime’. It is the formal cause, they argued, not because ‘the law produces the behaviour which it prohibits’, but because it gives certain acts their ‘quality of criminality. Without a criminal code there would be no crime’.
At a formal level this may well be correct. But there is something missing. As Michael and Adler acknowledge, criminal law defines acts as criminal. It does not, generally speaking, cause individuals or organisations to commit those acts (leaving aside those cases where an individual might, for instance, break a law they deem to be unjust in order to challenge it). The acts themselves are objective social events. The definition of these acts as ‘crime’ is subjective.
We can also say that definitions of ‘crime’ are historically and spatially contingent. They are historically contingent because they change through time. In the UK acts that were once deemed criminal (for instance consensual homosexual sex) are now deemed legal. Other acts that were once deemed legal are now criminalised. It was only in 1991, for instance, that rape within marriage was criminalised in the UK. Prior to that, the marriage ‘contract’ was deemed to imply ongoing consent to sexual acts. Definitions of ‘crime’ are spatially contingent because they vary across countries, regions and jurisdictions. Acts deemed criminal in some jurisdictions are not so deemed in others, and vice-versa.
What gets defined as crime and who gets to decide is also a political matter. This is true in a simple sense: the government and members of parliament set the parameters of criminal law, not judges, criminologists or the ‘general public’. It is also true in a more significant sense. Definitions of crime and criminality reflect and reinforce the underlying political settlement and the balance of social forces. So it is that the acts and omissions currently defined as crime in the UK largely amount, in the words of Paddy Hillyard and Steve Tombs, to ‘vast numbers of petty events which would score relatively low on scales of seriousness’. Meanwhile many acts and omissions that are very harmful, or widespread in their impact, or both, are either not defined as crime, or are subject to very lax regulation. Examples of this include workplace health and safety breaches; environmental pollution and state violence.
So there is a distinction to be drawn between an objective act and its impact and the socially subjective act of defining it as crime. Many acts are currently defined as crime, many others are not. There is nothing intrinsic to those acts defined as crime that makes them qualitatively or quantitatively different from those acts not defined as crime, as Louk Hulsman pointed out in 1986.
This is not to say that some acts defined as crime do not cause harm. Homicide, sexual violence and the abuse of children, to name but a few, are profoundly harmful. Any civilised society should reflect this in the response made to such acts. Yet contemporary debates about crime, whether in politics or popular culture, the academy or policy making, are also a species of myth-making and mystification. It is the underlying act, its causes and harms, not the social definition, that ultimately matters.
A revised version of this article will appear in the March 2011 issue of Criminal Justice Matters.