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Reclaiming Critical Criminology
Reclaiming Critical Criminology
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ARTICLES
Theoretical Criminology
@ 1999 SAGE Publications
London, Thousand Oaks
and New Delhi.
1362-4806(199902)3:1
Vol. 3(1): 5-28; 006985.
Abstract
This article seeks to examine the relevance of the continental
European tradition in critical criminology for the theoretical
elaboration of criminological theory today. The first step towards an
answer is a rather descriptive one: how did critical criminology
develop historically on the European continent? That is the theme
of the first section. In the second section, the social and cultural
developments which accompanied the heyday of critical
criminology in the 1970s will be analysed, and an expos6 will be
given of the spectrum of the different critical perspectives on the
continent. The same cultural sociological line of thought will be
followed in the explanation of the rather abrupt decline of critical
criminology shortly after in the third section. The need for a
normative counter-weight to present-day, managerial political
discourse which follows from these analyses also forms the prelude
to a reaffirmation of critical criminology in section four. Because
many of its original concepts and presumptions no longer fit very
well to the changed political and socio-cultural reality of the late
1990s, a reconstruction of critical criminology is proposed in
section five.
Key Words
critical criminology * Europe * future prospects * normative
theory * social justice
Introduction
diminished, people should not have to fear for their daily existence, the
economy should be stable and welfare should be distributed more
equally.
The influential French environmental school, which emerged in reaction
to Lombroso's anthroplogical approach, made some critical elaborations as
well. Even though Lacassagne did not draw too many political conclusions
from his renowned argument of 1885 that every society gets the crime it
deserves, his statement has, later on, been interpreted in a radical way by
various socialist students. In 1893, Manouvrier showed an early reflexive
insight into the fact that the label 'crime' can also be used to morally
censure acts of people in power, when he described the slaughtering of the
communards by the Parisian police as a crime. Manouvrier had a large
influence on the Dutch socialist sociologist Willem Bonger, who is often
mentioned as the founding father of critical criminology. In his classic
Criminality and Economic Conditions of 1905 (in the original version),
Bonger added a socio-economic component to the socio-psychological
theory of the French School. In the run-up to World War II, Bonger became
one of the most fierce critics of an instrumentalist use of criminal law. He
shares this non-utilitarian vision of law and order with Dutch penal
scientist Clara Wichmann, who had until her death in 1922, written about
the necessity of Marxist and feminist reconceptualizations of penality. Her
ideas come close to what we would call today 'abolitionism'.
Even though during the early days of the Weimar Republic, some of its
more critical penal policy proposals have been introduced by Minister of
Justice Gustav Radbruch, the heritage of Franz von Liszt's Modern School
of Integrated Penal Sciences merely fizzled out in authoritarianism in the
1930s. Many of Germany's social critics had to emigrate to the United
States or Britain. If we are to distinguish a critical school in pre-war
German language 'criminology' we are to look at the psycho-analytical
tradition heralded by Otto Gross (Steinert, 1997). In the first decades of the
20th century, Julius Vargha and Theodor Reik developed abolitionist-like
perspectives on punishment, while Alexander and Staub developed an
incisive critique of criminal justice by examining the irrational elements
which constitute the relation between offenders and their judges.
World War II meant an important caesura in the development of
European criminology. The dismay about the misuse of (biological) crimi-
nology in the Nazi law and order politics did, however, not lead to the
emergence of a strong critical perspective in the discipline. There were some
important attempts by the Frenchman Marc Ancel to give the social
defence movement a new, humanistically inspired revival, and a slightly
more radical perspective of the Dutch Utrecht School, which linked a
phenomenological and existentialist inspiration with very concrete penal
policy proposals. These schools certainly contributed to a reductionist
agenda on law enforcement, but the main reaction to the perversion of the
rule of law in the past decades was a return to the Classical School in
jurisprudence. In this perspective, criminal law is not to be subjected to
10 Theoretical Criminology 3(1)
however, not enough for Marxist students, who felt that labelling processes
needed to be traced back to their ultimate economic power-rationale. They
replaced the image of a deprived underdog by that of an underclass fighting
back and interactionistic analyses of labelling processes by a political
economy of criminalization. On the European continent, interactionist
roots have, however, always remained much more visible than in Britain. In
that sense, Cohen's acknowledgement is more true for the continental
European than for the British case. Particularly in the Netherlands, inter-
actionist perspectives-mainly social constructionism and labelling-have
remained absolutely dominant. Also in Germany, labelling theory's heritage
has always been nourished quite strongly. Here we can find many attempts
to synthesize Marxist and interactionist perspectives-most notably by
Fritz Sack (1972) and Gerlinda Smaus (1986).
Karl Schumann (1985) portrayed abolitionism as the political agenda of
the labelling approach. With its linguistic axiom that dealing differently
with crime starts by talking differently about it, abolitionism can indeed
well be seen as the ultimate conclusion from analyses of labelling theory. If
criminal law mainly stigmatizes people and thus reinforces recidivism, the
logical next step is to draw back its punitive rationale and to replace it by
approaches oriented at redress and at the reintegration of offenders in the
community. Abolitionism is a clear product of a political culture and spirit
of the time in which one believed that things on the penal field could be
changed for the better. The work of abolitionism's founding fathers, the
Norwegian Nils Christie and Dutchmen Herman Bianchi and Louk Huls-
man dates back to the early 1960s, but it is only called 'abolitionist' from
the late 1970s on (van Swaaningen, 1997: 118-34). Its elaboration in an
explicitly critical criminological framework, by Germans such as Stephan
Quensel, Sebastian Scheerer or Heinz Steinert or Dutchmen such as Willem
de Haan, John Blad or myself, is even no older than the mid-1980s.
Abolitionism is rooted in a European normative and 'idealist' style of
thinking. It echoes the idea that things can be changed if 'we' want them to
change. Abolitionism already embodied in the 1970s what Stuart Henry
and Dragan Milovanovic (1996: 205) would, some 20 years later, call a
'language of possibilities' and a 'replacement discourse': a discourse that 'is
not just critical and oppositional, but provides both a critique and an
alternative vision.'
Conflict sociology has been a driving force behind the transition from
analyses of stigmatization to criminalization, and from analyses of the
selectivity of the criminal justice system to a critique of criminal justice as
power-system. A neo-Marxist or Gramscian branch has been particularly
influential in the Italian critical criminological debates of the mid-1970s as
well as in Britain. A strong Marxist tradition is often a resonance of a
culture in which one does not expect a lot from the authorities, and treats
them rather with suspicion than trust. That is why one does not find this
tradition so much in the typical social democratic welfare states in North-
ern Europe. Quite a number of studies in the neo-Marxist tradition were
12 Theoretical Criminology 3(1)
In this section we have seen that there are both similarities and differ-
ences between continental European and Anglo-Saxon critical criminology.
Two points of distinction are particularly important here. Continental
European criminology includes a more elaborate critique and under-
standing of legal concepts, principles and structures, and takes a more
positive stance towards a politics of rights as a possible perspective of
change. Particularly in the late 1970s, British critical criminologists showed
a deep contempt for 'bourgeois' ideas on legality and the 'ideological' and
'anachronistic' language of rights. European critical perspectives such as,
for example, abolitionism and guaranteeism, do not argue in such dis-
missive terms about law: they are even notably marked by a legal style of
reasoning. Furthermore, most critical scholars on the European continent
have never rejected the interactionist roots of the perspective-while these
were, again particularly in Britain, widely discarded as misplaced liberal-
ism. The development of European critical criminology was more gradual,
breaches with the past were not so drastic, and the perspective did not get
such a dominantly macro-sociological orientation.
From the mid-1980s on, law and order politics are marked by the ingrained
pragmatism of the 'three E's' of the internal Economy, Efficiency and
Effectiveness of the criminal justice system. In response to these develop-
ments, it is high time to revitalize the European counter-factual critique.
Actuarial developments in the justice administration are not accompanied
by any explicit ideological change in jurisprudence. They have become
popular in the context of the popularity of entrepreneurial and managerial
discourse in society at large, and by the new technical possibilities to
'manage' crime more efficiently. If policy-makers hardly deal with questions
of legitimation or external, social, effects of law enforcement, the tradi-
tional critiques of ideology or of a dysfunctioning criminal justice system
make little sense. Because of this changed political rationale, critique has to
be of a different kind than in the 1970s.
To some extent, later developments in critical criminology were a
reaction to the above-mentioned cracks in the critical criminological proj-
ect; that is to issues which have been ignored or indeed overstated in the
1970s. Left realists have reaffirmed the social-aetiological side of critical
criminology under the banner of 'taking (street) crime seriously'; guaran-
teeists have put the normative framework of the social rechtsstaat in the
limelight again; and abolitionists have reassessed the idealist, restructuring,
impetus of a critical criminology which had got lost in negativism. These
issues form the starting point for my reassessment. Basically, I see seven
reasons to reaffirm critical criminology.
1 Ultimately, criminology deals with the big moral questions of mankind: guilt
and penance, good and evil. This implies that criminologists can hardly
adopt a sheer functionalist style of reasoning. In order not to fall back into
a kind of laboratory criminology, they should explicitly deal with the forces
and interests which surround the formation and change of social norms.
With the crisis in critical criminology, this acknowledgement has nearly
passed into oblivion. Whereas moral statements about crime have become
commonplace, criminology seems to have slipped into a normative vacuum
where the social reactions side is concerned. In order to facilitate an actuarial
approach of justice, questions of morality need to be homogenized. The
ideological role of 'get tough' discourse on crime is to feed the hegemonic
idea that there can only be one correct vision of right and wrong and one
correct vision of how 'society' is to react. A normative critique of the bleak
actuarial practice in which crime is reduced to a problem of certain 'risk
categories' which just need to be monitored, profiled and controlled seems
particularly warranted if we are to keep up a decent, democratic legal
system.
2 Though concrete conditions have changed, the old problems of unemploy-
ment, of class-, race- and gender-discrimination or of crimes of the powerful
are still there, and thus we still need a macro-sociological critique which
18 Theoretical Criminology 3(1)
All in all, there are good reasons to study criminology again as a critique of
ideology. The good old critical criminological touchstone of social justice
can still fulfil a useful role in this respect, because analyses of the socio-
economic context of crime and crime control have kept their validity-and
maybe have even gained importance if we look at the decline of the welfare
state, the growing split of society and the subsequent exclusion of new
'dangerous' or superfluous classes from our industrialized societies. On
these themes, critical criminology still has sensible things to say. The
challenging question thus is how to adapt the old critique of social justice
to the present-day cultural, political and socio-economic constellation.
20 Theoretical Criminology 3(1)
Community safety
Community safety and crime prevention politics seems to be an ideal
terrain where a non-stigmatizing, minimally penal, normative and structur-
ally grounded perspective can be developed. It counters the hegemonic idea
that any serious law enforcement would primarily need to consist of
punishing offenders. In the penal practice, crime prevention politics are,
however, mainly guided by pragmatic considerations on the possibility to
limit nuisance by increasing formal social control and technical means. This
thesis can be turned around by arguing for the improvement of living
conditions, particularly of the most vulnerable groups in society, which will
consequently lead to a reinforcement of 'natural' social bonds in neigh-
bourhoods. Hereby, the informal network of social control is strengthened
in an implicit and yet more structural way. The normative touchstone of
social justice is used to criticize criminogenic elements of the decline of the
welfare state. The actuarial context in which community safety politics
emerged, the coinciding privatization of public services and the subsequent
'responsibilization' discourse of the state towards families, neighbourhood
inhabitants and teachers, by which the state mainly legitimizes an off-
loading of its own social functions (Garland, 1996), are not particularly
helpful for the development of a socially just policy on community safety.
This would indeed demand more state care for social welfare and for a
reasonable level of safety particularly in those neighbourhoods where
inhabitants do not have the means to hire private security companies or to
take (technical and other) preventative measures (de Haan, 1997). Thereby,
the social task of the state to prevent the socio-economic split of cities into
ghettos on the one hand and super-protected residential areas on the other,
is remoralized. By placing community safety politics in the framework of
normal social politics, rather than forcing it into a criminal justice frame-
van Swaaningen-European criminology 21
Conclusions
The 'ways forward' for criminology first imply a step back in respect of the
pragmatic, functionalist and utilitarian style of argumentation which cur-
rently dominates the discipline. A historical lesson that can be learned from
continental European criminology is that a subordinated focus on making
law enforcement more 'efficient' will offer very little counter-weight to both
totalitarian and managerial political tendencies. Even when the form has
changed, a warning against instrumentalist politics of law and order is as
relevant today as 60 years ago. Comparing current authoritarian populist
managerialism with the authoritarian politics of the 1930s may seem
exaggerated, but there are dangerous ideological similarities (Quensel,
1989; Christie, 1993). The 'new totalitarianism' lies in a new instrumen-
talist dominance within the criminological discipline. In this respect, there
are some concrete things that can be learned from the European tradition
in criminology.
First, the more critical criminological studies from continental Europe
take normative considerations about the democratic rule of law explicitly
into account. They function as a break on the political urge to always plea
for more and more 'efficient' measures. Particularly because these measures
generally imply an increase of 'penal violence', the moral deficit of the
pragmatic rationale can be demonstrated. The real question is: to what
level can a democratic society increase the use of penal violence? A question
van Swaaningen-European criminology 23
Note
References