Sydney Law Review
Associate Professor of Law, University of NSW
The relatively long gestation period for this work has not affected its topicality. The political obsession with law and order and the ongoing disillusionment with typically proposed solutions are ever with us.
The Northern Territory has recently embraced mandatory minimum prison terms for property offenders, as a result of which several juveniles have been jailed for trivial offences. At the time of writing, NSW is gearing up for yet another law and order election campaign in a fashion not dissimilar from March 1995. The One Nation Party, not to be outdone by the major political parties, has recently announced as part of its platform not just the reintroduction of the death penalty but a mandatory death penalty in specified cases.
These and kindred policies are regularly justified by politicians as relevant and responsive to community concerns. Large sections of the media and vocal elements of the community will readily endorse such sentiments. On the other hand critics from a broad range of backgrounds will despair and characterise the most recent punitive spiral as moribund, predictable, ineffective and intellectually bankrupt.
As the title implies, Rethinking Law and Order insists that the way through this thicket of rhetoric is to reconceptualise the issues and acknowledge the complexity of the problems and the potential responses to them.
This is an ambitious tome. It seeks to deconstruct ‘law and order’ and investigate the central assumptions, folklore, rhetoric and mythology which coalesce around this catchphrase. Hogg and Brown make a persuasive case that a discourse which characterises crime as a disembodied problem capable of instrumental and straightforward solutions is fatally flawed. This has dramatic implications for the shape of, and community reliance on, conventional criminal justice policies. Moreover, they strive to chart a course through the seemingly intractable complexities thus unravelled and to suggest potential solutions which eschew the familiar quick-fix paradigms which are all too familiar.
As if this were not enough, these goals are pursued in a manner which addresses both the cognscenti (with their demand for documentation and analytical rigour) and a readership with a passing acquaintance with the problems but a genuine thirst for a treatment which transcends sloganeering. It is a tribute to the authors that, in large measure, they amply achieve what they set out to do, goals which, it might be added, many academic colleagues, politicians and policymakers have not even ventured to grapple with in the first place.
There is not a self-evident problem of law and order. The ‘problem’ is a moveable feast, of complex social meaning and values which are often in conflict. Hogg and Brown pose a central question: what type of civic order do we wish to build and maintain? The answer they offer (‘A civil society – which renounces violence in daily life, fosters tolerance and respect for strangers, upholds principles of equality and openness – should properly concern itself with all the manifestations of violence and incivility in its midst and seek to develop the means for non-violent resolution of conflicts and differences’) is a tall order but a challenge which must be embraced if the routinised ritual cycle (escalation of punishment, policy failure, fear, escalation of punishment etc.) is to be avoided.
The authors are well aware of the power of the status quo. They dub this the ‘uncivil politics of law and order’ which is dogmatic, suspicious of [expertise] which contests pre-existing prejudices, focuses on the exploitation of community anxiety and resentment and is only interested in short-term solutions.
Crime is presented as a permanent, escalating threat which can only be met by increasingly punitive measures to control and suppress it. How can this superficially attractive and readily identifiable scenario be challenged?
Hogg and Brown commence by exploring the limitations of the criminal justice system in tackling crime. Though familiar territory to criminologists and professionals in the system, it is rather shocking for others to discover that the impact on crime of the criminal justice system is marginal. Intimately connected to an understanding of this phenomenon is a grasp of crime statistics which are notoriously misleading unless placed in their proper context. This the authors do in a useful and succinct manner so that the novice emerges with a sense of official statistics, victim surveys and hidden (or unreported) crime which will equip him or her for the next attempted ‘snow job’ by someone with an axe to grind.
This is followed by a meticulous deconstruction of law and order commonsense. This is the commonsense which limits the discourse and allows quick-fix remedies. In essence, it holds that problems associated with crime are capable of resolution by criminal justice agencies but that these agencies (primarily the police) are hindered through lack of powers, resources and the proliferation of due process safeguards which benefit the offender. Thus characterised, it is a simple step to propose that there be more powers, more police and fewer safeguards. This is a familiar and powerful mantra which has dominated debate on law and order.
The difficulty of challenging law and order commonsense cannot be underestimated especially when one acknowledges that these notions are regularly reinforced in the media and that there is a grain of truth in some of them. As the authors put it, ‘common sense is partial rather than wrong. By its very nature it resists engagement with other, more systematic bodies of knowledge where these contradict commonsense assumptions’. Hogg and Brown distil the apparent verities to a list of seven (‘Soaring crime rates’; ‘It’s worse than ever: law and order nostalgia’; ‘New York and LA: the shape of things to come’; ‘Soft on crime: The criminal justice system does not protect its citizens’; ‘We need more police with greater powers’; ‘We need tougher penalties’; ‘Victims should be able to get revenge through the courts’) and then set about dismantling each. In each case it is a delicate exercise which does not simply amount to outright rejection of the commonsense assumption.
For example, they demonstrate that the soaring crime rate phenomenon is sustained by a variety of techniques: simple assertion; relying on short-term statistical trends where they confirm commonsense and rejecting them when they don’t; failure to collect basic statistical data or providing crime data in forms which make comparison over time or across jurisdictions difficult if not impossible; attacking the credibility of those who question the statistical basis of soaring crime rates, often on the basis that they are ivory tower academics/experts who are out of touch with the community. And so on.
The book then proceeds to analyse the law and order commonsense assumptions in relation to two specific case studies: crimes of violence and economic crime. In both areas the need for analysis of specific crimes and particular contexts to develop a full understanding becomes readily apparent.
It is inappropriate to talk in sweeping terms about interpersonal violence. Homicide rates have remained relatively stable over many years. Assault and robbery crimes have increased in the post-war period, partly attributable, it would seem, to drug-taking behaviour.
Assaultive behaviour is predominantly of two kinds: confrontational violence between young men and domestic violence. The vast majority of assaults are not reported to the police. Increases in official statistics are partly explicable in terms of the greater (but not total) community acceptance that domestic violence is not tolerable. The notion of the pathological stranger as the primary source of violent attack is effectively debunked. The socially and economically disenfranchised have a higher rate of victimisation.
The pattern which emerges is not that violence is not a problem but that the form and extent of violence are not well understood and that, consequently, the appropriateness of social and political responses is less than satisfactory.
Some examples of violence are exaggerated in the media, generating unnecessary anxiety. However, other forms of violence (for example, official and institutional violence, ‘hate crimes’ against marginalised minorities, violence within indigenous communities, sexual violence) are understated and do not attract the level of public concern and policy responses that would appear to be warranted.
Hogg and Brown insist that the significance of re-evaluating the form of violence through examining the social and cultural constructions of this type of crime and to point to the limitations of official crime data in the area is not to suggest that violence is not an important social problem. Rather, it is impossible to make judgments about the notion of violence and to develop appropriate policy responses without such an analysis.
The evidence suggests that an understanding of violence cannot, and should not, be isolated from a wider understanding of social institutions and pressures. The authors reject explanations based on individual pathology and external abstract forms of determinism (such as ‘capitalism’ or ‘patriarchy’).
In the interesting chapter on the criminal economy, the authors explore crime on the streets (and the loss of civic trust which has developed from this); ‘crime in the suites’; business and white collar crime; crimes in and against organisations; fraud against the government; collective and organised crime and the heroin economy. The distinctive features of each are analysed.
It becomes clear that those officially processed by the system for street property offences are largely on the social and economic margins. However the system functions in a highly selective manner. The disproportionate number of young and unemployed processed by the system reflects the operation of the system rather than the scale of criminal activity.
Hogg and Brown argue that ‘[s]uch marginality does not only help to explain an involvement in certain types of crime but also provides the conditions which render certain social groups more vulnerable to criminalisation’. ...[Such forms of crime] ... cannot be prevented or reduced without addressing the conditions of marginality of many of its perpetrators and potential recruits. This requires a social investment in family, youth, employment, income support and other services where government must take a leading role.’
As the authors observe, in a climate of financial stringency, the potential to make such an investment is remote unless the declining revenue base can be addressed. One means of doing so is to tackle head on tax evasion and fraud against the government, both of which are the subject of detailed comment in the same chapter.
A central theme of the work is the need to place the causes of crime and the policy responses to the crime problem in their social, political and economic context. Socio-economic disadvantage is identified as a key factor in the genesis of crime. But it is not possible to derive mechanically an automatic link.Critical to the maintenance of social cohesion (and the imhibition of crime) is the capacity to withstand/manage the social stresses which flow from unemployment, low income, poor housing and health, family credit and educational disadvantage.
The authors maintain that the most productive way of providing the necessary formal and informal support is ‘to strengthen the basic fabric and institutions of civil society and empower the growing minority of Australian communities that currently risk being cast into a more or less permanent state of social marginality’. Before reaching this conclusion, however, the book examines law and order politics in international perspective and reviews emergent crime prevention policies.
The comparative cases of the US and UK are instructive both for the similarities and divergences from the Australian case. Each jurisdiction has embraced (notwithstanding divergent philosophies of their major political parties) the typical elements of law and order commonsense identified earlier. Likewise parallel complementary developments can be pinpointed: the shift to privatisation of security; the emergence of crime prevention and the management of crime risks. The progress towards a ‘two-thirds society’ (and a corresponding ‘underclass’) is, however, further down the track in the US and UK than in Australia.
Clarification of the issues and rational discussion of them will not inexorably lead towards a particular outcome. The prevailing political philosophy and its influence on the development of policy are crucial. Hogg and Brown argue that the old left/right political dichotomy and associated terminology are unhelpful and should be jettisoned. They provide a succinct account of five political diagnoses of law and order – neo-conservatism, neo-liberalism, liberal social democracy, communitarianism and radical leftism – and examine their potential to influence social and political change.
But this apparently schematic approach does not mean that these political approaches are hermetically sealed from each other. Indeed some of the most interesting observations relate to potential points of convergence between, for example, neo-liberalism and communitarianism. Both share (for admittedly different reasons) ideas such as participation, community, authority, civic responsibility and civil society.
For some time law and order, somewhat anomalously, enjoyed virtually total immunity from the measures of fiscal accountability which have dominated most areas of social policy in Australia (and kindred countries). This is now changing and crime prevention through modalities other than the escalation of punitive policies have become more attractive. The final chapter explores the relevance of these developments to social policy in Australia.
At a formal level the former federal Labor government embraced a crime prevention policy (Creating a Safer Community) in 1992. The approach was refreshing. Core elements included: a recognition of the limits and costs of the existing criminal justice system as a response to crime; an emphasis on crime prevention rather than reactive law enforcement; the devolution of a substantial responsibility for the prevention and regulation of crime to institutions and individuals within the community; the engendering of social responsibility within society and the development of a more active concept of citizenship; and a corresponding shift in the role of law enforcement agencies, especially policing, in accord with the recognition of the necessary limits on their capacity to control crime and the responsibility of others for public safety and crime prevention. A laudable aspect of this strategy is the shift of responsibility for crime management away from an almost exclusive focus on arresting and punishing offenders to a mixed policy which predominantly features crime prevention and risk management.
The release of this policy received scant media attention. Hogg and Brown point to several difficulties with implementation of the strategy: the electoral politics of law and order; the diversity of the actors involved. One could add the nature of the Australian federal system.
Moreover, a crime control strategy which is centred on substantial devolution of responsibility for crime prevention to the community poses a significant dilemma: communities with least crime are likely to have the resources but least need or motivation to act; communities with most crime will often lack relevant resources.
Hogg and Brown underline the necessity for such a crime control strategy to be complemented by a redistribution of appropriate power and resources, as well as responsibilities if it is to be effective.
The final section of the book provides a useful review of crime prevention approaches. Situational crime prevention attempts to reduce opportunities for crime by increasing risks (or decreasing the benefits) of offending (for example ‘target hardening’ measures such as security devices, property-marking, vandalproofing or environmental design measures such as lighting/surveillance or restricting access to cash via use of EFT).
Hogg and Brown point to the limitations of this strategy: it can only apply to certain crimes; it can raise false expectations; it may lead to ‘displacement’ (a search for softer targets). Ultimately, it is a defensive strategy which does not address any of the fundamental social and individual factors which influence crime.
Social crime prevention, however, focuses on the social organisation of a community and the social effects of disadvantage on the commission of crime. The strategies relate to employment measures, family support, enhancement of the environment, improving leisure opportunities etc.
Developmental crime prevention (which overlaps to some extent with social crime prevention) places an emphasis on child-rearing practices, educational experience etc. Relevant measures include health, child-care and schooling support at an early stage for ‘at risk’ children. The success or failure of any of these approaches (or, a combination of them) will be determined, to some degree, by political commitment.
For example, Hogg and Brown note that government commitment to situational crime prevention (which is the most likely prospect) could well result in merely reinforcing defensive strategies of the well-resourced (the ‘two-thirds society’) against the disenfranchised poor.
They praise the French Bonnemaison scheme (named for the mayor of Lyon who chaired the commission which led to its establishment). Prevention strategies were initiated at the local level. However, importantly, the scheme had support at all levels of government. The main aim ‘was to overcome the effects of social and economic marginality within many French cities through an emphasis upon social development and an extension of the material foundations of full and active citizenship ... Particular programs dealt with such diverse matters as housing, literacy, community service schemes, victim assistance, and youth recreation’.
Recognising the potential inhibition of strong political currents on such an initiative, the authors nominate the strengths of the scheme as: the focus on social prevention measures; the embrace of an inter-agency approach; the avoidance of a project/grant driven approach (which typically occurs elsewhere) and the attempt to incorporate crime prevention in the normal institutional processes of government.
The substantial demise of the scheme carried important lessons for those who seek to emulate it. Hogg and Brown stress the need for the development of a ‘permanent administrative machinery, managerial techniques and expertise’ and a broad non-partisan support base if such a scheme is to avoid collapsing with the departure of the key actors who promoted it.
The painstaking research on, and analysis of, law and order are laudable and welcome but would basically miss the boat if the result failed to communicate effectively the insights gleaned to the intended audience. And given the breadth of the latter this is an ambitious aim. I am happy to report that the book is a triumph of communication, especially given the scope of the subject matter. It is a refreshingly accessible, credible and well-documented account, descriptions which are rarely accorded to the same piece of academic work. The outcome is that not only can students and academics trawl through the voluminous underpinnings of the arguments but the busy politician or bureaucrat or casual reader is not marooned on jargon-laden shoals.
In such a contentious area there will inevitably be disagreement about facts, assumptions, recommendations and conclusions. But none can complain that the material for such healthy contestation and debate is not there. The work is not so much a blueprint for the solution of complex problems as an example of how one might engage with them. If it did no more than contribute to the manner in which law and order issues are discussed henceforth this book will have achieved a great deal. It will hopefully catalyse a rethinking which will translate into concrete policies and initiatives.
In short, the arguments deserve respect, the lucid presentation deserves praise and the challenges posed deserve to receive serious consideration by everyone concerned with this serious issue of public policy, especially by those with power to implement change.