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Is justice fair?

There is a representation of justice.  A woman (lady justice) blindfolded holding the scales of justice in one hard and a sword in the other.  This representation demonstrates a visualisation of the core principles of justice: blindfold for impartiality, the scales for weighting the evidence and the sword, the authority.  The need for this representation is making the point that justice is fair.  To all people justice is an equaliser that brings the balance back to everyday life.  Those who break the natural order are faced with the consequences of the arbitration made by the system that assumes equality for all against the law.  

The representation of justice must be convincing in order to be accepted by the public.  The impartiality has to be demonstrable and the system forms a bond across all social strata.  Well, at least in principle.  There is a difference between representation and reality.  This is something we learn from early on.  As a kid, I remember a special ice-cream in a cup that had a little toy in the bottom of the cup.  It looked so appealing, but the reality never met my expectations.  Still, I continued to buy it, in anticipation that maybe the representation and the reality will meet.  Like the ice cream, the justice system, has a beautiful packaging that makes it incredibly appealing. 

Forged in the flames of the renaissance and the enlightenment, justice transformed from a convenient divinity to a philosophical ideal and a social need.  It became a concept that reflected social changes and economic growth.  Many of the principles of justice, like equality and fairness, carried forward from the classical era.  Only at this time these concepts were enriched with philosophical arguments influenced by humanism.  The age of exploration and knowledge added to the scientific rigour of forensic investigation and the procedures became standardised.  Great minds conceptualised some of theoretical aspects and transferred them in everyday practice.  Cesare Beccaria’s treatise On Crimes and Punishments demonstrated how humanist principles can affect procedure and sentencing. 

This justice system was/is our social “ice cream”.  Desirable and available to all citizens.  A system beyond people and social status, able to call individuals to account.  Unfortunately like my childhood “ice cream” equally disappointing, primarily because the reality is not even close to the representation.  The principles of justice are all noble and inspiring.  There is however something behind the systems that needs to be explored in order to understand why reality and representation are so far apart.  The guiding principle of any justice system from inception to this day is not to restore the balance (as so beautifully demonstrated with the scales) but to maintain the established order or the social status quo

On the occasions where societies broke down because of war or revolution, significant changes happened.  Those allowed some reforms in different parts of the system allowing changes, sometimes even radical.  Even at those situations the reforms were never too radical or too extensive.  Regardless of the political system, tyrannical, dictatorial or democratic, the establishment is keen to maintain its authority over the people.  For this to happen, the system must be biased in its inception about what we mean about justice.  If the expectations of law and order are given a direction, then the entire system follows that direction and all changes are more cosmetic than fundamental.  Quite possibly this explains what we recognise as miscarriages of justice as simply the inability of the system to be more tactful about its choices and arbitrations. 

Therefore, tax avoidance and drug use take a different level of priority in the system.  It is the same reason that people from different socioeconomic groups are seem differently, regardless of the system’s reassurance on equality and fairness.  Maybe the biggest irony of all is that the representation of justice is a woman, in one of the most male dominated systems.  From the senior judiciary to the heads of police and the prison systems, women are still highly underrepresented.  Whilst the representation of ethnic minorities is even lower.  Of course, even if it was to change in composition, that would be arguably a cosmetic change.  Perhaps it is time as society to use consumer law and demand that our justice system is like it’s been advertised…fair.       

https://www.pikrepo.com/flrpo/lady-justice-statue

Terrorised into compliance

Edvard Munch, (1893) The Scream

Learning and teaching is a complex business, difficult to describe even by those in the process of either/or both. Pedagogy, as defined by Lexico is ‘[t]he method and practice of teaching, especially as an academic subject or theoretical concept’. It underpins all teaching activity and despite the seemingly straightforward definition, is a complex business.  At university, there are a variety of pedagogies both across and within disciplines. How to teach, is as much of a hot topic, as what to teach and the methods and practices are varied.

So how would you feel if I said I wanted Criminology students to quake in their boots at the prospect of missing classes? Or “literally feel terror” at the thought of failing to do their reading or not submitting an assessment? Would you see this as a positive attempt to motivate an eager learner? A reaction to getting the best out of lazy or recalcitrant students? A way of instilling discipline, keeping them on the straight and narrow on the road to achieving success? After all, if the grades are good then everything must be okay? Furthermore, given many Criminology graduate go on to careers within Foucault’s ‘disciplinary society’ maybe it would be useful to give them a taste of what’s to come for the people they deal with (1977: 209).

Hopefully, you are aghast that I would even consider such an approach (I promise, I’m definitely not) and you’ve already thought of strong, considered arguments as to why this would be a very bad idea Yet, last week the new Home Secretary, Pritti Patel stated that she wanted people to “literally feel terror” at the prospect of becoming involved in crime. Although presented as a novel policy, many will recognise this approach as firmly rooted in ideas from the Classical School of Criminology. Based on the concepts of certainty, celerity and severity, these ideas sought to move away from barbaric notions and practices to a more sophisticated understanding of crime and punishment.

Deterrence (at the heart of Classical School thought) can be general or specific; focused on society or individuals. Patel appears to be directing her focus on the latter, suggesting that feelings of “terror” will deter individuals from committing crime. Certainly, one of the classical school’s primary texts, On Crime and Punishment addresses this issue:

‘What is the political intention of punishments? To terrify, and to be an example to others. Is this intention answered, by thus privately torturing the guilty and the innocent?’

(Beccaria, 1778: 64)

So, let’s think through this idea of terrorising people away from crime, could it work? As I’ve argued before if your crime is a matter of conscience it is highly unlikely to work (think Conscientious Objectors, Suffragettes, some terrorists). If it is a crime of necessity, stealing to feed yourself or your family, it is also unlikely to succeed, certainly the choice between starvation and crime is terrifying already. What about children testing boundaries with peers, can they really think through all the consequences of actions, research suggests that may not be case (Rutherford, 1986/2002). Other scenarios could include those under the influence of alcohol/drugs and mental health illnesses, both of which may have an impact on individual ability to think through problems and solutions. All in all, it seems not everyone can be deterred and furthermore, not all crimes are deterrable (Jacobs, 2010). So much for the Home Secretary’s grand solution to crime.

As Drillminister demonstrates to powerful effect, violent language is contextual (see @sineqd‘s discussion here). Whilst threats to kill are perceived as violence when uttered by young, black men in hoods, in the mouths of politicians they apparently lose their viciousness. What should we then make of Pritti Patel’s threats to make citizens “literally feel terror”?

Selected bibliography

Beccaria, Cesare, (1778), An Essay on Crimes and Punishments, (Edinburgh: Alexander Donaldson), [online]. Available from: https://archive.org/details/essayoncrimespu00Becc/page/n3

Foucault, Michel, (1977), Discipline and Punish: The Birth of the Prison, tr. from the French by Alan Sheridan, (London: Penguin Books)

Jacobs, Bruce A., (2010), ‘Deterrence and Deterrability’, Criminology, 48, 2: 417-441

Rutherford, Andrew, (1986/2002), Growing Out of Crime: The New Era, (Winchester: Waterside Press)

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