Introduction
The essay deals with the theme of criminal laws and our overdependence on them to the extent where it reflects poorly on our ability to handle human conflict by any other means. With a multitude of systems at hand affecting individual freedom and social stability, we first question if there even is an overdependence. Through the course of this essay, we then examine the implications of any dependence on the formal criminal justice system, whether good or bad and what role alternative means of social control can play in bringing about the ends that criminal laws aim to achieve. Both society and the State’s response to human conflict are discussed, as well as identifying the underlying structural issues that affect them both.
Are We Overdependent on Criminal Law?
At the outset, it is prudent to ask the question of whether society truly is overdependent on criminal laws. When we think of criminal laws today, we look at a broader picture – we think of the criminal justice system as a whole – with crime prevention, the use and effectiveness of the police, prosecution etc. But safety no longer depends only on the criminal justice system. The Government itself has numerous other mechanisms through which they handle human conflicts.[1] Taxation (reducing alcohol consumption)[2] and tort law (compensation)[3] are often used in the place of criminal law. This is because the government is aware of the shortcomings of depending solely on criminal law.[4]
However, even beyond the government, there are other mechanisms at work. Alternative dispute resolution mechanisms, such as arbitration, mediation and negotiation, have become quite popular in recent times and are being preferred over litigation. This is because these processes tend to be less expensive and more expeditious. Religion also plays a huge role in handling human conflicts- various religions and their practices have their ways of resolving conflicts as well. Additionally, social norms and the stigma attached to certain kinds of behaviour play a role in regulating behaviour that might be considered deviant.[5] Other than these, individuals themselves do not completely trust the government to protect them. Many people think that the government is corrupt and even if it weren’t, they think the system is inadequate.[6] This is perhaps the reason why many individuals find other ways of protecting themselves – the popularization of privatized security companies, gated communities, CCTV cameras shows just that.[7]
For a long time now, there has been a deep distrust in the State’s forces being adequate to grapple with crime. The dissatisfaction with formal legal systems explains the existence of other means that the public resort to in order to feel safe. Moreover, studies show that media’s exaggerated coverage and portrayal of crimes has caused the popular perception that crimes are increasing across the world.[8] Whether or not this may actually be true, this perception, combined with the distrust in the criminal justice system, leads to people resorting to additional methods for their protection.[9]
However, is it enough to say that just because communities now have private security guards and people are relying on alternative dispute resolution mechanisms, there is not a dependence on the state’s criminal justice system? When one uses said private security system or CCTV cameras to catch a thief, do they not then call the police to deal with the thief?[10] Perhaps, a better viewpoint would be that there exist today, a multitude of safety and securitization means not dependent on the criminal justice system alone. All of these various means of social control are not independent of each other – they run hand in hand with criminal law.[11]
Can It be called Overdependence?
Despite this, it is unjust to claim that there is an overdependence on the criminal justice system, the implication of which would be the State being absolved of its own duties to protect its people.[12] As the social contract theory[13] suggests, people give up certain rights in exchange for state protection and it is hence the state’s duty to ensure that it follows through to this dependence. The responsibility of controlling crimes and the blame for the failure of the same cannot be passed on to the citizens themselves. This would be unfair because it is the purpose of criminal law, and the duty of the government to provide the citizens with security.[14] This is especially true for several sections of society (women, lgbtq+, poor, lower castes etc) that require state assistance to defend themselves due to socio-political disadvantages. Pat O’ Meally called this concept ‘responsibilization’ – the devolution of responsibilities of crime prevention onto citizens which would lead to reinforcement of exclusions and social segregation.[15] Hence, the justice system cannot claim overdependence and ask citizens to fend for themselves.
Legitimacy of Law
When we speak about dependence on criminal law, we must acknowledge the power and legitimacy that criminal law carries with it. James M. Anderson and Ivan Waggoner call criminal law ‘society’s most serious expression of moral disapproval’[16]. If a certain behaviour is branded as illegal, it is taken more seriously – the force of law comes with a degree of power over the people. Though they may not trust the system, they still believe the system is legitimate, which is what causes dependence. Other means of handling human conflicts like mediation may function, but it is indisputable that despite these mechanisms, the criminal justice system still has more legitimacy and power.
Citizens may not like the way courts function, with their long-drawn and complicated procedures, but they still go to court due to the unequivocal power that it carries.[17] Furthermore, criminal law is seen to be necessary when it comes to grave human conflicts – when dealing with murders and rapes, most people trust only the formalized criminal justice systems to handle the issue.[18] Media’s stress on the increase in policing and punishment as the antidote to crimes has only reinforced this perception.[19] Hence it is this power and legitimacy of criminal laws, that make them necessary and this necessity is what leads to the dependence on them.
Additionally, the use of alternative means can also be dangerous at times, an example of which would be the recent suicide of Manav Singh, a 17-year old boy after he was accused of rape on social media. This was an unintended consequence of trial by media -several people online had already decided he was a criminal, acting as judge, jury and executioner. In cases like this, the necessity of relying on criminal law with its principle of ‘innocent until proven guilty’, can be seen as it could have helped prevent such an incident.
Why Such Overdependence on Criminal Law is Problematic
However, while criminal law is necessary at times, there are also cases in which its usage is a bad fit. The law itself can be ineffective. This is true in case of laws punishing possession and consumption of drugs; having serious punishments has been proven not to be an effective deterrent and yet there exist criminal sanctions against the same. In the UK, lawmakers realized that illegalization of alcohol was unsuccessful- leading to black market extortion and racketeering. Hence, although the poor were more adversely affected, taxation was seen to be a safer deterring alternative. This example shows us that an overdependence on only criminal laws, for all conflicts, is detrimental to achieving social stability.
Criminal law, despite its shortfalls, has become the instinctive response to a lot of society’s problems. But problems of deep-rooted inequalities cannot be targeted only by criminal laws. Further, the implementation of criminal laws is often quite discriminatory. Malcom Feeley and Jonathan Simon claim that social control by state or private organizations occurs not on the basis of individuals’ wrongdoings but on the foundation of identification and classification of certain groups as ‘dangerous’.[20] Increased surveillance in African-American neighbourhoods in American cities, is proof of that.[21]
While caste activists talk about the criminal justice system oppressing marginalised communities, feminists question the efficacy of using criminal law in the first place to target patriarchy. Despite this, it is criminal laws that are primarily relied on by the state to subdue protests, to handle sexual violence questions and even deal with the current pandemic. The COVID-19 crisis, for example, is being treated as a law and order issue, with the Ministry of Home Affairs at the helm of tackling the issue. In the name of public health and safety, a number of measures were adopted which were discriminatory and anti-poor such as migrant workers being sprayed with chemical disinfectants while trying to get home. It is important to think about whether actions are the required means for the ends that society hopes to achieve.
Overdependence on criminal laws alone can be dangerous, for all crimes are not witnessed and even if they are, they may not be reported.[22] Despite being reported, a conviction isn’t always guaranteed. Besides this, a conviction does not always mean justice, as the law gets to label which behaviours and acts constitute crimes and which do not.[23] But what is right and what is wrong isn’t very black and white – people’s moralities are different and change over time like in cases such as homosexuality or marital rape. We must also take into account that the State has its own interests that it acts upon – for example, in India several laws reflect the political considerations of lawmakers.[24] These various factors can lead to the system being quite arbitrary. So, giving a law that isn’t perfect, and in no way can be perfect, the power it has can be ineffective. When the law itself is imperfect, over depending on it is an issue too.
This shows us that the government needs to approach issues in a different way. Instead of criminal law being the default, each type of conflict needs to be tackled differently. In certain cases, civil remedies might be more effective than criminal ones, while out of court settlements may be the best choice for others. Regardless of the route chosen, it’s important to have checks and balances across the board so that different methodologies work hand in hand with each other.
Criminal Law as a Means of Social Control
While we talk of alternative methodologies, the State’s response to crime in terms of what means of social control it applies is also important to study. According to David Garland, various penal actions include penal afflictions (punishments that wound offenders’ bodies), penal levies (punishments that appropriate offenders’ resources), penal controls (punishments that impose restraints on offenders), and penal assistance (punishments that provide resources to offenders) – and which of these the state employs to tackle social control plays a major impact on its effectiveness. Most countries employ penal control as the mainstream method for maintaining law and order but we’ve seen how strict penal action doesn’t necessitate deterrence or a fall in recidivism. Studies show that countries that employ penal assistance methodologies instead, are much more successful in reducing crime rates.
Though there is the whole discussion on the synergizing of various methodologies and a change in the state’s penal behaviour, that in itself may not help. “Interpersonal violence is a product of various social and economic structures, mediated by patterns of social control.” Tackling crime doesn’t just involve effective policing and surveillance – a range of institutions and systems are at hand, such as education, health, social care etc. So perhaps the way we see social control itself must change from state repression to how society structures itself. We must look at civil society’s routines of socialization, norm-setting, monitoring, and informal sanctioning—routines that channel individuals in law-abiding directions, establish peaceable social relations, and create safe public spaces. Thus when we think of alternative means of social control, we must think of structural changes to society itself.
For example, alternative means of social control would be ineffective if the economy is structured in a way that does not provide for any state protection when it comes to job security, housing etc., – an economic model that is too liberal, may lead to more crimes. David Garland argues that “America’s capitalist economy and its restrained social protections are detrimental to the functioning of poor families and communities, limiting their social control capabilities and giving rise to increased neighbourhood disorganisation and criminal violence.” He believes that America’s political economy, with its poorly funded public sector and underdeveloped welfare apparatus, limits the capacity of government agencies to respond with social services and policy interventions as alternatives to policing and imprisonment. Thus we see how structural problems affect not only existing social control methodologies but also the possible effectiveness of alternative ones.
Conclusion
Ultimately, we can say that the way most societies in the world are structured currently, a large amount of dependence, if not overdependence, on criminal laws is inevitable. Despite a vast range of alternative factors playing into individual freedom and social stability, we cannot ignore the role and necessity of formal criminal justice systems today. However, various criminologists, activists, feminists etc. have pointed out the disadvantages of such an overdependence on criminal laws.
These insights are helpful in thinking about the changes we need to make. We have seen how alternative methodologies to bring about social stability are very much necessary and can act as a supplement, not a replacement, of the mechanisms already in place. Religious pressures, privatized security, self-defence, taxation and compensation laws – all work hand in hand with criminal laws. But of course, these alternative means are in no way the perfect solution – taxation on vices discriminates against the poor while doing nothing to stop vices completely[25], similarly, mediation or out of court settlements are perhaps impossible in rape cases. Even changing entire economic structures is impossible or would take tremendous time. Thus, though not a solution to all of society’s problems with handling human conflicts, alternative means supplementing existing criminal laws, is definitely a start.
About the Author, Isha Tandon and Sanjana Manusanipalli [2018-23] are 4th Year students at NALSAR University of Law, Hyderabad with a great interest in criminal law and its intersection with sociology
[1] Andrew Ashworth & Lucia Zedner, Punishment Paradigms and the Role of the Preventive State, in Liberal Criminal Theory, 3, 11 (AP Simester et al. eds., 1st ed. 2014).
[2] A P Simester & Andreas von Hirsch, Crimes, Harms, and Wrongs On the Principles of Criminalisation, 193 (1st ed. 2011).
[3] Id. 194.
[4] Supra Note 2.
[5] Stafford M.C., Scott R.R., The Dilemma Of Difference: Stigma, Deviance and Social Control, 77-79, (Stafford M.C. et al. eds., Springer, 1986).
[6] Mike Hough & Julian V. Roberts, Public Opinion, Crime, And Criminal Justice, in The Oxford Handbook of Criminology 279, 289 – 294 (Mike Maguire et al. eds., 5th ed. 2012).
[7] Ian Roder & Richard Sparks, Situating Criminology: On The Production And Consumption Of Knowledge About Crime And Justice, in The Oxford Handbook Of Criminology 3, 13 (Mike Maguire et al. eds., 5th ed. 2012).
[8] Chris Greer & Robert Reiner, Mediated Mayhem: Media, Crime and Criminal Justice, in The Oxford Handbook Of Criminology 245, 247 – 262 (Mike Maguire et al. eds., 5th ed. 2012).
[9] Id.
[10] Tim Hope, Community Crime Prevention In Britain: A Strategic Overview, 1 Criminal Justice 421, 439 (2001).
[11] Fiona Brookman & Amanda Robinson, Violent Crime, in The Oxford Handbook Of Criminology 563, 583 (Mike Maguire et al. eds., 5th ed. 2012).
[12] Adam Crawford & Karen Evans, Crime Prevention and Community Safety, in The Oxford Handbook of Criminology 769, 788 (Mike Maguire et al. eds., 5th ed. 2012).
[13] JJ Rousseau, The Social Contract And Other Later Political Writings (Cambridge University Press 2018).
[14] Supra Note 1, 10.
[15] Paul Rock, Sociological Theories of Crime, in The Oxford Handbook of Criminology 39, 72 (Mike Maguire et al. eds., 5th ed. 2012).
[16] James M. Anderson & Ivan Waggoner, The Changing Role of Criminal Law in Controlling Corporate Behavior 9 (1st ed. 2014).
[17] Supra Note 6.
[18] Supra Note 2, 197-198.
[19] Supra Note 8, 269.
[20] J. Simon & M. M. Feeley, The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications, 30 Criminology 449, 474 (2007).
[21] Brianna Remster & Rory Kramer, Race, Space, and Surveillance: Understanding the Relationship between Criminal Justice Contact and Institutional Involvement, 4 Sage (2018).
[22] Supra Note 15, 66.
[23] Id.
[24] James Q. Wilson et al., American Government: Institutions and Policies 17-18 (15th ed. 2017).
[25] Supra Note 2.
Criminal Law Research & Review 