Emile Durkheim upset a lot of people, back in the late 19th century, by claiming that there was a “normal” rate of crime, which society seeks to maintain. He argued that the apprehension and punishment of criminals served a social function, by reaffirming everyone else’s commitment to the social order. In the same way that public rituals serve as a reaffirmation of faith for members of certain religion communities, the punishment of criminals plays the same role for members of society more generally. We find it easier to do our part in maintaining the social order when we have visible evidence that those who fail to do so are being appropriately sanctioned.
This is why the general public takes such a keen interest in the punishment of criminals, and much less in, say, road maintenance, even though with the division of labour, there are agents of the state whose job it is to make sure that each is done expeditiously. But in order for this reaffirmation of the social order to take place, there must first be a sufficient number of criminals. This is where the “normal” rate of crime comes in – this is the level that is functionally required to maintain social solidarity. Durkheim argued that the crime rate cannot really drop much below this normal level, because if it does, society will respond by criminalizing new forms of behaviour, in order to bring the rate back up.
The background picture here is one in which there is a continuum of anti-social behaviour, starting with the merely impolite, then continuing up through the immoral to the outright illegal. No society anywhere comes even close to criminalizing all of the anti-social behaviour that takes place. Instead, society will pick only the most egregious and harmful forms for legal regulation. Furthermore, within the field of what is legally regulated, the police and judiciary will focus enforcement efforts (ideally) only on the most serious violations of law, while letting an enormous amount else slide.
As a result, should the “crime rate” drop, it is easy to bring it back up again (or slow its decline), simply by expanding enforcement and criminalization to other areas. In particular, one can criminalize forms of social deviance that had previously not been subject to legal regulation. (It should be noted that this is not just a legislative but also a social process. Criminalization of these areas will often coincide with decreased social tolerance for these forms of behaviour. In many cases, it will be accompanied by “moral panics.”)
This is a process that has been going on for the past several decades, quite obviously, in the way that we treat juvenile offences. Basically, in response to the decline in violent crime among adults, we have been criminalizing violence among young people – violence that has always occurred, but that traditionally had not been thought of as requiring the intervention of the criminal justice system. Listening to my father’s stories of what school was like in the 40’s and 50’s, it’s amazing that anyone made it out alive. But even I witnessed a fair bit of violence, going to school in the 1970s and early 80s. My high school, in particular, was pretty tough. But through it all, I cannot remember seeing a police car at the school even once.
No one thought it was great that kids were beating each other up – sometimes badly enough to result in broken bones – or dealing drugs, or stealing. It’s just that it wasn’t seen a criminal justice issue. It was something for the vice-principal to deal with, not the police.
Accompanying this extension of the criminal justice system into the sphere of juvenile behaviour has been a signficant decrease in social tolerance towards sexual activity directed towards or involving children (or young persons more generally). When I was in grade 2, I used to walk home alone from school, along the riverbank in Saskatoon. One day an older man exposed himself to me, and invited me over, asking if I wanted “to have some fun.” I said no and continued on my way. When I told my parents about this, they didn’t call the police. I don’t think it even occurred to them. The only consequence was that I was instructed, in the future, to stay on the sidewalk, and not go walking through the trees or down to the waterfront.
Now of course none of this is to say that it’s okay for kids to be beating each other senseless on the schoolyard, or for child molestors to be lurking around by the riverbanks. All of these was considered “bad” back in the 70s, just as it is now. It’s just that it wasn’t considered criminal. We, as a society, have expanded our concept of what should count as criminal, to encompass forms of behaviour that were, in the past, regarded merely as anti-social (or as behavioural problems, to be managed in some other way). Durkheim’s suggestion – the one that got so many people upset – is that this sort of expansion of the domain of the criminal often occurs in response to a felt need, a need to find enough people to punish, to maintain a symbolic affirmation of the social order.
I don’t know if this theory is right or wrong (and obviously, the way it is presented by Durkheim relies upon a problematic form of functional explanation). But I do find the general idea helpful, as I struggle to understand the attitudes of the current Conservative government, and many of their supporters, toward criminal justice issues. Many people find it strange that the government should be promoting hysteria over crime – and passing no fewer than 90 different criminal justice bills – at a time when crime rates are dropping. But from a Durkheimian perspective, it is perfectly understandable. The decreased tolerance is a consequence of the declining crime rate. It is the mechanism through which our conception of the “criminal” is expanded, in order to keep the rate from falling too low.
I was struck by this the other day, reading the following headline in the Globe and Mail: The Crime Rate is Down, But Are We Really Safe? (an oped by Neil Desai). Again, there is that peculiar sense of anxiety about the decline of crime, and thus, a need to pump it up in some way. Desai says the following:
Sadly, Statscan reports that the violations of child pornography and the sexual violation against children were both up, 46 per cent and 6 per cent respectively, in 2014. Terrorism related crime was reported to have increased by 39 per cent. Identity fraud increased by 8 per cent and other forms of fraud by 2 per cent.
While on the surface it may seem that there are no ties that bind these growing areas of crime, they are bound by their greatest enabling tool, the Internet. Whether it is the exploitation of children, fraud or terrorism, the Internet and the mass proliferation of apps and the Dark Web have profoundly changed the nature of crime
Oh my God, not the Dark Web! That doesn’t sound good… The suggestion is that the internet is creating new forms of crime. In some cases this may be true, but in others it seems to me likely that what is going on is just decreased tolerance for anti-social behaviour that has always been going on (where perhaps, before the internet, we didn’t realize how much of it was going on).
P.S. This Durkheimian analysis is also why I have never been able to buy into strict Kantian theories of law, which posit a sharp distinction between what is criminal and what is immoral