Foucault traces the gradual evolution of this notion of government: basically when Monarchs discovered they could no longer survive just on tithes from the peasantry but realised they had to take steps to encourage trade and commerce. One of its earliest manifestations was the concept of ‘police’ which up until the nineteenth century meant keeping society in good order and securing ‘the right disposition of things’. This was a much wider process than crime control.
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What is important is the distinction between government (as Foucault uses the term – as direction and management of social processes to retain them in good working order) and sovereignty as authority and right. It helps us understand the origin of the distinction between due process and crime control gradually becomes secularised and democratised. The authority of the king is replaced by the authority of government acting in the name of the people whose civil and legal rights must be respected. This is the product of the great revolutions and changes of the seventeenth and eighteenth centuries in Europe. Justice comes to include the right of all citizens to equal treatment before the law, the right to a fair trial, to be innocent until proved guilty ‘beyond reasonable doubt’ and freedom from arbitrary coercion and surveillance by the state. Crime, in this perspective is no longer simply an affront to the authority of the sovereign. More Though in criminal, as opposed to civil law crime is still often seen as a violation of the ‘Queens Peace’. In a criminal trial, unlike civil litigation, the State is still the injured party at law and the victim merely a witness for the state.
Gradually becomes more elaborate and sophisticate as securing the ‘right disposition of things’ gives way to modern conceptions of social and economic policy. Crime, from this standpoint is no longer simply an affront to the State’s authority, or to the rights of the modern citizen to go about their lives unmolested, but it is also inefficient, and disruptive to the working of society. It must be effectively controlled for these reasons.
In modern society sovereignty and government co-exist. Sovereignty is ‘governmentalized’, that is to say it provides the authority necessary for the effective regulation of society. But, it must do so in a way which—in modern liberal democracies—is consistent with human rights. Effective crime control must have regard for due process and civil rights
The competence of the modern state to govern was only established gradually. Effective crime control is one of the most interesting areas of social policy to trace historically.
If we look at Britain in, say, the eighteenth century, the government of crime was certainly ineffective by modern standards. We can look at the characteristics of that period in terms of the left
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realist analysis of the ‘square of crime’ that is in terms of the relationships between the state, offenders, victims and communities.
The eighteenth century state apparatus was weak and the government lacked effective control of large areas of terrain. In rural areas ‘law and order’ might be several hours or days away in terms of travelling time. Some rural areas were inaccessible and functioned as sanctuaries for bandits and highwaymen, as did areas of the growing cities: the so called ‘rookeries’ of eighteenth and early nineteenth century London for example.
Criminal offenders included many powerfully armed (by the standards of the day) gangs of professional bandits and smugglers who could evade or outshoot the agencies of law enforcement.
The relation between criminality and legitimate activity was often blurred in the eyes of the poor. Certain types of crime were well integrated into the lives of local communities (for example smuggling and poaching) in some areas whole communities lived by crime of this sort. This toleration of criminality—which was scarcely seen as such—meant the information about crime flowing to the authorities was minimal. The legitimacy of the state was frequently in question and its incursions into the lives of people often resisted
Over much lower level petty criminality the community itself acted on behalf of the victim and ‘took the law into its own hands’ which at the time was seen as quite natural. Recourse to the courts was a time consuming and very expensive affair. Varieties of ‘community justice’ proliferated.
The state tended to compensate for its inefficiency by increasing the range of barbaric penalties. The ‘Bloody Code’ of eighteenth century England was so called because of the wide range of petty offences—such as sheep stealing—which were subject to capital punishment.
By and large, in the modern period, the balance between justice and effectiveness was not seen as a problem. It was seen, insofar as it was considered at all, as guaranteed by the following social arrangements which can, again, be described in terms of the ‘square of crime’
The modern state is more powerful than the offender. There are no rural areas to which the police do not have rapid access. The
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modern city contains no ‘rookeries’ or ‘no-go’ areas for the criminal justice or other state agencies.
Criminal offenders are weaker than either the community and state. While victims may be overpowered by offenders, the power and organisational base of traditional gangs (bandits and outlaws) is undermined in modern industrial society. Organised professional criminals tend to evade the state by disguise, but modern forensic police methods and the ability to rely on community sources of information enables these forms of criminality to be contained.
In a functioning liberal democracy both the criminal law itself and the criminal justice agencies can be expected to enjoy the broad support of the population. The adherence to the rules of due process and the respect for civil rights is a factor in guaranteeing the legitimacy of the state and hence the willingness of the public to call upon it, to supply information, appears as witnesses in court etc. Likewise, the modern industrial capitalist economy draws the vast majority of people into wage labour of one form or another. There are no longer substantial communities living through pilferage or in the shadows of legality. Criminality is marginalised in all sections of society.
The victim ‘hands over’ all aspects of crime control to the state and accepts a role as passive onlooker (as witness for the prosecution). Community involvement in crime control is reduced to ‘informal social control’ and moral support for victims. These are important functions but not part of the direct control of crime.
In other words in modern society due process is considered as aiding crime control by reinforcing the legitimacy of the criminal justice system and at the same time the weakness of offenders, the information sources at the disposal of the state mean that a reasonable level of convictions can be secured (with their attendant deterrent effects on potential offenders) despite the necessity to respect individual rights (innocent until proved guilty ‘beyond reasonable doubt’, the right to silence etc.)
The big exception to all this is interstate warfare. In pre-industrial societies, particularly during the Middle Ages in Europe, where state boundaries were less firm, warfare, rebellion, crime were frequent and more or less on a continuum. As Foucault observes in his book Discipline and Punish. (London: Allen Lane.1977)
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"The right to punish... is an aspect of the sovereign's right to make war on his enemies.... the public execution... brought to a solemn end a war, the outcome of which was decided in advance, between the criminal and the sovereign." (Pages 48-50)
Modern warfare by contrast, that of the nineteenth and most of the twentieth century is fought between nation states and governed by various forms of ritual (official declarations of war, rules of warfare such as the Geneva Convention etc.). Wars are episodic and involve the mobilisation of the whole population. War thus becomes a legitimate period for the suspension of normal civil liberties in the interests of defeating an ‘external enemy’ who is powerful and must be fought by exceptional means. Thus mechanisms such as martial law, internment without trial, etc. are justified for the duration of ‘wartime’ as an exceptional period.
Over the last third of the twentieth century it has become clear that these, taken for granted, characteristics of ‘modern society’ are rapidly crumbling. Sociologists, literary and media writers, and politicians talk increasingly about the transition to ‘post-modern’ or ‘late modern’ society
Some of the reflections of these changes can be seen in the high profile debates about criminal justice: crime control seems in perpetual crisis with, for example, declining clear up rates for crime, problems of dealing with new forms of crime such as organised crime, internet fraud etc. At the same time the notion of due process seems under threat with proposed restrictions on Jury trial, increasing police powers, the increasing use of pre-emptive criminalisation, the modification of the right to silence etc. We can derive a preliminary map of some of the changes in terms of our model of the ‘square of crime’
The nation state appears increasingly weak in the face of globalisation. Economic and financial networks, the activities of multinational corporations all seem beyond effective control and regulation by national criminal justice or other regulatory agencies. The internet and the financial networks provide a new form of ‘sanctuary’ into which various forms of criminality – money
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laundering, fraud, tax evasion, drug dealing, can disappear almost without trace. At the same time the increasing unevenness of global economic development is recreating more traditional forms of sanctuary—geographical areas where the state agencies venture, at the most, episodically: rundown inner city and poor communities in the cities of the industrialised world and whole regions of the third world become areas where the freedom of criminal groups to organise and operate is increasing.
Some varieties of criminal offenders are becoming increasingly powerful again: international organised crime groups and internet fraudsters have already been mentioned. At the other end of the spectrum the fragmentation and isolation of many communities enhances the power of offenders, such as violent husbands, rapists, and paedophiles for example by cutting off networks of community social control and support for victims.
Communities become increasingly fragmented in two senses. Firstly, globalisation cuts communities off from sources of information about crime. Unlike the activities of ‘local villains’ few people are in a position to have information about the activities of international drugs shipments. The flow, and quality, of information to the authorities about this type of crime is reduced. At the same time the fragmentation of local communities in poor inner city areas means people interact less and tend to bolt themselves behind reinforced doors rather than find out what’s going on. In a similar way the amount and quality of information about crime is reduced.
Victims of many types of crime become isolated. Communities and structures of informal control are weak. The weakening of cultural norms of behaviour leads to a ‘normalisation’ of crime. Offenders and victims are less clearly marked out as departures from normality.
The final development which we have all become aware of since 11th September 2001 is the blurring of the boundaries between war and crime. Clearly defined inter-state wars are a thing of the past. Terrorism, irregular warfare, ethnic cleansing are the types of ‘war’ which will predominate in the new century. These conflicts, known by some as ‘new wars’ that cross state boundaries, are fought by mixtures of terrorist groups, organised crime (using drugs to pay for arms is a key component of financing irregular armies) as well as regular armies. This means that the distinction between war and
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crime becomes blurred. George Bush the US President declared the terrorist actions of September 2001 as ‘acts of war’. Other’s disagreed and pointed to the fact that terrorist groups involved were not the armies of particular states (though they may receive finance and training in some cases). Conflicts involving terrorism have no start and finish dates—they are ‘permanent warfare’. This means that the distinction between war and crime moves back to that described above by Foucault as characterising the pre-modern period.
All these factors test the relation between due process and crime control to breaking point. Suspension of civil liberties in the interests of warfare is no longer a specific episode but may become a permanent feature. Police demand new powers of intrusive surveillance against powerful offenders to compensate for what is seen as the decline in available information leading to apprehension of such offenders. There are plenty of legislative examples of this in the UK.
