Liberalism and Crime

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SULLIVAN

Law • Political Science “Liberalism and Crime: The British Experience is a wide-ranging and fascinating chronicle that will ultimately repay perseverance.” —Crime Prevention and Community Safety

Robert R. Sullivan is professor emeritus at John Jay College of Criminal Justice and at the Graduate Center of the City University of New York.

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LIBERALISM AND CRIME

In Liberalism and Crime, Robert R. Sullivan offers an alternate way of looking at liberalism, using the usurpation of the welfare state in Britain by a free market–oriented economy as his crucible. Not content with the academic interpretation of liberalism as an offshoot of analytic philosophy, Sullivan has woven together a convincing demonstration that liberalism is born out of an alternative approach—one based in active thought and reasonable argument. The tapestry of this study touches on the breakup of British Marxism, the influence of crime on British polity, and the arguments of Ronald Clarke against “medical criminology.” Shifting societal responsibility onto the individual citizen, this new, alternative model of liberalism was fully ushered in by the rise of Margaret Thatcher and continued with Tony Blair and the New Labour movement in the 1990s. Because similar shifts occurred in the United States simultaneously, this argument should be of interest to both general American and British readers, as well as academics in political theory, cultural studies, criminology, and British studies.

LIBERALISM AND CRIME The British Experience

ISBN-13: 978-0-7391-2928-9 ISBN-10: 0-7391-2928-7

ROBERT R. SULLIVAN

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Selected Bibliography Index About the Author

Contents

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Preface

The transition has been a kind of purification, a shift away from the welfare state and welfare liberalism, which sought to liberate individuals, toward a kind of liberalism that seeks to limit the power of the state and (perhaps) strengthen rule of law, all in the name of protecting established individuals. The latter figure is usually described in terms of pounds and pence, or in the language of the cousins, dollars and cents. I call the more recent ideology neoliberalism, but I don't claim to be original in the use of the term. It describes the state of affairs introduced into England by Margaret Thatcher and into the United States by Ronald Reagan and continued by Bill Clinton and Tony Blair. I might be slightly more original with the term welfare liberalism. I have been told that it is an oxymoron. My defense has been stated above. I think it is entirely liberal to argue for the expansion of state powers for the sake of conquering hunger, ignorance, poverty, and whatever other afflictions the lower orders may have. What needs to be made clear is that these kinds of initiatives by no means amount to socialism. The latter entails state ownership of the means of production, and since the Butskellite compromises of the late 1950s, the Labour Party has not aspired to such goals. David Marquand is entirely correct in pointing out that Britain does not even have a socialist party.' It has a Labour Party, and at least until recently, that party's mandate was to cut a better deal for the trade unions at the big collective bargaining arrangement called Whitehall. Between Attlee and Blair, the Labour Party practiced welfare 1iberalism. The story of the transition from welfare liberalism to neoliberalism is usually told in dated terms. In Britain, the Beveridge Report announced the broad goals of the welfare state, the pronouncements of T. H. Marshall set the development of social citizenship in its broad historical context, and the more detailed writings of Richard Titmuss spelled out the advantages of welfare. The opposition chorus, often dominated by central Europeans, brought home to the English the lessons of the AngloSaxon past. Hayek, Popper, Berlin, and Friedman warned of the dangers of collective solutions and big government. By the 1970s, when their voices began to be heeded, practical challenges were mounted from the back benches of the Tory party. The new liberalism, or what is here called neoliberalism, triumphed at the polls in 1979, and it was affmed by the opposition in 1997. Such a version of the story is less than complete and is in any case too intellectual. Needed is a closer look at the details of the process of consolidation that took place in the period leading up to the Thatcher era and then in the Thatcher era itself. The choice of crime and criminal justice to do this job is not entirely accidental. Rising crime rates

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became a major political issue in Britain and the United States at the same time, around 1970, and so too did the heavy-handed reaction of the welfare state to crime and deviance. With this development, the choice of observing the shift from welfare liberalism to neoliberalism through the prism of crime and criminal justice was not a particularly difficult one. But why English crime and criminal justice to the exclusion of the American variants on the same theme? Here too the reasons are practical. From John Jay College of Criminal Justice in New York City, I was assigned for the fall 1996 semester to Bramshill, the national police training college for the United Kingdom. I quickly determined that there was no way I could reasonably be fitted into Bramshill's brief training programs. They lasted one or two weeks, were planned far in advance, and were sharply focused on the development of managerial skills in British policing. From the laid-back educational programs of the 1970s, keyed to reading the likes of DeFoe, Austen or Dickens, Brarnshill had shifted over to sharply defined training programs designed to make the British police run with the efficiency of a Swiss watch. I was suited for drinking pints at the Mansion bar, however, and there I met no end of high ranking police officers who were willing to share their insights. It quickly dawned on me that Bramshill was a microcosm of changes taking place in Britain. I heard talk of chiefs negotiating contracts, of the public being treated as customers, and of devolution of budgets down the ladder from chiefs to superintendents. The shadow Home Secretary, Jack Straw, was then said to be every bit as tough on crime as his Tory counterpart, Michael Howard, but even more important, he was said to be even more businesslike. This seemed to me plausible, and so I decided then and there that I had a good case study. The United States is not left out entirely. American criminal justice has a strong influence on its British counterpart, so strong in fact that I often wondered whether I had not put the horse before the cart. Thinkers like Robert Martinson, James Q. Wilson, and Charles Murray had as much influence in Britain as in the United States. But happily I also knew, and sometimes learned, that British thinkers like E. P. Thompson, Stuart Hall, Douglas Hay, Ron Clarke and Jock Young-all of whom wrote on criminal justice in the 1970s-had their share of influence in the United States. Moreover, as these names indicate, the British had a wider political spectrum than the Americans, evidenced by the lively debate among British Marxists in the 1970s. For a mix of reasons I finally settled on the British prism, but this by no means meant that I had left the United States out. In accounting for how this book has come about, I need to acknowledge that I have been influenced by a group of thinkers whose

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concerns are similar to mine. They are somewhat clumsily called The History of the Present research network, and they are centered in London. I have benefited from Nikolas Rose's discussion of the death of the social and of what he calls advanced liberalism, not because he is right but rather because he (and they) brought into focus a lot that had been hitherto vague for me. I also benefited by Pat O'Malley's many writings on criminal justice, not because they were always right but because they were invariably imaginative. I also found Richard Ericson's thinking on policing something called the risk society to be helpful. And finally, I benefited from many conversations with Kevin Stenson.. I believe that this group of thinkers is conceptualizing contemporary liberalism as few other thinkers have, and so my debt to them is a burden I am happy to relieve myself of. Along the way I have incurred more specific debts that I am more than eager to repay. A number of British police officials were my first teachers. I can't begin to thank them all, but I have to express a specific note of gratitude to Chief Superintendent Gerry Delagarde of the Metropolitan police, Superintendent Ted Bellingham of the Surrey police, Superintendent Alan Radford of the Cambridgeshire police and Assistant Chief Constable Joe Frost of the Wales police. I am also grateful to Neil Richards and Sue Roberts of the Brarnshill staff. Crossing the line into the academic world, my greatest debt is to Professor Robert Reiner of the London School of Economics, who was thoroughly welcoming to me and facilitated what turned out to be a prolonged stay at the LSE. I am also grateful to Professors Paul Rock, David Downes, and Stan Cohen for good conversations at the LSE. Beyond the confines of that superb institution, I benefited from conversations with academics from other institutions. I would like to thank Professors Barry Loveday, Tony Bottoms, Eugene Mclaughlin, Geoff Pearson, David Garland, Karim Murji, Vicenzo Ruggiero, Joe Sim, and John Lea for excellent conversations. Present or former Home Office researchers were also generous. I include here Ben Bowling, Marian Fitzgerald, Tim Newburn, Kevin Heal, Tim Hope, and Paul Wiles, although I talked with the latter three only briefly. One of my greatest regrets is that I did not have more time to talk with Kevin Heal. I am very grateful to Professor Ron Clarke of Rutgers University for the time he spent with me explaining his period as head of the Home Office Research Unit. I am also grateful to Professor Marcus Felson for a brief but insightful conversation. Needless to say, with so many persons to thank, no one of them is responsible for the interpretations argued in this book. As I was made aware at a seminar at the LSE in which I tested out an early version of

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this book, they are very much my own way of understanding recent British crime and criminal justice. Hopefully my somewhat exotic way of seeing things British will pay back in small measure the generosity extended to me by the persons named above.

Notes 1 David Marquand, "Love the Warts," The Times Literary Supplement, July 14, 2000,6.

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Introduction

This interpretation made for an interesting story, especially if one broadened the definition of criminal justice enough to bring to the field scholarly "tourists" such as Edward P. Thompson, Stuart Hall, and Douglas Hay as well as Paul Hirst and Barry Hindess. Even Alvin Gouldner, a leading American sociologist who, for all I know, may never even have set foot in Britain, got involved. These people were big names on the left, in radical sociology, and in a new field called British cultural studies, and so their contributions made British criminology in the 1970s into a rich stew. They and their various overheated claims suggested that the argument was about the character of the British state. The 1970s was an exciting decade in other national schooIs of criminology as well, and for similar reasons. France provides one such example. One of the decade's leading books, Michel Foucault's Discipline and Punish, elevated the debate about the state to an entirely different level. Its argument was that the prison was not merely a site of legal punishment but was also a sovereign expression of the state's need to discipline individual members of its population. For Foucault the prison was not an isolated moment, an exception to the rule of liberal tolerance and freedom, but was rather an integral element in a system of liberal institutions. Foucault capitalized on the collapse of the Marxist left in France to apply the assemblage of anti-totalitarian concepts to liberal society and the liberal state. Foucault's book had the singular good fortune of arriving on top of an already rich discourse on the questionable place of the prison in liberal society.3Irving Goffman had published Asylums seventeen years earlier: and David Rothrnan's The Discovery of the Asylum was published in 1971.' The basic argument of these books-that the prison was a totalizing institution that would stop at nothing to discipline the individu a k w a s popularized in Ken Kesey's One Flew Over the Cuckoo's Nest, and the issue was further popularized when Kesey's novel was made into a feature-length film.6 Foucault thus generalized an already existing argument, and one that was already critical of existing liberal institutions. Concepts have a way of migrating, usually by becoming metaphors that slip through the filters of the conscious mind and come to rest in the soft terrain of the unconscious. Changed, they then comprise the footsoldiers of a mobile army that marches here and there over the countryside, laying waste the landscape of the conscious mind and raising questions that could never be anticipated through direct conceptual analysis. For young British scholars in the 1970s, the notions of the panopticon and the carceral archipelago evoked images of the Western state acting increasingly like an Orwellian Big Brother. The liberal state was getting out of con-

Introduction

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trol, and the battles won in the seventeenth century were being lost in the late twentieth century. Or so it then seemed. With reflection, things were of course not so dire, but in any case the question to which this book would be an answer began to change. In my mind, the question began to shift into one about the ends of Anglo-Saxon liberalism, in respect to which the literature of British criminology began to metamorphose into a set of testimonial^.^ An example will illustrate this point. To be sure, Stuart Hall's Policing the Crisis was about the police, but it was also about the institutions for gaining consent, or rather consensus, in Western polities.8 Hence the usual criticisms of Hall-that he was not empirical enough, that he did not demonstrate his claim, that he did not take "real" crime seriously, that his book was theoretically over-deterrnined-all suddenly seemed to be missing the point. I do not want to make a bad book good by simply changing the lens on my camera, but I do want to say that Hall's Policing the Crisis made a much better read as a political testimonial than as a piece of criminology. In effect, a collection of unrelated events glued together by literary stopgaps began to come together more firmly at the level of political theory. The latter, as Isaiah Berlin never tired of reminding us, is a discourse about the ends of society, the state, or the individual. As such, it differs markedly from routine discussions in criminology or criminal justice, or for that matter political science. These discussions are for the most part about means rather than ends, about the efficacy of the House of Lords or single-member constituencies, or modes of contemporary policing. Such discussion usually presupposes an already settled consensus on the ends of society, or the state. Such debates cease being technical and become more interesting when ends are called into question, which parenthetically explains why Foucault's Discipline and Punish came as such an epiphany. As the most radical questioning of one means of liberal society, it easily became a discourse on the ends of liberal society. For this reason it worked to change the vision of politics, and in this form it also worked to make books like Stuart Hall's Policing the Crisis more interesting. The new question-What's happening with Anglo-Saxon liberalism? --seemed also to provide something of an answer to the first question about what was happening in British criminology. Why was British criminology so interesting in the 1970s? The reason was not that it was a wild party of superannuated hippies, but rather that it provided a prism on some of the key issues of Western liberalism. At this point the reader is urged to appreciate how Anglo-Saxon liberalism was experienced by a young American in the 1970s. The answer is

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Introduction

through reflection on John Rawls's A Theory of ~ u s t i c eFor . ~ those of us who participated in that debate in the 1970s, the impression gained was that welfare liberalism had at last found its Kant. The rights that were being argued so elegantly, with much talk about veils of ignorance and getting into the original position, were welfare rights, and they were being put forth as categorical imperatives: as commands that were universal because they were chosen with regard to no one and everyone. It seemed to many of us back then that the United States was at last graduating to the expanded vision of citizenship that T. H. Marshall had identified in his famous 1950 lecture.'' We Americans had been ahead of Britain in putting into stone our civil and political rights, but had lagged far behind in securing welfare rights. Now at last we were about to catch up to the cousins. But Rawls's thinking did not square with what was really happening in the 1970s in both Britain and the United States. This is what makes the attention then paid to Rawls now seem like mere rights talk, to use Mary Ann Glendon's dismissive term." In retrospect, welfare liberalism now seems to have been under constant siege, and nowhere more so than in Britain in the 1970s. But that was not all. Welfare liberalism was nowhere more under attack than from the left. What seemed to emerge, especially from the sociology of deviance that dominated the mainstream of British criminology, was a set of alternative values that prized the freedom of the individual, the more marginal the better. If I understood things correctly, liberalism was being challenged by democratic forces, and these were much more potent than Rawls's legalistic arguments. Here, in other words, was a variation on the theme of identity politics, never more visible than at the 1972 Democratic Party convention in the United States. Feminists, gays, Vietnam veterans and beyond them, and especially in England, drugtakers, motorcycle gangs such as the Mods and the Rockers, artists, working-class kids, blacks, immigrants-all seemed to embody the nascent values of a new liberalism. Stan Cohen's motorcycle gangs did not want welfare, which presupposed they were "sick" or "at risk" or otherwise in need of help, also known as intervention. They wanted what Isaiah Berlin called negative liberty, which in their case added up to being left alone by the cops. Identity politics entailed the freedom to be what one chose to be, not what mainstream society or the state decided one should be. Something was happening with Anglo-Saxon liberalism, but you couldn't find it out from Rawls. What was happening, of course, was the transition from the welfare state to the risk society, to a neoliberalism intent on shifting responsibility for security from the state to the individual. The shift was being played out in no central location but rather in innumerable smaller, more

Introduction

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local sites. British criminology happened to be one of these, and so British criminology suddenly took on new and unexpected meanings. And why not? What academic disciplines were better structured to act as a prism of this change, and what better discipline than British criminology? The mother of British criminology was the central state, specifically the Home Office. Academic criminology in Britain was from the outset a weak and dependent set of sucklings located at the comers of the Golden Triangl-he London School of Economics (LSE), Oxford, and Cambridge. For a while everything was comfortable. But then the puny ninety-pound academic David rose up against the Whitehall Goliath, but not in the manner one might expect. The origin of the uprising was not in the Golden Triangle, but rather took shape in a free-floating arrangement called the National Deviancy Conference (NDC), a group of dissident scholars who met at places like Edge Hill in Liverpool and Middlesex on London's outskirts. And then there was a second and even more Marxist uprising at Warwick University and at the Birmingham Centre for Cultural Studies. By the 1970s, the field of criminal justice in Britain was in a state of virtual civil war. Let us make no mistake about the significance and character of this uprising against welfare liberalism. Margaret Thatcher was the real author of the neoliberal state, but her work was done in the 1980s. The British criminologists from beyond the fringe of the establishment criminology comprised of the Home Office and the Golden Triangle universities were not just ahead of Thatcher in time, they frankly staked out positions at which she would never arrive. Of course Thatcher was a practical politician, and like all practical politicians she was above all interested in holding onto power. But still, it was an unlikely cast of characters, made up of persons like Jock Young, Stan Cohen, Stuart Hall, E. P. Thompson, Laurie Taylor, Geoff Pearson, and Douglas Hay, who mounted the most vigorous defense of the autonomous individual and the most sustained attack on the arrogance of the welfare state. It would seem appropriate at this point to draw up a provisional conclusion: What question is this book the answer to? Clearly, for me it was and is a question about the changing character of Anglo-Saxon liberalism. Welfare liberalism was based upon the ontological priority of the collective. But clearly "the social" was now dying, a fact to which Jean Baudrillard and Nikolas Rose would later call attention.12The wonder is that the social had ever lived, given that it rested on the collective experiences of the factory, of Fordist assembly lines, and of dying in trenches at Ypres and on the Somme, none of them particularly edifying. On the surface, the social was not a communal experience, but given the hold it

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attained, one has to assume it was communal, meaning moral, in its sinews. But now it was dying. Yet nature abhors a vacuum, and so the void being created was soon filled by concern for the individual in the face of a state keyed to serve the collectivity. On behalf of drugtakers, Mods and Rockers, prisoners at Durham, young Afro-Caribbeans, the concern was with an assembly of institutions that seemed intent on creating a repressive collectivity that would crush out their nascent individualism. There were few better and more telling testimonials to the proverbial death of the social than Jock Young's The Drugtakers, for Young spent more time attacking the absolute character of society than defending drug users. On the other side, a new liberalism seemed to be rising. It is a question about the character of the transition from the old to the new that this book was becoming an answer to. Both of the great Anglo-Saxon liberal democracies, the United Kingdom and the United States, have gone through a radical shift in the forms of their dominant ideology in the last thirty years. The British welfare state, the American Great Society, or New Deal state, have come under severe challenge and given way to what in this book will alternately be called "risk" societies, market societies, or neoliberalism. These social revolutions were put into practice by Margaret Thatcher and Ronald Reagan and are not altogether inaccurately described as Thatcherism and Reaganism. One argument of this book is that the ideas and policies of Thatcherism and Reaganism were not only paralleled in British criminology but were actually anticipated and prophesied in the literature of British criminology in the 1970s.

But in fact my elusive question soon proved to be inadequate. If I followed its logic, I ended up having to explain the thinking of Jock Young as a form of nascent neoliberalism. While there was a certain plausibility to this line of interpretation, in the end it was not enough to satisfy. Young was an avowed Marxist, and Marxists weren't supposed to be arguing in favor of individual autonomy. I was no less troubled by the growing autonomy of the British state, as evidenced in the failure of all British governments to downsize the state, especially in criminal justice. The state seemed to have a will to power of its own, and it was at odds with liberalism's value of limiting the power of the state. And finally I was troubled by the Whiggish character of Leon Radzinowicz's fivevolume history of English criminal law.13 But even more so I was troubled by the attack on the English criminal law in the name of rule of law,

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especially since this attack came from the Marxist left. What were Marxists doing defending the rule of law against its priestly celebrants in the liberal state? All of these questions led me to the conclusion that a more radical questioning was needed. The trigger leading to this more radical questioning was the emphasis given to juridij?cation, or the creation of law-abiding citizens, in the writings of Michel Foucault. What precisely did juridification mean? After much hemming and hawing, it seemed to boil down to the production of a calculable human being, and thus an ungainly term such as Pat O'Malley's responsibilization, used to describe some of the policies of the Thatcher state, could only mean the sustained effort to induce British citizens and subjects to act calculably. But wasn't this what Friedrich Nietzsche was talking about in the second essay of The Genealogy of Morals when he concluded his introductory remarks by noting that this "precisely is the long story of how responsibility originated? It presupposed a prolonged effort that "first makes men to a certain degree necessary, uniform, like among like, regular, and consequently ~alculable."'~ So James Tully was onto something when he spoke of the penalized self as being the real liberal self in John Locke's legal philosophy.'5 In other words, human beings only became calculable, or in legal terminology, juridified, when they were persuaded (compelled might be a better term) to act on a regime of rewards and punishments. Rule of law now appeared in an entirely different light. At first glance it seemed to be a matter of churning out the regime Friedrich Hayek wrote so much about. In this deeply conventional vision of liberalism's empire, criminal justice is a rough measure of society's failure to juridify its citizens. But are things really this way? Is it not rather that liberalism desires calculable human subjects and rule of law is a fancy way to justify the docility such a liberalism entails? Was liberalism anything other than a matter of breeding an animal with the right to make promises, as Nietzsche put it in the first sentence of the same second essay cited above? Liberalism in this vision becomes an ideology of law, not the rule of law. At this point the reader must perform a somewhat awkward somersault. Instead of seeing liberalism as a long-standing effort to institute rule of law, he or she needs to turn the telescope around and see rule of law, or rather the production of docility, as a kind of Hegelian march of God through history, with liberalism as one of its articulations. The much vaunted autonomy of the individual is just a way of isolating the subject so that he can be invested with legal goods, like rights and duties. These then make him law-abiding, or as Foucault might put it, docile.

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Introduction

It is just this kind of inverted view of liberalism that put fire in the bellies of British criminological thinkers such as Jock Young, Stan Cohen, or Geoff Pearson. At first I wanted to interpret them as reasserting the primacy of the liberal value of the autonomous individual. They were all, to different degrees, followers of the deviance sociology of Howard Becker and were thus critics of a criminal justice system that labeled individuals as deviant or, in the extreme version of the same thing, criminal, in order to maintain social control. This was not what a liberal-and I emphasise liberal--criminal justice system should be doing. The cry of Young, Cohen, Pearson and many others was to bring the criminal justice system back to its liberal senses. What could be more respectable than renewing the classical appeal of the sanctity of the autonomous individual by limiting the power of the state? At first glance this looked like a decent liberal argument. If we follow the line of reasoning being developed here, then existing, real liberalism begins to look like a totalitarian political system. But this seems just such a preposterous statement that it cannot be taken as indicative of anything more than infantile rebellion. Has it not always been the intent of liberalism to limit the power of the state and thus avoid precisely this totalitarian outcome? Has liberalism not understood the problem posed by raison d'ktat and has it not responded to it in the most effective of ways, by placing constitutional limits on the powers of the state in the name of defending the rights of the autonomous individual? But if the notion of the autonomous individual is a fiction, then liberalism may have to create the reality of autonomy, and this may entail increasing the powers of the state. To put this problem in the language of Isaiah Berlin, negative liberty, which presupposes an already existing autonomous individual, is in contradition to positive liberty, which presupposes the opposite and thus seeks to produce autonomy. Sometimes this conflict is posed as one between Anglo-Saxon liberalism and continental liberalism, but such ethnic and geographic distinctions are not always definitive. There is something to be said for seeing the distinction between negative and positive liberty as one between and earlier and simpler liberalism, established by already existing autonomous individuals, and a liberalism with a universality claim, one that exists more as dream than reality. Let us take this problematic from only one side: from Irnmanuel Kant to Friedrich Hayek, the liberal vision of rule of law posits a being that does not exist, the autonomoumeaning fully responsiblsitizen. The morally autonomous being is a wish, a dream, and a fantasy completely in harmony with the notion of a laissez-faire state. Nietzsche's poetic argument, taken in its simplest terms, is that such a being cannot

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be presupposed but must in all cases be produced, and in fact was. Thus the fully laissez-faire state always was a fantasy because its presuppositions did not exist. But if all of this is the case, then the liberal ideal of limiting the power of the state is fated to fail. Nietzsche versus Kant points up the problem that the state may grow more rather than less powerful in its efforts to responsibilize its citizens. Let me present the problem through from a different figure, although I hasten to add that I will be saying exactly what I said in the previous paragraph. Most liberal presentations portray conflict along the following lines: First there was laissez-faire liberalism, which posited existing autonomous individuals and simply provided the night watchman state. Next there was welfare liberalism, which posited non-autonomous individuals and provided in response a large and overweening bureaucratic state trying to produce the needed liberty but finally only producing more dependency. Lastly, there is a more recent neoliberalism, which cuts the state down to size in its effort to expand the autonomy of dependent individuals by responsibilizing them. Such a triangular model is convenient but naive. A more realistic picture, drawn from Nietzsche and Foucault and centered on rule of law is one that recognizes that individuals in all cases are "made" and that rule of law is a chief instrument of their making. Necessarily, we must then recognize that the laissez-faire state was never really laissez-faire at all. This was rather the spin it put on its activities, and in fact even the slightest familiarity with enclosure in the eighteenth century reveals that the existing British state was anything but laissez-faire. It bbmade"autonomous individuals by privatizing millions of acres of hitherto common land. Welfare liberalism "made" autonomous individuals in a different way, and very much of what it did was premised on the ruination of the landed aristocracy through such measures as the repeal of the corn laws and various reform bills. Neoliberalism records the rise of a new class of autonomous individuals, ironically very much in "trade," Essex men of various sorts, and seeks to responsibilize the erstwhile working class by passing on as many of the security functions of the state as it can get away with. The above is of course a sweeping interpretation of British social history over the past three centuries, and the reader is free to take of it what he or she pleases, but one point is vital to this book, and this is that rule of law is what Foucault called productive. This in any case will be one of the assumptions of this book, and thus the term neoliberalism is not simply a shift in nomenclature but refers to a distinctly new selfconsciousness in political liberalism.

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I doubt whether E. P. Thompson would find anything surprising about the above analysis. His Whigs & Hunters was a thorough demolition of the illusion of a laissez-faire liberal state. The same thing might be said of the institutionalized paternalism of the British assize courts in the eighteenth century, as described by Douglas Hay. But looked at from the other side of the political ledger, is there any doubt but that Leon Radzinowicz believed that the English middle classes were sent by God to bring the blessings of law to what used to be called the lower orders? In fairness, I hasten to add that none of this is to say that academics such as Jock Young or state functionaries such as Ron Clarke had quite such a self-consciousness of the inveterate productivity of the state. On the contrary, it is to ask the question whether they do, and to what extent, and. how it works out. This emphasis on productivity is one of the threads that runs through this book.

Isaiah Berlin's 'Two Concepts of Liberty" is a commentary on the thematic conflict between democracy and liberalism, played out in this book as a conflict between the welfare state and the neoliberal state. Berlin leaves the impression that the surest guarantee of his vaunted negative liberty is a minimal or laissez-faire state, but-following the above argument-that is unlikely ever to have been the case.16 I agree with the objection that I am reading a good deal into Berlin; the state actually appears only on the side of positive liberty. But I take the absence of any real discussion of the state on the negative liberty side to be an intimation of a laissez-faire attitude on Berlin's part. Berlin thus fails to answer the question that really matters: If positive liberty with all its danger or productivity is somehow spirited away, then what's left? It is a world governed by a night-watchman state that is duty-bound to secure nothing more than the attainments of the few. What is needed in Berlin is a vision, however frail and sketchy, of productivity, of a state that secures the existence of negative liberty by making the autonomous beings it otherwise presupposes. None of this is in Berlin's famous essay. In The Constitution of Liberty, Hayek was actually closer to the truth by laying great emphasis on rule of law, but he, too, seemed finally to think that less was more when it came to the state.17 Hayek was more aware than most thinkers of the need for a moral basis for law. He believed that a utopia made up of moral beings would preclude any need for the state, but once again this only begged the question: Where would these moral beings come from? Hayek, following Wilhelm von Humboldt in spirit, may have believed that the answer lay in education, in

Introduction

11

Bildung in the classical sense of that word, but this only displaced the question of where such Bildung, so obviously a form of productivity, was supposed to come from. Humboldt did not want it to come from the state because of his belief that the state could not deliver it, but in the end he became the minister of education and created the education system that was to produce infinitely more conformity than individ~alit~.'~ The problem that Humboldt failed to solve remains unsolved in Hayek. Douglas Hay's famous article on property and the criminal law in the middle eighteenth century is not so much a study of the workings of assize courts as it is a study of the use of majestas, or the luminous power of the state. Majestas worked to make the law effective throughout England by cowing the populace into docility.19 Probably Hay intended to make a familiar Marxist argument about the law being a tool of existing bourgeois power, but his essay is frankly more interesting if read from a Foucaultian rather than a Marxian perspective. The law, backed up by the majestas of the state, was being productive and not only repressive, and while it is not possible to imagine a repressive law being anything other than a tool of the ruling class, it is possible to imagine a productive law being used positively as well as negatively. Stuart Hall's Policing the Crisis is in essence not different in its complaint. It is about the British state's transgression of the liberal value of consent, arguing that the state creates the consent from which it derives its legitimacy." Hall portrays a liberal political world stood upside down in the British welfare state. Hay and Hall were Marxists and so might be dismissed or easily explained away; David Garland was not. Yet he argued along similar lines that the early-twentiethcentury British welfare state was intent on establishing its power over individuals who fell into its grips in the criminal justice system.21Yet it is entirely possible to read all these books through Foucaultian rather than Marxist eyes and see the criminal law they survey as being productive as well as repressive. The most persuasive of all the arguments of this type was one that originated in the Home Office and revealed itself only piecemeal in the 1970s and 1980s. It was that the "medical model" of rehabilitation presupposed convicted criminals to be "sick" and thus applied to them techniques of change that circumvented the juridical model more appropriate to a liberal criminal justice. The arguments were made by Ron Clarke, whose aim was to restore sovereignty to the individual criminal. Clarke's thinking is obviously interesting. It cleanly distinguishes between law as repressive and law as productive. But it is also interesting for a less obvious reason, and this is that it incorporates one of the ways in which contemporary liberalism will struggle with its own intestinal viruses. The legal notion that criminals are "sick" is for Ron Clarke it-

12

Introduction

self "sick," and thus the antidote of imagining an autonomous criminal, one who reasons for himself and is responsible for his actions, is itself a medicine for the law. What Ron Clarke was reminding us of in his writings was that criminals were never sick and that all along-which means over the course of the welfare state-it was the law itself that was "sick." Clarke's program became even more interesting when it was implemented by the British state in the 1980s. But this was not because Clarke's ideas for situational crime control succeeded but rather because they ran up against the relentless power of an executive state trying to maintain itself." The contest between juridical and medical models of the state is an exiting one to reconstruct, but the ending is not one fashioned in Hollywood. With unsurpassed irony that struggle was resolved by Michael Howard and others in charge of the British state in favor of a different variant on the medical model, one that insisted that some criminals were terminally ill and that for them more prisons should be built. Not everyone will be happy with my reconstruction of what was significant in British criminal justice in the 1980s, but if it is remembered that this book is primarily about liberalism and not about criminal justice itself, then I am content to suffer the consequences. All too often, Anglo-Saxon liberalism seems to be the opposite of what it claims to be. It claims to be a philosophy centered on the end of individual autonomy, but in fact it may be in the business of creating nothing more noble than a calculable being, and thus it is at odds with any genuine human autonomy. From Locke to Hayek, liberalism laid claim to being a philosophy intent on establishing rule of law, but this may be only a different way of saying the same thing, namely, that its aim was to create law-abiding citizens, who for all practical purposes are calculable men, and calculable men are docile men. They can make and hold contracts, which are actually formalized promises to behave in predictable or calculable ways, but can they really take responsibility? Finally, recent Anglo-Saxon liberalism would limit the power of the state, but in reality the liberal state is constantly intent on expanding its power relative to the individual, so much so as to make a mockery of the proclaimed ideal of limited state power. The question being formulated in this section goes beyond the point arrived at by those Anglo-Foucaultians who see their mission as describing the conduct of conduct in a neoliberal risk society.23To presuppose a world in which conduct, or action, is always being conducted (in the managerial sense of that term) is to beg the question whether there is any autonomy in such a world. Beyond the description of what is the case-that conduct is being conducted-the question is whether this

Introduction

13

condition can be transcended and in what sense. The answer to such an unavoidable question lies with a state that makes it its business to make subjects into responsible citizens, and such responsibilization means-if it means anything at all-that citizens conduct their own conduct.

The reader will be pleased by an eminently practical turn at the end of a speculative introduction. Like Gaul, this book will be organized into three parts, each representing a perspective on the question of changing Anglo-Saxon liberalism at the end of the twentieth century. The first part concerns the autonomous individual and looks at various criminological writings done in the academic world and the Home Office to see the reassertion of this figure in the 1970s. It is concerned to ask whether the figure being produced is the average man of contemporary actuarialism, or the responsible man presupposed by the British legal system, or some comic opposite of homo actuarialus. The leading figures of this part of the book will be Jock Young, Stan Cohen, Geoff Pearson, and Ron Clarke. The second part deals with limiting the powers of the state, and it attempts to come to terms with claims that state power---by which I mean the powers of the British executive state, commonly called Whitehallis either getting out of control or being downsized, hollowed out, or some such thing. The fear here is that the state is indeed thinking and acting in actuarial terms, producing a stereotypical crime such as "mugging" precisely for the sake of manipulating the population, or producing a procedure such as the medical model for the sake of treating a presupposedly "sick" population. The chief actors in this part are Stuart Hall and, again, Ron Clarke. The third part is called, appropriately enough given the struggles noted in this introduction, rule of law. The fear is that law is a shill for the executive state; the possibility is that a genuine rule of law-with its moral foundations rooted firmly in society-may triumph over such will to power as the state possesses. Here the conflicting arguments of Leon Radzinowicz, E. P. Thompson, Douglas Hay, and David Garland are discussed. After nine chapters of such discussion, I return to these same three basic themes in the conclusion.

Introduction

Notes 1. David Garland, "Of Crimes and Criminals: The Development of Criminology in Britain," in Mike Maguire, Rod Morgan, and Robert Reiner, The Oxford Handbook of Criminology (Oxford: Oxford Univ. Press, 1997). 2. The eleven-plus generation refers to a group of working-class children who were suddenly afforded an opportunity for upward advancement through a test which allowed entrance into grammar schools, or higher quality state high schools. The test was phased out in the late 1960s. 3. Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1979). 4. Irving Goffman, Asylums (New York: Doubleday Anchor, 1961). 5. David Rothman, The Discovery of the Asylum (Boston: Little, Brown, & Co., 1971); See also Michael Ignatieff, A Just Measure of Pain (New York: Pantheon Books, 1978) for a comparable treatment of the subject. 6. Ken Kesey, One Flew Over the Cuckoo's Nest (New York: New American Library, 1962). 7. Anglo-Saxon liberalism is the main school of liberalism, in contrast to socalled continental liberalism, which is a weak cousin. Both Alexis de Tocqueville and John Stuart Mill distinguish Anglo-Saxon from continental liberalism. 8. Stuart Hall, Chas Critcher, Tony Jefferson, John Clarke, Brian Roberts, Policing the Crisis, Mugging, the State, and Law and Order (London: Macmillan, 1978). 9. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard Univ. Press, 1971). 10. T. H. Marshall, "Citizenship and Social Class" in T. H. Marshall, Class, Citizenship, and Social Development (New York: Doubleday, 1965). 11. Mary Ann Glendon, Rights Talk (New York: The Free Press, 1991). 12. Jean Baudrillard, In the Shadow of the Silent Majorities or, The End of the Social and Other Essays (New York: Semiotext(e), 1983); Nikolas Rose, 'The Death of the Social? Refiguring the Territory of Government, Economy and Society, vol. 25, no. 3, Aug. 1996. 13. Leon Radzinowicz, A History of English Criminal Law and its Administration, 5 vols. (London: Heinemann, 1949-1986; vol. 5 with Roger Hood and by Oxford Univ. Press, 1986). 14. Friedrich Nietzsche, On the Genealogy of Morals, trans. Walter Kaufmann (New York: Vintage Books, 1967). 15. James Tully, An Approach to Political Philosophy (Cambridge: Cambridge Univ. Press, 1993), 239-241. 18. Isaiah Berlin, Four Essays on Liberty (Oxford: Oxford Univ. Press, 1969). 19. Friedrich A. Hayek, The Constitution of Liberty (Chicago: Univ. of Chicago Press, 1961). 20. Humboldt is clear on his objections, and he strengthens his arguments immeasurably by positing goodwill on the part of the state. But even with the

Introduction

15

best of wills, the state still produces malign results. Wilhelm von Humboldt, The Limits of State Action (Indianapolis: Liberty Fund, 1993), 18-22. 21. Douglas Hay, Peter Linebaugh, John G. Rule, E. P. Thompson, Cal Winslow, Albion's Fatal Tree (London: Allen Lane, 1975). 22. Stuart Hall et al., op. cit. 23. David Garland, Punishment and Welfare (Aldershot: Gower, 1985). 24. Clarke's arguments are in Home Office publications and will be cited in ch. 4 and ch. 6. 25. For a recent statement of the Anglo-Foucaultian position, see Nikolas Rose, Powers of Freedom, Reframing Political Thought (Cambridge: Cambridge Univ. Press, 1999).

18

Chapter One

centralized system. Just as the common law was once local but has become centralized through the institution of a sovereign Parliament, so, too, policing has a local tradition, beginning in the nineteenth century, that continues to this day in the form of local police authorities. But we should not think that local and central pulls are balanced. The trend since World War I1 is toward greater central authority. It was not until the 1950s that the Home Office formalized a research function and thus initiated systematic reflection on crime and criminal justice throughout the United ~ i n ~ d o In m .brief, ~ the Home Office Research Unit, later the Research and Planning Unit, was then put into place. Its counterpart in the United States would be the National Institute of Justice (NU), but here, too, the comparison is misleading, because the NU'S influence on operations is indirect, whereas the Home Office Research and Planning Unit (often simply called the Unit) has a more direct connection to policymakers. At the same time, Leon Radzinowicz founded the Institute for Criminology at the University of Cambridge, thus formalizing the study of crime and criminal justice at the academic level.' Already, however, academic work was being undertaken by Hermann Mannheim at the London School of Economics and Max Grunhut at the University of Oxford, so Radzinowicz was not a complete innovator. From the outset, however, Radzinowicz' Cambridge Institute was definitely something of a Home Office adjunct. In the United States there is no counterpart to this direct and official connection between government and private research. Because of federalism, by which is meant the existence of separate state legal systems, the United States is always more decentralized than Britain. By the mid-1960s, the picture of British criminology was simple and for the most part not very interesting. A few studies were being turned out by the Unit in the Home Office, and other studies were occasionally emitting from the Golden Triangle universities at Cambridge, Oxford, and the London School of Economics. The great work of the time was Leon Radzinowicz' History of English Criminal Law and Its Administration, a projected five-volume work that would take nearly forty years to complete.6 Radzinowicz's History was an important book for establishing the tone of British criminal justice. It was a celebration of the triumph of English criminal law, and more specifically of the achievements of Parliament in orchestrating the initiatives from below of enlightened Whigs struggling to make order in the face of opposition from Tories and unruly mobs of displaced peasants and, later, workers. Radzinowicz's five-volume History is not so important for its specific arguments as it is for its unstated presuppositions. Modem criminal jus-

A Thumbnail Sketch of Recent British Criminal Justice

19

tice as Radzinowicz saw it was the willful imposition of order on the most disordered parts of the world. The genius of England was that it had invented an institution, Parliament, that could coordinate the revelations of saintly groups of reformers in orderly fashion and still have the energy to leave behind a record of its proceedings. If I claim that Radzinowicz's work is a portrayal of a march of God through history, of a triumph of the will and above all the will to power, I shall be thought entirely misguided, but such Germanic formulations are not entirely off the mark. At the very least, Radzinowicz's History is Whiggish like no other work in modem British criminology, and for partaking of that spirit it is crucial to this book. It is considered in chapter nine. Once again, it might be appropriate to make a brief comparison to the United States. Americans have nothing like Radzinowicz's work, but since the 1950s the United States has had the Model Criminal Code, and although hardly comparable in its particulars, much less its style, it has had the similar function of embodying liberal norms for the criminal law. The difference is that the American Model Criminal Code is highly abstract and thoroughly informed by Millsean standards, above all the harm standard and the somewhat looser Millsean standard that moral offenses should not be criminalized (or should be decriminalized). To describe Radzinowicz's work as Germanic is a little unfair to the British, for at least since Thomas Macaulay the inhabitants of Shakespeare's sceptered isle on their own have been writing histories that embody a Whig standard of progress. Radzinowicz was completely aligned with this mode of construing history. Thus where American criminal law was seen as something of a dog's breakfast in the 1950s, English criminal law was portrayed by Radzinowicz as a triumph of enlightened Whig reason. It is this Whiggish quality of Radzinowicz's work that would open him up to a challenge that would emanate from E. P. Thompson and other historians of the Warwick school. Some of these works are considered in chapter eight. The universities were initially in a sweetheart relationship with the government, and in the case of Cambridge it was a controlled relationship. Entirely missing from British criminology and criminal justice was a critical or reflective faculty. Because of that complacency, I argue that the more promising innovations of modem criminology in Britain did not happen until the founding of the National Deviancy Conference (NDC) in 1969. Its originating members were a group of young scholars from the London School of Economics who happened to be at a conference sponsored by Radzinowicz's Institute at Cambridge. Their intellectual springboard was the sociology of deviance originating from the University of Chicago, specifically from the pen of Howard Becker, most com-

A Thumbnail Sketch of Recent British Criminal Justice

21

A second book, virtually identical in theme, is Stan Cohen's Folk Devils and Moral Panics, a study of the stigmatization of youth gangs by the police acting in cooperation with the always sensationalizing British press. 10 Once again, the curious notion of harmless wrongdoing was at the center of Cohen's book, and of course Cohen would have to argue that the doings were not wrong in the first place. Cohen's book led to cooperation by Young and Cohen as authors of The Manufacture of the News, an assembled volume that raised the question whether the British press was simply responsive to news or whether it actually created news of youthful wrongdoing to generate sales." The question was of course rhetorical and would not have been asked had there been any confidence in the professionalism of the British press. A final book that partook of the theme of the oppressive society was Geoff Pearson's The Deviant Imagination, which for the most part argued the claim that the capitalist economy required discipline and thus was compelled to engage in repressive activities vis-A-vis nonconformist personalities.12But the most interesting aspect of Pearson's book was its title, for by labeling deviant the personalities whose imagination he was dealing with, Pearson was following the line of argumentation laid out by Mill in the second chapter of his On Liberty. These books are considered in chapter two. The books listed in foregoing paragraphs were not the main publications of the NDC, however. More significant were The New Criminology and Critical Criminology, edited by Taylor, Walton, and Young and published in the mid 1970s.I3These books took a Marxist tack and were more inclined to argue that the criminal justice system was a tool of a state that was bent on maintaining the capitalist economy in a growing crisis. The theme of crisis was a tired one but was always worth another go, and not remarkably it worked once again to provide the NDC with its signature books. Alvin Gouldner supplied an introduction for Critical Criminology and thus certified that these central publications of the NDC had more radical cachet than the several monographs mentioned above. Gouldner was a Marxist and a conflict theorist intent on doing damage to the holistic and integrationist sociology of Talcott Parsons. He had earlier attacked Howard Becker for lacking a critical political perspective, and now he was aiming at radicalizing the new sociology in Britain. For me in this book, Gouldner provides a reference point of criticism, especially for the writings of Young, Cohen, and Pearson. But, while avoiding the apolitical deviance sociology of Becker, the multiple authors of the two criminology books cited above were also keeping their distance from the more radical Marxist left and thus anticipating changes in the Labour Party that were still ten years away. Tay-

22

Chapter One

lor, Walton, and Young also used The New Criminology and Critical Criminology as springboards for establishing left realism in the mid1970s. Their claim that crime was "real" seems disingenuous on the face of it, but it bespeaks the tenor of debate in what was then called the "loony" left. Their demand was that the parliamentary parties address working-class crime as an authentic working-class pathology and not simply as a by-product of the exploitative practices of the bourgeois ruling class. Just as Daniel Patrick Moynihan's argument about the pathologies of the American black family had met with derision from American black leaders in the 1960s, so, too, the left-realist argument about working-class pathologies met with derision in the 1970s from those whose careers were staked on traditional Marxist class analysis. No one would have taken this argument about the reality of crime very seriously had not the more radical left obliged with a book that appeared on its face to substantiate the claim that they were in fact loony. The book was Policing the Crisis, by Stuart Hall and several of his students from the Birmingham Centre for Cultural studies.14 Hall and his students did not exactly deny the reality of street crime, but they came perilously close to doing so in an argument that was nevertheless sophisticated and worth following in detail. They argued that the crime of mugging was not a crime in the strict sense of the term but was rather a theatrical gesture created by the British press with the cooperation of the police. It worked to stigmatize inner-city blacks and thus functioned in a manner similar to the Willy Horton phenomenon in the United States a decade later. It galvanized the white working class and made them backers of a police crackdown on inner-city crime. But such an act of discipline was also a species of social repression of young black men. Hall's argument was interesting for another reason as well. His implicit claim was that the internal logic of liberalism had been reversed. Instead of the people's giving consent to the state and its policies, the state was in effect creating consensus for policies that it desired. In effect, Hall was taking a step that, in the annals of recent British criminology, was more dramatic than that taken by Young and Cohen in their earlier monographs. Hall and his colleagues were the first to argue the thesis of an autonomous liberal state, one that was never effectively limited in its power or exercise thereof. That idea had been mooted in the earlier books by Young and Cohen, but now the idea was argued in a much more radical vein. Hall's book is the subject of chapter five. Stuart Hall was at the time an avid reader of Antonio Gramsci and was actually following and applying the more complex Gramscian argument to the effect that liberalism was a species of the genus hegemony. As such, it was based not so much on consent as on its own logic, and its

A Thumbnail Sketch of Recent British Criminal Justice

25

also gone out of his way to argue that rule of law was a universal good and a beautiful thing for everyone, and thus demonstrated a rare talent for political theory. Insofar as political theory is a reflection on the ends of politics, it need never be a lengthy discourse that articulates all the ramifications of its position. It may rather be a strikingly brief statement of a vision of the Good in politics. In Thompson's case the statement was contained in a few pages and when pared down to its essence, a few sentences. Liberalism's vision of rule of law is only complete and can only be the Good when it includes a concept of the citizen as a law-making and a law-abiding individual. But it does not always do this. Kant's moral theory is distinguished by the emphasis he places on the citizen as a lawmaking, not just a law-abiding entity, which of course was why Kant's theorizing posed a challenge to the king of Prussia. The glory of the American Bill of Rights was that it fully entailed a concept of the citizen as lawmaker. Speech, press, and assembly were established as rights in order to protect the citizen as lawmaker, and the restrictions on the criminal justice powers of the state contained in the Fourth, Fifth, Sixth, and Eighth Amendments were similarly conceived to protect the citizen as lawmaker. But these are exceptions to the usual liberal emphasis on law abiding citizens, and that emphasis only highlights how skewed liberal theory is toward fostering submissiveness in citizens. More typical of liberalism is Jeremy Bentham's Introduction to the Principles of Morals and Legi~lation.'~One searches that book in vain for a theory of the citizen as lawmaker. It rests instead on a theory of what makes citizens obedient, and his advice to unseen legislators is to pass laws that increase pleasure and decrease pain and do as much for the greatest possible number. This is not a theory of law but is rather a theory of legislative strategy, and it is deeply problematic. John Stuart Mill's Utilitarianism, especially its second chapter, works as a rebuttal of Bentham because it argues that pleasures are not all the same and that the pleasures of the mind are of a higher order.'' Such an argument is prolegomenon to the claim that the citizen ought to be lawmaker as well as law abider. Thompson's brief excursus into rule of law had brought the left full circle from the impulses that had encouraged it into being ten years earlier. The entire thrust of Leon Radzinowicz's History had been toward detailing a massive march of God through history, culminating in the establishment of rule of law. The object of such rule of law may not have been the lawmaking citizen, but still it was rule of law that was given the prime emphasis. Now here was the great E. P. Thompson appearing to agree. But the appearance was, of course, deceiving.

26

Chapter One

The question of rule of law brings us back to the foundations of modem political thought (to use Quentin Skinner's felicitous title phrase). At the essence of Atlantic republicanism was the vision of the citizen as lawmaker, as master of his own fate, and it was here that Radzinowicz and Thompson parted ways definitively. Thompson had revived the spirit of that tradition in The Making of the English Working Class, which declined the notion of the English working class as a victim of blind historical forces and portrayed it as maker of its own fate. Clearly, this was the version of rule of law that Thompson desired. The versions of rule of law, one desired by Thompson and the other by Radzinowicz, could not be more starkly opposed, keyed as each was to producing antithetical camps of citizens. What Radzinowicz desired and wrote about was the taming of the dangerous classes, and later the working classes, through devices of governance created by law makers from the well-meaning British middle classes, or their representatives in parliament. The result was a long and relentless juridification of English everyday life and the creation of an ideal version of it in books like the fifth and final volume of Radzinowicz's History. It was the creation of this kind of conformity that had led such figures as Jock Young, Stan Cohen, and Stuart Hall to take up the pen, but they had all written distinctly limited analyses. Thompson advanced their cause immeasurably by advancing the concept of the citizen as lawmaker.

Now we do well to shift focus and ask what the British state was doing while academic criminology was cutting its teeth and establishing its terms of reference. This effort will involve us in a remarkably different story, but one that will eventually dovetail with that of academic criminology. We can pick up this story line by returning to a point noted earlier. The publication throughout the 1960s and 1970s of additional volumes of Leon Radzinowicz' History was met with praise and eventually led to the knighting of its author. Yet this undoubted achievement also served as a reminder of the profound limitation of official criminology: Radzinowicz's work not only lacked a critical dimension but was also increasingly keyed to the praise of the existing status quo. His work was the example of what would derisively come to be called oficial discourse in the 1970s.19 It worked to establish the ends of British criminology. Radzinowicz's History stood above the decidedly modest quality of most studies produced by the Research Unit of the Home Office in the 1960s, when fewer than a dozen studies were published, and the early

A Thumbnail Sketch of Recent British Criminal Justice

27

1970s, when production and publication increased dramatically.20It is not in the least surprising that researchers for the Home Office would shy away from questions about the ends of policing and punishment in the British state. That was a matter better left to Parliament, and so it was also left to Radzinowicz, whose volumes amounted to a study of the ends established by Parliament as law. But it is somewhat depressing that the means of existing policing and penal arrangements were also not questioned radically in the Unit. The tendency of the Home Office Research Unit in the 1960s and until the middle of the next decade was to presuppose existing arrangements and ask only technical questions about performance. The key variable for the Home Office was and is effectiveness, and operations are brought into question either because members of Parliament are troubled and the minister or junior minister in the Home Office wants answers or because persons in the field--chief constables or governors of prisons-are themselves troubled or in the dark about existing practices and would themselves like answers, or at least sketch of what was happening. Studies thus tended to be framed in terms of tightly defined questions about effectiveness, and the research was carried out by rigorous quantitative means. The resulting document almost always made for turgid reading. Here was more official discourse. It is thus entirely surprising that anyone would rise up to challenge not just the tenor of Home Office research but also the premises and most basic arrangements of British criminal justice-and even more surprising that such a person would succeed. Ron Clarke was brought in as a young researcher in the 1960s and from the outset spent most of his time looking at the effectiveness of arrangements for handling youthful offenders. Juvenile justice in Britain is a separate function, for reasons that need not detain us. At their best, prisons are criminogenic places, and youthful or first offenders are seldom assigned there. Whatever arrangement is created, it normally presupposes that the youthful offender is still developing and with rehabilitative help can be weaned away from a life of crime. Thus juvenile facilities are made to resemble homes with "parents" in charge, and time is filled up with vocational training that will enable the youthful offender to perform effectively in the labor market. The British state in the 1960s was still very much in the throes of the Butskellite ideal that had been pinned to it in the 1950s. Indeed, Rab Butler, the first three letters of whose surname are contained in the term Butskellite, was Home Secretary in the Macmillan government. Butskellite refers to the bipartisan consensus supporting the British welfare state from the Churchill government in the early 1950s to the Heath government in the early 1970s. The idea was that the Conservatives would sup-

Chapter One

port the redistribution of income through welfare programs in return for Labour Party support of a free-market economy. Labour would thus steer clear of the nationalization programs of the Attlee government, and the Tories would not regress to the surly rejection of social welfare programs of the interwar years. Butskellite Britain was the heyday of the British welfare state. In 1959 the Conservative Party government of Harold Macmillan applied these ideals to criminal justice and announced that criminal justice policy would henceforth be scientific, meaning that it would be based on rigorous and probably quantitative research. Within criminal justice, the bipartisan consensus of Butskellism translated into the rehabilitative ideal, or the notion that the main function of policing and penal practices was to help the working poor stay out of harm's way or, if they were caught in the meshes of the system, give them the wherewithal to get back on the straight and narrow. But terms like rehabilitation are very general and have to be translated into practices to enable them to work. In this respect, the actual locus of the rehabilitative idea was in the so-called medical model of the British penal system. The presupposition of this model is obvious enough. In a metaphorical sense, crime was a disease, the penal establishment was a hospital, and the rehabilitative treatment was a medicine designed to restore the sick prisoner to health. Because even that extended metaphor is not terribly helpful, at least some troubling political aspects of it need to be noted. Medicine today is relatively liberal, with patients having rights and an expanded scope of choice as to physicians and services being offered. Such was not the case in the British 1950s. The National Health Service, founded in the late 1940s, had proved very popular with the working classes of Britain, but it was a relatively authoritarian system that managed to care for the health needs of the population by offering very little choice, as illustrated by the almost complete uniformity of eyeglass frames in the early 1950s. British medicine had also shown, as early as World War I, that it was willing to treat social afflictions as "diseases." Before any other medical establishment, it treated shell shock as a medical problem and offered treatment, and indeed these achievements have recently been made more accessible in Pat Barker's Regeneration, a novel about the medical treatment of the poet and novelist Siegfried Sassoon and other British writers suffering from shell shock.*' From the title alone one can sense the significant place of the medical ideal in British welfare practice. Ron Clarke did various things in the early 1970s but primarily he spent his time working with Derek Cornish on a study of the effectiveness of residential treatment. One person he met along the way was Ian Sinclair, who in 1971 had already argued an interesting piece called Hostels for

A Thumbnail Sketch of Recent British Criminal Justice

29

~robationers.~ Clarke ~ and Sinclair banded together and published a piece in 1974 called Toward a More EfSective Treatment valuation.^^ Although brief and unsystematic, that prescriptive document does have the value of staking out the basic terms of the debate Clarke was to lead in the Home Office. The significance of this piece is evident in the title, for instead of dealing with existing programs in terms of off-the-shelf methodologies, it addressed itself to the methodologies themselves and tried to improve them. By no means a revolutionary broadside, it does show that the young Ron Clarke was trying to think his way beyond the straitjacket of existing Home Office research practices. Clarke's thinking is discussed in chapter three. Parliament reserves to its sovereign self the right to define the ultimate ends of policy, but implementation always involves setting a second set of ends that are local, programmatic, and entirely separate from-parliamentary will. The latter "ends" may legitimately be questioned, but the tendency of government researchers is to be shy about questioning them. Parliament may will that crime be reduced by 10 percent over the next five years and provide funding for that effort. One chief constable, responding, will attempt to reduce crime by adopting a zero-tolerance policy; the next chief constable will pursue the same parliamentary end by placing a heavier emphasis on community policing. The researcher will tend to accept the different local "ends" of both programs and then simply ask how they are working. Only the rare and imaginative researcher will question the local "ends" themselves. It was in this direction of research that Clarke was moving in the mid-1970s. The proof of the pudding was provided by the article noted above by Clarke and Sinclair as well as a second one by Derek Cornish and Clarke called Residential Treatment and Its Effects on ~ e l i n ~ u e n Themes c~.~~ recurring in both pieces strongly emphasize what is apparent in the authorship: that Clarke was emerging as the leader of a movement to shift Home Office policy. But frankly, there is nothing in those two pieces to indicate the cumulative impact of the changes that were beginning to take place. These were put into focus in S. R. Brody's The Efargued that the Clarke and Sinclair fectiveness of ~ e n t e n c i n ~ . Brody ~' study had caused such a stir in the Home Office that it induced six further studies, the most significant of which was the Cornish and Clarke study noted above. Brody's claim was not entirely accurate, since Clarke was already at work on the study with Cornish when he did the study with Sinclair. But the point is still well taken in emphasizing Clarke's sudden emergence into a position of research leadership. Bureaucratic politics are often happen spontaneously. A few relatively minor events happen that indicate a changing theme, and then someone

30

Chapter One

pulls the theme together in a synchronic presentation that gives it real impact. S. R. Brody had that role in 1975. The theme of his piece was more or less a variation on Robert Martinson's theme that nothing worked, an approach that amounted to writing with an attitude. This created the effect of a mass of studies that pointed in the direction of situational crime control and put Ron Clarke at the center of them. With Brody's piece it was clear beyond doubt that there was political movement in the Home Office Unit. In 1979, Clarke chose to take on a considerably more formidable foe, the police, and correspondingly the odds against his succeeding must have seemed great. Taking on residential treatment for young offenders-reform schools, in American parlance-was child's play in comparison with taking on the police. But let us not miss the forest for the trees in Ron Clarke's research on the British police. Clarke and his colleagues were not just challenging this or that police strategy. They were very close to challenging police effectiveness itself. The significance of that challenge lay in what was left unsaid. If this or that policy goal was ineffective, then another goal should be chosen because, presumably, it was more effective. But if the effectiveness of any policy was called into question, then the message was that the most radical of changes had to be made. Few researchers care to go this far; they know that in doing so they are challenging the bureaucracy itself. The intellectual basis for the research, which for Clarke had demonstrated the ineffectiveness of marginal increments to conventional deterent policing was a collection of American studies. For Clarke, these showed that improvements in conventional policing techniques did not yield improvements of effectiveness. Such a finding was not quite as radical as the previous paragraph suggested, but it was still more radical than anything done in the Home Office previously. In the tradition of Martinson and Brody, Clarke was showing that nothing works, or rather to put this in more ironic tones, Clarke was showing that at the twilight of the welfare state, only one thing worked, and that was the nothing works argument. One of the most important aspects of the research by Clarke and Mike Hough on policing is the continuity it shows with the research of Clarke and Sinclair and Clarke and Cornish in the mid-1970s. They are in the very advantageous position of representing a hypothesis that has not been tested, and consequently they are immunized against the kind of attack they are mounting. Recognizing the sheer brilliance of his position, Clarke was willing to carry it over to an opponent far more skilled and far weightier in politics than the prison service. Nonetheless, even in respect to the police, Clarke had immunized himself, for his ineffectiveness

A Thumbnail Sketch of Recent British Criminal Justice

argument, to use the fashionable term of the times, was a very limited one. He was not arguing that the policing should be eliminated but rather that it should not be expanded. Clarke was not arguing that the police should do nothing but rather that they should abandon their expensive anticrime strategies. It was the null hypothesis all over again, a very safe mode of argumentation. What put further edge on Clarke's attack was not the American research but rather the advent of the British Crime The concept behind the crime survey is simple but extraordinarily powerfui. Traditional crime reporting is passive, viewed from the perspective of the state. It depends on victims marching into police stations and reporting how they have been criminally victimized. There are high barriers, especially for women, in making such a move. The crime survey is active in concept. It allows the victim to stay in place and simply report anonymously what has happened when approached by the state. Thus crimes previously unreported will now be reported, and the crime statistics can be expected to rise. The advent of the crime survey is thus a major moment in Home Office research. Ron Clarke and Patricia Mayhew were the key persons initiating it. Aside from the expected conventional motive of attaining greater accuracy in crime data, the British Crime Survey could and would establish other significant political findings. For Clarke's purposes, the main one was that the police were even more inefective than anyone had believed, for now one could argue that the police barely scraped the surface of crime. But there was another much more important implication to the British Crime Survey: if the majority of crimes went unreported, then the only way to address this sector of the total offenses committed was by means of a privatized effort at situational crime control. If, for example, my property is being burgled once a year and I do not report it to the police, then there is little or nothing the police can do about it. Only I, who have the knowledge of this situation, can initiate a potential remedy. Hence the state, to the extent that it is involved in crime prevention, should not advise me to do what I am evidently disinclined to do-call the police-but should instead advise me to buy an alarm system or a guard dog or install gates. Suddenly with the advent in 1982 of the British Crime Survey, the tide of professional opinion, already favorable, turned more strongly in favor of Clarke's position. There were of course those who argued that with this demonstration of the full extent of the dark shadow of crime, police protection ought to be increased; but the greater weight of opinion was on the other side. Indeed, one of the things that the British Crime Survey was said to demonstrate was the lack of confidence the British people

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33

trimmed, or at least not expanded. As far as the Home Office was concerned, the basic principle behind the Financial Management Initiative was not new. It had been established years earlier in the form of the Rothschild customercontractor principle, which held that research should not be undertaken unless there is a "clear customer"-a real demand-for it. On the basis of that principle, and prior to the Financial Management Initiative, Clarke had reorganized the Home Office Research and Planning Unit to be more effective. The 1981 reorganization redirected research away from criminological research toward operational and policy research. Clarke then eliminated numerous social research posts while adding several new posts oriented toward operational research. He was no doubt trying to protect himself and the Unit from the kind of claim he was raising vis-A-vis the police, but regardless of intent, he had situated himself nicely for the implementation of situational crime contr01.~The sustained effort to implement situational crime control is discussed in chapters four and six.

Every day is equal to another in the sense that a large number of people hurry to offices in the City and especially in the area around Queen Anne's Gate, where the Home Office and New Scotland Yard are located. But the events occurring there are not of equal value. Not every day do persons like Ron Clarke and Derek Cornish pop up to be reckoned with, and such risk-takers are inclined to buy insurance in the form of self-arranged golden parachutes; and of course that is why universities exist for persons in government. Derek Cornish went to the London School of Economics in the late 1970s, Tim Hope to the University of Keele, Margaret Shaw to Toronto, Ben Bowling to Cambridge, Tim Newburn to Goldsmiths College. These are only randomly chosen examples; and not all the persons named are innovators. Indeed, none of the persons named above were innovative in the sense Clarke was, and hence they were not really in need of a parachute to land in the academic world. The most significant unfurling of a golden parachute in the 1980s was Ron Clarke's move from the Home Office to Temple University in Philadelphia and eventually Rutgers University in New Jersey. It drew closure across the time line of the Research Unit's history equal to the line that separated the period before Clarke's rise to the one that followed the beginning of his rise. The point is that not all years are equal, and the ten-year period from the mid-1970s to the mid-1980s is the key period of Home Office history for this book.

34

Chapter One

Similarly in the academic world, I was constantly reminded that there had been more sheer quantitative expansion of criminal justice studies in the 1980s than in the 1970s' and then even more in the 1990s. The expansion of academic criminal justice has been a diagonal line running upwards since 1968, yet this abstract phenomenon does not tell us nearly enough. The original academic centers of the Golden Triangle were more or less research centers, but in the 1970s a whole outer circle of academic focal points was added at more working-class places, for example Middlesex, Milton Keynes, Keele, and Sheffield. Once these places began to succeed, in the 1980s, all other British universities instituted programs in criminal justice, and once those programs had begun to reach down to undergraduates, the old centers of the Golden Triangle added their own undergraduate courses and programs to take advantage of the market opportunity. By the 1990s, criminal justice had become a boom industry in the United Kingdom. But the diagonal line spoken of is entirely quantitative. It does not measure the quality and effectiveness of British research, and if we do that, then the fifteen-year period after 1970, and not any later period, is arguably the key time frame of British academic criminology. It stretches from the early work of Jock Young to the early work of David Garland. To get a sense of the qualitative changes I am pointing to, one need only read Garland's Punishment and Welfare, published in 1985, and compare it with his Punishment and Modem Society, published five years later.28 The second book is arguably more important. It visits all the main sites of the theory of punishment since Emile Durkheim, with chapters on Man, Weber, and Foucault as well as several chapters on Durkheim and several more on cultural themes. The earlier book is briefer and more narrowly focused on the evolution of British forms of punishment in the first decade of this century. There is no question that Garland evolved into a major scholar from the first to the second bookbut there is also no question in my mind that the first book has imrneasurably greater significance than the second, because it engages directly with politics. Not all things are equal in history, including intellectual history. There is also a more overarching political context that mandates the exercise of judgment in respect to where to end this chapter's history of British criminal justice. A dominant theme of this book is the decline of the welfare state and the rise of the neoliberal state embodied in Thatcher's politics. The decline of the welfare state was very rapid after 1970, its fate sealed with Thatcher's victory in 1979. The rise of the neoliberal state is not so clearly defined, but clearly it was tied to Thatcher's fate. Thatcher was

A Thumbnail Sketch of Recent British Criminal Justice

35

not an intellectual; she was a politician who understood herself in terms of some basic changes that had to be made in British life and politics. Her agenda determined that she have good relations with the public order side of the police, and consequently she was loath to subscribe to Ron Clarke's thesis about police ineffectiveness in reference to crime control. That Thatcher was correct in her grasp of events was evidenced in the effective work the police did for her in the 1984-1985 miners' strike. She broke the back of the trade unions and was able to reorganize the British economy on her terms. A similar conclusion, sketched here in shorthand, may be made in reference to Thatcher's handling of situational crime control in the late 1980s. She was then at the height of her success and had seemingly set her sights on attaining expanded citizen participation in British life. This should have inclined her to the promotion of the various programs that fell under the rubric of situational crime control. But finally she elected not to move in that direction, either because of indifference or for the more cynical reason that she preferred state control of citizens over citizen participation, which implies citizen control. It is hard to fathom Thatcher's politics in the period when Douglas Hurd was Home Secretary, but the results are not hard to grasp. In the end it was bureaucratic inertia that won out. Thus, it is least distorting to conclude the history being sketched in this chapter with one or another event of the mid- or late 1980s, after the 1983 departure of Ron Clarke to a couple of years before the departure of Thatcher herself, in 1991. The most interesting literature that appears after that is clearly keyed to making sense of the new criminology of the neoliberal society and state that had been introduced by Thatcher. That effort was initiated in 1992 in an article by Pat O'Malley in the journal Economy and It capitalized on a concept of risk, most likely inspired by Anthony Giddens and Ludwig Beck, although O'Malley was clearly no fan of Beck's. O'Malley saw the neoliberal state engaged in a sustained effort to "responsibilize" citizens vis-8-vis the problem of their own security, and this of course amounted to an effort to shift the burden of crime control from collective agencies, such as the police, to individual citizens. To O'Malley, the state was in effect disengaging from crime control, a retreat that posed serious questions about state sovereignty but fit in nicely with the liberal value of limiting the power of the state. David Garland addressed those questions in a 1996 article called "The Limits of the Sovereign State" in the British Journal of ~ r i m i n o l o ~ ~ . ~ ~ Garland saw the problem as being more complex than O'Malley had made it out to be, with the British state acting in a genuinely ambivalent fashion, withdrawing from crime control to be sure, but also charging at

36

Chapter One

it more confrontationally through the adoption of more aggressive policing and the building of more prisons. O'Malley returned for a second look at the problem of assessing the state, which in his case was always the Australian and Canadian as well as the British state, and saw his first analysis as having been too simplistic.31 Writing four years after Garland, he saw the same ambivalence of the state but was less perplexed by it, seeing his mistake as having originated in an overly purist concept of neoliberalism and the neoliberal state. What O'Malley now factored in was the presence of a strong conservative and moralistic strain in neoliberalism. It reasserted the desirability of the very society Thatcher had denied existed. The key concept of the best analyses of the 1990s was risk-not a new concept, but significant for the position it has arrived at in contemporary criminological consciousness. Several key aspects, or presuppositions, of risk need to be noted. Risk thinking presupposes criminals to be normal citizens and thus crime to be a normal activity in a venture society pivoting on financial markets. The state's first task is not to fight crime but more properly to act as an actuarial agency by assessing the risk of crime, making client-citizens (sometimes also called customers) aware of current risk trends, and thus empowering citizens to secure themselves. Ideally, the chief criminal justice agencies become insurance companies, whose rates for potential victims of crime, like victims of automobile accidents, are determined by the preemptive measures taken by citizens.32 The risk society, so called, is mainly a matter of changing probabilities: to heighten risk to criminals and lower it for citizens. My own take on this, strongly colored by American experience, points up the pressing conceptual need to triangularize the political spectrum by adding to the welfare-liberal and neoliberal poles a third point of reference, one incorporating the conservative and Christian-fundamentalist agenda of restoring moral community or, in the persistent failure of that project, of imposing draconian punishments on transgressors. The ruling alliance of the current age is between neoliberals and such conservatives as fit the description of a conservatism obsessed with moral order. The result is a schizophrenic state that responsibilizes the people but also builds more prisons, that bemoans the effectiveness of the police but also advocates zero-tolerance policing, that overlooks massive recreational drug usage but also incarcerates small dealers. The contradiction can be managed only with such an exaggerated metaphor as schizophrenia. Politics is seldom of one mind, it would seem.33 And that is as good a place as any to end this brief history. The reflections on the rise of the risk society do not play a significant role in this book but are nonetheless set forth to prepare for their return in the con-

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37

clusion. The temporal scope of this book is rather the two decades after 1970; its chief task is to trace the transition between welfare-liberalism and neoliberalism, and its inner spirit is one hot on the track of neoCalvinism, or the disciplinary society.

Finally, and by way of reminder, the chapters of this book are coordinated with its three themes. The theme of the autonomous individual is treated in chapters two and three. The problem of limiting the powers of the state is treated in chapters four through seven. The theme of rule of law is treated in chapters eight and nine. There is something of a disproportion here, but it can be remedied by assigning chapter four to the autonomous individual and chapter seven to rule of law. This rearrangement of course creates a different disproportion, but no matter. It all balances out in the end.

Notes 1. For an alternative and less tendentious history, see David Garland's "Of Crime and Criminals: The Development of Criminology in Britain," in MaGuire, Morgan, and Reiner, Oxford Handbook of Criminology, 2nd ed. (Oxford: Oxford Univ. Press, 1997). 2. There is a strong centralizing trend to American criminal justice, with increasingly more crimes being federalized and the FBI growing rapidly. 3. The courts are managed by the lord chancellor, which in effect enables judges to retain control of their domain. 4. It is perhaps needless to say, but Scotland, with a different legal system, is always something of an exception to every rule, and this applies to Home Office research as well. 5. See R. A. Butler, 'The Foundation of the Institute of Criminology at Cambridge," in Roger Hood, ed., Crime, Criminology, and Public Policy (London: Heinemann, 1974). 6. Leon Radzinowicz, A History of English Criminal Law and Its Administration, 5 vols. (London: Heinemann, 1948 through 1986, the fifth volume written with Roger Hood and published by Oxford Univ. Press). 7. Howard Becker, Outsiders: Studies in the Sociology of Deviance (London: Free Press, 1963). The concept of labeling comes from Edwin Lemert, Social Pathology (New York: McGraw Hill, 1951). 8. Joel Feinberg, Harmless Wrongdoing (Oxford: Oxford Univ. Press, 1968). 9. Jock Young, The Drugtakers (London: MacGibbon & Kee, 1971). 10. Stan Cohen, Folk Devils and Moral Panics (London: MacGibbon & Kee, 1972). 11. Stan Cohen and Jock Young, eds., The Manufacture of the News (London: Constable, 1973).

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Chapter One

12. Geoff Pearson, The Deviant Imagination (London: Macmillan, 1975). 13. Ian Taylor, Paul Walton and Jock Young, eds. The New Criminology (London: Routledge & Kegan Paul, 1973) and by the same authors Critical Criminology (London: Routledge & Kegan Paul, 1975). 14. Stuart Hall, Chas Critcher, Tony Jefferson, John Clarke, and Brian Roberts, Policing the Crisis, Mugging, the State, and Law and Order (London: Macmillan, 1978). 15. Edward P. Thompson, The Poverty of Theory: Or An Orrery of Errors (London: Merlin Press, 1979). 16. Edward P. Thompson, Whigs & Hunters (London: Allen Lane, 1975). 17. Jeremy Bentham, Introduction to the Principles of Morals and Legislation (Buffalo: Prometheus Books, 1988). 18. John Stuart Mill, Utilitarianism (Indianapolis: Hackett Publishing Co., 1979). 19. See Frank Burton and Pat Carlen, Oflcial Discourse (London: Routledge & Kegan Paul, 1979). 20. One major exception to this statement is Penal Practice in a Changing Society (London: Her Majesty's Stationary Office, 1959). 21. Pat Barker, Regeneration (London: Penguin, 1992). 22. Ian Sinclair, Hostels for Probationers (London: Her Majesty's Stationary Office, 1971). 23. Ronald V. G. Clarke and Ian Sinclair, Toward a More Effective Treatment Evaluation (London: Her Majesty's Stationary Office, 1974). 24. Cornish and Clarke, Residential Treatment and Its Effects on Delinquency (London: Home Office, 1975). 25. S. Brody, The Effectiveness of Sentencing (London: Her Majesty's Stationary Office, 1975). 26. Until the 1970s, official public knowledge of crime was based on reports to the police, an evidently faulty database since many crimes are underreported. The idea of the crime survey was to actively solicit knowledge over the telephone with guaranteed anonymity. The crime survey was instituted in the United States, but it was already being thoroughly tested by Richard Sparks at the Cambridge Institute in England. With the success of the American survey, Clarke and Patricia Mayhew quickly followed up by instituting the British Crime Survey, which was first conducted in 1982. 27. I am skirting the edges of another Home Office reform of the 1980s said to be significant for the advent of the neoliberal society. The initiation of victim services in Britain was studied carefully by Paul Rock and deemed to be a significant reassertion of the victim into a criminal justice process that relegated victims to minor roles. I am not certain that was done. My impression is that the effort was mainly a public relations gesture. It cost the government little but more importantly was done outside the conventional operations of British criminal justice. On balance, it seemed to me little more than a tea-and-sympathy effort. In contrast, the advent of victim-impact statements at sentencing hearings in the United States seems to me a much more significant measure to bring

A Thumbnail Sketch of Recent British Criminal Justice

39

the victim back into the mainstream of criminal justice operations. See Paul Rock, ed. Victimology (Aldershot: Dartmouth, 1994). 28. David Garland, Punishment and Welfare (Aldershot: Gower, 1985) and Punishment and Modem Society (Chicago: Univ. of Chicago Press, 1990). 29. Pat O'Malley, "Risk, Power, and Crime Prevention," Economy and Society, vol. 21, 1992. 30. Vol. 36, no. 4, autumn 1996. 3 1. Pat O'Malley, "Reconfiguring Risk: The Pluralization of Crime Prevention Strategies in the 'Post-Social' Era," unpublished manuscript, presented at the British Criminology Conference, July 12-16, 1999. 32. See Richard Ericson and Kevin D. Haggerty, Policing the Risk Society (Toronto: Univ. of Toronto Press, 1997). 33. I acknowledge my indebtedness to the thinking of Pat O'Malley, David Garland, and Jonathan Simon.

44

Chapter Two

ner could not abide this apolitical direction of labeling theory, and thus he condemned Becker in unsparing terms. A moment's pause is in order for reflection on the most significant point being made by Alvin Gouldner. The sociology of deviance is enlightening and entertaining, but finally worthless without a political edge. Gouldner was certainly not the first to recognize and insist on that point but he was the first to do so in this context. The present chapter would have been written quite differently if there had been some political edge to the National Deviancy Conference (NDC), but arguably this relative lack of political consciousness is the main problem with the writings of the NDC in its ten-year e~istence.~ It tends to be a youth rebellion rather than a sustained political movement, and hence it is characterized by outsized emotions, chronic complaining, and very little effort to engage with the welfare state practically. These tendencies can be seen in labeling theory and were recognized very early by the prescient ~ o u l d n e r . ~ The lack of a political dimension in the early works of the NDC should not be misunderstood: There is a definite mood of politics in the early NDC writings, but it never settles into the right focus. In many respects the problem is similar to the one characterized in Quentin Skinner's book title, The Return of Grand Theory to the Social ~ c i e n c e s . ~ The chief characteristic of NDC writings about the threat to the autonomous individual was the application of the sledgehammers of grand theory to problems that were very specific to an aging liberal society. Marxism was adopted as a political orientation, but it was never very precise, a point that would be made clear later by Stuart Hall when, finally, he did make his Marxism precise and to the point. A Hobbesism of sorts was developed, but never very precisely. For the most part, however, no definite political orientation was introduced. This relative lack of a political dimension may also be seen in the other main source of the thinking of the members of the NDC, the antipsychiatry movement. Running parallel to the sociology of deviance, and strongly reinforcing it, was R. D. Laing's more slowly developing thinking, which provided leadership for the antipsychiatry movement. It was an argument that could be, and was, easily exported to the United States. One reason was that both countries had proven to be receptive to Freudianism in similar same ways. Both the United States and Britain had medicalized Freud, initially at the level of translation, ultimately at the level of professional treatment. Freud plays little role in this book, so little need be said about the medicalization of his thinking except that it demonstrated the assimilative power of the American and British medical professions. A psychology equipped with literary concepts, like that of the so-called Oedipal complex, and intended to be dialogue-based,

The Revolt of British Criminology in the 1970s

45

interpretive and egalitarian as between analysis and analysand, was swept into hospitals and made into a relationship that was authoritarian and keyed to a mechanical or chemical treatment of problems called illnesses or "diseases." The fate of British Freudianism in criminal justice tells something of the problem that Laing was confronting. In British criminal justice it would be called the medical model of rehabilitation. The nub of Laing's argument was that schizophrenia was overused as a category to label social misfits and thus had spilled over the container provided by its relatively narrow medical definition. Schizophrenia was often not a disease and therefore should not have been treated by the medical establishment and in mental asylums. Laing's perspective was captured in the title of his best-known book, The Divided ~e&'His claim was that the human concept of self was in the best of circumstances difficult to form. For Laing, cases of failure ought to be treated differently and, if we watch carefully, treated very much in the manner of Freud's humanistic psychology. That is to say, doctor and patient, or rather analyst and analysand, ought to meet as equals in a setting that is not antagonistic, and if not in the analyst's office, then in a village set aside for the purpose of giving the divided self a nonantagonistic setting. The healing process then ought to take its time and not be accelerated or diverted by chemicals. What can be seen, although not that easily, is that the so-called antipsychiatry movement was directed against an older mechanistic psychology. In Britain it had originated with Thomas Hobbes and developed in Edinburgh in the eighteenth century after the adoption there in the 1740s of a mechanistic model of medicine. The entire package of mechanical medicine and mechanistic psychology was taken to the United States by a politically influential man named Benjamin Rush, who not only was a friend of Benjamin Franklin and a signer of the Declaration of Independence but also the intellectual inspiration for the American penitentiary.8 The claims about the medicalization of Freud in Britain and America in the twentieth century have to be understood to be little more than the tip of this larger cultural iceberg. The problem is not dissimilar to the mechanization of the economy taking place in the same Calvinist Scotland and in the writings of Adam Smith. Laing's rebellion was directed against a more deep-seated enemy than he knew, and it stood about as much chance of success as did Becker's rebellion against labeling by authorities. What Laing should have been asking for was the demechanization of the British medical profession; but instead he took mechanization as a given. His oversight left the ge-

46

Chapter Two

neric problem in place and risked new forays into psychology in the future. What Laing's work points toward as a solution is actually a new kind of problem. If psychiatry is demedicalized and returned to the community, it is likely to reemerge as a set of soft community institutions no less intrusive for being located in storefronts or in the cottages of Laing's favored villages. In sum, what is problematic about Laing is what also makes him interesting. It is that his version of antipsychiatry will look innocent because it has been denuded of asylums, physicians, chemicals, and surgery. But such a change would also lead to the kind of net-widening that would later be documented by Robert Caste1 in respect to the United states9 Thus Laing's antipsychiatry, like Becker's labeling theory, stopped well short of biting into a serious politics. It was political only to the extent of opposing the more intrusive interventions of the state. It did have a political theory, but it was cast at the very general level of grand theory. Laing's generality was belied by the more practical writings of Thomas Szasz, but how influential they were in Britain is difficult to measure. Szasz consistently associated psychiatry with political liberalism and thus, unlike Laing, did not look for the abolition of its excesses but rather sought the more practical goal of reform. The titles of some of Szasz's books-law, Liberty, and Psychiatry was one, Psychiatric Justice another, and Ideology and Insanity a third--clearly indicate his more direct and practical political engagement. His critique is the welfare liberal state, and it was finally a practical critique. The downplaying of serious politics in Laing's writings had significance because it facilitated a kind of escape from dirty reality into the more beautiful realm of identity. The antipsychiatry of Laing was attractive to young people because it was romantic. It took for granted the emergence of a natural and whole personality and thus was by its nature strongly inclined to the political theory that the state should assist such development, or at least stand aside. This kind of romanticism is problematic because it treats the state as just another agency of civil society and shows a questionable understanding of the development of modem liberalism.

For an outsider not aware of the powerful currents of argumentation coming from the sociology of deviance and the antipsychiatry movement, the arguments that erupted in British sociology in the early 1970s must have seemed to drop from the blue. For left-of-center criminologists, the problem of conformity to the mores of society has nothing to do

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47

with real crime, and so the labeling of difference as deviance is at best a problematic activity, at worst itself a criminogenic activity. But for criminologists who locate themselves right-of-center on the political spectrum, the problem of deviance has a great deal to do with crime, and so the labeling and highlighting of it is a worthwhile activity. Clearly, what we are dealing with here are two different theories of crime. The problem is not exactly new, but there are some novel twists to the argument, and we do well to consider them in detail.'' In the eighteenth century, the source of the demand for conformity was the Church of England, or more accurately the Protestant churches of Britain, and as is often the case, they were backed up by reasons that, once valid, had outlived their time. The religious wars of the sixteenth and seventeenth centuries all over Europe had underlined the lesson that the emerging state was better off with a single religion and thus the prince was within his rights in exacting religious conformity. But by the eighteenth century, such a demand made little sense and thus the demand for tolerance toward nonconformity was not a threatening demand. By the late nineteenth century and the trial of Oscar Wilde, the source of the demand for conformity had been displaced. It was now no longer church and state but rather a Victorian middle class that had developed a strong and very assertive moral faculty as well as a capacity to get it enacted into law. By no stretch of the imagination did anyone believe that Oscar Wilde's homosexuality would cause religious wars to break out in Britain, but his behavior clearly posed a challenge to the unwritten moral code of society. Oscar Wilde's trial and punishment put the issue of sexual conformity on the front burner of British society and led to a sustained literary challenge to existing criminal proscriptions. D. H. Lawrence defined the issues, as did the writings of Havelock Ellis. But so, too, did the activities, albeit seldom the writings, of all those persons who fall under the neighborhood rubric Bloomsbury. Especially poignant in this case were the writings of Virginia Woolf, because her father, Leslie Stephens, had written Eminent Victorians. Wilde's trial and incarceration by the criminal justice system unleashed a sustained challenge to the sexual labeling practices of the eminent Victorians of his time. The issue of conformity had changed fairly radically by 1970, when the problem was clearly a matter of conformity to the ideal of solidarity in respect to the values of the dominant working class in an industrial society. Geoff Pearson saw matters this way and actually constructed the problem in a manner sympathetic to the needs of industrial society. For

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him, nineteenth-century industrial processes were increasingly contingent on a disciplined workforce, and hence industry demanded a social conformity that would translate into reliable work performance. But Fordism, as John Lea called it, meaning the dominance of a single industrial process that made workers virtually interchangeable, was coming to an end by the 1970s, and Pearson was ahead of his time in sensing the emergence of a new economy that would place a premium on creativity. Much like John Stuart Mill, Pearson argued that the costs of such conformity were too high; but unlike Mill, he was correct in his intuition. The appropriate response to Mill might have been that his argument in On Liberty was completely off the mark: A newly industrializing Victorian society needed precisely the conformity Mill was so vexed about. But that standard was not correct 110 years after Mill wrote. If anything, Britain needed much more of the nonconformity Pearson was charnpioning. This should have been apparent from the British 1960s, whence the Beatles had broken onto the world stage, Twiggy had been introduced, and the miniskirt had taken the world by storm. The most vibrant sections of British life were nonconformist already. Pearson challenged mainstream society with his book. In labeling what might better be called a creative faculty the deviant imagination, he suggested how intolerant British industrial society had become of creativity. Jock Young, taking the opposite tack, tried with his far more neutral book not to challenge society. He had recognized that the vocabulary of British society vis-his proscribed drugs was beginning to change radically, with users beginning to be called "dope fiends" and "drug addicts." His effort, so it seemed from his title, was to re-normalize the use of drugs and prevent a panic over them from happening. But once beyond the rhetoric of the normalizing title, Young posed a much greater challenge to British society in the 1970s than Pearson ever did in his book. What makes The Drugtakers a challenging book is Young's lengthy explanation of why it is that drugs enter into the legal network of society's proscriptions and regulations." The discussion revolves about what Young calls absolutist and relativist versions of society. The former abstraction-the absolutist society with its absolutist values-works in Young's Drugtakers as a surrogate for welfare society, with its purportedly absolutist insistence on moral solidarity. The second abstraction is a surrogate for a hypothesized and renewed liberal society, so desolidified as to constitute no threat to individual liberty, and I would suggest that what Young was theorizing in his notion of the relativist society was a vision of a neoliberal society. To that point we return later. Absolutists are so named by Young because they envision society to be a coherent whole, a normative monolith that can tolerate very little de-

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viation from the absolutized center.12 This being the case, what deviance exists will be marginalized or more radically driven out of society. Absolutists find deviance in areas around society that are said to be disorganized, which basically means they are not organized according to the dominant or hegemonic values. In effect, the steady march of society toward inclusion and integration is characterized by occasional failures, and the treatment of failure is intolerance or denial. The vocabulary of society indicates that we are dealing with apparent outsiders, to use Becker's term, or people who exist in areas beyond society and thus beyond hope of control. Or deviance is seen to arise from below, from a social underworld or from subcultures; but this, too, is still outside the society. Or deviants are seen to be "over the top," "beyond the fringe," or "spaced out." The picture Young wants us to have is the physical one of a well-organized circle with a border, beyond which are a few, but very threatening, deviations from the organization of the circle. Clearly Young's depiction is simplistic and exaggerated, but that observation is beside the point that it is a frontal attack on the most basic elements of welfare-liberalism, the idea of inclusion and the idea of the social. The social is not itself a value or a policy but is rather a basic attitude or orientation that originates in the experience that some problems are best handled not individually but rather collectively. The valorization of collective action leads easily into the idea of solidarity, to the notion that being together, or inclusion, is intrinsically valuable, regardless of the consequences. From there it is not a great step to the notion that what is good for the group or the team is good for the entire society. It takes a concentrated experience of collectivization to produce this idea. The experience of war is one in which the idea of the social reaches its apogee; and for the generation alive and in power when Young wrote his book, this was the experience of the war between 1940 and 1945. That generation had thought in social-wide terms and voted overwhelmingly for socialism in 1945. It probably got less socialism than it wanted from the Attlee government. It was the generation most enthusiastic about the social, and it was in power in the 1960s. A society that thinks in such absolutist terms is likely to act on its premises. Better than anyone of his generation, Stan Cohen depicted such action in Folk Devils and Moral Panics, but in doing so he was aided and abetted by one of the most creative groups of social deviants Britain has ever produced. The Mods and the Rockers were two motorcycle gangs from London that enjoyed spending summer weekends in Brighton partying on the beach or in that city's streets. For the most part the gangs

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were male and from working-class neighborhoods in London, But young working class women were involved as well since few of the motorcyclists went to Brighton without young women on the rear seat of the "bike." The women dressed with variety, but the young men were virtually uniformed. Top down, they had shaven heads or closely cropped hair, jerseys or T-shirts, black tight-fitting trousers with oversized belts cut off about ten inches above the heel, and black combat boots with white socks. The style would later be developed into "punk," and its basics have been thoroughly assimilated by young men ever since. The style stood out in sharp contrast to the style of the "hippies," who usually had long hair rather than shaved heads and were barefooted rather than booted. The characteristic hippy in the United States was middle class in origin, and thus the values behind the style were very different from those of the Mods and Rockers. Hippy values had great variety but are recognizable in the final analysis as being inclusive. Come together, as the Beatles would put it in one of their hymns. Mod and Rocker values also had variety but were finally the product of a contrarian process of socialization. The values of sustained resistance rather than temporary rebellion, they were also preparations for a lifetime of imposed inclusion in the industrial working class. Thus, British working-class youth culture, and by extension the Mods and the Rockers, were racist, sexist, and classist and were so in supposed defiance of the values of mainstream society.'3 A folk devil is a caricature, a figure who in his or her style of life strongly suggests contrarian values. That so much emphasis is placed on style in folk devils should suggest that the underlying values may not be all that different from those of the working-class parents. Thus, arguably, it is the style that is significant because style is what makes the difference. The closeted homosexual is thus anathema to the process of making folk devils. What the homophobe desperately needs is the swisher, the overt homosexual who acts out in exaggerated ways. Thus the British press was likely from the outset to latch onto the Mods and the Rockers, and with the able assistance of the Exeter police, they fully covered the summer events taking place in Brighton and thus whipped up the public to give support to the police in their efforts to maintain law and order in the face of such apparently diabolical people. The problem with folk devils or any type is that they lead to moral panics, and the problem with moral panics is that they are likely to divert resources from more serious (but also more routine) crime problems. Unfortunately, folk devils and moral panics are continuous problems in society, and the great virtue of Cohen's work was not his exposure of the relatively minor incidents surrounding the Mods, Rockers, and Brighton

The Revolt of British Criminology in the 1970s

police but rather his brilliant characterization of the real problem of the authorities' manipulation of public opinion. The press and more broadly the media are likely to amplify stories of, for example, sexual offenders who are strangers; but the police know very well that the vast majority of sexual offenders are known to the victims because they are relatives, neighbors, trusted authority figures, friends, or friends of friends. But depictions of familiar figures do not make good press, and they are likely to be highly unpopular if they identify the parish priest or the trusted school headmaster. Further, negative reportage runs the real danger of being mistaken and thus subjecting the newspaper in question to libel suits. The same problems do not surround the sexual offender who is unknown and who is different by virtue of race, physical deformity, or unusual habits. This is not to say that there are not such sexual offenders: it is to note that the press and the police are much more likely to amplify such problems and divert scarce resources into its solution. The virtue of Stan Cohen's Folk Devils and Moral Panics was the attention it called to a hidden political dimension of the welfare state. By definition, an absolutist society could always be managed by a combination of forces it did not understand, and such forces are generally characterizable as the unknown. Exclusionary moral absolutism thus created a problem that was undermining the British welfare state. Its own leaders in the press and the police would again and again be tempted to amplify problems that recommended themselves as tools of governance. The right was inclined to do this anyway, since it held that the origins of crime were to be found in cultural breakdowns rather than in any basic problem with the structure of society or the economy. But so, too, did people in the press who were inclined to raise circulation by amplifying social problems. In John Locke's words, the criminal was "a degenerate [who] declares himself to quit the Principles of Human Nature, and to be a noxious Creature," a deviant in other words.I4 It was only a short step to make the deviant into a criminal.

Jock Young's term absolute is problematic because it does not have any practical meaning, yet the problem is a very practical one. When the values of mainstream society have been absolutized, they become invisible to the members of society, and thus no longer seem like values. In Britain or in any integrated society, such values have become so internalized that they are taken to be common sense or taken to be self-evident

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truths. A self-evident truth is one that is not or should not be questioned, and this is a matter of taking it out of politics. But this is also a way of saying that it has become an absolute. What is then demanded in respect to such absolute values is science, or value-pee research; but what goes by the name of value-free research is for Young simply the dominant set of absolutized social values. These values entail that the social sciences acquire knowledge by presupposing the absolute values, which then operate mechanistically, or outside the confines of human choice. If one objects in the name of values or rather in the name of the claim that values cannot be omitted because that is precisely what is at issue, then one sinks in what Young calls the hierarchy of credibility, a term that comes from Howard Becker's writings. To insist on the centrality of values to social science research is thus to place oneself outside the existing moral consensus that is society.15 Young's vision of what he takes to be middle-class self-delusion in respect to science leads him to insights on the modem culture of expertise that nicely anticipate Foucault's thinking. "There has arisen in modem societies . . . an elite of specialized experts whose task it is to explain 'the deviant' to the hypothesized 'normal' citizen." But these experts must explain what is perceived as unusual in terms of values taken by their public as being usual, conventional, or commonsensical. In such a process, they do not explain but rather explain away, and this is not all. Also, it is expected that the rulebreaker will be reformed or treated, and the people who effect the remedy also comprise an expert culture. Chief among these, apart from the police and the clergy, "are the social worker, the psychiatrist, the psychologist, and the criminologist." Here of course the experts run into opposition, but this, too, proves to be selfundermining, for the deviant who perceives expertise and its treatments to be coercive or punitive is said to be lacking in "self-insight."16 It is now normalcy that becomes the absolute. Expert knowledge quickly turns into power, a process that happens through what Young calls negotiating reality. The deviant quickly learns that if he is to survive, he must play the game, and for Young it is very much a game. The expert or therapist "elicits from the deviant precisely those responses which tend to verify his theory." This is a negotiated situation based on the notion that if the deviant is cooperative and helpful and shows insight into his problem, the expert will be cooperative with him in obtaining material help, an early release, and protection from the law. The success of this process is said to verify the theory, but with absolutist irony, so, too, does failure, for the failed case leads to a different kind of verification. This is particularly true "in those cases where individuals are incarcerated in total institutions for therapeutic reasons."

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Here they begin as the consequence of "a self-fulfilling process to look, to act, and to feel like the anornic, undersocialized, psychotic, amoral individual which the therapeutic personnel portray in their theories of deviancy."" In this sentence, Young draws the link between deviance and crime. We need to pause to remind ourselves that the above also works as a description of the welfare state, or of welfare liberalism as it appeared in the early 1970s. But to make that clearer, we turn to Young's opposed analysis, what he calls the relativist position, for it is here that we see a first vision in this book of a proto neoliberal society. Relativists, according to Young, do not deny the legitimacy of majority opinion but do deny that it is ever adequate to override minority rights. Society is made of groups that are irreducible because their values are not necessarily even related to each other. Young argues that "the inability of the absolutist to take cognizance of the opinions of the drugtaker is a function of their consensus notion of society. For consensus implies that reality is monolithic; it embraces the notion that there is no other 'reality' from where the total system can be criticized, and in doing so [it] effectively translates cultural failure into accusations of personal inadequacy."18 But even this much concedes too much. Consensus is a fiction for relativists. They would "insist that a consensus, where it exists, is often created by the persuasive manipulation of public opinion through means such as the mass media."19 Here is a first anticipation of the position Stuart Hall and his students would take a few years later in Policing the Crisis. The mass media, and most especially the news media, are in the business of labeling reality, and hence they have to be given a sharp focus in analyses of the new criminology. But of course if reality is the product of labeling, then it is not real but is rather an exercise in metaphysics. What can be seen in Jock Young's The Drugtakers is an early version of the idea that consumed most members of the National Deviancy Conference in the 1970s, namely, the image of the media as a force manipulating public opinion and creating consensus. Young becomes more political when he considers the medical model of treating deviance. Central to this model is a monolithic notion of values. This is to say that if there is complete agreement 'on the negative character of a pattern of behavior, it will tend to be labeled as a disease or sickness in preparation for its being treated. But if there is no single set of monolithic values, then the medical model so central to modem psychiatry is impossible of application. But it takes a truly liberal perspective to see this: "If people have free choice it is [then] a mystifica-

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tion to regard people who deviate from your own standards as 'ill'; it is better to say candidly that one disapproves of a particular form of behavior for moral reasons . . . than to hide behind a mask of therapy and a vocabulary of healing."20 The medical model presupposes its own version of monolithic normalcy, usually called health, and that model intervenes drastically against deviations from this norm. Of course such a model is inappropriate if what is said to be sick is really a matter of free choice, as Young indicates. Young goes to great lengths to lay out his case against value absolutism and on behalf of value relativism because his argument favoring the decriminalization of illicit drugs is based on it. For Young, drugs are desirable because they make the liberal value of choice possible. "Drugs are vehicles in which . . . alternative values are realized in the form of behavior rationally comprehensible in terms of these norms. Drugs enable individuals to discard easily the precepts and parameters of one form of social reality and immerse themselves in the values of another." In drug-culture language, what Young is talking about is tripping, getting high on a psychedelic drug, suspending restraints and enabling the imagination to fly. Sounds dangerous; and, to be sure, such an induced capacity to shift realities does not at all mean that drugs are not problematic. Drugs are a problem "where the individual is atomized and isolated from any culture concerned with the regulation and interpretation of drug experiences." It is only then that "overtly bizarre and psychotic behaviour occur^."^' In other words, drug usage is unproblematic where its purpose is to realize alternative values that would normally be blocked by the dominant society. 'The task, therefore, is to explain the origins and content of the culture the drugtaker belongs to and then, and only then, the role drugs play in it."22 Once again, Young is putting forth an alternative vision of knowledge and expertise, and what needs to be noted is that here, as everywhere else, he is basically writing a theory of liberal normativity. Young might have been better off if he had argued that drug usage is condoned in absolutist society insofar as it is an accepted method of attaining to absolutist values. The drug Prozac is condoned because it deals with anger in a way that eliminates it without great expense and thereby enables people to resume being productive. To argue in this manner would be to isolate what is central to the argument. It has nothing to do with drugs but is rather about mainstream values such as, say, productivity. The latter consideration returns us to a point made at the outset. The problem with welfare-liberalism may lie in its notion of the social, for insofar as such a monolithic notion tends to congeal into a notion of soli-

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erance emerges. The welfare-liberal state is simply carrying out the orders of such a monolithic society, and hence it is under intense pressure to be maximally intrusive to protect the veneer of solidarity from deviation. But this amounts to a criticism of the culture of the welfare state, for it is a culture of collective concepts run amok. But there is more: Everything in Young's analysis suggests that he is thinking along lines similar to those sketched out in the writings of Friedrich Hayek. Basic to the depiction of the relativist position Young clearly favors is the epistemological claim that we are incapable of knowing the world because we are in it, and that therefore we ought to be more generous to so-called outsiders. Basic to the absolutist position that Young abhors is the arrogant claim that the world can be known monolithically and hence behavior can be "planned," to use Hayek's term. The claim seem preposterous at first glance, but there is no significant difference between the positions of Hayek and Young. Jock Young's analysis of social cohesion and its relation to values and ultimately to deviance provided an uncharacteristically brilliant beginning for National Deviancy Conference thinking. It anticipated and even provided a model for the later thinking of Stan Cohen in Folk Devils and Moral Panics, although Cohen would be much more colorful than Young in his choice of cohort groups. Young also anticipated the thinking of Stuart Hall by seven years in turning a spotlight on consensus and the role of the media in creating it. Also significantly, Young's emphasis on the medical model and the provision of treatment for deviants was remarkably prescient in anticipating the thinking of Ian Sinclair and Ron Clarke in the Home Office. Finally, Young's emphasis on experts put him ahead of Foucault in recognizing the intimate connections between knowledge and power.

The central feature of the books by Young, Cohen, and Pearson is not readily apparent, because it is something missing rather than something present. All three criminologists were either on the left or were sympathetic to the left, but there is little concern in their thinking for the larger issues of the economy. The conventional approach of Marxists or socialists to crime is to believe that crime is something of a mechanical failure, or a failure of the big machine that is society. Thus, altering economic arrangements should lead to improved social justice, and crime will at least be reduced as a problem. Conventional left-liberal criminologists

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tend to devalue cultural research, seeing cultural formations as particularistic and therefore secondary. What is central to Marxist or socialist criminology since Engels reoriented Marxism toward a highly mechanistic self-conception is a strong belief in the deterministic power of the great mechanism of the economy. Despite appearances, all three thinkers considered here do not share this basic presupposition. They spend nearly all their time on particularistic cultural presuppositions. Implicitly, it would seem, they mount a plea to mainstream society to be less solidaristic, to loosen up, in other words. Reformulated as an ontological presupposition, what is common to Young, Cohen, and Pearson is a belief in the priority of the individual. The drug user, the motorcyclist, the creative artist-these stick figures provide the foundations of the books by Young, Cohen, and Pearson, but clearly they are also more than stereotypes. They are the somewhat outlandish presentation of everyday selves in conditions of massive conformity. What they confront us with is not a collection of colorful tales from the industrial underworld without any further meaning but rather an ontological shift in perspective on how the world should be ordered. But if this ontological shift severs Young, Pearson, and Cohen from the traditional left, it hardly works to put them on the political right. A right-of-center criminology does not share the presuppositions sketched above, but this is not to say that a right-ofcenter criminology does not exist at all. Right-wing criminology emerges in lawenforcement agencies, in the press, and in the writings of such academics as James Q. Wilson and Robert Martinson. At its best, it is based on the common sense that is impugned by the more analytical left. The right-of-center presupposition is that the existing arrangements of society and especially the economy may be flawed and may produce certain specific injustices that may need correction and improvement, but that at the end of the day, existing arrangements are always said to be basically sound. They ought therefore to be accepted by individuals or groups of deviant individuals in society. If problems begin to grow large in society, the tendency of the right will be to look for cultural formations and see them as the sources of the problems. It is the acting out of cultural deviants that demoralizes mainstream society and causes real problems to grow. A rightist criminologist would maintain that no force in society is more significant than sustained and serious deviance; that even a small but amplified set of events, such as those surrounding the Mods and the Rockers in Brighton in the 1960s, is sufficient to demoralize all of society. Hence for a rightist thinker, there are real folk devils, and the fact that they set off moral panics, with or without the complicity of the press, is significant. To the extent that the implied message of such folk devils

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is demoralizing to mainstream society, it is bound to result in social dysfunction and more crime. Thus deviance is a real and not at all an illusory issue. Ironically, the right in the 1970s would not have been greatly worried about such phenomena as the Mods and the Rockers, but would have been very concerned with that form of isolated deviance Young called drugtaking. Rather than legitimizing this activity, the right saw it as the driving force behind crime and then saw crime as the driving force behind the disintegration and decay of the social that they prized. The tendency of the right was thus to become very confrontational toward drugtaking, to adopt toward it what would later come to be called zero tolerance, to make a war on drugs, and do this in the hope of restoring moral absolutism. Right-wing criminologies are essentially not different from those of the traditional left, except that they posit a different vision of the social, once based on common sense and the opinion of common people* for example, police officers and prison guards. Young, Cohen, and Pearson share none of this. That much would become clear in the early 1970s in Stan Cohen's and Laurie Taylor's Psychological Survival, a book that made clear, among other things, how distant Cohen and Taylor were from the "common sense" of prison guards, especially those whose work stations were in the Home Office, who for them seemed to understand nothing of the dilemmas of convicted prisoners.23There is little of this kind of social conservatism in the writings of Young, Cohen, and Pearson. Rather than being a problem, moral absolutism was for the traditional left and the traditional right an unqualified good, albeit in very different ways. No stone would ever be left unturned in any effort to restore it. Is this to say that a socialist or a rightist society could not or would not tolerate disagreement? Not at all, but it is to say that disagreement would be tolerated only if it were about means and not about the ends of society if, that is, it were technical rather than fully cultural. Thus there might be disagreement about how to prevent drug usage, but in the 1970s there could be no disagreement about drug usage itself, since it was threatening to society's moral solidarity; and certainly for the traditional cultural left or the traditional cultural right, there was no disagreement about the value of moral solidarity. I am very close to saying that the traditional versions of left and right are identical in their premises and their logics. Obviously their premises are diametrically opposed in form, but in the substantive presupposition

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of the ontological priority of social solidarity, they are identical. In the British welfare system of the 1950s, they became identical in the form of Butskellism, or the shared premise that both parties would work for the good of society. What was shared by old Labour and the old Tory parties was a basically feudal view of society, and there was no way to break into this short of challenging the virtually absolutist position given the value of the social. Young, Cohen, and Pearson become interesting only if one triangularizes the flattened political spectrum and adds in a neoliberal position; for insofar as neoliberals have no interest in social solidarity and its attendant moral absolutism, there is no reason at all why a neoliberal might not agree wholeheartedly with most things argued by Young, Cohen, and Pearson. If one argued to them that the Fordist industrial economy with its endless routines was beginning to unravel in the years in which they published their books, probably they would have been sympathetic to its unraveling. If one noted that such an unraveling would undermine the solidarity of the trade unions and thus the base of the old Labour Party, I suspect their reaction would have been mixed. Sympathies would have held them to the old industrial working class, but a different set of sympathies was propelling them to a new kind of society, just beginning to emerge. But to the extent that they understood what they were writing about, Young, Cohen, and Pearson would have to admit that they were real revolutionaries. But did they understand in the early 1970s? In an answer that returns us full circle to where this chapter began, it would seem they were not, otherwise they would have put a sharper political edge on their writings. Alvin Gouldner had suggested in his critique of Howard Becker's thinking that it was an instance of the "sociology of cool," and Gouldner might have said the same of the thinking of Cohel, Young, and Pearson. This is not to dismiss them entirely but rather to say that their thinking functions much in the same way as the lifework of John the Baptist. They opened a new frontier, but it would be left to others to stake it out.

Notes 1. Howard Becker, Outsiders: Studies in the Sociology of Deviance (London: Free Press of Glencoe, 1963). 2. Alvin W. Gouldner, The Coming Crisis of Western Sociology (London: Heinemann, 197 1). 3. Alvin W. Gouldner, "The Sociologist as Partisan: Sociology and the Welfare State," The American Sociologist, May, 1968.

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4. Six young scholars at a professional meeting being held at the Institute for Criminology at the University of Cambridge in 1968 created the National Deviancy Conference. We need not be held to the six scholars gathered around the table, but for the record they were Jock Young, Laurie Taylor, Ian Taylor, Stan Cohen, Paul Rock, and Paul Walton. They are in some respects odd bedfellows, but they do-for an afternoon at least-have in common a shared antipathy to the criminology of the establishment. Many of them have since become well known. Laurie Taylor is a columnist for The New Statesman and has been influential in shaping New Labour policies. Paul Rock imported symbolic interactionism to Britain and at the London School of Economics has established it as a methodological direction opposed to "grand theories." Jock Young established a school of criminological thinking called left realism that succeeded in influencing New Labour crime policy and has also been an export to the United States. Stan Cohen fashioned a consistently radical and even anarchistic perspective in British criminology and made it systematically distrustful of the state. But these sound-bite descriptions of the founders of the National Deviancy Conference betray the influence these men had on British criminology. It was they who in combination with other figures such as Mary McIntosh, David Downes, and Geoff Pearson brought British criminology out of the law-oriented position Radzinowicz had given it at Cambridge and made it into a potent new field that was able to stand independent of the government. 5. Edwin Lemert, Social Pathology: Studies in the Sociology of Deviance (New York: McGraw Hill, 1951). 6. Quentin Skinner, ed., The Return of Grand Theory to the Social Sciences (Cambridge: Cambridge Univ. Press, 1985). 7. R. D. Laing, The Divided Self (London: Tavistock, 1960). 8. See Robert R. Sullivan, 'The Birth of the Prison: The Case of Benjamin Rush," Eighteenth Century Studies vol. 31, no. 3, Oct. 1998, for a fuller description of the origins of the medical model. 9. Robert Castel, Franqoise Castel, and Anne Lovell, The Psychiatric Society, trans. Arthur Goldhammer (New York: Columbia Univ. Press, 1982). 10. The books being considered here are Jock Young, The Drugtakers (London: MacGibbon & Kee, 1971); Stan Cohen, Folk Devils and Moral Panics (London: MacGibbon & Kee, 1972); and Geoff Pearson, The Deviant Imagination (London: Macmillan, 1975). The books are of uneven interest to the argument of this chapter and so will be considered at uneven length. 11. Jock Young, The Drugtakers (London: MacGibbon & Kee, 1971). 12. Young continues to use the term absolutist in his most recent book depicting the character of contemporary society, The Exclusive Society (London: Sage, 1999). In describing the modernist welfare state, Young argues it is an absolutist social order whose rules (values) are seen in absolutist terms, meaning they are obvious, clear cut, and uncontested. This leads to a situation of what Young calls ontological security, or a situation in which identity is unques-

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knew what to do with the authorization. It lay dormant for five years before the Home Office acted on it, commissioning a study of offenders to be undertaken by Hermann Mannheim and Leslie T. Wilkins. The resultant book was a resounding success and may be counted as one of the founding texts of modem British criminal justice. So encouraged by its success was the Home Office that the 1948 statutory authorization to do research was finally institutionalized, and in a manner also typical of the Home Office, the institutes created were both outside and inside the Home Office. The inside institute was the Home Office Research Unit, created by and under the leadership of Tom ~ o d ~The e . outside ~ effort was the Cambridge Institute for Criminal Justice, placed under the leadership of Leon ~adzinowicz.~ In an indication of how minor the research effort was, the Unit (as it came to be called) published only thirteen research studies in its first thirteen years. All of these dealt with rehabilitation, and their significance was to certify the unquestioned domination of the medical model of rehabilitative treatment that Edward Glover had so enthusiastically recommended. The studies turned out at the Cambridge Institute were not much different. Radzinowicz ran an authoritarian regime at Cambridge, and whatever criticism of British criminal justice issued thence was couched in an architectonic framework of praise for the continued blessings of rule of law. Chief among these was Radzinowicz's History of the English Criminal Law and Its Administration, a prolonged celebration of English rule of law and of the English bourgeoisie and their state. There was as little critical edge at Cambridge as at the Home Office Unit. That someone would begin challenging rehabilitative treatment within the confines of establishment criminology is at first glance inconceivable, and indeed it was, despite the mounting of serious challenges to the medical model by 1970. The so-called antipsychology movement, recalled in chapter two, included such popular thinkers as R. D. Laing and was bound to have made some impression on the scholars in the Home Office. And surely the Home Office researchers would have been apprised of the books by Young as well as Cohen and Taylor and later Pearson that defined the alternative perspective of the National Deviancy Conference. The antipsychology movement had resulted in a determined effort to question the institution of the prison, and that challenge in turn would bring in scholars such as David Rothrnan in the United States, Michel Foucault in France, and Michael Ignatieff in the United Kingdom. But if we are to judge by the reported reaction to Stan Cohen and Laurie Taylor's Psychological Survival, the response of the Home Office was to throw up an iron curtain to outsider criticism.

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One of the chief outsider criticisms was Robert Martinson's aptly named study, What Works? A Study of Sentencing Policy in the United States, which-however unfairly--created the simplistic conclusion that nothing works.5 Martinson's work was paralleled by the writings of another American, James Q. Wilson, whose Thinking about Crime popularized such doubts as Martinson had expressed and associated them with the newly emerging neoliberal paradigm on crime and criminality in the United states6 That study promoted the reinstitution of a legal approach to crime. Elsewhere, Wilson commented directly on criminal justice in England and argued that the Home Office was resistant to the kind of debate that Martinson's work had sparked in the United states.' Even by 1975, the prospects for change in the Home Office were not looking good. From 1971 onward, one young Home Office researcher, Ron Clarke, began to cut his teeth by teaming up with a sequence of other junior Home Office researchers. He published interesting but unchallenging articles or monographs with Ian Sinclair, Derek Cornish, Patricia Mayhew, Mike Hough, and Jack Tizard and throughout developed his still tentative theoretical focus. With each team effort, he made allies and moved himself toward the unofficial center of the Unit. With each publication he developed a more complex but still focused argument. He made and developed contacts in the United States, eventually becoming well acquainted with the thinking of Marcus Felson and thus having positioned himself, Clarke would later be instrumental in importing Felson's routine activity theory to Great Britain. Already by the mid-1970s, when to an outsider like James Q. Wilson the Home Office looked like an intellectual cemetery, things were changing. Already in this early period, Ron Clarke had become the new pole toward which thinking gravitated in the Home Office Research and Planning Unit. Clarke's career proceeded apace and benefited from his central position as a researcher and his widening circle of collaborators. It accelerated with the breakdown of the consensus supporting rehabilitative treatment in the Home Office itself, a phenomenon initiated with the publication in 1975 of Stephen R. Brody's seminal The Effectiveness of Sentencing, a study that replicated Martinson's American work, but with British sources.' After that, the slow flow of change turned into a torrent as even the established authorities in the Home Office caught the drift of things away from the boilerplate truths of the welfare state and toward a new order. The Home Office began significantly shifting gears in 1977, and within three years Ron Clarke was effectively running the Unit, and this despite rather than because of his personal relations. Finally, in 1981 Clarke was appointed the head of the Unit, which he succeeded in reor-

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ganizing for action. He was now at last in a position to shape planning. In this chapter, I turn to his ideas, as they appear in works done with his many Home Office collaborators.

One of the favored counters to the nothing works argument is the claim that more needs to be done-an argument that carries a good deal of weight, for very often state welfare programs are systematically underfunded. Thus what is needed in response to the continued presence of the rehabilitative ideal is not a repetition of the mantra nothing works, which after all is a simplistic pragmatic argument holding scant redeeming intellectual content. What is needed to effectively combat the welfare state is rather a more delicately nuanced argument to the effect that even if the rehabilitative approach did work, it should still not be used because it is offensive to values more significant than that of workability. Such an argument must somehow manage to attack the underlying rehabilitative premise that human beings are determined by biological, social, or political forces beyond their control and are therefore themselves victims, not responsible for their acts. Rationalchoice theory provides this kind of argument, and in recent criminal justice it has been articulated by Ron Clarke, Derek Cornish, and others in The Reasoning Criminal: Rational Choice Perspectives on That book and other writings as well were published in the mid-1980s, and thus the book mentioned here looks like an afterthought to Clarke's career in the Home Office. As an edited volume, it is problematic also because it collects the thoughts of other, like-minded scholars, and it is thus difficult to say just where the thinking of Clarke and Cornish begins and ends. But despite all these shortcomings, there abides an argument that can be teased out of The Reasoning Criminal. Integral to it is the claim that the criminal is a rational chooser and hence a normal member of a society of rational choosers. The criminal in Clarke's portrayal is not a sick person in need of rehabilitation but rather a conventional person-hence fully capable of choice-and thus a person who merits legal punishment for his offenses, not treatment. There are a number of ways to avoid the pitfalls of the abrupt classical presentation of rationality. The latter suffered from an exaggerated vision of the difference between humans and other animals, assigning reason tout court to human beings and seeing other animals as devoid of that faculty. Already in the eighteenth century this theory was suspect, as Bernard Mandeville demonstrated by extolling bees as rational creatures.'' The pivotal assumption of Mandeville's presentation was not

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only that humans were calculating beings, a move that reduced reason to the status of calculator of means, but, more significantly, that they acted for selfish reasons. For Mandeville, human beings, like bees, were still and above all calculators of self-interest. As long as the first presupposition about calculation was locked in place, untold numbers of studies would be undertaken to demonstrate that this or that animal-monkeys and, above all, chimpanzees-can also "reason," as surely they can. It was not hard to show that they, too, reasoned for selfish ends. Gradually but inexorably, the nineteenth century came to expand the enlightenment presupposition and assume that even primitive peoples could reason. Why not then include putatively "sick" people as well? Gradually, in effect, the barriers preventing the criminal from being seen as an outsider were dismantled. This in sum is Cornish and Clarke's line of argument in The Reasoning Criminal. In speaking of their rational choice theory, a term which they use in an untechnical sense, Cornish and Clarke argue that its "starting point was an assumption that offenders seek to benefit themselves in their criminal behavior."" The notion of the reasoning offender means that the criminal is simply an ordinary person, and hence the effect of Cornish and Clarke's argument is to normalize the criminal. They argue that their notion of reasoning "implies the essentially nonpathological and commonplace nature of much criminal activity," and that the reasoning criminal "employs the same sorts of cognitive strategies when contemplating offending as he and the rest of us use when making other de~isions."'~Cornish and Clarke effectively normalize criminal behavior. But Mandeville had more to say, and it is of indirect significance to Clarke's thinking as expressed in his edited books. For Mandeville, the motive of se@shness was not unequivocally bad, and hence he tended to view it as we view self-interest: a necessary ingredient in the progress of a certain kind of society. In other words, a collection of self-seeking human beings need not produce the Hobbesian condition of a war of all against all. For Mandeville, their efforts produced a gradually and unintentionally organized society. By means of this kind of thinking, Mandeville became the inventor of a new vision of social organization. Society need not be the result of planning, a Hobbesian notion that makes the state a necessity. It may rather be the unintended consequence of actions that have nothing to do with the final form of society, and the motive of these actions may also have nothing to do with the final moral quality of society. Thus, selfish actions may produce the good society, measured in term of the benefits provided to most or all of the society's

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members. Mandeville's thinking is a key moment in the history of modem liberal thought. Cornish and Clarke do not raise the question whether criminal behavior makes a social contribution, thus showing one of the limits of their theorizing. Of course, Mandeville was talking about self-interested behavior whereas Cornish and Clarke are talking about criminal behavior that happens to be self-interested. But in not taking up this line of argumentation, they miss an opportunity that is available to any subscriber to consequentialist ethics. If crimes, like fraud, have socially beneficial consequences that conceivably outweigh the harm they d-for example, teaching society about the weaknesses of existing internet arrangements, an argument that Bentham made-then arguably the criminal act is significantly mitigated. Computer "hackers" are obviously an interesting social cohort. They are unquestionably rational, and they are often selfinterested. There is nothing inherently evil about their acts, and thus they may be defined as status criminals or as a cohort exceedingly valuable to start-up internet companies. This example alone mandates serious thinking about the inclusionary aspects of political society. Cornish and Clarke do not pursue this line of argument, which indirectly says the obvious, that they are not political theorists. But in one key respect, they are compelled to be reflective about their argumentation. The claim that criminals are rational, or reasoning, contributes a piece to the larger puzzle of the autonomous individual. However it is conceived, when looked at analytically, autonomy can be discussed in terms of a number of independent faculties, the most famous of which is the free will. A will that is free is one that is unencumbered, and sirnilarly a reason that is free is unencumbered, or unembedded. The informed reader will recognize the elements of a cornrnunitarian argument, which in the words of Michael Sandel, argues that we are embedded beings and not the isolated and atomized beings that liberal theory usually posits, at least in its more extreme variants. I have noted that Cornish and Clarke need to be reflective about this line of argumentation because it has legal ramifications. However we construe it, an embedded being is less than free and hence less than fully responsible for his or her actions. This, however, is the argument against Sandel, not Cornish and Clarke. Their figure of the reasoning criminal is almost fully disembedded, and such a position entails the full gamut of legal responsibility. Thus, however unwittingly, Cornish and Clarke's argumentation provides the foundation for the kind of just deserts arguments made by Andrew von Hirsch in the 1970s.13 Alan Norrie brought this claim to Cornish and Clarke's attention in a critique of their position in The Reasoning Crimin~l.'~ Somewhat sur-

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prisingly, Cornish and Clarke own up to the charge but plead not guilty. In their words: "Our own view would be, first, that a concept of human reasoning as 'situated' is not only compatible with but given explicit recognition in a rational choice approach." This is a remarkable claim and begs for further explanation. Cornish and Clarke provide it by refemng back to an earlier distinction they had made between involvement in crime, or criminality, and crime itself. Criminality describes a prolonged process of contemplating and choosing to engage in crime; crime as such is the event itself and is a much briefer and less manifestly rational process. For Cornish and Clarke, the reasoning criminal is located more in the crime stage than in the involvement or criminality stage. Cornish and Clarke are thus willing to concede the involvement (or criminality) stage: It is true that [criminal] event models, considered alone and out of context, might seem to encourage that image of the offender to which Norrie objects. Each [criminal] event, however, is linked to a previous . . . involvement decision sequence, and it is there, where wider social forces and personal histories have most impact on decision making, that the situated nature of practical reasoning is most clearly to be appreciated and structural explanations of offending to be sought. l5

In other words, the claim that criminals are embedded beings and thus not fully responsible for their acts is conceded, but only in the process leading up to the actual criminal event. At that point, situational factors take over, and embeddedness fades into the background. Consider the following from Cornish and Clarke: It is with the influence of [embeddedness] . . . that traditional criminology has been preoccupied; they [embeddedness factors] have been seen to determine the values, attitudes, and personality traits that dispose the individual to crime. In a [criminal] decision-making context, however, these background influences are less directly criminogenic; instead they have an orienting function--exposing people to particular problems and particular opportunities and leading them to perceive and evaluate these in particular (criminal) ways. Moreover, the contribution of background factors to the final decision to commit crime would be much moderated by situational and transitory influences. 16

Norrie rejects this view and the distinction it rests upon as narrow and false. He sees decision making as a seamless whole, and thus he thinks that so-called background factors play a continuous role, and perhaps the

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decisive role, in the actual decision to commit a crime. But then no reasoning is given to support this contrary position, and that is unfortunate, because until this concluding point Norrie had made a seemingly plausible and promising argument.17 Nonie's claim about thinking being a seamless whole is too extreme. All of us are familiar with the practical distinction between reflection prior to an act and then the thinking that actually accompanies an act. We reflect and intend to do XYZ, but then when the moment amves, factors like rising passions arise and seemingly impel us to different actions. Analogously, there is much to be said for a sharp distinction between criminality and crime itself. Very often the two are separated in practice by cases of "cold feet" or "hot headedness." I can illustrate my point about Cornish and Clarke being disingenuous from the very same book that the disclaimer comes from: The Reasoning Criminal. In the introduction, they argue that their rational choice model ought to be extended to violent offenses. They cite relevant studiesamong them one from Lonnie Athens, a criminologist made famous by Richard Rhodes in a book called Why They Kill. They argue that such studies "suggest that many such offenses do indeed exhibit a substantial degree of rationality."18 What such a comment reflects is the still existing imperial ambitions of Cornish and Clarke. There are few who would argue that the situational control model is mistakenly applied to corporate crimes; there has never been much debate about that. Debate has always focused on violent crimes, the classical argument being that violent crimes are acts of passion, which of course is a way of saying that they are not crimes of reason. Rhodes has brought Clarke's position to an extreme statement. In respect to Matthew Goldstein, who pushed a woman to her death in the New York City subway, Rhodes followed Lonnie Athens's reasoning in arguing that Goldstein was fully responsible for his crime. Goldstein was certified to be mentally deranged, but Rhodes argued that he still knew right from wrong at the time of the crime. Rhodes's reasoning was that Goldstein had admitted to not pushing other women because of the sudden appearance of a police officer or someone who had the power to thwart the planned crime. In other words, inadvertent situational crime control worked (most of the time) with Matthew Goldstein, a demonstrable claim because Goldstein was repeatedly able to choose not to act. If Clarke's position is illustrated in Rhodes's recent book, Norrie's position is also illustrated and supported in a recent book, Gitta Sereny's Cries Unheard. l9 It tells the story of Mary Bell, an eleven-year-old murderess of two boys, aged four and three at the time of their deaths. Mary Bell was convicted three decades ago, but Cries Unheard is a book of

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recent criminological reflection, having been published in 1999. Sereny's most fundamental belief is that human beings are born good but made evil by society.20Criminals are thus the victims of society, tout court. Sereny's claim entails two related consequences. The first is that society owes a debt to the offender, since the offender is absolutely not responsible for his, or in this case her, wrongdoing. If we grasp the logic of this argument, welfare is a kind of restitution paid by the guilty to the victim, and in this case society is the guilty party and the perpetrator of the specific crime its victim. The other and related consequence of Sereny's argument is that the perpetrator is not subject to legal punishment, since the law in Anglo-Saxon jurisdictions assumes the autonomous individual responsible for his or her actions. Sereny's argumentation seems akin to Norrie's in holding thinking to be a seamless whole. Mary Bell probably never reflected on crime, but she was damaged in the life of child prostitution she was compelled to lead by her mother, and given an opportunity, she searnlessly transferred her frustrations and revulsion to two small boys. Sereny would hold Mary Bell to have been "sick," and so too would Norrie with his claim that criminal thinking is seamless. But the British state held Mary Bell responsible for her actions and therefore tried her, as we like to say, as an "adult." In effect, Mary Bell was deemed to have the capacity to tell right from wrong, and she chose wrongdoing. The court found her guilty of murder, and sentenced her to prison. The British state never explained why it took that position, but the reasoning can easily be supplied, as I have done here. Obviously, the British state did not believe-and if we are to judge by the similar trial of the child murderers of Jamie Bulger, still does not believe-that children are born good, or innocent, to use Rousseauist terminology. If all this is indeed the case, then the rug is pulled out from under traditional criminology, which at its most basic holds that unjust social arrangements are the root causes of crime and that therefore in every case society or the state, as the agent of society, owes the criminal rehabilitation. Ironically, right-wingers of the social variety usually also blame society, but point the finger at corrupt mothers or feckless fathers rather than at economic arrangements. Somewhere in the shrouded past, it was the failure of family values that caused little Mary Bell to go wrong. It is really the rather rare day when the state can escape all social deterrnination and point the finger of guilt at the child. But in the case of Mary Bell, the British state did just that. Clarke's final position in separating criminality from crime might well have been the opposite of the one I am arguing here. He might have argued that all of us are at one time or another inclined toward criminal-

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ity-I could just kill the kids today, they've acted so badly-but we don't finally act on those expressions because criminal actions are situationally blocked. Thus, situational crime control might, arguably, be held to create the very distinction Clarke claims to be analytical. Without any situational constraints, we might all be killing our kids every day. But Clarke did not argue this way. The point of the preceding argumentation is not to extol the virtues of Ron Clarke's thinking about the rationality of criminals. The point is rather more of a practical one: Clarke's ideas on criminal rationality were in complete harmony with rising Thatcherism, and to the extent that these ideas-here stated definitively by Clarke in the mid-1980s-informed Clarke's thinking when he was at the top of the Home Office's Research and Planning Unit, they tell us that Ron Clarke was at least in harmony with the spirit of the times and perhaps even providing that spirit with its cutting edge.

From the outset, Clarke and Cornish depended for their thinking on the writings of Walter Mischel, especially his 1968 book Personality and ~ssessment.~' What they liked about Mischel's thinking was that he rejected personality theory in favor of social learning theory; but in telling fashion, Cornish and Clarke appropriated this latter theory by renaming it environmentaUleaming theory. Basic to the revised terminology was the argument that individuals were not characterized by enduring personality characteristics, which would show up over varying situations. They quote Mischel as saying that "with the possible exception of intelligence, highly generalized behavioral consistencies have not been demonstrated and the concept of personality traits as broad response predispositions is thus ~ntenable."~~ For Mischel, and here Cornish and Clarke put on the italics, "behaviour is seen to depend on the exact stimulus conditions in the evoking situation and on an individual's previous experience of similar situation^."^^ At first glance the thinking of Clarke and Cornish still looks similar to that of Gitta Sereny, but close analysis shows that it is not in the least similar. She claimed that humans were born good but made evil by society. Her position presupposes the existence of something called society, either in the leftist form of an exploitative capitalist economy or in the rightist form of a disfunctional family. But neither the leftist nor the rightist position is characteristic of Clarke and Cornish. They are claiming that humans are born innocent of any fixed predispositions and are

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rather responsive only to the stimulus of situation. They do not posit society as the matrix of forces out of which the individual arises. For Ron Clarke, the personality is a blank sheet of paper on which situations write their messages, to paraphrase Locke. At first glance, it is hard to believe that policy can be based on such a position. Put the other way around, the fact that Clarke created and pursued situational crime control says a good deal about his vision of human nature. If human beings were good by nature, then locks, gates, closedcircuit television cameras, and warning signs would not be necessary. If human beings were socially determined by capitalist economic formations or unloving parents toward evil, then even the best of locks and the most comprehensive of camera systems could not keep them out. If human beings have no strong inclinations, either natural or social, but are responsive only to local and immediate stimuli, then situational crime control makes eminently good sense. How does this thinking drawn from Mischel square with what was said above about the criminal being a rational chooser? It does not deny it but rather affirms it. Quite simply, the criminal, for Clarke and Cornish, is a Benthamite calculator of pains, pleasures, and self-interest, and as such a calculator is entirely rational. His rationality is of course a minimal rationality of means, not a Kantian rationality of ends, or categorical imperatives. The criminal is in any case not driven by any irrational compulsion hardwired into his developing personality by capitalist society or the corrupt family. The point is that criminals are just like everybody else in middle England: healthy rather than sick persons. What Mischel is describing is the "normal" person. Cornish and Clark like the description-and here I am positing a guess-because it triangularizes the political spectrum. In addition to the traditional conspiratorial left and the traditional moralizing right, both of which posit variations of society as causal factors, the third position is distinguished by positing no social determinant. This is the neoliberal position in its essentialized form. For by being made rational rather than sick, the criminal has already been normalized, and being normal means that criminals do not differ from us in middle England and middle America. In a conclusion strongly reminiscent of James Madison in Federalist No. 10, Cornish and Clarke write as follows: This model of behavior implies that intervention should aim to modify the consequences of behavior (its reinforcements) and the emotion-arousing properties of stimuli rather than to attempt to bring about some more fundamental change in the responding individual himself. 24

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Here then is an original statement proclaiming situational crime control, and in the context in which it is made, it has to be taken as a deduction from a psychological theory. By invoking Mischel and by emphasizing his argument, Clarke and Cornish were moving from the empirical argument that rehabilitative treatment did not work to the theoretically much more ambitious claim that rehabilitation could not work because it had no object. There was no personality that had definite inclinations. Metaphorically speaking, there was no body where disease could take root. At this point Clarke and Cornish might have made a universality claim for rational choice. Being British, they of course did not. Clarke and Cornish then applied the thinking articulated here to previous or past experience, thereby giving their emerging theoretical thinking a historical pedigree of sorts. The past, "rather than creating in the individual stable and consistent personality traits, equips him instead with an ever-expanding set of potential behavioral responses [Italics from Cornish and Clarke]; but these behaviors, since they were originally elicited in particular situations, will only be repeated when the latter recur."25 In a nutshell, the previous sentence amounts to situational crime control in the guise of a philosophy of history. The present is just a cumulative past reposing in the psyche and is conceivably a powder keg in respect to which the situation is the fuse. So what is to be done with such a historical accumulation in the psyche? In brief, nothing, at least with the accumulation called memory. But the all-important situation needs to be altered so that it does not work like a fuse. The argument would seem to militate in favor of a sustained effort to change the cumulative dispositions created by history, but not for Clarke and Cornish, who spend little time on their historical pedigree. Just change the immediately present stimuli. Only the immediate stimuli count, and in the case of "history" the stimuli of the present. Thus Clarke and Cornish would hold no sympathy for the view that the peoples of the Balkans are fated to kill one another. Once again to repeat their conclusion of 1975, the criminal justice professional should seek to "modify the . . . emotion-arousing properties of stimuli rather than to attempt to bring about some more fundamental change in the responding individual himself."26 This is situational crime control without the familiar terminology. A final note about the concept of history involved here. The conservative position glorifies history by turning it into tradition, and thus Eric Hobsbawm is absolutely on target in writing a book called The Invention of ~radition.~'But if the past does not take shape naturally, then it has to be supplied, and even when it does take shape naturally, as for example at Kosovo field, then it still has to be embellished and recreated as myth

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in order to be transmitted to children. When E. P. Thompson wrote The Making of the English Working Class, he was tacitly admitting as much, but of course in the leftist manner of seeing history as something "made" in the industrial sense of that term.28The neoliberal position is of course also capable of doing similar things. What we see from Clarke's argumentation is that situational crime control absorbs history as one of any situation's possible elements. What is revealed is not therefore a historical theory but is rather a synchronic theory for which "history" is simply another dimension the situation to be controlled. That much suggests that we are dealing with a powerful theory. Finally, what needs to be emphasized about the psychology of situational crime control is how much it is at odds with the thinking of Freud and how much in harmony with the Anglo-Saxon tradition of liberalism. Freud's instinct theory turns history into virtual fate, and it is hard to imagine any situation altering such an array of forces. Clarke is more like Dewey in substituting impulses for instincts, making history into one of many impulses, and then arguing that his human nature can be managed by situational management. History in this view now becomes not an unmanageable Oedipal complex of forces but rather a Disneyworld of delights and scares that can be altered at will by management. In the name of governance, liberal society may require such a weak personality, and Clarke obligingly provides it.

If normal persons choose to maximize their interests (or minimize their disinterests) in reference to situations, then the opportunities offered should be addressed by the situational crime preventionist. Insofar as they are opportunities for crime, they should be eliminated or reduced. In other words, lock yer bike, to paraphrase Norman Tebbit. At frrst glance it does indeed seem to be a matter of gates, bars, closed-circuit television, private security guards, car alarms, Mace, home security systems, lighting, increased awareness of dangerous places, and the like. There is nothing much to say about it. There is a daunting common sense to Clarke's vision of situational crime control. And yet there is also an urban environmental theory behind it that has a great deal to say about the changing character of modem society. That line of thinking was initiated by Jane Jacobs in 1961, articulated in more sophisticated fashion by Oscar Newman in 1973, and given specific application to criminal justice in the thinking of C. Ray Jeffery and Paul and Patricia ~ r a n t i n ~ h a We m . ~can ~ quickly recall each in turn.

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Jacobs argued that the coherence, or "convergence," of American cities was being destroyed by any number of alienating structures in the city, and her message was that city planners had to reorient themselves to integrative structures, seeing such redress as the key to healthy personality d e v e l ~ ~ m e nJacobs t . ~ was a rather remarkable populist whose concept of community focused on the totalized New York City street. It was her model situation, her version of Coronation Street, the happy urban kingdom. Opposed even to parks as distractions from the street, she was in favor of businesses remaining open twenty-four hours a day to facilitate street life and deter crime. She would compel trucking to be done at night to keep the city going round the clock. She was very much the opponent of Lewis Mumford for his elitist romanticism, but that did not mean she was not a romantic her~elf.~'The kernel of inspirational message in Jacobs' writings was clearly keyed to situational modification in the city in order to reinforce personalities. Ten years later, Oscar Newrnan accepted much of what Jacobs found objectionable and argued that existing spaces in high-rise public housing projects had to be accepted as they were and made defensible against crime.32Thus entranceways, parking lots, hallways, elevators, laundry rooms and the like had to be designed for easy visibility, access, and escape. Vulnerable windows had to be barred, doors double-locked, and the like. The details of Newman7smessage were clear and simple. Unlike Jacobs, he was not in the least romantically inclined to argue on behalf of the communal settings of streets and street comers, but accepted much of the changes that were occurring in American cities. Jeffery and his student, Paul Brantingham, gave this kind of thinking specific application to criminal justice situations, arguing that crime could be engineered out of situations. It might be well to recall that what the British call housing estates [public housing] were themselves originally conceived as a kind of situational crime control. Some of the worst urban slums in the world were to be found in Britain up to World War II. The bombing of East London by the Germans effectively destroyed one of the meanest and most criminogenic of British slums, and when it came time for postwar rebuilding, the Labour government decided to build housing estates elsewhere in the city to take the displaced population. These estates were spacious, clean, comparatively well lighted, and very much an early illustration of situational crime control. That they later became criminogenic themselves is one of the ironies of modernization, seemingly easy for us to understand but not so easy for the creators of the estates. In 1979, Marcus Felson provided the argument that made the most sense of situational crime contr01.~' The totally unromantic Felson re-

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jected the Jacobs thesis of convergent social forces as hopelessly romantic. He instead argued that the forces at work in the American city were essentially divergent. With more money, Americans were not converging on public transportation or on Jacobs' beloved street but were rather moving in droves to the divergent transportation of the automobile. In place of large and even extended families being packed into single houses or apartments, people were moving into their own apartments or separated houses. Instead of gathering together around the radio during the evenings, as people had done in the 1930s and 1940s, they were acquiring portable, personal television sets and viewing them alone. In other words, Felson argued, the consumer society was actually enabling individuals to come into material being, and so society was increasingly a collection of more or less unrelated individuals rather than a collection of smaller and larger communities. Jacobs' goods-the street, neighborhoods, cinemas, comer stores, and in an English context, the pukbrought people together and acted as a situational stimulus to community. However desirable and appealing these public goods, they were in essence deindividualizing. Felson's goods-the automobile, the personal computer and eventually the laptop, the princess phone and eventually the cell phone, the detached house and the studio apartment-all of these private goods were individualizing. Hence, through Felson's argument, it was possible for the first time to recognize that the transition from so-called welfare liberalism to neoliberalism was not simply a jump from Twining's Tea to Lipton's Tea. It was rather a jump from a questionable form of liberalism-indeed, the question now was whether welfarism had been liberalism at all-to a more clearly authentic form of liberali~m.~~ We do well to pause for a moment to reflect on individualization. Autonomous individuality is the sine qua non of Western liberalism, but clearly the concept is synchronic and thus a little too Platonic to be swallowed whole. A more realistic version is diachronic and recognizes that individuals are created by political decisions taken in historical time. The question whether such individualism was a good or bad thing will not be answered here, but it should be noted that the political left and right both agree that individualization (or autonomy) may be the consequence of policy. Decisions have to be made whether to build deindividualizing railway tracks or individualizing highways, and clearly of late the power has been located on the side of individualizing highways and the powerfully individualizing personal a ~ t o m o b i l eMarcus .~~ Felson was on the individualizing side of this argument. Felson theorized that crime had to be understood as a triangle made up of the offender, the object of the offense, and the caretaker of that object,

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in other words, the burglar, the home, and the homeowner. Felson froze the offender as a normal person who would or would not commit crime, depending on the opportunities offered. He then argued that the objects of crime-automobiles, small pieces of movable personal property that could easily be black-marketed-were increasing at a rapid rate, and hence opportunities were expanding exponentially. But as if this situation were not bad enough, the third leg of the tripod, the caretaker, was also changing. People were spending less time at home, more time at work, more on vacation or away in local leisure-time activities, and hence the increasing number of objects was being less guarded. And Felson was writing in 1979, before the full force of feminism and economic change would induce the American housewife to depart the home and take to the workaday world as well, thereby leaving the treasure trove of the American house unguarded for eight, ten, or twelve hours daily. Felson's thinking in 1979 would only gain support with time. In 1979, Felson's argumentation might have seemed to have little relevance to Britain, for British fortunes were then at a low-perhaps not an all-time low, but still a low generated by the unending labor troubles of the 1970s-and so all Britain might have seemed like a dreary and unhappy Coronation Street in 1979. But 1979 was also the year in which Margaret Thatcher was elected, and soon enough North Sea oil would be pumping, the unions would be broken, dinosaur industries would be closed down, the markets would be modernized, and Britain would be awash in money and prosperity. Ten years after Thatcher's first electoral victory, Marcus Felson's arguments would be entirely applicable to Britain. It is important that we grasp the significance of Felson's dynamic recreation of situational crime control and its relation to rationalchoice theory. The essence of rational choice is that the criminal is a normal person, meaning that he is keyed to the maximizing of interests and makes choices that are rational because they aim at such maximization. The essence of Felson's version of situational crime control is contained in the title he gives his own work: his interest is in routine activity, and the charm of this theory, that which links it clearly with rational choice, is that the latter is normal. Normal persons do routine activities, and if the opportunity structure of routine activities changes radically, then normal persons will respond precisely because they are normal. That is to say, it is normal to be entrepreneurial in respect to opportunity. If the police willingly or through indifference fail to close down the opportunities for drug trafficking, then normal persons will enter the trade. To counter with a moral argument the phenomenon of normal persons getting into drug trading is not mistaken but is liable to be ineffective. To

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counter such normal activity with a social approach is also liable to be ineffective, because by definition the offender is rational. The main point of this section of this chapter is that situational crime control is a special theory in respect to the general theory about human personality. But aside from this logical rearrangement of the theoretical elements of crime control, which has a certain self-justifying elegance, what becomes apparent in the synchronic presentation is how well keyed situational crime control was to the new society being introduced by the revolutionary Thatcher. This is not for a moment to suggest that situational crime control was playing into Thatcher's hands, for nothing could be more mistaken. In all of its contingent elements, that model developed completely independently of Thatcher. What power and appeal it had was due to its being in correspondence with the new society that was emerging fitfully and gradually in the 1970s. No one was closer to catching the essence of the new risk society than Marcus Felson. Not for nothing did Felson live in Los Angeles at the time when he wrote his brilliant article, for it enabled us to say that he was actually reporting on Los Angeles life, and not American life as a whole. In any case, it would have taken a British scholar of unusual prescience to do what Felson had done. Ron Clarke's articulation of situational crime control was finally just as interesting as Felson's-for a number of reasons, not the least of which was that it was English and was responding to a more belatedly changing English society. But while the Englishness of Clarke's work may be one of its appeals, that work becomes more appealing still for Clarke's having developed it extraordinarily close to the ground in the Home Office's Research and Planning Unit. Unlike Felson, who was an academic and thus able to give free rein to speculation, Clarke functioned in a political context that could turn on him in short order. He thus could not jump too far ahead of the slowly growing consensus in the Home Office. If he was going to lead this consensus, he had to do so cumulatively and opportunistically and not according to a neat model of logical progression such as we have presented here.

Notes 1. Edward Glover, The Roots of Crime (London: Imago, 1960). 2. Hermann Mannheim and Leslie T. Wilkins, Prediction Methods in Relation to Boorstal Training (London: Her Majesty's Stationary Office, 1955). 3. T. S. Lodge, "The Founding of the Home Office Research Unit," in Roger Hood Crime, Criminology, and Public Policy (London: Heinemann, 1974). 4. Leon Radzinowicz, The Cambridge Institute of Criminology: Its Background and Scope (London: Her Majesty's Stationary Office, 1988).

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5. Robert Martinson, "What Works? Questions and Answers about Prison Reform," The Public Interest 35, spring 1974. 6. James Q. Wilson, Thinking about Crime (New York: Basic Books, 1975). 7. James Q. Wilson, "Crime and Punishment in England," The Public Interest vol. 43, spring 1976. Wilson's piece is impressionistic and probably the result of a visit to England. Wilson mentions Martinson's study (pp. 22-23) and seems to believe that it had had little effect on the Home Office. This was mistaken, as Brody's study indicates. 8. Stephen R. Brody, The Effectiveness of Sentencing (London: Her Majesty's Stationary Office, 1975). 9. Derek Cornish and Ron Clarke, eds. The Reasoning Criminal: Rational Choice Perspectives on Offending (New York: Springer Verlag, 1986). 10. Bernard Mandeville, The Fable of the Bees or Private Vices, Publick Benefits (Indianapolis: Liberty Classics, 1988). Mandeville's thinking provides the literary origin of laissez-faire theory and is only realized fully and consciously in the writings of Adam Smith. 1 1. Cornish and Clarke, Reasoning, 1. 12. Cornish and Clarke, Reasoning, 6. 13. Andrew von Hirsch, Doing Justice: The Choice of Punishment (New York: Hill and Wang, 1976). 14. Alan Norrie, "Practical Reasoning and Criminal Responsibility: A Jurisprudential Approach," in Cornish and Clark, Reasoning. 15. Cornish and Clarke, Reasoning, 217. 16. Ron Clarke and Derek Cornish, "Modeling Offenders' Decisions: A Framework for Research and Policy," in Michael Tonry and Norval Morris, eds., Crime and Justice: An Annual Review of Research, vol. 6 (Chicago: Univ. of Chicago Press, 1985). 17. Norrie, in Cornish and Clark, Reasoning, 2 17. 18. Richard Rhodes, Why They Kill (New York: Alfred Knopf, 1999). 19. Gitta Sereny, Cries Unheard (New York: Henry Holt, 1999). 20. My reading of Sereny is strongly confirmed by Isabel Hilton in "Evil's Interrogator," New York Times Magazine, April 4, 1999,34ff. 21. Walter Mischel, Personality and Assessment (New York: Wiley, 1968). 22. Cornish and Clarke, Residential Treatment, 39. 23. Cornish and Clarke, Residential Treatment, 39 24. Madison famously wanted to deal with the effects rather than the causes of behavior. The root cause of the behavior he deplored, which he called factions, was freedom, and Madison properly thought that the remedy of eliminating freedom was worse than the disease. Freedom, or liberty, was for Madison the noninterference by the state, and so any remedy for the disagreeableness of factions would have entailed the intervention of the state. The cure was in any case worse than the malady. 25. Cornish and Clarke, Residential Treatment, 39. 26. Cornish and Clarke, Residential Treatment, 39.

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27. Eric Hobsbawm, The Invention of Tradition (New York: Cambridge Univ. Press, 1992). 28. Edward P. Thompson, The Making of the English Working Class (New York: Vintage, 1966). 29. C. Ray Jeffery, Crime Prevention through Environmental Design (London: Sage, 1971); Paul and Patricia Brantingham, eds., Environmental Criminology (London: Sage, 1981). 30. Jane Jacobs, The Death and Life of Great American Cities (New York: Random House, 1961). 31. Lecture by Richard Sennett at the London School of Economics, Nov. 10, 1998. 32. Oscar Newman, Defensible Space (London: Architectural Press, 1973). 33. L. Cohen and M. Felson, "Social Change and Crime Rate Trends: A Routine Activity Approach," American Sociological Review 44, 1979. 34. Probably by virtue of Charles Murray's strong argument about the necessary dependency created by welfare programs in his Losing Ground (New York: Basic Books, 1984). 35. Of course it may not always remain there. Geoff Pearson's plenary talk on the future of criminology at the British criminology conference in 1999 haz-

arded the prediction that the personal automobile would give way to a collective technology in the twenty-first century. If he is correct, it will be because the automobile no longer individualizes persons but rather collectivizes them in traffic jams, and the railways may succeed again because they actually reindividualize persons by providing them with leisure and thus with freedom.

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The distinctiveness of the attack is in the extended metaphor by which it is characterized. Clarke and colleagues claimed that the Home Office was beholden to a medical myth in respect to rehabilitation. The following quote describes as well as any their thinking: According to the medical myth, delinquency or crime is a symptom of pathology in the individual person. The "illness" is most commonly thought of as a disturbance of personality or attitudes which should be dealt with by subjecting the delinquent to a character-forming "treatment." This treatment is expected to act as an antibiotic or a course of radiotherapy. As in medicine, the main objective is thought to be "cure" of the individual and careful experimentation and assessment are seen as ways to enable the more effective techniques to be identified and consequently adopted on a wider scale.7

The above quotation is from Clarke and Sinclair, but a year later Cornish and Clarke were saying virtually the same thing: Current institutional programmes . . . rely on a "disease" model of delinquency and a "medical" model of intervention. According to these, since the main source of behavioural variance lies within the individual the primary focus of therapy should be on changing the individual. More specifically, the residential programme is seen to serve a similar function with regard to delinquency to that of the hospital in the treatment of physical or mental diseases; thus the individual is temporarily removed from an environment which either actively maintains his "disease" or within which therapeutic measures cannot be satisfactorily organized. In the "hospital" are provided both a temporary isolation from disease-provoking stimuli and, perhaps, more positive treatment facilities through which the "disease" itself can be cured, and subsequent attacks prevented by the building up of an individual's resistance. 8

Once Clarke and colleagues had described the medical myth, they quickly went on to deconstruct it. With Sinclair, Clarke argued that medicine and penology were two very different things. First of all, disease was an objective thing, the same in every society, whereas crime was subjective and therefore not the same everywhere. Broken ribs exist whether one agrees or not, but "actions which are defined as deviant in one culture are often not so defined in an~ther."~ Presumably, there was no social bias in the medical treatment system, or if there was it had no ground in medicine itself. A broken rib in a black man was the same as a

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broken rib in a white man. But bias was integral to the criminal justice treatment system. Bias "by law enforcement agencies against certain sections of the populace (working-class youths, for example) has a significant part to play in determining who becomes officially designated as criminal or delinquent."10 Thus crime has to be approached thoughtfully and its lineaments may not simply be presupposed. The admission of bias in criminal justice practices mandates a different model of thinking about criminal justice than the medical model. In the British criminal justice research world it is common to claim that academic research either has no influence on the Home Office, because their researchers don't read it, or that they do read it but never admit its influence. Indirectly, these disclaimers are ways of saying that certain questions are settled matters and that the real questions of the Home Office Research Unit were entirely technical. A certain blindness to outside research that raises basic questions is thus highly likely in state bureaucracies. The reason bureaucrats do not read, or do not admit they read, tendentious academic treatments of their field of activities is that the academic writings are likely to raise questions about the ends, or values, of state action. In a characteristic but still always perverse division of labor, the leaders and managers of the state believe that parliamentarians should reflect on ends and make decisions about them, the bureaucrat on means. In fact the parliamentarian is likely to exercise oversight and be very concerned about the activities of bureaucracies, but the bureaucrat is disinclined to be concerned about the ends of the state. That is so because the parliamentarian is likely to recognize that flawed means are going to undermine the ends of the state, but the bureaucrat is unlikely to see things that way. What matters is running the program efficiently and with a minimum of corruption. There are exceptional persons in any bureaucracy who do not see things that way, but they are rare; and in accounting for them, one can easily arrive at the conclusion that they took a wrong turn and might better have ended up in Parliament, given their actions. But in the case of Clarke and his colleagues, it is clear that they had read and taken seriously some of the main arguments being made in the early 1970s in the British academic world and elsewhere. The argument about the system's being biased against working-class youth had been articulated most famously by Stan Cohen in Folk Devils and Moral Panics, and that book was a staple of the Birmingham School, as evidenced in Paul Willis's work, Learning to ~abour." Bias was always an aspect of labeling theory, for why else would a group be stigmatized if not because of bias? Clarke is rare in admitting that he did read and was affected by arguments emanating from the left. He read The New Crimi-

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nology of Taylor, Walton, and Young and claims to have come away from it changed. What impressed him, no doubt because he was already well on the way to believing it, was the notion that establishment criminology was too positivistic, meaning that it viewed the criminal as an object to be manipulated by technique and not as a full human being who had to participate in order to be affected by treatment.12 Another and related note on the intellectual habits of bureaucrats: The bureaucracy is subject to internal political direction, and in the mid1970s the internal political direction of the Home Office was small c conservative, even when Labour was in power. With few exceptions, the leaders of the Home Office were Oxbridge men who subscribed to the values of the Butskellite state. As a result, ideas that came from the Marxist left or even from the emerging neoliberal right had to be laundered of their questionable origins, and the easiest way to launder ideas was to omit giving credit to their originators. This more or less universal rule of bureaucracy also has a specifically British coda, which is that it is best of all to deny all theoretical origins of ideas and claim instead that they came from empirical observation, something that Ron Clarke always did. That is not to suggest that Clarke did not make empirical observations, but the coherence of his thought and its consistency suggest that he was reading widely on both the left and the right, and (if one might hazard being even more precise) on the British left and the American right. But the mores of the British bureaucracy foreclosed any such admission. What also needs to be said about Clarke's, Sinclair's, and Cornish's characterization of rehabilitative treatment in terms of the metaphor of a medical myth is that it is an entirely political move, equivalent to the kind of hyperbole Michel Foucault was engaging in when writing Discipline and punish.13 Only the most simplistic of British psychologists took such a metaphor to have a literal meaning. Most if not all of them knew that penology was infinitely more complex than medicine and that therefore any characterization of rehabilitative treatment in medical terms could not be swallowed whole. But this hard-earned wisdom was local knowledge gained in the field, and what Clarke, Sinclair, and Cornish were playing on was the more popular vision of psychology that had originated decades earlier in the medicalization of Freud and, by extension, of psychology in general. Clarke, Sinclair, and Cornish had set up a straw man, but with few exceptions the researchers of the Home Office Unit were willing to knock it down. One researcher who did not go along was Margaret Shaw. She did a study on rehabilitation in prisons that appeared to show positive results.14 It is interesting to see how Cornish and Clarke treat her study. Like good

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defense attorneys, they understand that they did not have to refute the opposition's witness and testimony but rather needed only to discredit the evidence. Thus, writing in 1983, Cornish and Clarke argued in respect to Shaw that "without some means of resolving these ambiguities and identifying the important ingredients to what was a complex treatment situation, it was difficult for the researchers to give any policy advice in relation to reducing con~iction."'~Now it might be argued that the need to give policy advice should not determine away the ambiguities of the findings. The ambiguities are rather good grounds for further studies, and if ambiguities continue to persist, then that is grounds for a certain kind of policy advice: Proceed with utmost caution. But of course this was not what Clarke and Cornish wanted, and hence the comments tend to end with a dull thud. There is no conclusion, only a dismissive silence, and that is enough in bureaucratic politics.

But if Clarke, Sinclair, and Cornish knew what they were opposed to, did they have an alternative in the mid-1970s? They did, but it was not yet entirely worked out. It is revealed in some of the complementary distinctions they make. The first is between treatment and training. The term treatment was already contested turf within the Home Office, and so Cornish and Clarke opted for the alternative term intervention, which of course is also a controversial term because of its association with the left in British criminology.16 Treatment characteristically emphasizes "the importance of dealing with individual maladjustment since, it is claimed, it is this which predisposes the offender towards delinquent behaviour." The key word in this sentence is predisposes, since it works to refer the reader to the offender's disposition, and this is an internal factor, one that is read on the surface as a sign, and one that the offender "acts out." Obviously the predisposition to crime is a cancer that has to be excised. In Clarke's words, it is "for this reason that it is believed that delinquent . . . behaviour will continue to occur so long as the sources of the maladjustment are not sought out and removed" [my emphasis]. The shift in terminology from treatment to intervention is reinforced by a shift in medical terminology from antibiotics to surgery." It is in stark contrast to such heightened and now fearsome description of treatment that in 1983 Cornish and Clarke turn to describe training, in respect to which they provide the following description. They argue that training is

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more concerned with the changing of behaviour, by means of programmes which develop pro-social responses through appropriate rewards and punishments. The methods are characteristically less concerned with psychotherapeutic techniques and individual casework to develop "insight" and hence bring about cognitive and attitudinal changes, and more with the direct manipulation of behaviour-though it is hoped that the bringing about of changes in behaviour, together with the improvements in inter-personal relationships which can come from communal living and from practical counseling, will 18 eventually lead to changes in attitudes.

Incorporated into that paragraph and rather lengthy sentence is a good deal of Benthamism. Cornish and Clarke want to manipulate behavior through appropriate rewards and punishments, and the direct character of the relationship between reward and punishment on the one hand and the concerned persons on the other evidently intrigues them. They continue to recognize that crime originates in attitudes, but they do not want the state to be intrusive. Hence they are reduced to hoping that the surface changes brought about by Benthamite means will work. There is very little tipping of cards in the quoted paragraph, but it is clearly a perfectly adequate beginner's guide to situational crime control. There is no way of knowing how positively disposed to training Cornish and Clarke were in the 1970s, but their words seem to suggest a larger measure of hope than optimism. In 1975, Cornish and Clarke had considered the burden of proof to be on the shoulders of those advocating treatment, and not training or situational crime control. They thus staked their claim on the null hypothesis, or the claim that there was no significant difference in results between training and treatment, and that being the case, training was to be preferred to treatment because it had the distinct virtue of being less expensive and less intrusive. This of course is a weak argument, and Clarke would eventually opt for a stronger claim on behalf of situational crime control, but still it is interesting to see Clarke and Cornish at this moment of transition.19 But to say that Clarke and Cornish were tilting toward situational crime control is to put things too mildly. They generally played their cards close to the vest, showing their emotions only on rare occasions. Their argument develops slightly but nicely in the framework of describing two residences. Although the argument would eventually be couched in terms of the language of the null hypothesis, the argument also provided a rare glimpse on Clarke and Cornish's valuation of situations.

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The C House, they note, "was comfortable, homely and well furnished, and the atmosphere was that of a tidy well-maintained private house." A number of factors contributed to this coherence. These were the "stability of the house, which had enabled substantial gains to be consolidated over the years; considerable contributions to the house funds . . . [from] the house's garden, tuck-shop, and hens, and a system of fines and incentives, geared toward maintaining acce table standards of behaviour and 1 keeping the house in good ~ondition."~ The E House, in contrast, struck people with its "bareness, untidiness, and frequently dilapidated state of fixtures and fittings." Factors contributing to the latter were that "there was for a long period no permanent house-mother who might have seen the physical state of the house as a reflection on her work; the staff as a group felt that too much attention was paid in approved schools to 'spit and polish' and not enough to the boys themselves; and any decisions about improving the condition of the house had to be taken in collaboration with the boys who, like most boys, were unlikely to be particularly concerned about such matters." Their conclusion is then offered up: "On the face of it, the results of the controlled trial seem to indicate that although the methods and policies of the therapeutic community . . . differed in many respects the long-term effectiveness in reducing delinquent behaviour was virtually identical." And in a subsequent chapter they add that for "the group of boys under consideration the findings of the controlled trial appeared to indicate that, while marked difference existed between the houses and their programs, these had no diferential eflect on the subsequent offending of the boys" [my emphasis].21All this is the language of the null hypothesis, and it suggests that the medical model had not proved itself, but from a purely situational point of view, it was clear which house Cornish and Clarke preferred. It must be stressed that Cornish and Clarke were still being circumspect in 1975. They contented themselves with the claim that rehabilitative treatment had not proven its case and that the burden of proof was fully on it. Strategically, theirs was a sound argument, and any more argumentation would have been questionable. Situational crime control had not yet been fully conceived, and hence Cornish and Clarke limited and muted the claims they made about its superiority, although they did make such claims. The claim that rehabilitative treatment was not proving its case was fully in accord with the modest nothing works conclusions of Martinson and Brody, and it set the stage for making the claim that at least some funding should go to support the conceptualization, articulation, and operationalization of the alternative mode of addressing crime as a situational problem. Out of the general concept of training, Clarke

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and his colleagues did argue, albeit in very brief format, the conclusions that policy ought to aim at the reduction of opportunity, the modification of behavior through court orders, and the adoption of some reality therapy, for example teaching young people the basics of politeness. Cornish, Sinclair, and Clarke concluded the 1974 and 1975 pieces with policy prescriptions that are interesting mainly for their sensitivity to internal Home Office politics. They show a keen awareness of the relation between researchers and administrators and argue that what advances the career of the one may hinder the career of the other. They acknowledge that the authority of the researcher and that of the administrator derive from separate sources, the researchers from special knowledge and the administrators from hierarchical position. They then argue an ambitious position, in their words as follows: We have already argued that much treatment is founded on what we have called the "medical myth and that this must be replaced by a more situational view of offending. If we are right, this has profound implications for the whole range of existing treatments and for the development of new ones, as well as for the kind of research that needs to be done. It is rarely anybody's job to consider this sort of issue and to make appropriate recommendations. 22 Two lengthy paragraphs then spell out what Sinclair and Clarke have in mind for the Research and Planning Unit of the Home Office. They would first make it more operational: "The object would be to discover ways of strengthening administrative control over the system in such a way as to make its operations more rational and more solidly founded on knowledge, and at the same time to make administrators more responsive to feedback to research and from the field."23 This is a remarkable tipping of cards for a pair of young researchers making a claim for their authority as opposed to the authority of administrators. Aware that they are perilously close to overstepping their bounds, Sinclair and Clarke end on a footnote in which they say, somewhat inconclusively, that they were "conscious that our discussion may convey a highly authoritarian conception of planning." They disavow this as their intention but say this particular topic is too large for their paper. Clearly they come across as rationalists interested in democratic centralization to implement their ideas and give themselves or their like more power. A year later, Cornish and Clarke concluded on a similar note. They claimed that the evidence shows "that residential intervention programs are of little rehabilitative value," a strong conclusion. But then they draw back from the authoritarian tone of the previous year, noting that "to dismantle the apparatus

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of institutional intervention without adequate discussion and an analysis of the role institutions of this kind may play in the process of social control . . . would be hazard~us."~~ The Home Office Research Unit (as opposed to the Home Office's operational branches) has long encouraged dissent and challenge, and Clarke and colleagues were capitalizing on this tradition to make their case. What sustained their little ship was that they were riding a strong tide of professional and political opinion in the mid-1970s, and Home Office leadership must have known this. Not only were they backed up by the persuasive writing of Martinson in the United States and Brody in the United Kingdom, they were also the indirect beneficiaries of opposition support of people such as Margaret Thatcher and Keith Joseph and of associated think tanks like the Adam Smith Foundation and Thatcher's own Centre for Policy Studies. I am not saying that Clarke and Cornish were present in the minds of the leaders of the Thatcherite right. They most likely had not even been heard of at those arcane heights. The logic is rather the other way round: Clarke and Cornish knew which way the wind was blowing in Whitehall and were able to tack into it. Top administrators at Queen Anne's Gate, which was where the Home Office was located, would have been well aware that these two administrators were riding a rising tide that was lifting their boat and their boat alone. Precisely because administrators gain their authority from their hierarchical position, which is but a veiled reference to politics, they would have been sensitive to the support if not to the immediate strength of the argumentation of Clarke and his colleagues. It was thus that the Home Office began to make decisions that ensured the continued rise of the star of Ron Clarke. In 1977 the Home Office gave its first imprimatur to situational crime control, in the context of its Review of Criminal Justice Policy, and a year later the Home Office began to organize the effort by founding an entity called The Working Group on Crime rev en ti on.^^ In 1979, Margaret Thatcher became prime minister, and for all practical purposes, Ron Clarke became the director of the Research and Planning Unit. His position was formalized in 1981, and for the next three years-from 1981 to 1984-he was in a position to control the destinies of situational crime control in Britain. I would be remiss if I concluded this section without giving added emphasis to one of Clarke's sentences. To set it off this time: The object would be to discover ways of strengthening administrative control over the system in such a way as to make its operations more rational and more solidly founded on knowledge, and at the same time to make administrators more responsive to feedback to research and from the field.26

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The sentence works like a premonition of problems to come, for the eventual failure of situation crime control to usurp the field is partly at least the result of implementation problems, not ideas. The head of Thatcher's policy planning staff at Number Ten Downing Street, John Hoskyns, uttered all the same sentiments five years after Clarke, but all to no If any fault is to be found with Clarke's sentence, it is that new means of implementation would have to be invented, not discovered, and that there is hardly any way to make existing administrators more responsive to research. Leading administrators will be responsive mainly to political forces, and if those forces are in favor of a research direction, then those top administrators and the ranks below them will respond accordingly. But even that much is too optimistic an assessment of the way leading administrators act. Administrators will turn right if told to by the likes of Margaret Thatcher, but they will also try to preserve existing directions, even though these conflict, because they believe that someone like Thatcher will not be in power forever.

I have intimated throughout that situational crime control was apparently not entirely thought out by Clarke and his colleagues, that their focus was more on disrupting or discrediting the claims of the social approach to crime (rehabilitation) than on providing a viable alternative to it. For better or worse, that focus did not waver with Thatcher's coming to power in 1979, only now Clarke chose to take on a considerably more formidable foe-the police-and correspondingly the odds against his succeeding must have seemed great. Taking on residential treatment for young offenders, what in American parlance would be called reform schools, was child's play in comparison with taking on the police. On what basis was Clarke thinking and acting? The intellectual basis of Clarke's challenge to the police was clearly in American research, which for Clarke had demonstrated the ineffectiveness of routine policing, or to be precise about the thrust of the many claims, of expansions or improvements in reactive policing operations, or as Clarke called them, conventional deterrent policing. For Clarke and his new writing companion, Mike Hough, study after study showed that improvements in conventional policing techniques did not yield improvements of effe~tiveness.~' Taking these studies chronologically, perhaps the most impressive demonstration was the Kansas City Preventive Patrol Experiment, in which "no significant differences were found between the different sets of beats in crime levels . . . or levels of satisfac-

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tions with the police."29 The Kansas City experiment lent weight to the conclusion that "within limits, increases in patrol manpower are unlikely to have a noticeable effect on crime."30 Improvements in police response time also did not matter much. Research in four American cities showed that most criminal offenses, something like 75 percent, were discovered after the event, "when neither a quick decision to contact the police nor a fast police response would make much difference to the likelihood of the police catching a suspect." Clarke and Hough reported that a 1977 Rand study on the effectiveness of detection concluded that it could not identify any factors that would improve detection rates. "It failed to find any such factors: the study concluded that investigative activities play only a minor role in contributing to overall arrest rates." Another American study found that "witnesses were as likely to identify someone in an identification parade [line-up] whose photograph they had recently been shown . . . as they were to identify the real culprit." An English study concluded that even a 7 percent increase in detectives was unlikely to LLimprove the clear up rate by one percent."31 And so matters went for the remaining pages of a devastating attack on police effectiveness. In the tradition of Martinson and Brody, Hough and Clarke were showing that nothing works. Or to repeat something I said earlier, they were showing that at the twilight of the welfare state, only one thing worked, and that was the nothing works argument. One of the most important aspects of the research by Hough and Clarke is the continuity it shows with the research of Clarke and Sinclair and of Clarke and Cornish in the mid-1970s. They were in the very advantageous position of representing a hypothesis that had not been tested, and consequently they were immunized against the kind of attack they were mounting. Recognizing the sheer defensive brilliance of his unfolding position, Clarke was willing to carry it over to an opponent far more skilled and far weightier in politics than the prison service. Nonetheless, even in respect to the police, Hough and Clarke had immunized themselves, for their ineffectiveness argument, to use the fashionable term of the times, was a very limited one. They were not arguing that the police should be eliminated but rather that they should not be expanded. Hough and Clarke were not arguing that the police should do nothing but rather that they should abandon their expensive anticrime strategies. It was the null hypothesis all over again, a very safe mode of argumentation. What then put further edge on Clarke's attack was not the American research but rather the advent of the British Crime ~ u r v e ~Aside . ~ ' from the expected conventional motive of attaining greater accuracy in crime data, the British Crime Survey could and would establish a few other significant political findings.33For Clarke's purposes, the main one was

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that the police were even more ineffective than anyone had believed, for now one could argue that the police barely scraped the surface of crime. However unfair this argument might have been, it was effective in supporting the claim about police ineffectiveness, and so, informally, Clarke used it for what it was worth. But there was another, much more important, implication to the British Crime Survey, and this was that if so many crimes were unreported, then the only way to address this sector of the total offenses committed was by means of a privatized effort at situational crime control. If, for example, my property is being burgled once a year and I do not report it to the police, then there is little the police can do about it. Only I, who have the still private knowledge of this situation, can do something about it. Hence the state, to the extent that it is involved in crime prevention, should not advise me to do what I am evidently disinclined to do-call the police-but should rather advise me to buy an alarm system or a guard dog or install gates. In other words, the most significant finding of the new technique of the crime survey was how limited the reach of the state was and how, if the state was to do anything, it had to work toward responsibilizing the citizens who had identified themselves as autonomous of the state. Suddenly with the advent of the British Crime Survey, the tide of professional opinion, already favorable, turned more strongly in favor of Clarke's position. There were of course those who argued that with this demonstration of the full extent of the dark shadow of crime, police protection ought to be increased, but the greater weight of opinion was on the other side. Indeed, one of the things that the British Crime Survey was said to demonstrate was the lack of confidence the British people had in their own policing. If they did not call the police when they were robbed, raped, burgled, or mugged, then wasn't this a way of saying that they already knew what the British Crime Survey was only now making clear? What made Clarke's campaign against the police still problematic was not his argumentation but rather the political context in which it was conducted. Crime had first become a national issue in the 1970 British election and the conservatives had exploited it, but it was hardly the decisive issue in that election.34It became that only in the 1979 election when Margaret Thatcher made it the symbolic centerpiece of her lawand-order campaign. Of course, what Thatcher meant by crime and what the public meant were two different things, perhaps not completely different, but still different enough to be characterized as two overlapping circles. The public meant street crime-rapes, robberies, muggings, and the like-and to some extent the public also included the disorder that

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the trade unions and the "loony" left seemed to thrive on. For her part, Thatcher thought that the greatest criminals in Britain were trade union leaders who called illegal strikes and then managed the strikes by illegal means. The strikes were illegal because they represented the desire of union leaders rather than the rank-and-file. The handling of the strikes was also illegal, because it was done through flying pickets and money from questionable sources. So the public and Thatcher both sought an expansion of the police to deal with crime, as they saw it. The police were not slow to see an opportunity, and so the Police Federation, representing the rank-and-file and middle management of British policing, strongly backed Thatcher in the election campaign. For her part, Thatcher promised strong support for the police and kept that promise after the election by securing large pay raises for the police. It is no exaggeration to say that the police had never been in a more influential position in British politics. It was this rise in power of the police that made Ron Clarke's questioning of police effectiveness seem politically misconceived. But, as noted, Thatcher's support of the police was a complex affair that had little to do with crime in the conventional sense of the term. Thatcher's intention was to introduce economic and legal reforms that would radically restructure British society. The economic reforms would result in unemployment, and that in turn stood a very good chance of causing urban unrest.

There is less to say on Ron Clarke's challenge to police effectiveness than there is on his challenge to the medical model, but the former is by far the more interesting challenge because it defines the border of what then seemed possible. The Home Office in 1980 was made up of three operational sections, called the Crime Department, the Prisons Department, and the Police Department. Clarke's challenge to the medical model of rehabilitation might have been interpreted as a challenge to the Prisons Department, but it would not have given overmuch offense, because rehabililitation and especially the medical model were dead by 1980 anyway." Both Clarke and Brody were following the Martinson lead in this area, and if they were lagging behind the Americans, it was only by a nose; Clarke himself was not lagging behind anyone. The situation was different with policing. American research challenging police effectiveness was able to charge full steam ahead because American police departments are local and do not have the political power of the British police. British research was slow not because the British were out of touch but rather because anyone would think twice

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before challenging so formidable an establishment as the British police. For this reason Clarke's challenge to the police is doubly impressive and signals a newfound confidence on Clarke's part in the first years of Thatcher's rule. The challenge to the police also connects Clarke to the neoliberal model sketched out earlier, because it directly relates to the state's effectiveness and, with the Financial Management Initiative of 1982, connects with the issue of managerialism in the public sector.36It would be overly imaginative to claim that these were tested ways of limiting the power of the state, and it is hard to know in any case whether any such claim was ever Clarke's intention. Much more likely, the challenge to the police was one aspect of a larger agenda on Clarke's part. Situational crime control would eventually be a program designed to make the state, as well as the public, much more sensitive to context in order to prevent crime, not prosecute it. Such a program would find itself in conflict with the police, however, first of all because it went against their self-image and the public's image of them. If Clarke and situational crime control were ever going to succeed, that success would require that the myth of police effectiveness be punctured. That intent, more than any other political motive, was behind Clarke's attack on police effectiveness. That these are not exactly attempts to limit the power of the state misses the forest for the trees in respect to what Clarke was doing. Nearly every Home Office research report ever done presupposes the continuation of existing institutional arrangements and reports on how things are going within the institution being surveyed. They look to improve operations, not eliminate them. It is rare for a Home Office researcher to challenge an entire practice or to question the effectiveness of so basic an institution as the police. Without exaggeration, it can be said that aside from Brody, in his 1975 report, Clarke was the only Home Office researcher ever to have engaged in such basic practices. Had Clarke's advice on the police been followed, budgetary limits would have been placed on further extensions of police operations in respect to crime. That would thus have reversed a trend that started in the 1950s and had continued unabated for twenty years. The only other attack on the police that was as serious as Clarke's was that of Stuart Hall and his associates in Policing the Crisis,but Hall came from the Marxist left and his type of attack was to be expected. Clarke, in contrast, was a part of the establishment-one who had given no sign to indicate the kind of challenge he would mount. Finally, the reader's assessment of actual research in this chapter has to be considered in conjunction with the arguments and conclusions of the previous chapter, which talks in more general terms of the rise of the vi-

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sion of the autonomous individual in the context of Clarke's efforts in the 1980s to establish the criminal as a rational actor. Those conclusions will not be repeated here, but what needs to be noted is that the application of a philosophic vision is often a complicated and compromised affair. Clarke's operationalization of his vision of the autonomous individual was complicated because it unfolded only gradually and was pursued with the cooperation of a number of other sympathetic researchers. His vision was compromised because its political base-the Home Office Research and Planning Unit-was so small. Clarke expanded far beyond his base because he was riding a popular tide of neoliberalism in the early Thatcher years, but there were internal and external limits to how high he and situational crime control could fly.

Notes 1. Robert Martinson, "What Works? Questions and Answers about Prison Reform," The National Interest, spring 1974. 2. James Q. Wilson, Thinking about Crime (New York: Basic Books, 1975). 3. Wilson, Thinking about Crime. 4. Ian Sinclair, Hostels for Probationers (London: Her Majesty's Stationary Office, 1971). 5. Ron Clarke and Ian Sinclair, Toward a More Effective Treatment Evaluation (London: Her Majesty's Stationary Office, 1974). 6. Derek Cornish and Ronald V. Clarke. Residential Treatment and its Eflects on Delinquency (London: Home Office, 1975). 7. Clarke and Sinclair, Toward Effective Treatment, 55. 8. Cornish and Clarke, Residential Treatment, 36. 9. Clarke and Sinclair, Toward Effective Treatment, 55. 10. Clarke and Sinclair, Toward Effective Treatment, 55-56. 11. Stan Cohen, Folk Devils and Moral Panics (London: MacGibbon & Kee, 1972); Paul Willis, Learning to Labour: How Working Class Kids Get Working Class Jobs (Aldershot: Gower, 1977). 12. Interview, June 2, 1998, in Newark, N. J., USA. But nota bene that Clarke is admitting this twenty-five years after the fact, and outside the UK. 13. Michel Foucault, Discipline and Punish, Trans. Alan Sheridan (New York: Vintage Books, 1979). 14. I am grateful to R. Mawby for this information. 15. Ron Clarke and Derek Cornish, Crime Control in Britain (Albany: SUNY Press, 1983). 16. Cornish and Clarke, Residential Treatment, ch. 1. 17. Cornish and Clarke, Residential Treatment, ch. 1. 18. Cornish and Clarke, Residential Treatment, ch. 6. 19. A weak claim is actually more effective than a strong claim in philosophical argumentation, and thus in an ironic way it is the stronger mode of argumentation. The strong claim that, for example, all men are sexists, is actually

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less effective than the weak claim that some men or quite a few men or even the overwhelming majority of men are sexists. The latter argument is stronger because it leaves room for exceptions and recognizes the limits of empirical claims. A purely logical claim-all men are mortal, Socrates is a man, therefore Socrates is mortal-does not have these problems. 20. Cornish and Clarke, Residential Treatment, ch. 2. 2 1. Cornish and Clarke, Residential Treatment, ch. 2. 22. Clarke and Sinclair, Toward Effective Treatment. They acknowledge that their thinking on researchers and administrators comes from Alvin Gouldner, Patterns of Industrial Bureaucracy (Glencoe: Free Press, 1954), 80n. 23. Clarke and Sinclair, Toward Effective Treatment, 8 1 . 24. Clarke and Cornish, 1975, ch. 7. 25. Francis J. Gladstone, "Coordinating Crime Prevention Efforts," (London: Her Majesty's Stationery Office, 1980). 26. Clarke and Sinclair, Toward Effective Treatment, 8 1. 27. Noted in Andrew Gamble, The Free Economy and the Strong State, 2nd ed. (Basingstoke: Macmillan, 1994), 237. 28. Here, too, I remain uncertain which if any of the two men was the driving force behind the research, but the important point was that Clarke was again able to team up with a capable partner to continue a certain line of argumentation. 29. Ron Clarke and Mike Hough, eds., The Effectiveness of Policing, (London: Her Majesty's Stationery Office, 1984). 30. Clarke and Hough, Effectiveness of Policing, 7n. 3 1. Clarke and Hough, Effectiveness of Policing, 9-11. 32. Until the 1970s, official public knowledge of crime was based on reports to the police, an obviously faulty data base since many crimes are underreported. The idea of the crime survey was to actively solicit knowledge over the telephone with guaranteed anonymity. The crime survey was instituted in the United States but was already being thoroughly tested by Richard Sparks at the Cambridge Institute in England. With the success of the American survey, Clarke and Patricia Mayhew quickly followed up by instituting the British Crime Survey, which was first conducted in 1982. 33. Clarke was not disappointed by the results of the first British Crime Survey, since it certainly showed that crime was much more normal, meaning common, than even the most pessimistic observers had believed. There was, for example, thirteen times as much vandalism as was reported to the police, three times as much theft from motor vehicles, twice as much burglary, eight times as much theft from persons, ten times as much robbery, and twice as many sexual offences. The statistics were so shocking that it was quickly recognized that they were too much of a good thing. The Home Office almost immediately began interpreting them down to make them more palatable to the public. Burglary might be double what was reported, but the British public was told that any individual home was likely to be burgled only once every eight hundred years, or some such preposterous number. The new problem created by the British Crime

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Survey was entirely psychological: it had to do with the fear of crime, which now grew disproportionately. 34. This conclusion is at odds with the claim of David Downes and Rod Morgan in "Dumping the 'Hostages of Fortune'? The Politics of Law and Order in Postwar Britain," in Maquire, Morgan, and Reiner, Oxford Handbook of Criminology, 2nd ed. (Oxford: Clarendon, 1997), 90ff. What makes 1979 more signicant than 1970 in my opinion is the character of the new prime minister. Edward Heath was unwilling and unable to capitalize on the issue, whereas Margaret Thatcher was. 36. See Francis A. Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose (New Haven: Yale Univ. Press, 1981). 37. See Chris Pollitt, Managerialism and the Public Services: The AngloAmerican Experience (Cambridge, Mass.: Blackwell, 1990).

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consume and how to express this knowledge through demand; producers know how to produce and express their particular knowledge through supply. But consumers don't know what producers know, and vice versa. The two groups communicate their particular knowledge to each other through the price system, which Hayek aptly named a telecommunications system. But Hayek's central point should not be dulled by his cleverness in naming it. Planning leads to fascism because the planner lacks the requisite knowledge and hence has to resort to coercion. Stuart Hall's interpretation of the welfare state is similar to Hayek's in its principles. Fascism, or what Hall calls the "exceptional" moment or the "authoritarian" consensus, is not a matter of the crash of the economy and the resultant saving of the state by a miraculous leader. For Hall, the exceptional state is rather the result of the expansion of the welfare state, for expansion entails the state taking on more of the functions of civil society, for which it is ill-prepared. Fascism is thus a gradual growth, the result of the inevitable expansion of the welfare state. Mutatis mutandis, this undramatic theory of fascism is similar to Hayek's reasoning in the Road to Segdom. Hayek and Hall both approach their analyses from an epistemological perspective, albeit from points that are diametrically opposed. Hayek believed and argued that knowledge was imperfect because we could not stand in two places at once, although social planning required such an Archimedian perspective. Hayek valued earthy common sense for its humility, its implicit message that we were implicated, integrated, a part of a larger whole that was civil society. Hall was skeptical of just this common sense not because he was antipopulist but rather because he thought common sense was created by the media and the state. For Hall, the world that presents itself as completed in the Sunday newspapers is a manipulated world. What is called for is an Archimedian point that will reveal the logic of the relational processes that go into the making of common sense. Hall's Archimedian point aims not at planning the lives of others but rather at liberating them from being planned, in this case by the police and the media.

The problems with Stuart Hall's Policing the Crisis are legion. It is strung out, written by too many authors, burdened by too many theoretical digressions, brought to too sharp a level of specification by its focus on a single case of mugging, not welldocumented, and then never really brought to an effective focus. Yet the book is still in print twenty years after the original edition, still read in undergraduate courses in Britain,

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and still spoken about. It does not hurt that it remains a founding text for what in the 1970s was then called British cultural studies, now a global academic phenomenon in the form of cultural studies. We are within our rights in concluding that Policing the Crisis is a poorly executed book but also an important one. What everyone in British criminology seems to recall about Hall's book is difficult to deal with because it is not really a part of the book. It is that Hall and his associates purportedly denied the reality of crime. In fairness to them, they did not for a moment deny the reality of the stabbing to death of Arthur Hills near Waterloo Station in London on August 15, 1972. What they tried to come to terms with and did deny, in a sense, was the label that was applied to the event by the police and the press. The label, "mugging," was problematic for Hall and his associates because it communicated something other than the event, namely, a cultural phenomenon; so Hall and his colleagues proceeded to map out the elements of mass popular culture: how they were created, amplified, transmitted, and used to rule Great Britain. This was British cultural studies in its infancy and in its clearest and most problematic form. Its central claim was that culture, which amounted to what people believed about reality, was directly or inadvertently created by the state or agencies closely aligned with the state, for example, the press. Evidently not everything the British people believed was provided by the state or the press, but almost anything of any significance was, and hence cultural phenomena were worth analyzing down to their origins to see how they were produced. One thing that was not produced by the British state, not directly anyway, was the English working class, which, as E. P. Thompson argued in The Making of the English Working Class, produced i t ~ e l fAnd . ~ indeed, as Paul Willis had demonstrated in Learning to Labour, the British state might try to produce a working class to its liking but still fail, only goading the existing working class to a more perverse production of i t ~ e l fBut . ~ there were instances in which the British state was directly involved and with the help of the press did actually produce an aspect of the working class they were interested in. Policing the Crisis documented one of those instances. Stuart Hall partook of an approach that was very powerful in the 1970s and that fed directly as an inspirational force into British cultural studies. The mood was summed up in the term invention, suggesting that social relationships were made, or manufactured. For example, class relationships of inequality were maintained by various inventions, like those of custom, tradition, the monarchy, the ballot, and the like. One among these inventions was consensus, and it was taken to be an artificially

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produced thing kept in place by the media. Sooner or later it had to be discovered that consensus could be manipulated to refashion the law itself, and hence the chief tool of ruling could, at least in theory, always be modernized to suit the occasion. The occasion in the 1970s was what Hall and his associates somewhat vaguely called the crisis. They meant exactly what James O'Connor had meant in The Fiscal Crisis of the State and Jiirgen Habermas in Legitimation crisis.' Crisis was a popular word on the left in the 1970s, and Policing the Crisis is one more book to have taken advantage of that popularity. The problem for the establishment was how to get through the crisis by creating tools that were approved of by consent, or rather consensus, and thus made into legitimate tools. It would be helpful to remind the reader of another background element to Hall's argument, best done by repairing to the quarrel about race that pitted Jock Young against Hall and others on the Marxist left. Young argued that black crime in Britain was occasioned by the failure of a whitedominated British society to assimilate second-generation blacks in the 1950s. But being occasioned, a weak word, is not the same as being caused or provoked. Young was unwilling to say that whites caused black crime. This in effect meant that the legal responsibility for crime had to fall directly on the shoulders of the perpetrators, in this case young blacks, and could not be reassigned to a somewhat metaphysical source (whites). Thus did Jock Young defend his position as a left realist in respect to the question of race and racism. Now Hall's move (which actually preceded Young's) was to shift the emphasis in a slight but decisive way. Hall, as already noted, admitted the reality of the murder of Arthur Hills, but challenged the legitimacy of labeling the crime a mugging. What is to be noted here is that Hall and his associates deny the label, which is the ideal, and this is what earned for the group the name lefr idealist. If denying the legitimacy of "mugging" makes one unrealistic, then Hall and his associates were unrealistic, for they were saying that the label "mugging" was a fabrication of the state. They were actually doing little more than taking labeling theory seriously. The little more was to be found in their assumption that the state was involved in labeling for the purpose of ruling. How well did Hall's demanding argumentation in Policing the Crisis work? The answer, I think, is that it worked brilliantly with those already converted to the cause and poorly with most everyone else. But what the book did provide for friends and foes alike was the theoretical underpinning lacking in other books that took turns defining the spirit of the times, books such as The Manufacture of the News by Cohen and Young and Folk Devils and Moral Panics by oh en.^ The problem with these books, which were published before Hall's book, is that they were

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weak on theory and hence never worked their way through to a sharp focus that could be transmitted, as theory can. So weak and unpolitical were these and similar books that they became the subject matter of a book offering an obituary for such kinds of deviance theory. But the arguments of Colin Sumner7s book did not apply to Hall's work in the 1970s.' The strength of Hall's book is almost the reverse of the other books: It is weak as a case study but immensely rich in theory, so much so that it might be said to be theoretically overdetermined. The great virtue of Policing the Crisis remains that it makes a damning criticism of one of the key institutions of the welfare state, the police. Its criticisms go far beyond those of Hayek in The Road to Se$dom, but, as has already been noted above, they are not unlike Hayek's. Hayek's deeper fear in 1944 was that the British people would freely consent to an ultimately coercive socialism. That fear proved to be groundless, but it is still an interesting fear, originating as it does on the right. By 1978 when Hall and his associates published their book, the essentials of this argument had been stood on their head. The welfare state existed and it was being used to manipulate the working class, only now to accept the Butskellite compromises of welfarism. Hence what Hall might easily have defended in 1944 was now seen as a perversion. What is being described is how an institution of the liberal state, the police, is manipulating another institution of civil society, the press, to produce false information and distort decision making. In effect, what is being described is the production of false consciousness. This chapter differs from the previous chapters in being directly concerned with the liberal state. By definition, the distinguishing value of the liberal state is liberty, but the latter is a poetic term that needs to be operationalized, and since Locke it has been made operational by being called consent. Formalized consent is contract, and contract is for the most part unproblematic in liberal theory because it is either recognized as a fiction or is surrounded by well-defined legal guarantees. Consent becomes problematic when it is reduced to what Locke calls tacit consent, for at this point it is indeterminate and subject to interpretation. The problem with tacit consent, evident already in Locke, is that it can be manipulated. To take the most notorious example, Locke argues that the majority of mankind gives tacit consent to inequality of property holdings, and this may well be the case, but it is hard to demonstrate one way or the other.8 It is like Richard Nixon's silent majority or the even vaguer claim of politicians like Pat Buchanan in the United States that they may not be supported by various elites but they are supported by the people. Such claims are indeterminate.

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But the problem can be even worse, for there is little to prevent the state, with the help of the press, from creating the tacit consent it needs to mount or sustain a line of policy. Along with the rise of mass literacy in the nineteenth century came the rise of a public that could easily be manipulated and indeed was, by jingo, in the later decades of the century. And insofar as jingoism was a key to sales, the British press has long been tempted to go for sensational headlines and stories and thus has been easily led into manipulating public opinion. Until recently the United States has not had a national press, and thus it has been somewhat immunized against jingoism, but Fleet Street is the symbol for a highly competitive national press in Britain, and such newspapers are easily manipulated into positions that play to latent public anger. The underlying anger of the British public in the1970s, according to Stuart Hall and his colleagues, was race and crime, and the trigger for igniting this anger was the phenomenon of mugging.

According to Hall and his colleagues at the Birmingham Centre, the phenomenon of mugging began to develop in the United States in the 1940s and gradually became a symbol for general and specific phenomena at the same time, and thus the term always carried an essential indeterminacy. The general phenomenon was social disintegration, which was occurring because of racial tensions of American cities. The specific reference was to racially motivated robberies of whites by blacks. The development took place diachronically, meaning piecemeal over time, and was therefore not particularly noticeable until the race riots of the 1960s. But then the crystallizing process was telescoped into a synchronic phenomenon in the 1968 presidential election campaign of Richard Nixon and Spiro Agnew. A law-and-order psychosis was created in the American people, and it quickly enough had its desired effect. Nixon won the election. Watching from Britain, the Tories paid heed. The American psychosis was eventually imported whole to Britain by the Tory Party for the 1970 election campaign and made to serve as a generalized piece of social knowledge. The reason for the importation was what Hall and colleagues call the "special relationship," meaning of course the British-American relationship. It makes the British think that what is happening in the United States is always of unusual significance because it will sooner or later come to Britain. The British press uses mature American stories to give the British public a synchronic picture of American reality. Hall reports that the major stories of mugging and social disintegration in the United States find their way into several

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newspapers guaranteed to reach a large British reading public. The pieces cited were by Henry Brandon in the Sunday Times on March 10, 1968, and called 'The Disunited States." Another was by the same author and in the same Sunday Times, but now on January 26, 1969, and called "Living Round the Crime Clock." Then there was a piece by Meliva Ross called "I Live with Crime in Fun City" in the Sunday Express of February 23, 1969, and another piece by Angus Maude called "The Enemy Within" in the Sunday Times of May 2, 1971. Finally, there was a lengthy, eighteen- page article by George Feiffer called "New York: A Lesson for the World" on March 4, 1973, again in the Sunday Times. These were all well-written features designed to impress the large Sunday reading public in ~ r i t a i n . ~ These articles presented a narratively structured and therefore generalized social knowledge to Bfitish readers. "Mugging" is thus presented as a generic social concept, applicable anywhere, rather than as a specific concept. The authors of Policing the Crisis argue that the British press "delivered something like a whole image of mugging" from the United States, that the term "was already appropriated from the United States in its "more inclusive" sense, and that it acted as one of many "scene setters" for the British. To repeat, the words that call attention to the general usage of the term "mugging" are italicized by Hall and his young associates, not by me. The authors conclude by arguing that "so far as we can discover, the term 'mugging' is not applied to a specifically English crime until midway through 1972; but even as early as 1970, the term was generally and unspeczj?cally applied to describe a sort of incipient breakdown in 'law and order' . . . in ~ritain."" Hall and his graduate students were not just consistent with their own premises in arguing the origins of the 'mugging' concept, they were also creative in recognizing one of the key elements of cultural exchange, namely, that cultural importers almost always bring in the final product without recognizing how much process has gone into its creation. Indeed, the importers often think they can imitate the original with very little effort. In Policing the Crisis, Hall makes clear that the book is not about a single mugging but about the social theory of mugging as a crime. The authors make this point emphatic in their introductory comments. They are concerned about mugging (and always put the word scare quotes), "but [only] as a social phenomenon." Thus do Hall and colleagues also signal that they intend to see things relationally, meaning by this that they are in pursuit of the general concept of "mugging." Note their words, which follow: "Once you perceive 'mugging' not as a fact but as a relation-the relation between crime and the reaction to crime-the conventional wisdoms about 'mugging' fall apart in your hands."" What

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then happens is that the larger and more logical reality begins to take palpable shape: "If you look at this relation in terms of the social forces and the contradictions accumulating within it. . . or in terms of the wider historical context in which it occurs . . . the whole terrain of the problem changes in character."12 According to Hall and his associates, ordinary people do not see this relational character of social facts because they have common sense epistemologies that lead them to be taken in by words that suggest the existence of an unrelieved universe of things. Hall's sudden emphasis on common sense shows that he fully grasps the problem of inferential reasoning in popular politics. For Hall, "what is standing in the way [of true consciousness] . . . is the label 'mugging' itself. It cannot be allowed to stand in all its common sense immediacy. It has to be dismantled . . . in terms of its wider relations to these contradictory social forces."13 Here we can surmise Hall's thinking in respect to common sense. The ordinary person takes words to refer to things, not to inferences from things, and so if the police say there has been a mugging, the ordinary person takes that word to refer to a real crime rather than to an interpretation of crime. The next step is to generalize the phenomenon. If the press refers to a wave of muggings, probably the public will think not of five or six incidents; it may instead multiply them to five or six hundred. And so it goes with common sense reasoning committed to a world of things. Hall and colleagues thus write in direct opposition to "this most British of logics." They also find something "deeply 'British' about . . . [their compatriots'] ability to abstract individual effects from the contradictory structures which produce them." In sum, then, it is British empiricism with its presupposition that facts are just there waiting to be interpreted that is the problem. l4 The authors of the Hall book then move to their conclusion about the politics of mugging by dismantling it as a fact. They argue that "even the growth in the scale of 'mugging' in some urban areas is not quite the simple fact that it appears." They would dissolve the fact into its relations: "At least two processes seem to be involved here." The first is that black youths are involved in petty crime, a process that the authors tend to accept. The second process interests them more. It is that mugging has come to be "unambiguously assigned as a black crime, located in and arising from the conditions of life in the black urban areas." It is to this second set of relations that the authors then turn.15 The initial concern with epistemology yields a model lesson in the logic of British cultural studies. For Hall and his associates, culture is a matter of the dazzling of the public with the hardest of facts because facts dressed to the hilt are the raw materials of common sense. Such

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facts have to be created-Eric Hobsbawm would say invented-and polished to a high degree of perfection.'6 Perhaps the single most mesmerizing cultural fact in Britain is the queen herself, lesser versions of this kind of fact being other celebrities from the royal family. Behind such cultural facts is a process of producing values, or what Tom Nairn and others have called Balmorality, or the official moral discourse of ~ritain." From the outset, the purpose of British cultural studies was to break down those facts and reveal the productive process behind them; and although that process is reductive, what can be recognized by its agency is the simplest of Marxist formulas: The base of economic forces and relations determines the superstructure of consciousness. The fact of mugging is a small example of this cultural process, but however small, it is symbolic of the corruption of a liberal polity. The police in tandem with the press are producing a new "fact" loaded with moral significance: The criminological victim is a ready-made Other, the black immigrants to Britain; the political victim, the white working class of Britain. If it all works out, then what is revealed is more or less what Douglas Hay had argued elsewhere. In the eighteenth century, assizes exercised the symbology of majesty, justice, and mercy to help rule Britain. These symbols, taken to be "facts," were meant to awe the embryonic English working class. By the 1970s, the former colonies were playing a different role, that of exporter of cultural facts such as mugging to the erstwhile mother country, and those "facts7' were being used to divide and conquer the British working class. British cultural studies has become popular globally as cultural studies not least because it is presented in vague terms, thus allowing for a good deal of interpretation. The assumption is made that the "establishment" is pulling the wool over the eyes of the "people," and intellectuals have the responsibility to "unmask" the deceits of the allied media and ruling class. The rest is then a matter of what Thomas Kuhn called normal science, or carrying out the theoretical program. The virtue of Stuart Hall is that his theory is much more precise than the above formulations suggest. Just as The Road to Serjdom was a popularization of the epistemological theory Hayek had worked out in earlier papers, so too British cultural studies was based on a carefully thought-out epistemological theory. It claimed that social facts were constructed, and then it demonstrated (or argued) how this was done in the British press by means of imports from America and in cooperation with the British police. Hall might have called his book The Road to Fascism.

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The above conceptual consideration has absorbed us because it works to structure much of Policing the Crisis. But we need also to ask very specifically what the significance of the "mugging" crisis was for British policing. Clearly Hall's answer is that the British police became more interventionist, but what is interesting about the answer is that intervention is once again constructed as a process on its way to becoming a fact. Let us see how Hall works this out. Legend has it that in the 1950s, the British police were at the height of their popularity, but things changed radically in the 1960s. The number of police forces was reduced from 125 to 43, making forces larger than before and more distant from the people they served. Greater division of labor then took place in the enlarged forces, and technological development was accelerated. Foot patrolmen were replaced by radio carscalled "Panda cars" in Britain-and once in cars, the police were even more effectively separated from the people. This move had great significance for Hall, because foot patrolmen traditionally are in close touch with the public's opinion and moods and thus able to respond quickly and with nuance. But such was not the only adverse impact of the radio car. The radio itself made policemen more keyed to management and thus more inclined to be sensitive to the opinion and moods of managers. The source and the direction of authority were being shifted from the bottom to the top. Concurrently, the self-concept of the police was also changing, due in part to the growing force of television. In the 1950s, the popular police program Dixon of Dock Green portrayed the police as peace officers, more or less committed in practice to maintaining good relations in their "patch," the British term for a cop's beat, or his social setting. Such cops were said to be honest rather than corrupt, gentle rather than harsh, and consensual rather than authoritarian. But thanks to the importation of programs like Dragnet and, later, Kojak, from the United States, the police came increasingly to be seen as crime fighters-a shift that was bound to affect public relations in an adverse manner. The crime fighter was prone to corruption because he was chiefly in contact with criminals; he was prone to be harsh and sometimes brutal because gentleness is a language not understood by thugs. And of course he was authoritarian, shouting out orders rather than making requests. But the main change in the new police had to do with modes of specialization that created police forces within the police. According to Hall, regional crime squads were created in 1964, mainly to deal with organized crime, and the Metropolitan police created the Special Control

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Group in 1965 and anti-mugging squads in the early 1970s. The details need not detain us, but the logic of these developments should. Specialized divisions of the police are distinguished by having a focused police response, which is to say that they are keyed to be proactive, seeking out specific types of crime." Whereas the conventional police officer is keyed to look for all types of crime, the specialized force is keyed to look for one type, and it is this sharp focus that distinguishes them. The problem may be characterized in now familiar epistemological terms. In having a single focus, crime squads are likely to induce what they expect to find and to see what they are looking for even if it is not there. In other words, they are liable to engage in self-deception and entrapment. Hall and his colleagues do not quarrel with Robert Reiner's depiction of the police as an institution that was not at first accepted by the working class but eventually did come to be accepted.19 Reiner's process of legitimation is entirely in the middle decades of the nineteenth century and thus leaves us with the impression of a fully legitimated policing service already in place at the time the welfare state came into existence, toward the turn of the century. Hall does not really quarrel with this perception, although other Marxists did. But Hall in contrast to Reiner locates his longitudinal analysis in very recent times, from the 1950s to the 1960s, and there he is able to show a key liberal institution in the process of being distanced from the people. Thus indirectly, Hall is able to say that the welfare state was an appropriate enough arrangement but had now degenerated into a crisis situation. His analysis of British policing is a very well crafted back road leading to an argument against the liberal welfare state. It may be instructive at this point to briefly compare Hall's analysis of the police to Stan Cohen and Laurie Taylor's analysis of the contemporary prison.20Cohen and Taylor were dealing with a relatively stationary Victorian institution that had changed in the twentieth century mainly through the addition of a rehabilitative dimension. Frankly, the police have changed much more than the prison has changed, but the change Hall chronicles is very much toward the type of institution described by Cohen and Taylor. It is a large bureaucracy, increasingly centered, dissociated from the public, and inclined to be punitive: a profile that amounts to a condemnation of the welfare state as an institution of civil society that has lost touch with its roots. It is also the kind of analysis that Friedrich Hayek could agree with. This is the liberal state, taken piecemeal, and inclining toward serfdom. Once again, we do well to see the analysis of Hall and his colleagues in the emerging terms of British cultural studies. For these thinkers, culture tends to be a frozen sea of icy facts displaying no sign at all of the un-

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derlying political currents and decisions that have produced these finished facts. The police appear that way as well in the 1970s; and it is interesting that Hall does not couch matters in conspiratorial terms but rather sees a certain kind of inevitability to the movement of the police from a force widely accepted by the working class in the 1950s to a force that twenty years later was out of touch and structurally keyed to stand over against the working class. The police force that had been produced was by 1975 radically different from the police force of 1955, and it is one that is entirely keyed to the "fact" of mugging that is discussed in the last section. And once again, through no fault of their own, the excolonies are the force that is colonizing the erstwhile mother country. Stuart Hall shows no signs of mindless anti-Americanism but is rather a case-however rare is an interesting but moot question--of a scholar who recognized the immense influence of American culture on its British counterpart without becoming particularly anti-American. Like Hayek, Hall was not a native-born Englishman. He was rather a Jamaican who as his birthright understood something of colonialism. Hayek understood the British welfare state in terms provided by the experience of Nazi Germany, and Hall for his part may have understood the British welfare state in terms provided by his native Jamaica. It was probably always in the cards that British colonialism would go full circle and return home.

We now shift gears, and try to locate Hall's work within the changing world of British Marxism in the 1970s. This was a decade of challenge, in which the new left, very much a British invention of the late 1950s and very much embodied in the New Left Review, was challenged by a resurgent old left, commonly called Stalinism, more specifically called Althusserianism, in the 1970s. From the outset, which was around 1970, the leading advocates of Althusserian structuralism in Britain were Paul Hirst and Barry Hindess, but they had a hard go of it wherever they turned in British Marxism. Hirst contributed a chapter to The New Criminology, one of the important books of the decade in British criminology; but that is not to say that Althusserian structuralism made it through the door and into the hearts and minds of British criminologists. On the contrary, it was clear that Hirst was being used more as straw man than source in that book. Thus by the mid-1970s, when E. P. Thompson published Whigs & Hunters and therein began his campaign against what he called "Stalinism," it seemed that structural Marxism, at least in its Althusserian variant, was being

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marginalized in British criminology. Even Hirst got the message and began to distance himself from this arcane import from park2' Thompson's associates at the New Left Review were less inclined to throw the bathwater out with the baby and go the full route away from Marxist structuralism. They were rather inclined to look for more palatable, meaning more flexible, formulations of Marxist structuralism. It was at this point that the writings of Antonio Gramsci entered the British scene, and there was no one more impressed by those writings than Stuart Hall, Thompson's successor as editor of the journal.22 Gramsci was actually much less clear than Hall ever made him out to be, and so the interpretation of Grarnsci that took hold in the 1970s at the Birmingham Centre for Cultural Studies, where Hall succeeded Richard Hoggard, was more the creation of Hall than it was of Gramsci. Gramsci's concern was not with the base but rather with the superstructure, specifically with the character of the modern state as an instrument of rule. He deviated from vulgar Marxism by taking the state to be something more than a simplistic instrument of the ruling capitalist class. He rather took the state to have relative autonomy, a then popular term that had originated in the writings of Nikos ~ o u l a n t z a s Grarnsci .~~ then focused on the process of ruling of this relatively autonomous state, and his term for ruling was hegemony. He then posited a simple model in which ruling was carried out directly by coercion: "Do what I say or get your head chopped off." But then he factored in the modem notion of consent to arrive at the more sophisticated problem of ruling by consent: "Do what I say because you have consented to my being your ruler." In the process of policy making, this involves consensus, or ongoing informal consent. It is a matter of saying, "do what I say because it has been determined by an independent survey that the majority of the population is in favor of this, or at least not opposed to it." The slightest sensitivity to modem Western liberalism will indicate where Hall was taking Grarnsci, or vice versa. The doctrine of consent is at the center of the Western liberal political process because it legitimates rule. It is for this reason that Western liberal arrangements usually include democratic forms, for such forms are dramatic symbolic affirmations of consent. In recent decades the character of consent has been called into question much more intensely, because of the rise of rnanipulative means, to wit, the mass media. In effect, radio and television can be used by the government and the private sector to "manufacture" consent, not for putting parties in office, which is still the prerogative of elections, but rather for the policies of parties once they are in power. This kind of manufactured consent, often called consensus, became a

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major cultural issue in the 1970s, and the Gramscian model was one way to explain it. By attacking the integrity of liberalism's main legitimating institution, Hall was demonstrating that political reality was the opposite of what it seemed. Instead of citizens determining the actions of the state and thus maintaining strict limits on it, the state was determining the actions of the citizens by manipulating their consent. This was a frontal attack on more than welfare liberalism. It was an attack on liberalism itself, and in many respects was a continuation of the kind of attack mounted by E. P. Thompson and Douglas Hay in their writings, which I consider later. What they all have in common is the claim that the bourgeoisie rules not by limiting the state but rather by using the state in the most profoundly intrusive way. For Hall and his colleagues, the received Marxian political theory was simplistic and reductive. The idea that "legal norms and rules in a bourgeois society will reflect and support bourgeois economic relations or that, in class societies, the law will be an instrument of class domination, may provide the first, basic step in . . . [an adequate political theory], but it remains too general, too abstract, too reductive, too sketchy and epochal in form to be of much service." 24 Hall and colleagues would return law to what they call "the classic terrain of the theory of the state." For them, both civil law and criminal law are centrally connected with the problem of the fundamental modes of domination, or what they, using Gramsci's language, call hegemony. But does Hall stay with Gramsci? At the beginning of his analysis of the legal and political order of the state, Stuart Hall argues that "the manner and scale on which the state performs . . . [its role in civil society] is historically specific and distinct from any other type of social formation hitherto known."25 This is a mild statement of autonomy, but a few pages later Hall is more forthright in saying that the "relative independence of the state (the 'relative autonomy' of the political from the economic) is, in capitalist societies, the necessary condition for this 'task' of cohesion and unity" that the state performs.26This is a significant ratcheting up of the importance of the state. Elsewhere Hall tells us that the "autonomy of the liberal capitalist state . . . gives a universal form to the domination by a succession of ruling class alliance^."^' Without warning, Hall then slides over into a position that presupposes Poulantzas' argument in order to understand the state at all. It is here that Hall is virtually abandoning traditional Marxism. "Only a proper understanding of the basis of the form of 'independence7 which the state assumes under capitalism," Hall tells his reader, enables us to grasp the complicated nature of the British state.28I don't want to go too fast with

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this argument, because it is of some importance. Hall is said to be a Gramscian, and no doubt he was and may still be, but if one reads him carefully, it is not Gramsci's but rather Nikos Poulantzas' argument that he is advancing in Policing the Crisis. This is not to say that he is downplaying Gramsci; he is not. But it is to say that Hall is advancing a more interesting argument than most people credit him with. To claim that the ruling class is manipulating consent is a boring truism, even for Marxists. To claim that the state is doing that, which is Gramsci's position, is more interesting; still, it is little more than an articulation of the original Marxist argument that the state is the executive committee of the ruling bourgeois class. But to claim that the state is manipulating consent independently of the ruling class-now that is a much more interesting argument, even for Marxists. It is important to see how the relative autonomy thesis-if it is that, for Hall is close to arguing absolute autonomy-is treated in respect to the welfare state. Hall does this by showing that the modern liberal state has developed through three phases, or moments, as Hall calls them. They are the laissez-faire state, the transitional state, and the welfare-capitalist state. We need only grasp the essence of Hall's final position here. Interestingly, he dates the welfare state to the politics of Lloyd George, which both enfranchised and contained the working class. The full welfarecapitalist state is a product of the postwar period. This state-and Hall means the Attlee state and the Butskellite state of the 1950s and 1960sexpanded immensely to take over the management of innumerable aspects of capitalist economy and popular life, but Hall is above all interested in one aspect. He calls it the ideological sphere. Hall argues that the welfarecapitalist state became much more prominent than its predecessors in the sphere of managing public opinion. It attempted the integration of the worker into capitalist production and even into management as a social partner. It furthermore undertook to disseminate the ideals of the new capitalist society: growth, participation, equal opportunity, pragmatism, and the like. It finally understood the management of political and social consent. These "and other ways of ideologically reinforcing the legitimacy of the new 'mixed' capitalist economy became . . . [the direct] responsibility of the [welfare] state."29 The result of this expansion is a state that is even more autonomous of civil society than Hall has indicated up to now. But the definition of relative autonomy continues to inflate. This is better told in Hall's own words: [Because] the state has assumed a far greater, more autonomous and direct role of superintending the political and eco-

Chapter Five nomic needs of a capitalism in crisis, so progressively the forms of the class struggle have been reorganised, appearing more and more as a direct conflict between the classes and the state. Progressively, the various crises take the form of a general crisis of the state as a whole, and rapidly reverberate upwards from their initial starting-points to the higher levels of the legal and political order itself. 30

In Hall's argumentation, the welfare-capitalist state has become more autonomous. And as it becomes this, the definition of relative autonomy itself has become more tenuous. Reflect for a moment on Hall's words for describing the rearrangement of power. The essence of classical Marxism is class struggle, we dare not forget, and the state plays a subsidiary role in it. But what Hall is now describing is not class struggle but rather a struggle "between the classes and the state." And it is Hall who is italicizing the connective, not me. Is this not saying that the state has become more than just relatively autonomous of society? Clearly the question is rhetorical and not meant to be answered quite yet, and in any case one sparrow does not make a spring, nor one paragraph an argument. So the better question is whether Hall continues in this direction. He does. Take for example one of the more difficult terms in Hall's book, exceptional, a term Hall uses to suggest that the state is becoming increasingly independent of outside influences, or it is becoming fascist. This ambivalence in compressed into one sentence in which Hall argues that "capitalism is also compatible with-and may required to be 'rescued' by--certain quite exceptional forms of the state (e.g. the fascist state), in which many of the normal modes are suspended."31 In this sentence Hall locks together the words exceptional and fascist. Elsewhere, Hall backs off from his suggestion and says that the crisis does not entail a suspension of the "normal" exercise of state power. The state does not "move to what is sometimes called a fully exceptional form . . . It is better understood as-to put it paradoxically-an 'exceptional moment' in the 'normal' form of the late capitalist state." What makes the moment exceptional is the increased reliance on coercive mechanisms and apparatuses already available within the normal repertory of state power. These are powerfully orchestrated in support of what Hall calls a tilt of the balance toward the coercive pole. What is finally produced is in Hall's words an "authoritarian consens ~ s . This " ~ ~is as far as Hall takes his argument, but by any standard, he has taken it a long distance. Every Marxist political theorist wants to cast his writing in the style of the Eighteenth Brumaire of Karl Marx, and Hall is no exception. But more significant, Hall stakes out a term and an idea that would serve him very well in the 1980s. His term then was

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authoritarian populism and it was used to describe the way Thatcherism ruled Britain. Of course there was then a vast difference in the political location of the argument, for by applying it to Thatcherism, Hall was in effect saying that neoliberalism was relying on the manipulation of popular opinion to rule. But in 1978, the publication year of Policing the Crisis and a year in which a Labour government was in power, the same argument was being used to castigate the welfare-liberal state. We do not want to miss the forest for the trees in the argument of this section. One claim of my book is that the left was at least as important as the right in delegitirnizing the welfare state. In the way Hall handles the concept of relative autonomy, we see that argument being driven to an extreme. From denying the validity of Poulantzas' argument about the state's relative autonomy, Hall goes on to accept it and then to transcend it in favor of an absolutist conception of state autonomy. I would like that Hall does this very clearly, but think that his agenda calls for making this argument very vaguely. The problem, and the reason for Hall's vagueness, is that a clear statement of the state's autonomy entails a break with Marxism, the faith of Hall's youth. Perhaps more significantly from our point of view, such a direction entails a break with liberalism, for state autonomy and individual autonomy are diametrically opposed concepts. Hall's final position represents one of the strongest condemnations of the welfare state in the 1970s. And parenthetically, lest we forget how this section began, Hall survived the internecine Marxist wars of the 1970s, no doubt because he was by no means a Stalinist but was rather a theorist of fascism, of a state that was not just strong but was also the independent variable in any and all social analyses. This position represented a major break with conventional Marxism in the Britain of the 1970s, and it also represented a break with E. P. Thompson.

Notes 1. Stuart Hall, Charles Critcher, Tony Jefferson, John Clarke, Brian Roberts, Policing the Crisis, Mugging, the State, and Law and Order (London: Macmillan, 1978). 2. Friedrich Hayek, The Road to Serfdom (Chicago: Univ. of Chicago Press, 1944). 3. Edward P. Thompson, The Making of the English Working Class (New York: Vintage, 1966; originally published in England in 1963). 4. Paul Willis, Learning to Labour (Aldershot: Gower, 1977). 5. James O'Connor, The Fiscal Crisis of the State (New York: St. Martin's Press, 1972); Jiirgen Habermas, Legitimation Crisis, trans. Thomas McCarthy (Boston: Beacon Books, 1975).

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6. Cohen and Young, The Manufacture of the News (London: Constable, 1973). ch. 2; Cohen, Folk Devils and Moral Panics (London: MacGibbon and Kee, 1972). ch. 2. 7. Colin Sumner, The Theory of Deviance: An Obituary (New York: Continuum, 1992). 8. John Locke, Two Treatises of Government (Cambridge: Cambridge Univ. Press, 1988) Second Treatise, para. 50. 9. These newspaper articles are mentioned in Hall et al., Policing the Crisis, 19-24. 10. Hall et al., Policing the Crisis, 23. 11. Hall et al., Policing the Crisis, viii. 12. Hall et al., Policing the Crisis. 13. Hall et al., Policing the Crisis. 14. Hall et al., Policing the Crisis, x. 15. Hall et al., Policing the Crisis, 328. 16. Eric Hobsbawm, The Invention of Tradition (New York: Cambridge Univ. Press, 1992). 17. Tom Nairn, The Enchanted Glass: Britain and Its Monarchy (London: Radius, 1988). 18. Hall, Policing the Crisis, 40. 19. Robert Reiner, The Politics of the Police (London: Harvester Wheatsheaf, 1992). 20. Stan Cohen and Laurie Taylor, Psychological Survival (Harmondsworth: Penguin, 1972). 21. A still important general source for the politics of this period is Perry Anderson's Arguments Within English Marxism (London: New Left Books, 1980). 22. Nikos Poulantzas, Political Power and Social Classes (London: New Left Books, 1973). 23. Hall et al., Policing the Crisis, 196. 24. Hall et al., Policing the Crisis, 201. 25. Hall et al., Policing the Crisis, 204-205. 26. Hall et al., Policing the Crisis, 206. 27. Hall et al., Policing the Crisis, 205. Specifically, Hall says that it enables us to "reconcile Perry Anderson's observation that the English industrial class never becomes the 'governing' class." 28. Hall et al., Policing the Crisis, 213. 29. Hall et al., Policing the Crisis, 214. 30. Hall et al., Policing the Crisis, 209. 3 1. Hall et al., Policing the Crisis, 2 17.

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"not suggesting that we replace politics with management science." That is an interesting comment because many people in the Thatcher government wanted to do just that. What Chris Pollitt calls neo-Taylorism was the order of the day in the managerial climate of first Thatcher government.2 But Hoskyns had a political head on his shoulders and noted that he simply wanted "people who are not frightened of change," meaning the new breed of entrepreneurs called, somewhat derogatorily, Essex men. His solution, entirely political, was "to replace a large number of senior civil servants with politically appointed officials on contracts, at proper market rates, so that experienced top quality people would be available." He also wanted to create a new and small department, responsible for overseeing the government's entire political strategy. Hoskyns was a man with a clear vision of how to make change happen. But given that Hoskyns was a political radical, his comments all exuded a hostility to the modem state as constituted in its enduring form, that of the bureaucracy. The bureaucracy, rather than the politicians, embodies the contemporary state's raison d'Ctat, and in the struggle between ongoing civil servants and the always somewhat transient politicians, it is the bureaucrats who usually win out (for reasons similar if not identical to the ones mentioned by Hoskyns). The permanent nature of the state entails that bureaucrats develop a set of political inhibitors in the frontal lobes of their brains. In other words, reactive instincts that mute distaste for one party's political ideas and enthusiasm for the other party's. Personal survival depends on as much. So, too, does the survival and growth of the state. The then popular rubric for such inhibitors was Butskellism, usually associated with the Tories, but since the time of Stafford Cripps and Hugh Gaitskell, also with the Labour Party in power. It was this bureaucratic paternalism that Hoskyns wanted to overturn. The upper echelons of civil service at the time Sir John Hoskyns wrote were populated by men who had graduated from Oxford and Cambridge. Their view was paternalistic and thus more like the feudalistic Tory view than they cared to admit. It held that the purpose of the civil service was to temper political convictions in the name of achieving the kind of arrangement that had something for everybody. Society was an ongoing compromise between the appetites of the peasantry and the greed of the landlords, now of course reincarnated as the unionized working class and the leaders of industry and the financial markets. In the British bureaucracy of the 1970s, British society was viewed not as a competitive market but as a familiar community. Insofar as the outside world was taking on a more competitive cast, such a view guaranteed that Butskellite Britain would constantly be losing ground, in the most genteel and decent fashion, of course.

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The lower echelons of the civil service characteristic of the Research and Planning Unit were superficially different from, but at heart identical to, the upper levels, from which they took marching orders. Their ranks were open to women. Pat Mayhew, Mary Tuck, and Gloria Laycock did quite well and more often than not, researchers came from less august universities than Oxford and Cambridge. Indeed, Ron Clarke and Derek Cornish are good examples, being graduates of Bristol University. But these facts are misleading, because the lower echelons do not set the tone for the civil service. The Oxbridge leaders did. Thus the Unit was equipped with a strong Butskellite tendency for a very long time. That same spirit was embraced most clearly by David Faulkner, an excellent administrator by any of the usual measures but one who seldom rocked the boat. Faulkner was strongly inclined to take a multiagency approach toward most initiatives, because it was most likely to achieve the greatest happiness of the greatest number in the criminal justice establishment. The problem Hoskyns was pointing to was spelled out in more practical terms in a remarkable Home Office publication on the experience of policy implementation. Tim Hope and Dale Murphy argued in 1983 that situational crime control was still too idealistic and too unwilling to recognize the practical problems associated with policy implementation.4 This may have been the case, but it also suggests that Ron Clarke might have been trying to break away from the conventional implementation structure. In a certain sense, comments like this constituted a truism applicable to any radical policy change, and the proper response to the comment was that radical changes had to be made in the bureaucracy or that the bureaucracy had to be bypassed. But of course, comments like those of Hope and Murphy also contained a darker element, for problems of implementation always contain a deeply conservative bureaucratic bias. By dint of self-interest or disposition, Hope and Murphy argued, existing administrators can always think of reasons why no changes should be made, or why any proposed changes entail unacceptably high costs. Hope and Murphy urged that those responsible for situational crime control come to terms with leadership questions and not simply hope for the best. Indeed, in a veiled reference to Ron Clarke, they argued that "it is necessary that those promoting crime prevention . . . participate in the implementation process," because "policy implementation is, to a considerable degree, a 'political' process; whether it involves the internal 'politics' of the implementing agency or wider political issues." In respect to the administrative side of situational crime control, Hope and Murphy said that "a flexible approach to implementation is required. [Policy makers] . . . need to match their implementation strategy to local

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circumstances and be prepared to switch strategies according to the stage of the implementation process."5 By temperament, Hope and Murphy were the very opposite of Hoskyns, but they were still capable of saying the same things in the language of official discourse. In effect, they were saying that in the early phases of a demonstration project, situational crime prevention had revealed itself to be still too radical. What they characterized as internal politics was nothing more than the necessity to collect support by cutting a large number of existing agencies into the new idea. At best, the failure to do as much leads to the lack of support: at worst, to outright opposition. Sir John Hoskyns would have thrown up his hands in exasperation and argued that this was further proof, if any was needed, that radical policy change could not be implemented through the permanent state. Hope and Murphy were arguing that situational crime control had not yet made peace with the permanent state. It was still trying to go it alone, and such a stance contained the seeds of failure. The problem this chapter deals with can be stated in succinct terms. The autonomous state takes shape as a bureaucracy that comprises innumerable factors, forces, or pitfalls that work to consume, disperse, or decimate that which any self-conscious neoliberalism cares about: initiatives, in this case, political initiatives. For an idea as radical as situational crime control, the ideal implementation path would have by-passed the state in favor of one or more private initiatives that would have been carried out with legislative authorization. Or alternatively, Parliament might have created a new state agency with prevention as its sole or dominant remit, and thus a group of bureaucrats would have been given an interest with which they could clearly identify their careers. In the absence of either of these approaches, the characteristic response of the permanent state is one of consuming, dispersing, or decimating the political initiative of Her Majesty's government. A good example of the multiagency approach is U. S. foreign policy. Unlike Britain, which has a foreign ministry and a foreign minister, the Department of State has never been explicitly charged with making U. S. foreign policy. It is rather one among several agents or agencies involved, the others being the Department of Defense, the Central Intelligence Agency, the National Security Council in the White House, the chair of the Senate Foreign Relations Committee, the president of the United States, and occasionally the British prime mini~ter.~ The result of what might be called institutionalized multiagencyism is either leaderless drift or a constant struggle to control policy. What needs to be noticed in this example is that when U. S. foreign policy is coherent and effective, it is that because a single agent has won

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the battle and taken the making and implementation of policy out of the multiagency framework. The major names of recent U. S. foreign policy making are those of Henry Kissinger, George Marshall, James Baker, Richard Nixon, and in the cases of the Gulf and later the Kosovo wars, even Margaret Thatcher and Tony Blair. But even this tells only part of the story. For a single agent to be successful, the president must be focused, and very often presidents are not. Bill Clinton is a good recent example. His focusing usually comes late and does not endure, meaning that there is little lead time to develop a policy and almost always poor follow-up. The story with the actual implementation of policy is similar. Effective and successful implementation of U. S. foreign policy almost always bypasses the State Department bureaucracy of regular ambassadors and staff-whom Franklin Roosevelt, speaking with Winston Churchill, called his "cookie pushers." It is conducted by special appointees or socalled roving ambassadors such as Richard Holbrooke, Paul Nitze, Strobe Talbott or, in the case of Roosevelt, Harry Hopkins. This is government by commission, and the appointment of such commissioners is actually good indication that the president might be focused. Or the implementation of foreign policy is conducted via "shuttle diplomacy" around middleeastern capitals; or it is conducted through various "hot lines" to Moscow, Jerusalem, or London that enable the president himself to become involved in implementation. All of the successes of U. S. foreign policy are attributable to singleagent operations. All of the drift and many of the resultant failures are attributable to multiagency approaches. I recognize that this may seem like a puffed up appraisal of the making and implementation of U. S. foreign policy, but I would argue that it is not in the least exaggerated. Multiagency creation and implementation of policy of any type invariably creates a camel, namely, an animal that looks like it was put together by a committee bent on making compromises to accommodate everyone in the room. There are only apparent exceptions to this claim: Real successes can be explained in terms of hidden agents who make things happen through superior intelligence, will, or connectedness; or they work because of the real indifference of committee members to even their own interest. Or successes are gained by marginalizing troublesome agencies and keeping them marginalized. If the representatives of all the interested agencies participate and are left to their own devices, they will invariably produce a camel. No exceptions. The Thatcher government was well aware of problems like these in the 1980s.' In the mid-1980s, it instituted a wide-ranging measure called the Financial Management Initiative. It aimed to install a hierarchical man-

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agement structure that would enable the government to pinpoint responsibilities. When the Thatcher government did not succeed, it turned to the Next Steps program, the aim of which was to reform the management structure in terms of the concept of marketization: The size of the civil service was to be reduced, its functions progressively privatized. New agencies that would operate through outsourcing were to be created, and they would be held to accountability by actuarial techniques. In sum, the intent of the Thatcher government was to radicalize its drive to responsibilize government. But very little of this highly general program of reform actually happened in the criminal justice field. What is seen in this chapter is the gradual replacement of the single-agent approach to the implementation of situational crime control with a multiagency approach, and that amounted to the slow death of situational crime control. The single agent was Ron Clarke, and there never was a single agency worth dwelling on: Clarke's failure was preordained by the ambivalence of Margaret Thatcher. Situational crime control could never have succeeded unless the prime minister put herself behind it wholeheartedly, and she never did. Clarke was thus more or less on his own, and he was from the outset too marginal a figure to succeed broadly or emphatically. That he succeeded to the extent he did is itself an amazing story, but it is only half of the full story.' The other half is about the consumption or dispersal of a political initiative (for that is what situational crime control was) in favor of the bureaucratic feast of multiagency politics.9

Home Office Circular 8/84 was clearly supportive of situational crime control, but did not name a lead agency, a problem that Gloria Laycock and Ken Pease tried to come to terms with in 1985.'' They argued that the Probation Service should push situational crime control more and suggested that probation officers interview offenders about patterns of crime and pass the information on to other agencies, including the police. Such a suggestion may not have forgotten what the purpose of probation was, but it was bound to be controversial, as Laycock and Pease admitted. The Probation Service is very nearly the perfect example of a welfare agency in the criminal justice system. It intervenes after the fact of crime and punishment to attempt the painstaking effort at social reintegration. And it works according to the same medical model of rehabilitation that Clarke and his colleagues had attempted to discredit in the 1970s. Yet there were powerful forces in the Home Office who wanted

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to see the Probation Service play a lead role, and they would try now and later to integrate it into the implementation of situational crime control. To ask, as Laycock and Pease had done, that such an agency take the lead in situational crime control, and do so by collecting information about crime and criminality from former convicts, was tantamount to asking the Probation Service to reorganize its priorities and make situational crime control its top priority, and the individual convict's social reintegration a secondary concern. Obviously, the reshuffling of priorities need not have been that drastic, but if probation were to become a lead agency, not to speak of being the lead agency, it would have to make some adjustment of priorities. The Probation Service never responded directly to the proposals of Laycock and Pease, but the various professional associations connected to probation gave some idea what the response of the service was. It was gradual and cautious, and inclined to implicate the Probation Service into any implementation of situational crime control. In 1984, the National Association of Probation Officers (NAPO) had already issued a document saying there were "few direct opportunities of probation officers to become directly involved" in situational crime control, a comment which betrayed a chilly attitude toward the new initiative but was at least forthright." A year later ACOP, or the Association of Chief Officers of Probation, advanced the argument. It actually welcomed the new emphasis on crime prevention, but that was not necessarily good news. The tip-off to their real attitude was the argument that situational crime control was a good beginning but only a partial solution and one that neglected the broader social causes of crime.12 The wording-partial solution-works like code in the ears of bureaucrats, for it indicates that continued support is contingent on return support for other programs. But more significant, terms like partial solution are code for the demand to take up a multiagency approach. And then there was the term social causes of crime. This was precisely what Ron Clarke had wanted to get away from, because that orientation led to the medical model of rehabilitation. Finally, in 1987, the Central Council of Probation Committees (CCPC) endorsed the ACOP position, meaning that it endorsed the social approach of the chief officers of probation.'3 Thus ended a round of official discourse, and we need to pause for a moment to comment on it. At most, one can conclude that the professional associations had given an ambivalent response to situational crime control, but one that sent the clear message that they would have to be included on their own terms in any implementation plan or would oppose it. This should have been enough to eliminate the probation services from consideration from any role, never mind that of lead agency; but of

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course they were not eliminated, for in the realities of official discourse, the probation services had announced that they would cause problems whether they were inside the tent or outside. The issue raised by the British probation services was not unique. If agencies are asked to cooperate in a new program, they will most likely agree but then try to do things on their terms. And this is for good reason. If they do not try to do things on their terms, the rationales for their independent existence may be called into question. If, for example, the army is asked to shovel snow after an especially large storm, it might comply if it understands that the effort is anything but routine. But asking the army to clear away the snow after every storm is tantamount to raising a question about the purpose of the army, and that gesture will almost invariably invoke a negative response, because the army will want to reassert its primary purpose. If the multiagency effort is kept minimal as, for example, when a coordinating committee meets periodically so that member organizations can inform each other of their efforts and perhaps raise a pint to their shared goal, then things might go tolerably well. But as we move down the continuum from consultation to cooperation to integration, federation, and finally incorporation into a new superagency or super-effort, real problems have to arise; and they do. In respect to the problem of integration, an additional point needs to be argued. This is that the agencies actually being asked to implement situational crime control were defined for the most part by their preexisting social approach to problems, an orientation that brought them into immediate confrontation with the new ethos of situational crime control. Whatever else situational crime control was based on, it entailed a disavowal of the very raison d'Ctre of the agencies that were supposed to make it work, and thus conflict, no doubt friendly and cheerful, was by definition entailed in an officially "cooperative" approach. The multiagency approach represented a real, and not just imagined, threat to situational crime control. There were other complications as well. Insofar as the case for situational crime control was based on the pragmatic claim that the police were ineffective in dealing with crime, police involvement entailed an admission that existing police policies and operations were failures. Few police leaders would subscribe to such a claim, and so police participation was likely to be resentful and halfhearted. Of course, police cooperation would wear a friendly face, but then the neutral observer needs to pay attention to the dedicated budget to see what kind and quality of resources are assigned to situational crime control.

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Yet there is an even deeper problem with the police. Their real prime function is now more latent rather than express. It is the maintenance of law and order, not crime prevention as such. If crime comes to constitute the greatest threat to law and order, then fine, the suppression of displacement of crime will become the order of the day. From the outset, the real purpose of the Met was the protection of bourgeois propertypractically speaking, commercial property-against the rising threat of an unruly working class. The political left has always taken it as an article of faith that the police exist as a repressive agency, but that is an exaggerated claim. The police are happy to be tolerant-Marcuse would call it repressive tolerance-if that suits their law and order agenda, or they are happy to recruit the good working class with friendly bobbies if that works, but the important point is that they not forget why they exist, and that is the maintenance of the legally sanctioned order of society. No serious scholar has ever argued against the claim that the police exist to maintain law and order. The British scholar who presents the most friendly portrait of the police, Robert Reiner, has argued at length that the early Metropolitan police came to be accepted by the working class because they were seen to be working in the interest of that class.14 He is right. They were in fact doing so. Yet this argument does not conflict with the above claim. It was every bit in the interest of the police to gain the trust of the class they were most obliged to control, and to do so by making the lives of working men and women easier. Just as every prison warden knows that the management of the prisoners whom he is charged with confining is made easier if the prisoners are given some privileges that can be taken away, so, too, the police know that the policing function is made easier if they have the trust of their charges.15 Minimally, situational crime control is a matter of locks and burglar alarms, but more maximally it is a matter of responsibilizing citizens so that they assume control of their own security. From the outset of the implementation process, it was clear to everyone involved that the government would be engaged mainly in programs in poor and highcrime areas of cities. But these are precisely the people who are the object of the law-and-order mandate of the police, so bringing the police into situational crime control was a bit like letting the fox into the chicken coop. Of course the police would put on a good face, but odds were that many a chief constable saw situational crime control as an opportunity to hone the force's skills at maintaining law and order. This will be understood by the locals, and thus efforts to organize neighborhood watches and the like will undoubtedly be viewed as exercises in surveillance. For all these reasons, the police were very problematic as a potential lead agency.

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In sum, the multiagency approach to situational crime control was precisely the kind of affair that would set Sir John Hoskyns to penning his most evocative fulminations. The fact that the multiagency approach got as far as it did was an indirect way of saying that Thatcher was not interested in the program. It is perhaps a bit much to expect the prime minister herself to take a personal interest, but certainly it is not mistaken or misconceived to expect that her home secretaries and junior ministers in the Home Office would take an interest and do this as a matter of interpreting the prime minister's will.

But is it the case that the prime minister was not interested in situational crime prevention? Certainly, in speaking more generally of programs to bring about radical changes in British society, Sir John Hoskyns did not think she was interested. By 1987, Thatcher was running for election a third time, and the theme of her campaign was active citizenship. Thatcher had won her great domestic victory over the miners' union, which was, in her view at least, a victory over a certain criminal element. She was now poised, it seemed, to push home the final details of the neoliberal society. Why did she not act? This was no minor problem in her agenda. Sir John had provided an indirect answer in the mid1980s: The only person who can change things is the Prime Minister. If our present Prime Minister does not do it, I doubt if we shall ever have one who will. But, despite having been so often right in challenging conventional wisdoms, there is no evidence that she sees the need to challenge this one. She is, in any case, surrounded by colleagues and career civil servants who, for the most part, prefer things the way they are.16

Perhaps more likely and more pertinently, Thatcher herself preferred things the way they were. But how could this conceivably have been the case? How, that is, could a leader who had famously claimed that society did not even exist manage to segue over to the social approach to crime? It was always likely that Junior Minister John Patten was representing more than his own opinions when he argued what was in effect an obituary for situational crime control in 1988 and 1989.17Still more likely was that the declaration of the demise of situational crime control by her junior minister was representative of Thatcher's opinion. There is a speculative explanation of Thatcher's ambivalence. She is often described in Britain as a neoliberal, meaning a politician who be-

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lieved in a certain set of Hayekian liberal values that privileged autonomous individuality and devalued the communal forms of the state and society. Thatcher's famous claim that society did not exist is usually taken as evidence in support of such a claim. But it was always also possible that Thatcher was a more complicated political person, with a certain residual conservatism in her political being-a conservatism that amounted to a certain outrage over the dissolution of the moral bonds absolutely essential to the social. If we posit such a residual Toryism, it works to place a different gloss on Thatcher's famous claim that there was no such thing as society. What she really meant was that there was no longer such a thing as a morally binding society in which everyone knew his place and respected his betters. In other words, Thatcher was saying that she was outraged that the kind of neo-feudal society beloved of Stanley Baldwin and other great Tories no longer existed and had no prospect of existing. Her outrage implied that she would use the powers of the state to strike down those who had betrayed the moral community of peasants and lords, whether they be union leaders like Arthur Scargill, Conservative politicians like Edward Heath, or ordinary criminals. Given the outrage that was an everyday aspect of Thatcher's personality, what I am here positing is not so implausible. It was part and parcel of a package of ambivalent political values that would produce home secretaries as different from each other as the neoliberal Douglas Hurd and the morally fulminating Michael Howard. It is hard to feature any Tory leader who does not have some residual attachment to the rolling fields, the manor farm, the cottages of the hands, the well-placed oak tree, the setting sun, the cows in the foreground of Salisbury's gothic towers, the timbers framing the pub at which the men would soon gather for a pint. Sentimental yes, but integral to the spirit of English Toryism. But before Thatcher settled into such an ambivalent position with the residual values of Toryism compromising the new neoliberalism, there seemed a good chance that situational crime control might be implemented as the chief new approach of the Thatcher government's management of security. What helped tip the cards in favor of real implementation of situational crime control were two related, but still independent, events that could not have escaped the prime minister's notice. In March 1982, the lord chief justice, the equivalent of the chief justice of the American Supreme Court, rose to make a speech in the House of Lords in which he argued that solutions to the crime problem had to be found outside the criminal justice system.'* The speech might have been paid short shrift had it not been for the fact that Home Secretary William Whitelaw rose the next day in Commons and made a strikingly similar

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speech.19 The meaning of this set of reinforcing messages would not have been missed by anyone paying careful attention: The Thatcher government was intending to pass on some of the responsibilities of personal security to the people of Britain. But arguably this kind of populism may not have reflected what it seemed. Equally likely, according to Kevin Heal, the Home Office may simply have planned to diversify the responsibility for crime control within the government.20According to this interpretation, the chief effect of the research of Ron Clarke and Mike Hough on police effectiveness would never have been a shift of responsibility from the police to the general public. More likely, the shift to the general public would be mediated by the inclusion of other agencies. Thus, instead of an effort aimed at responsibilizing the British people to look after their own security, what was meant by the phrase outside the criminal justice system was an approach that included agencies other than the police. In other words, the time had come for the multiagency approach. Besides the Financial Management Initiative and the two speeches in Parliament, the third event of 1982 that put the police in a comer vis-Avis situational crime control was a conference held at the National Police College at ramsh hill.^^ It may not have tipped the cards, but it sealed and confirmed for the police the way things were moving. Dozens of chief constables were called to the Police Staff College to hear numerous speeches telling them of the need to cut costs by reconceiving police effectiveness. Sir Brian Cubbon, permanent secretary of the Home Office and chainnan of the interdepartmental group on crime reduction, addressed the conference. It was presided over by the then director of the Police Staff College, Kenneth Newman, who would soon be promoted to become commissioner of the Met. The speeches and papers given were uniformly enthusiastic about situational crime control, because it seemed to address the problem of police effecti~eness.~~ The police were now under intense pressure to do that which they were disinclined to do: turn over at least some of the responsibility for crime control to the general public or, more likely, other agencies. This of course did not mean reductions in the size of the police or even reductions in their budgets. It was all very much a sophisticated conceptual game in which Thatcher, or rather her government, was going in two directions at once. On the one hand, Thatcher wanted to sustain and cultivate the police for the sake of maintaining law and order in Britain's cities and for the coming battles at the mining pits. On the other hand, she wanted to cut costs by recognizing police ineffectiveness vis-his crime and pass this function onto the public or to other agencies. The latter

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motivation probably originated in the enthusiasm for managerialism that was then at its high-water mark in the Thatcher government. Some police chiefs, especially those from the Midlands, would resist the complex argument now unfolding because they would recognize, that law-and-order politics and rising unemployment combined in an incendiary way. If the pits were going to be closed, unemployment would rise and so too would crime, and it would be very difficult in such circumstances to go along with the government. But most chiefs in the south of England would have no such problem. This was especially the case with Kenneth Newrnan, who by 1984 was commissioner of the all-important Metropolitan police force. In these entirely favorable circumstances, Brian Cubbon and others moved to reorient the Home Office toward situational crime prevention. In 1983 the somewhat ad hoc "standing committee on crime prevention," originally formed in 1966, was upgraded into the Standing Conference on Crime Prevention, in order to regularize the consultative function, and in the same year a Crime Prevention Unit was established to mount demonstration programs in situational crime prevention. Finally, in the same year, Home Office Circular 8/84, mentioned earlier, was drafted.23 It would be released the following year, and its function was to set the terms for the implementation of situational crime control. Its first paragraph gives a distinct flavor of how far situational crime control had traveled since the 1970s: A primary objective of the police has always been the prevention of crime. However, since some of the factors affecting crime lie outside the control or direct influence of the police, crime prevention cannot be left to them alone. Every individual citizen and all those agencies whose policies and practices can influence the extent of crime should make their contribution. Preventing crime is a task for the whole community."

Despite the enthusiastic tone of this Home Office circular, two problems were left unaddressed, both already indicated in our earlier discussion. The first was that the Home Office did not designate a lead agency for the coming multiagency crime prevention effort. The obvious choice was the police, but of course the problems here were insurmountable. It was enough to have cornered them. To ask the police for more was not advisable. The police may have been marginally ineffective in combating crime, but they would not like to admit that, and they certainly would not like to be the lead agency implementing a program whose premise was based on police ineffectiveness. And if the police were named as lead agency, it could be expected that they would undermine (subtly of

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course) the program they were leading. Thus the police were not named as lead agency; and given that no one else was named, the Home Office Crime Prevention Unit would perforce have to take the lead. The problem with that move, of course, was that the Crime Prevention Unit was something of a lightweight as an operational agency. The evidence suggests that the Home Office did not intend to name a lead agency. The permanent secretaries of five other government departments besides the Home Office signed Circular 8/84, whose official intent, at least, was to mount a multiagency effort; to identify a single agency would have defeated that purpose. In this context, arguments already began to break out, with the "preventionists" suddenly being opposed by "reductionists," a group which thought that the mere prevention of crime was not enough and that the goal had to be its reduction.25 Clearly, Ron Clarke would have had nothing against the reduction of crime, and arguably prevention was a kind of reduction, but insofar as the "reductionists" were arguing for a more aggressive anticrime effort, it smacked of a way to reengage the police, and that had never been Clarke's intent.26 The second problem was resources. If situational crime control was to be implemented as a multiagency effort, it would be at the local level as well as at the level of Whitehall agencies, and most likely in cities, and so would involve all manner of public and private agencies. The problem being created was that these agencies would now have to be persuaded to reallocate their funds from their existing statutory or chosen projects to the new project of situational crime prevention. Thus the Home Office Crime Prevention Unit would find itself engaged in any number of zerosum games. To create a winner, it would have to identify losers, and that would certainly not make friends for the Home Office. Perhaps some of these games would be won, but others would be lost, and thus the promise was of a very uneven performance, led by no operational agency. As indicated above, the Home Office was well aware of these problems. In 1984, Ron Clarke left the Home Office and the United Kingdom to relocate to Temple University, in the United States. He would eventually become the dean of the Rutgers University School of Criminal Justice, in New Jersey. Situational crime control had lost the one man whose energy, skill, and imagination had brought it from the status of a weak and reactive concept to the point of being the leading criminal justice innovation of the 1980s. Clarke's departure was unfortunate in its timing, and absent the emergence of an alternative leader of roughly equal skill and enthusiasm, it has to be assumed that the Home Office was subsequently proceeding on the basis of momentum and little more. This is not to say that there would not be skilled persons involved in situational crime

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control over the next five years. Tim Hope, Ken Pease, Gloria Laycock, and others took leads and were in many respects superb in their performances, but no one of them had the combination of qualities and skills that made Clarke the lead man for so many years. Other Home Office figures-including David Faulkner, Mary Tuck, and Chris Nuttall-remined skeptical, with all that that portended. With Clarke's departure, there was every potential for unraveling. Clarke's replacement at the head of the unit was Mary Tuck, and one of her chief associates was Chris Nuttall. Both were without question competent, but Tuck was by instinct and conviction a cornrnunitarian and thus somewhat out of sympathy with Thatcherite policies. Nuttall, for his part, was even more out of sympathy. He has been described as a supporter of old Labour, and this at a time when old Labour was experiencing rapidly declining support. Faulkner was a strong supporter of the probationary service, and so he approached situational crime control with a good deal of reservation. The rearrangement of the entire team at the Home Office did not bode well for situational crime control. In the mid-1980s, the Home Office mounted a series of demonstration projects, each more ambitious and complex than the one before it and all of them designed to test situational crime control as the central focus of British criminal justice. The Manchester vandalism project was an effective test case.27 It was followed by the Five Cities project, which compelled the Home Office and, specifically, the Crime Prevention Unit to confront problems of leadership and organization. Additional funding for the Crime Prevention Unit was secured and money was designated for the hiring of local coordinators, thus at least addressing the problem of not having a lead agency. An additional innovation occurred when, in 1985, the Department of Employment agreed to collaborate with the Home Office. Training funds were earmarked for hard-core unemployed people to be retrained to work in situational crime control. While the Five Cities project was being mounted, numerous other small projects were also created, and thus with the Department of Employment, the Home Office was able to claim that five thousand people were employed in crime prevention in 1986, and that a year later the figure was up to eight thousand workers.28 In 1986 a ministerial group on crime prevention was created within the central government, and the prime minister herself chaired it.29The effort contributed to the symbolism of the active citizen in the thinking of Home Secretary Douglas Hurd and in Thatcher's reelection effort in 1987. In 1988 the Safer Cities project, intended to bring situational crime control to twenty additional cities, was launched. Thus in the last half of

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the decade, the implementation of situational crime control appeared to gain the political leadership it needed. But that kind of success was deeply problematic. Situational crime control still lacked a strong and effective lead agency and was thoroughly multiagency in character. In such a complex situation, it was easy for leaders in the Home Office to reassert a social approach and subvert the original ethos of situational crime control. Few Home Office officials will agree with this way of putting things, but insofar as situational crime control was conceived in Ron Clarke's terms, which were neoliberal terms, this has to be the case.30How the Home Office managed to substitute the social perspective characteristic of welfare liberalism for the individualizing and responsibilizing perspective characteristic of neoliberalism is no great mystery. One can very nearly make up the script. But the details are still worth reporting. One ploy was to discover successful programs on the continent and make them models for future Home Office action. Such models need not be Poternkin villages, but they might just as well be, because British administrators or politicians visiting the continent are not likely to distinguish the showcased model from the real thing. Not too surprisingly, British administrators rapidly discovered counterpart programs in community safety being implemented in France and Germany and were impressed by the integration of social perspectives and agencies defined by those perspectives. They took their enthusiasm back to the Home Office and impressed it on John Patten, then the junior minister. He visited some of the programs on the continent at the behest of his civil servants, and he, too, was impressed.31 Patten then, and perhaps therefore, provided an enthusiastic introduction to a collection of writings by Tim Hope and Margaret Shaw, published in 1988 and called Communities and Crime ~ e d u c t i o nThe . ~ ~same year, and again a year later, Patten contributed articles to The Guardian, not the usual outlet for a Conservative minister, in which he said what the Guardian's readership wanted to hear, namely: the "quick fix" days of situational crime control were over, and the focus of the Thatcher government was on community safety.33 With no objection from Thatcher, now in a period of terminal political decline, the bell had tolled for situational crime control. Statements such as Patten's caused some scholars to call this phase of Thatcherism the Age of It was really the Age of Fatigue and Increasing Indiference in the Thatcher government. By 1992 Kevin Heal of the Home Office was able to report that situational crime control had finally been absorbed into a larger and more social context. His emphases were different than those of Tim Hope and Margaret Shaw, but fi-

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nally told the same story. In his version of events, the Home Office had not compromised the original vision of situational crime controL3' Compromise had rather been the consequence of a multiagency approach, and it was clear from Heal's tone that that approach was understood to have been a good thing.

v

What needs to be brought back to clarity is the political point made at the outset of this chapter. By the twentieth century, the security state had become a permanent entity in a sense fully unanticipated by the creators of the Home Office in the 1780s and of the Metropolitan police in the 1820s. It had become staffed by civil servants whose careers transcended the lifetimes of several governments of different political parties. It was very much in the nature of such an arrangement that civil servants would learn ways to thwart political initiatives. They of course would never say no to a political initiative, but they did have ways of consuming, dispersing, or otherwise dissipating political directives designed to effect radical change. They thus elicited expressions of frustration from politicians like Sir John Hoskyns, and although those expressions sometimes seem intemperate, they cry out to be understood. Hoskyns no doubt believed that he and Thatcher had at most seven or eight years' time to effect change, and thus they, or in this case Thatcher's home secretaries, did not have the time for endless experimentation. This was the case especially if the experimentation would itself lead to the dissipation of the political initiative that had been there in the first place. There was thus a need to break some eggs if the omelette was to ever get made, but this did not happen. The rare if not unique aspect of the events recounted in this chapter is that they dealt with the implementation of a political initiative that originated not with Thatcher or one of her home secretaries but rather with a civil servant. Ron Clarke was placed high enough that his ideas could not but have been noticed; and as William Whitelaw's speech in Commons on March 24, 1982, attests, they were noticed and refashioned into a political initiative originating in the cabinet. But although Whitelaw's speech was the political high-water mark of the cause Ron Clarke had been championing for nearly ten years, it was never followed up with adequate political support. After the Falklands War and her second electoral victory, Thatcher had accumulated a strength that in her first term she could only have dreamed of possessing, and thus-guessing from events-she made up her mind not to offend the police unduly but rather to keep them in place as a key tool for her forthcoming confrontation with the miners' union. It would be naive in the extreme to expect

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Thatcher or her home secretary to have paid attention to the implementation of situational crime control in 1984 and 1985; but the timing of her war with the miners was unfortunate indeed for situational crime control. It is not naive to think that Thatcher might have paid attention in 1987, at the time of her third election campaign. A war had been won at home as well as abroad, the financial markets had been reformed, North Sea oil was still running, and Thatcher was at the height of her popularity. Her campaign motto was active citizenship and thus she was marching under a banner seemingly tailor-made for the implementation of situational crime control. But by 1987 Ron Clarke was firmly ensconced in the dean's office at Rutgers University and thus, as they say in Washington, out of the policy loop. Situational crime control was on its own in 1987, and such solitary splendor was enough to spell its doom. On top of that, Thatcher was not interested. She still owed the police a great deal, and at the very least that debt might have meant not supporting a program premised partly on the ineffectiveness of the police. By 1987 there was no need for opposition to situational crime control. Resistance was needed only when situational crime control was within sight of becoming an independent program, and that had not been the prospect since 1984. By 1987 the Home Office Research Unit was firmly nested into a multiagency approach that allowed all manner of other interests to advance their causes simultaneously. In such a context, situational crime control had already been assimilated into the repertory of the permanent state, and there would have been no reason to oppose it. It was no longer a political initiative incorporating a clear vision of the personal autonomy that was the chief value of liberalism.

Notes 1. Sir John Hoskyns, "Whitehall and Westminster: An Outsider's View," Parliamentary Affairs vol. 32, no. 2, spring, 1983. 2. Christopher Pollitt, Managerialism in the Public Services: The AngloAmerican Experience (Oxford: Basil Blackwell, 1990). 3. Pollitt, Managerialism. 4. Tim Hope and Dale Murphy, "Problems of Implementing Crime Prevention, The Experience of a Demonstration Project," Howard Journal, 22, 1983. 5. Hope and Murphy, Problems, 48,46,48 for the three quotes. 6. This includes not only Blair's influence on Clinton and Thatcher's on Reagan and Bush, but also Churchill's influence on Roosevelt and Attlee's on Truman. Insofar as U. S. foreign policy has been Euro-centered, the British have exercised the influence that comes with the "special relationship" it has with the United States. 7. See C. Hood, "A Public Management for All Seasons," Public Administration, vol. 69, no. 1, 1991. See also S. Zifcak, New Managerialism: Administra-

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five Reform in Whitehall and Canberra (Buckingham: Open Univ. Press, 1994). I am grateful to Nikolas Rose for these references. 8. The story is told most fully in Kevin Heal and Gloria Laycock, eds., Situational Crime Prevention: From Theory into Practice (London: Her Majesty's Stationary Office, 1986). 9. The reader will by now have sensed that the author is less than enthusiastic about multiagency politics. That is indeed the case, but what should be made clear is that the origin of such distaste is not only in the prolonged observation of government, which is the staple of the political scientist, but also the more direct experience of interdisciplinary programs in American universities. The latter appeal to university administrators as a means of engaging weak departments in the programs of stronger departments, thus keeping the weaker departments gainfully employed. They are in effect make-work programs, and as such they always blur or blunt or otherwise unfocus the vision that is at the center of real knowledge and its disciplined pursuit. Multiagency implementation is similar. 10. Gloria Laycock and Ken Pease, "Crime Prevention within the Probation Service," Probation Journal 32, 1985. See also Stephen Shaw, "Crime Prevention and the Future of the Probation Service," Probation Journal, Dec. 1983. 11. NAPO, "Draft Policy Statement: Crime Prevention and Reduction Strategies," 1984,3. 12. ACOP, "ACOP Response to Circular 8/84" (Wakefield: ACOP, 1985). 13. CCPC, "Crime Prevention: A Role for Probation Committees" (London: CCPC, 1987). 15. Reiner, Politics, 56, for example, but in the entirety of his first chapter, Reiner is attempting to create a synthesis of traditional and contemporary critical interpretations of the origins of British policing. 16. This may seem a nasty and biased argument, but it must be recalled that throughout the nineteenth century no significant distinction was made in the minds of the ruling middle classes between the working class and the "dangerous," or criminal, classes. 17. Sir John Hoskyns, "Conservatism Is Not Enough," Political Quarterly vol. 55, no. 1, Jan.-Mar. 1984,3. 18. See The Guardian, Apr 8, 1988; July 12, 1989. See also Tim Hope and Margaret Shaw, Communities and Crime Reduction (London: Her Majesties Stationary Office, 1986). 19. Hansard (Lords), 1981-1982, vol. 428, Mar. 23, 1982,987-989. 20. Hansard (Commons), 1981-1982, vol. 20, Mar. 24, 1982, 1117, 1118. William Whitelaw was the home secretary and was positively inclined toward situational crime control. 21. Letter to the author from Kevin Heal, Nov. 4, 1998. 22. Home Office, Crime Prevention: A Coordinated Approach; Proceeding of a Seminar on Crime Prevention, 26-29 Sept., 1982. Sir Brian Cubbon emphasized that crime prevention "goes beyond the boundaries of the police service

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itself." But Cubbon muddied the waters by noting that other public services were being brought in for "the consultation process." 23. Daniel Gilling, Crime Prevention: Theory, Practice, Politics (London: Univ. College of London Press, 1997), 84. Conversation with Ben Bowling, Nov. 10, 1998. 25. Crime Reduction: Report of an Inter-Deparhnental Group on Crime. The distinction between prevention and reduction is akin to the distinction between routine and proactive policing. 26. Home Office Circular 8/84 (London: Her Majesty's Stationary Office, 1984). 27. Letter from Kevin Heal, Nov. 4, 1998. 28. These sentences sound a little contradictory insofar as the prevention of crime sounds more ambitious than the reduction of crime, but actually things are the other way around. Preventing automobile thefts by requiring the manufacturers to include tamper-proof ignitions is much easier than reducing automobile thefts by, say, increasing the frequency of police patrols. Crime prevention is really a matter of "nipping the problem in the bud" rather than managing it later on. 29. Hope and Murphy, Problems. 30. Gloria Laycock and Kevin Heal, "Crime Prevention: The British Experience," in David J. Evans, Nicholas R. Fyfe, David T. Herbert, Crime, Policing, and Place (London: Routledge, 1992). 3 1. Laycock and Heal, Crime Prevention. 32. Kevin Heal is one who disagrees. In his view, as "alternative forms of crime reduction were being revisited and the limitations of situational crime prevention became clearer . . . ,the complexity of implementation became more readily understood." Thus for Heal "a broader picture, and one could argue a more sophisticated and potentially more effective picture of crime preventionlreduction[,] began to emerge." This of course was the multiagency approach. Letter from Kevin Heal, Nov. 4, 1998. 33. Trevor Jones, Tim Newburn, David J. Smith, Democracy and Policing (London: Policy Studies Institute, 1994). Conversation with Tim Newburn, Oct. 22, 1998. 34. Hope and Shaw, Communities and Crime Reduction. 35. The Guardian. Apr. 8, 1988; July 12, 1989. 36. The Guardian, Apr. 8, 1988, July 12, 1989. 37. Kevin Heal, "Changing Perspectives on Crime Prevention: The Role of Information and Structure," in David J. Evans, Nicholas R. Fyfe, and David T. Herbert, Crime, Policing, and Place (London: Routledge, 1992).

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the welfare liberal state to neoliberalism and the corresponding neoliberal state. This shift in ideology and outlook was of such immense significance that it is not an exaggeration to call it a social and political revolution. It entailed a downsizing of the state, for where welfare liberalism had consciously extolled the virtues of the large state, neoliberalism entailed a return to the classical liberal value of the limited state. But would such a limitation be the case? Chapter 6 suggests that either because Thatcher lacked the political will or because the British bureaucracy possessed a greater endurance, the social programs of the British state did not wither and die under the impress of the neoliberal initiative of situational crime control. On the contrary, the bureaucratic state gobbled up situational crime control and added a whole new dimension to the security state. The present chapter shows that the experience with situational crime control was no accident, only now we are dealing not with bureaucratic expansion but with the political expansion of the liberal state. In the period of Margaret Thatcher's rule, three moves were made to secure this kind of political control for the Home Office. The first was the cultivation of ACPO, the Association of Chief Police Officers, or in American station-house parlance, the chiefs. To understand the logic of this cultivation, we have to go back to what I elsewhere called the Big Bust of 1984-1985, the miners' strike. One of the main concomitants of the strike was the creation of a de facto national force, and the only sore point had to do with the de jure question of who would command this ad hoc national force. Either it would be the Home Office, which arguably had the power to do so from the Police Act 1964, or it would be the chiefs, who had such power only by delegation4 The chiefs willingly took on the task by assigning leadership of the National Board, which had been created to manage the strike, to ACPO. Some chief officers later claimed that they were willing to have ACPO coordinate the policing of the strike in order to head off the Home Office, but the Home Office was entirely content with an arrangement in which ACPO assumed responsibility. With such an arrangement, legislation was not required, and the home secretary was not answerable to Parliament for actions of the police. It was the best of all possible worlds for the Home Office because it increased de facto Home Office control without increasing de jure responsibility. The second move designed to centralize control was the reorganization of the Inspectorate of Constabularies. Until the late 1980s, Her Majesty's Inspectorate was a sleepy province on the margin of the real police world, usually headed by a retired chief constable and operating with the negative mandate of making certain that none of the regional or local

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forces stepped too far out of bounds in respect to some loosely defined national standards of policing. All of this began to change when it was recognized that the certification of police forces could be used as a tool for increasing central control over the forces. Inspections became more rigorous and analytical and more attuned to the policy concerns of the Home office.' Instead of attracting retired chief constables, Her Majesty's Inspectorate began in the late 1980s to attract younger chiefs willing to leave their posts for what they took to be an increasingly powerful central position.6 Geoffrey Dear of West Midlands was the first of this new generation of chiefs willing to go into the Inspectorate. He did so in 1989. John Stevens did so later and rose from that position to eventually become commissioner of the Metropolitan police. In Her Majesty's Inspectorate in the 1990s, what one sees emerging is a panoptic arrangement within the police. The third move has to do with the increased significance of Home Office circulars in setting policy. Traditionally, Home Office circulars explained and clarified policies or operations whose legal foundations were located elsewhere in acts of Parliament. Beginning in the 1980s, Home Office circulars began to take on an independent significance, because they had begun to be accepted by the chiefs as authoritative. For example, the Police Act 1964 gave the home secretary the power to direct that local forces cooperate if he or she deemed it necessary.7 This legal authorization was detailed in Home Office Circular 5411982, and nowhere-lest it be in the stockpiling of cheap coal imported from Pol a n d 4 0 we have a clearer indication of what Thatcher was planning. Circular 5411982 was basic to the management of the miners' strike in 1984-1985.~Matters still remained unclear, however, for Home Office Circular 5411982 was still an interpretation of the will of Parliament. What was needed for a good challenge was a Home Office circular that was fully detached from the sovereign legal power of Parliament. That challenge was supplied by Home Office Circular 4011986, which was fully outside the powers given to the home secretary in the Police Act 1964. In the so-called Northumbria Case, a local authority challenged the home secretary's power to authorize a chief constable to make purchases denied to him by his local authority. This court case amounted to a challenge to the constitutionality of circulars. The court found that the home secretary had the authority, but providing a constitutional fig leaf for this authorization was no easy matter. The answer of the court, had it been disseminated by rumor, would have been unbelievable. The answer was Royal Prerogative, the significance of which was that the Home Office circular in question was given its authority not by act of Parliament but rather by something like executive privilege.9 Whether

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that privilege is in the hands of the chief constable or the home secretary is irrelevant. The point is that the power is arbitrary, meaning circular, for it is the executive that decides what the executive may or may not do. These three moves sketch the power shifts away from the tripartite sharing arrangement set up by the Police Act 1964. They tell us that the Home Office was increasing its power in respect to local authority by coopting the chief constables, and it seems only modest to conclude that the Home Office was entirely successful in this set of moves. What makes its coup all the more intriguing is that such covert action effected an even greater increase in Home Office power than would have been the case if power had been pursued overtly. In theory at least, there is no objection to an increase in de facto power if it is incorporated into a workable legal framework of responsibility; but it is precisely this workable framework of legally defined accountability that is missing in many of the moves made by the Home Office in the 1980s. If these three examples can be accepted as a pattern, then what they reveal is a constant assertion of the expanding power of the executive state against the chiefs, the county-based forces and, eventually, against the legislative state. The latter is of particular significance because sovereignty in the modem British liberal scheme of things is located in Parliament, not in any executive agencies, which in constitutional theory at least have no independence of legislative will. Throughout this book, but especially in the previous two chapters, this pattern of assertiveness has been of concern. It is a sign of the naIvet6 of almost all Anglo-Saxon liberalism that such a claim should not be self-evidently true. Partly because it is not self-evident and is therefore resisted, a markedly different process proves to be at work, and that is the surreptitious expansion of the power of the state. It is against such a background that the Police and Magistrates Courts Act 1994 entered the scene. It did not trigger a revolution. Quite the opposite happened. The act rode piggyback on the Sheehy Report, which argued that the police were not returning value for the money invested in them. The ghost of Ron Clarke seemed to have returned in the new form of Sheehy, only now the emphasis was on cutting funding rather than on not increasing funding, as Clarke had argued for. The alterations mandated by the 1994 act were minor when understood against the background described above. But in at least one respect the act did have immense significance. It effectively broke the control link between the local authority and the police. Thus despite the petty calculations of Sheehyness in the Major government, there was some political significance to the actions emanating from the 1994 act.

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First, the local police authority, which had hitherto been something like a subcommittee of the county council, was now sheared off from the main local government body and made into a legally independent entity. This fragmentation of local government made the local police authority vulnerable to Home Office influence in the same way that a calf is vulnerable to wolves when separated from the herd. The rearrangement of voting then reinforced the vulnerability. Nine of the usual seventeen members of the police authority had historically been councillors. This number was now reduced to eight out of a total of sixteen, and five of the remaining seats were to be given out to independent members, thus was the council's position in respect to the local police authority reduced, albeit slightly, from control to influence. The independent members were envisioned as business people, or persons who could impose management standards on policing, a requirement that meant that the chosen members would likely be Tory grandees. What this amounted to was the reconstitution of local police authority as a QUANGO, or quasi-nongovernmental organization, a fancy neologism for what traditionally was government by commissioners. In practice, such a move amounts to a technique for replacing elected bodies with appointed bodies. It is a species of privatization, but more significant it represents a tendency to increase de facto Home Office control without increasing de jure responsibility. It is in this context that the second major change takes on its own peculiar significance. Since 1964 the Home Office has provided a fvred percentage (51 percent) of dedicated police funding.'' But the Home Office did not control the local government contribution to ensure that it really was local, meaning generated by the county. In fiscal reality, local governments had the power to increase the amount of real money coming from the central government simply by taking money from the revenue support grants that originated in the Department of the Environment and shifting that money over to policing. The county could then contribute less of its own real money but pretend it was meeting its obligation. Actual local funding was probably nowhere as high as the hypothetical 49 percent, and several chiefs in a conversations conducted by this author at Brarnshill thought actual local revenue contributions to be as low as 25 percent and never higher than 40 percent of the police budget. With some justification, the Home Office felt it was being manipulated by local authorities. This situation was changed in 1994. Henceforth, the section of the revenue support grant for policing would go directly to the local police authority as an assigned grant, fully bypassing the council and thereby taking away its leverage. When coupled with the Home Office grant, this

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arrangement made it clear that the central government was always providing much more than 51 percent. Indeed, it is now common for Home Office people to confirm that central government provides up to 75 percent of police budgets. The new arrangement also served to cap spending on the police. At the end of the day, local government had lost its control over the police budget. Since chiefs are not in the habit of biting the hand that feeds them, the lesson was quickly drawn. Third, the 1994 act instituted significant qualitative changes. Traditionally, the objectives of policing in any force were supplied by the chief constable, no doubt with consideration for the opinions of local council members, but still finally by the chief constable himself. That procedure changed radically in the Police and Magistrates Courts Act 1994, so that the home secretary now provides a set of objectives that goes directly to the local police authority, accompanied by a mandate to work out a police plan that would implement these national guidelines." The p& was then to serve as a working paper for the chief constable, whose job it was to translate the mandate into a set of operations. The chief constable now was required to measure annual performance results, the local authority to publish them. The long and short of this was that all chief constables became more accountable to the central government. It is worth dwelling for a moment on the term national objectives. Invariably, one of the key objectives will be the prevention of crime, and hence the positing of this objective will compel the chief constable to adopt a crime strategy. Indeed, the notion of national objectives would have been an excellent vehicle for integrating the police into multiagency programs of situational crime control, if that were a clear objective of the government in power. The problem was that the concept of national objectives became formalized only after the peaking of enthusiasm for situational crime control, so the two never crossed paths. If the published performance results were then deemed poor by comparison with other constabularies, then the chief constable could and probably would be pressured to change crime strategies or devote more resources to the failed (because underfunded) strategy. Or the local authority would be under pressure to fire (or not rehire) the chief constable. In all cases, the Home Office finds itself occupying a powerful position, for with the new arrangement it has two scapegoats to blame for rising crime or a crime rate that is not falling, and neither of them is the Home Office itself. While not apparently increasing national control of the police, and certainly while not increasing de jure responsibilities, the Conservative governments of Margaret Thatcher and John Major immensely increased de facto central government control over the British police. To put that development into its proper perspective: France may well have a national

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police force, but by being thus constituted, the French police are also more easily subject to the rule of law. Such is not the case in Britain, where questions about accountability become particularly poignant when they relate to the police. Might it not have been better, given all the moves of the past ten years, to have proposed openly the nationalization of the police, with full legal responsibility assigned to the home secretary? It is entirely conceivable, and even strongly probable, that the home secretary would decline such a bright opportunity for increased power. As long as the courts remain independent of ministerial influence, the last thing a home secretary wants is increased legal responsibility for the actions of his or her subordinates. Why pay so much attention to these tedious details of everyday governance? For one reason: they reinforce the conclusions of the last chapter to the effect that Thatcher cared little about dismantling the social controls of the old welfare state, and consequently the neoliberal approach she purportedly represented was doomed to failure. Thatcher focused her modernizing efforts on the economy and thereafter ran out of gas (or rather petrol). Tony Blair understands that object lesson and thus sees things differently. "I think there are two waves of reform," he told a visiting reporter. "At the end of the seventies . . . [people thought there was] too much bureaucracy, too much government, too much interference, high personal rates of tax. Thatcher took on a lot of these things. But the second wave of reform is different. The second wave is about a first class education system, the challenge of new technology, reforming our welfare system so that we defeat social exclusion and encourage work."'2 The details of Blair's perception need not detain us, for here he was not dealing with the police. The important point is that he was correct in perceiving the limits of Thatcher's reformist ambitions.

It is into this framework that any discussion of the effects of managerialism on the police needs to be fitted. We begin with the Financial Management Initiative of the Thatcher government, issued in 1982.13 This executive order was the beginning of a sustained effort to bring to policing the managerial skills and attitudes characteristic of the business community so beloved of Thatcher. It had also proven to be the device that provided the rationale for cutting budgets and (eventually) lowering taxes. In respect to the police, we shall look at the implementation of the Financial Management Initiative in terms of three categories. The first is the changing quality of police staff below the level of chief; the second, the introduction of even more technology into British policing; and the

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third, the changing character of the position of chief constable. To start at the bottom, the quality of the individual constable improved over the seventeen years of the ThatcherIMajor era. Police pay was badly lagging in 1979, and the lag worked powerfully to determine regressive patterns of recruitment in London and the home counties (counties adjacent to London with high cost-of-living indices). The enactment of substantial increases in pay, made even greater by a substitution of housing subsidies for actual housing, meant that southern police forces increasingly came to be staffed by local recruits who lived in their own apartments or homes. Midlands and northern forces improved easily with the increase in pay. As a managerial technique, the higher pay scale worked well. It resulted in a bettereducated and presumably more intelligent police force, and hence it mitigated the problems associated with increasing the skills level needed in policing. But there was no corresponding improvement in the crime rate. In time, the Conservative government came to the conclusion that it was not getting its money's worth-value for money was the term used-and hence began an effort to reduce pay and increase responsibilities. This was the chief result of the Sheehy Report, which strongly incorporated the Tory attitude of police ineffectiveness and set out to change the police drastically.14Other things being equal, the reduction in police pay should have been matched by a reduction in quality; but that did not occur, or seem to occur, for reasons that are difficult to establish. Either police work had become attractive for other reasons, or in fact quality did go down, but imperceptibly. Had the Sheehy Report and its attendant legislation stopped there, all would have been well, but the report also criticized the command structure and concluded that two ranks be eliminated. The first of these, that of deputy chief constable, is devilishly difficult to assess, because an assistant chief constable can always play this role unofficially (and often still does). The elimination of the rank of chief superintendent was also not especially problematic, and its implementation was uneven.15 But Sheehy also recommended that the span of command be increased, and it was understood that this meant reducing the number of superintendents-the people who run the basic command units and are hence comparable to precinct captains in American policing. The result today is that the workload on superintendents has virtually doubled, and so, too, has the stress of command. Tories, inclined to conclude that the police are useless in relation to the crime rate, therefore asked for further reductions in pay or for increases in the span in command, so as to save money, and then did what Tories like doing best: reduce taxes. This was indeed Tory policy as recently as

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1997, for if one judges by the last budget submitted before the election, the government of Prime Minister John Major clearly decided to freeze Home Office expenditures. Michael Howard may have been one of the big losers in Kenneth Clarke's last budget, but more likely the freeze on Home Office expenditures represented nothing more than the minimal version of Tory managerialism: cut budgets, lower taxes, win votes. The second major change traceable to the Financial Management Initiative is the introduction of ever more technology into British policing, a move that clearly fits the ideology of managerialism. Replacing labor power with technology is tricky business, however. Technology may result in immense policing benefits if one is not concerned about community relations, and in theory the Conservatives under Thatcher, who famously did not believe society even existed, were not interested in community relations. At great cost, some of it borne by the business community, the entire City of London-the administratively separate original Roman settlement-is now surveyed by closed-circuit television, and the results in terms of crime reduction are nothing less than spectacular. But the City is a place where few people live, and so there is virtually no cost in community relations to the replacement of the bobby with a video camera. But how effective will technology be in reference to the management of threats to public order? Here, too, the answer seems at first glance promising. Helicopters can survey a riot scene and report directly on activities on the street, even under cover of darkness. Computer mapping can provide simulations of streets and movements of vehicles that can help commanders in shaping operations. Bomb squads dealing with terrorist operations are incomparably better equipped now than seventeen years ago. But still, threats to public order are complex matters. If the police confront demonstrators in a face-to-face manner, it is less likely that either side will resort to violence; but when police begin wearing helmets, plastic face guards, body armor, plastic shields, and are seen wielding a variety of truncheons, they lose all chance of community with demonstrators. The British bobby carries no gun, and virtually everyone in British policing supports this policy. Not only do uniformed British police feel they have better protection by having no gun; they also feel they have better community relations. That bobbies carry no guns does not mean that the police are unarmed, of course. It simply means that this particular piece of technology is kept in the background and not allowed to interfere with community relations. That situation is now changing but it is indicative of the continuing community desire for good relations in British policing that the police resist the temptation to have themselves defined by their

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technology. They have gone so far as to mount an opposition to adopting the policing strategy of former Commissioner William Bratton of New York. The Bratton strategy was a matter of aggressive policing, which requires more technology and runs the risk of souring community relations. But although the British police have for the most part resisted adopting Bratton style policing, the Home Office has thought differently and has succeeded in using the press to keep up pressure on the police to adopt some form of zero-tolerance policing. The police response has been a matter of tokenism, confirming the Conservative suspicion that the police were ineffective when it came to dealing with crime.I6 Finally, in reference to the quality of British policing, the question of command is the most sensitive. The chief constable himself or herself is increasingly treated as a chief executive officer of a large corporation. Formerly, chief constables were in place for a lifetime and were paid a civil servant's salary. It was this arrangement that gave real substance to claims about the chief constable's autonomy. Now all chiefs negotiate a well-paid short-term contract with the local police authority; the implied message is that the position may be terminated by either side. For the most part chief constables do not move, but assistant chief constables survey the national market for positions. Busy observers of the scene are able to identify the hottest prospects among assistant chief constables and pair them with prospective openings. The point is that the world of the chiefs has been marketized, and at least here one of the central tenets of neoliberalism has actually been instituted. From Friedrich Hayek through Milton Friedman, a hallowed principle of emerging neoliberalism was that everything from the economy to social programs to the state itself could and should be reconstructed according to market principles. What was meant was that supply and demand should intersect where they will and relate to each other by the price mechanism. In the case of the chiefs, there is distinctly limited demand." Depending on how one measures things, there are only about fifty such positions in Britain. The only persons to fill these openings are assistant chief constables as well as commanders and deputy chiefs in the Metropolitan police force, and there are fewer than two hundred of these persons. But the market is even smaller than those figures indicate. At any given moment, the number of chief constable positions open can be counted on one hand, and the number of available candidates is only a few dozen. Candidates sell themselves to the local authorities, and if they are successful, they negotiate money and duration. There is thus no promotion to chief constable, and all the chief constables now on the job in Britain are there because they successfully marketed themselves. The shifting self-concept of the chiefs is evidenced in the changing

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character of ACPO, the chiefs' organization. Chiefs recognize that the Home Office has changed the character of their positions, and they have begun to respond by treating the Home Office itself as a managerial problem. Chief Constable Charles Pollard, of the Thames Valley force, led the campaign to shift the blame for crime to the law and to lawyers and to the culture of the courts, but Pollard's effort was a thinly veiled attack on the government's mismanagement of criminal law and its prosecution.18It is one of the ironies of policing in the Thatcher years that Parliament and the Home Office in the mid-1980s liberalized defendants' rights through a major piece of legislation19and took prosecution out of the hands of the police and transferred it to a new organization called the Crown Prosecution ~ervice.'~ The police were thus placed in a better position to resist the Home Office, which is now under pressure to undo its earlier managerial reforms and make the criminal justice system work more effectively. The actions of the chiefs are better than anything else at demonstrating the effects of the ideology of managerialism. The Tories treated the police and above all the chiefs as things to be manipulated, and the chiefs have responded by becoming themselves politicized. If the Tories had wanted nothing more than managerial reform, then there would be little to say about the changes they initiated. But the Tories wanted something very different: They wanted to impose an ideology upon British policing, that of managerialism, and the police have responded by becoming themselves as manipulative as the Tories were. All of these considerations suggest one thing above all: The Thatcher government was not paying a great deal of attention to policing. This reality is already evident in our consideration of situational crime prevention in the previous chapter; but here, with the insistence on managerialism, it becomes even clearer that Thatcher did not have a detailed agenda for criminal justice.

The police are not the only care of the Home Office. So, too, are the prisons, and during the period of Michael Howard's tenure as home secretary, they drew a good deal of attention because of Howard's mantra that prison works, a reversing of Robert Martinson's famous claim and a message impressed on the British in the recent writings of Charles ~ u r r a ~ .Of " course what Howard meant was not that rehabilitation worked but rather that incapacitation worked, and insofar as long-term incapacitation responded to the problem of recidivism, Howard was probably correct. What is noteworthy about Howard's perspective is how

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much it differed from that of the earlier welfare state. The Prevention of Crime Act 1908 dealt with the same problem but was incapable of abandoning a welfare perspective. It thus spoke of "habitual" criminals but constantly claimed that they were not "incorrigible," leading David Garland to see an ambivalence in the There was no such ambivalence in Howard's politics. The first official doubts about the effectiveness of rehabilitative programs was expressed by S. Brody in The ESfectiveness of Sentencing, the 1976 Home Office publication discussed briefly in chapter 4 in respect to Ron Clarke's a ~ t i v i t i e sAs . ~ ~was often the case with British thinking in the 1970s, Brody's thinking was reinforced, and probably inspired, by American publications. The first two of these were arguments of Norval Morris, of the University of Chicago, and then following with more impact of Robert arti ins on.^^ Martinson had published an influential article in 1974 on rehabilitative treatment, and this was expanded into a book in the following year.25Brody then got the ball rolling in a familiar manner in Great Britain. With a strong signal from the Home Office, the British academic world also joined the fray, offering up a strong statement from Roy D. King and Rod Morgan on the desirability of what they euphemistically called humane ~ontainment.~~ By the annus miserabilis of 1979, Britain had a full-blown policy debate going.27 Twenty years later it is difficult to tell what King and Morgan meant to signify with the term humane containment. Certainly they were urging the prison service to give up the chimera of chemical or otherwise intrusive rehabilitation, but they were not therefore moving over to the dismal countryside of punitive incapacitation. On the contrary, they urged a number of measures to contain the harsher aspects of containment. The May Committee, an inquiry investigating the state of the prisons in the wake of the sudden outburst of critical literature, nonetheless rejected the proposals of King and Morgan and called instead for a regime of positive custody.28Lest it be thought that this was a word game in which the Home Office would relinquish rehabilitation without admitting as much, the May Committee urged the Prison Service to create an environment that was both secure and positive, the latter term meaning that prisoners should be prepared "to respond and contribute to society as positively as possible."29 But whether these words constituted advice to continue rehabilitation programs is not clear. Inquiries are a way of governing and, as such, constitute what Frank Burton and Pat Carlen called oficial discourse.30 While providing the press with some headlines and the public with some hopes, they also have to provide the bureaucracy with some instructions. For the bureaucracy, inquiry reports are important because their words will be used in

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arguments over policy; but the rules for phrasing matters are not equivalent for both sides of a debate. An inquiry that wants to spark real change is obliged to use clear and unequivocal language, no doubt padded a bit to make the blow softer, but still clear and unequivocal. Such words can then be used as sticks of dynamite to blast people out of their entrenched positions. But an inquiry that does not want to spark change need not provide any dynamite. It need only use vague and indeterminate language or to use clear language but come down on both sides of the fence. Both postures ensure that both sides will end up in stalemate, and in those circumstances little will change. The May Report was clearly of the latter type official language, and thus an entrenched bureaucracy was not driven in the direction of neolibera1 change. Why this had to be the case is unclear and at this time undeterminable. Interestingly, what provoked real change was "the worst series of prison riots in the history of the British penal system," namely upheavals at six British prisons in 1991.~'The upheavals led to yet another inquiry, but this time the leader of the inquiry was skilled in using words that would induce change. Lord Woolf praised the May Committee's work, but said its best recommendations had not yet been put into effect.32And then in its most significant paragraph, the Woolf Report broke entirely with the spirit of the earlier May Report and made a sharp distinction between treatment and training. Whoever wrote the Woolf Report (perhaps Woolf) was verbose to the point of being self-defeating, but occasionally a real desire for change emerges from behind the verbiage. The distinction between treatment and training is a case in point. It is worth quoting at length: [wle are not suggesting a return to what came to be known as the treatment model of imprisonment. The distinction between what was then then policy and what is now proposed, is that, under the former model, it was thought appropriate to sentence an offender to a custodial sentence for reformative treatment, as if being a criminal was a curative condition. This was, for example, very much the policy behind the sentence of Borstal training for young offenders and of corrective training for adults. However, while we would not suggest that an offender be sentenced to imprisonment for reformative treatment, we regard it a part of the Prison Service's role to ensure, where this is practicable, that a prisoner, while serving his sentence, should have an opportunity for training.33

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These words fairly clearly evoke the thinking of Ron Clarke, more than ten years earlier, in distinguishing between treatment and training and arguing against the former because it was based on the medical model and was intrusive. But more important, the words make a sharp and forceful distinction that can easily be argued in policy meetings at the Prison Service. So while praising the May Report, the Woolf Report also thoroughly does it in. But that is not all. The Woolf Report turns out to be one of the more radical neoliberal statements in recent British criminal justice history, insofar as it follows up the spirit of paragraph 10.34 with a number of recommendations for changing the prison. First, Woolf recommended that the Prison Service create a set of performance standards by which its own activities could be measured. "We therefore recommend that the Prison Service. . .prepare its own Code of standards which sets out what the Prison Service considers should be the standards which it should set itself to achieve." The rhetoric tends to go round in circles, but eventually the idea gets through. Woolf first urged the creation of standards to set the stage for introducing the concept of auditing to the Prison Service. It called attention to their success in the United States. "We see accreditation as helpful in this country to motivate establishments to achieve Accreditation Status and give establishments a sense of satisfaction when that standard is achieved."34 But finally, Woolf proposed the most radical idea of all, namely that the Prison Service enter into contracts with the prisoners.35One can easily imagine the terms of the contract-an extra helping of ice cream in return for keeping the cell clean-but the really interesting question had to do with its enforceability. Woolf repeatedly puts the term contract in quotation marks, suggesting he means it ironically or euphemistically; but the question of enforcement is still significant because it triggers the question of prisoners' rights, a taboo topic in the British Prison Service. There is a good deal of enforcement talk that refers to unspecified grievance procedures, monitoring by the Board of Visitors, checking by Her Majesty's Inspector of Prisons, involvement of a figure called the Area Manager, and the like, but it doesn't seem to add up to an animal with teeth.36At one point, Woolf even admits that the proposal is not serious by noting that "the 'contract' would not be drawn up in a way that would give the prisoner private rights (that is a right to damages)." But then, in the next sentence, Woolf says the contract "could provide a platform for an application for judicial review."37 This is precisely the kind of double-talk that will land any implementation committee in a stalemate. Woolf concludes by noting that he and his inquiry "attach considerable importance to developing a 'contract' on these lines" [my

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italics].38 Given that the lines are contradictory or, at worst, meaningless and naive, it ishard to know what to do with the Woolf proposals. Despite all the problems, the ideas were radical and suggested a new spirit in looking at the Prison Service. The Criminal Justice Act 1991 made provision for the privatization of prisons, and in April 1992 the first purpose-built private prison opened in Britain. But by means of careful arrangements, the state managed to stay in a position of clear and immediate responsibility, meaning control. Every private prison has attached to it a controller who is not just an employee of the state, but also a sworn official. Employees are given certain powers in respect to prisoners, for example the power to search, but all coercive powers are reserved to the state. Hence the British state has argued that private prisons are actually more accountable than state prisons.39 This may well be the case, but it avoids the argument as to what the purpose of a private prison is. If the purpose is purely a matter of efficiency, then such prisons may well be everything the Tories wanted, but there are still more serious issues of purpose, and it is not clear where the British state stands. The most interesting argument is that of M. Taylor and Ken Pease, who claim that the privatization of prisons is a means of restoring the rehabilitative ideal.40 The reasoning is negative-the state was never very good at rehabilitation-as well as positive, meaning that the private sector is more innovative, so why not give them the chance? Taylor and Pease are able to make their argument work by anchoring it in training rather than treatment, but by 1989, when they published, this was a threadbare neoliberal argument. Clearly by 1989, the old medical model of the rehabilitative prison was securely dead in the public sector, and so it is interesting to see it being recycled in respect to the private sector.

For the most part, the politics of British policing is a matter of what scholars are fond of calling accountability. The argument that the Home Office has sought and attained greater de facto control of policing while avoiding de jure responsibility is a way of saying that accountability has gotten out of balance in England. But if the Home Office has avoided de jure responsibility while increasing de facto control, who is left holding the bag? Are the police increasingly being nudged into a position in which they are legally responsible for outcomes but not in control of the decision making that leads to those outcomes? If this is the case, then they are worse off now than they were at the beginning of the Thatcher years. In many respects, that is precisely the position the British police find

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themselves in; and nothing better illustrates it than a strike. The 19841985 miners' strike made clear that the police had been maneuvered into a perilous political position. Of course it will be said that the police are bound to uphold the law and did no more than that in 1984185, but such a claim is specious. By agreeing to a de facto national policing scheme for the miners' strike, the police undermined local political control and made it clear that they would settle for the role of strikebreaker. One has to do no more than examine the policing of the strike in the Doncaster region to see the difference. As long as the policing was done by the South Yorkshire police, meaning the local police, relations between strikers and police remained tolerably good. But as soon as the home secretary made the Metropolitan police force available, to be ordered in by police chiefs running the National Board, the situation changed entirely. The miners became more violent, the police more repressive. Or perhaps the correct description is the other way round: The police became more repressive, the miners more violent. In Britain, the accountability problem becomes next to inscrutable at times. The home secretary blames the police for the high crime rate. The police then feel the heat and try to turn it away from themselves. The sustained ACPO effort to shift the blame for a deficient criminal justice system to the available scapegoat of the Crown Prosecution Service was an understandable but faulty move. The home secretary could have retaliated by agreeing with the charge, dismantling the Crown Prosecution Service, and dumping the problem back into the laps of the police. Then they would have only themselves to blame. The effort to locate accountability must go beyond the internal blaming game of criminal justice agencies, and get back to the Home Office and beyond that to basic government policy. What is needed is something more like a careful explanation to the British public that a booming economy does not necessarily spell the end of crime, but that is a hard story to pitch. The prisons are a different story altogether. They, too, have been through an identity crisis associated with the shift from welfare liberalism to neoliberalism, but it has had a very different character than it did in the police. The rehabilitative ideal modeled on the medical profession has died a clear death, but training has not, and so the rehabilitative ideal may resurface under different auspices. The state prison will clearly remain in existence for the purpose of incapacitation, but what Stan Cohen has called the shallow end of the net of control exercised by the state is clearly in a process of expansion with the privatization of prisons. It is there, as indicated earlier in comments on the book by Taylor and Pease, that the rehabilitative ideal may find its rebirth. The chief purpose of this chapter has been to answer a question raised

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in the last: Why did situational crime prevention, a program virtually tailored to Thatcher's values, erode into the multiagency approach of the late 1980s? The basic answer seems to be that Thatcher was uninterested in social reform, no matter how much it was keyed to her values. Her chief interest was in economic modernization, and once she had attained her goals of breaking the power of unions and of opening the financial markets, she was satisfied. The police and the prisons were left to fend for themselves, and whatever changes were wrought were simply a matter of applying rounded ideas such as managerialism, performance, contract, and the like. Thatcherism finally proved to be a distinctly limited enterprise.

Notes 1. This chapter is an updated version of an article published earlier; Robert R. Sullivan, 'The Politics of British Policing in the ThatcherIMajor State," The Howard Journal, 37, no. 3, Aug. 1998. I am grateful for permission from Blackwell Publishers to use the material again. 2. Police Act 1964. This act is a cornerstone of British policing because it sets up the tripartite control arrangement in which power over policing is divided between the home secretary, the chief constable, and the local authority. (British usage eliminates the word of in citing acts of Parliament.) 3. Robert Reiner, Chief Constables (Oxford: Oxford University Press, 1994), 22. 4. This power was given the home secretary in the Police Act 1964. It was never challenged for its constitutionality. 5. Mollie Weatheritt, Innovations in Policing (London: Croom Helm, 1986), 112-113. 6. When asked what he thought about Northumbria Chief John Stevens giving up his position to take the inspectorate, a Midlands assistant chief constable told me it was the stupidest career move he could imagine. The last laugh goes to Stevens, however, who is now commissioner of the Met. 7. Sections 13, 14. 8. A clear warning of what Thatcher intended that was ignored by the miner's union. Even in 1982 it was not too late to have a council challenge the Home Office policy for constitutionality. 9. R v. Secretary of State for the Home Department., exp. Northumbria Police Authority [I9881 2 WLR 590. 10. The budgetary term dedicated means that the money has to be used for a specified purpose. 11. Police and Magistrates Courts Act 1994, 4a-4c. 12. John Cassidy, 'The Blair Project," The New Yorker, Dec. 6, 1999, 118. 13. See Eficiency and Effectiveness in the Civil Service (London: Her Majesty's Stationery Office, 1982). In respect to the police, see Manpower, Effec-

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tiveness, and Eficiency in the Police Service (London: Home Office Circular 11411983). 14. Sheehy Report 1993 (London: Her Majesty's Stationery Office, 1993). See especially ch. 7. The report, conducted by Patrick Sheehy, was also called Inquiry into Police Responsibilities and Rewards. 15. The Metropolitan police still have chief superintendents wearing the appropriate insignia. 16. On this theme, see Mark Rubens, The Big Story, American Style Policing in Britain (Twenty-Twenty Television for Carlton TV, Aug. 1, 1996, channel 3). 17. Not only chief constables but also assistant chief constables negotiate their positions. Openings at the assistant chief level are filled by available superintendents. Because superintendents are promoted into their position, the market ends at a line between superintendent and assistant chief constable. 18. British Broadcasting Corp., channel 2, Nov. 20, 1996. 19. Police and Criminal Evidence Act 1984. 20. Prosecution of Offenses Act 1985. 21. Charles Murray, Does Prison Work? (London: Institute of Economic Analysis, Health and Welfare Unit, 1997). 22. David Garland, Punishment and Welfare (Aldershot: Gower, 1985), 219220. 23. S. Brody, The Effectiveness of Sentencing (London: Her Majesty's Stationery Office, 1976). 24. Norval Moms, The Future of Imprisonment (Chicago: Univ. of Chicago Press, 1974). Ch. 2 is called "Rehabilitating the Rehabilitative Ideal." 25. Robert Martinson, "What Works? Questions and Answers about Prison Reform," The Public Interest 35, spring 1974; see also Douglas Lipton, The Effectiveness of Correctional Treatment (New York: Praeger, 1975). 26. Roy D. King and Rod Morgan, The Future of the Prison System (Aldershot: Gower, 1980). 27. The term is from the Queen's annual speech of that year and is a play on the term annus mirabilis. 28. See Rod Morgan, "Imprisonment: Current Concerns," in Mike Maguire, Rod Morgan, Robert Reiner, eds., The Oxford Handbook of Criminology, 2nd ed. (Oxford: Oxford Univ. Press, 1997), 1147. 29. Report of the Committee of Inquiry into the United Kingdom Prison Services (London: Her Majesty's Stationery Office, 1979), paras. 4.24, 4.26, and 4.28. (This was popularly known as the "May Report.") See also Morgan, Imprisonment, 1147. 30. Frank Burton and Pat Carlen, Oficial Discourse: On Discourse Analysis, Government Publications, Ideology, and the State (London: Routledge & Kegan Paul, 1979). 3 1. Prison Disturbances April 1990 (London: Her Majesty's Stationery Office, 1991), para 1.1. (This was popularly known as the "Woolf Report" and will

be cited here that way.) 32. Woolf Report, paras. 10.4-10.13.

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33. Woolf Report, para. 10.34. Added emphasis from the Woolf Report. 34. Woolf Report, para. 12.115. 35. Apparently the Woolf Report had this idea from the Netherlands. 36. Woolf Report, paras. 12.120-12.129. 37. Woolf Report, para. 12.123. 38. Woolf Report, para. 12.129. 39. Morgan, Imprisonment, 1174. 40. M. Taylor and Ken Pease, "Private Prisons and Penal Purpose," in Roger Matthews, ed., Privatising Criminal Justice (London: Sage, 1989).

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for themselves with their occasional appearances of justice, for a truly effective use of the law as a tool of power required that the ruling class submit to it, as well as impose and manipulate it. Thus could Thompson praise the Whigs while damning them. He did so most eloquently in the final words of his book, where in speaking of great social conflicts of the early nineteenth century, he argued that the ruling Whig oligarchy, "rather than shatter their own selfimage and repudiate 150 years of constitutional legality, . . . surrendered to the law." Here was a key moment in Thompson's performance as a historian, for that voluntary surrender of the ruling Whig elite then served Thompson as an interpretive tool. He went on to argue that "in this surrender they [the Whigs] threw retrospective light back on the history of their class, and retrieved for it something of its honour.'" Thus the habit of seeming just, adopted initially for strategic reasons, finally becomes the habit of being just. That was one strand of the argument. The other and completely unrelated strand was that the rule of law was a universal good. Here too, Thompson's discourse calls for more than mere paraphrase can capture, and deserves to be quoted. The notion of "the regulation and reconciliation of conflicts through the rule of law . . . seems to me a cultural achievement of universal significance." And a page later in his book Thompson adds that "the rule of law itself, the imposing of effective inhibitions upon power and the defense of the citizen from power's allintrusive claims, seems to me to be an unqualified human good." And then finally, three pages later, "the work of sixteenth- and seventeenthcentury jurists . . . was passed down as a legacy to the eighteenth century, where it gave rise to a vision, in the minds of men, of an ideal aspiration towards universal values of law? Few would turn away from such sublime utterances with a cold heart. Thompson is expressing the deeply felt aspirations of common men and women in the eighteenth century in England, and the expression is thoroughly moving. To quarrel with such eloquence is churlish in the extreme; but it nonetheless has to be done, because Thompson's argument is problematic. He is arguing on behalf of a commonly stated bourgeois ideal, often used to describe the actual achievement of Whig England. And it may well be a real achievement, but it is not in accordance with the main argument of Thompson's Whigs & Hunters, which is about the use of the law as a tool of power: That is the key point (on which, more below). Thompson's concluding words are in praise of a universal ideal, not a historical achievement, and the two get hopelessly confused in Thompson's excurSUS.

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Thompson's Whigs & Hunters is a detailed study of the creation of one of the most notorious pieces of criminal legislation in British history, the Black Act of 1722. The latter was, even by Leon Radzinowicz's lights, a low moment in the history of the Whig Party in power, and Thompson, by focusing on it, was able to give a caricatured but still accurate picture of the political machinations of the ruling Whig oligarchy.6 The Black Act was the legislated response to an outbreak of disorder and mayhem in Windsor forest, which lies just west of London and is still partly crown land. The Black Act criminalized more than fifty offenses and provided the death penalty for them. It is a case study of arbitrary rule and partakes of little of the spirit of equity, fairness, and justice. Thompson's position is even more critical than the above words allow, for a good part of the reason for concentrating on the Black Act was not to expose it as a miscarriage of penal reform but rather to expose Whig legislative process. For Thompson, the Black Act is basically the will of Robert Walpole, and such as it is, that will is intent on establishing law and order, or political control, and nothing besides. Thompson interprets himself when he argues that he had tried to show in the evolution of the Black Act "an expression of the ascendancy of a Whig oligarchy, which created new laws and bent old legal forms in order to legitimize its own property and ~tatus."~The study of the Black Act thus shows that the Whigs at their origin were hardly at all different from the absolutist monarchical state they had purportedly replaced. The fate of the Waltham Blacks, so named because they blackened their faces for disguise, was nowhere near as cruel as the fate of Damiens in Michel Foucault's Discipline and Punish, but it was every bit as arbitrary. Thompson was not a crass Marxist who complained without ado about economic change. Implicitly, he recognized the inevitability of economic change and consequently handled it relatively uncritically. Thompson thus devoted a good deal of time to the economy of the forest, describing the varying ways in which persons living there earned a living. Hunting, fishing, wood-gathering, small farming, and the like are described in meticulous detail, not only as activities per se but also as activities with a juridical dimension. Put in classical Marxist terminology, Thompson in Whigs & Hunters is describing the changing arrangements of the forces and relations of production, two different things. The picture he provides is one of arbitrary disruption of a way of life. The residents of the forest had no avenue of legal recourse and thus became what Eric Hobsbawm elsewhere celebrated as bandit^.^ For Thompson as well, they are in fact not criminals but persons who are fighting for their legal rights, as they understood them. It is then the criminal law that makes them into crimi-

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nals. This is a case of labeling with all the political content that Alvin Gouldner would want of it. What Thompson makes clear is why Leon Radzinowicz chose to begin his history in 1750 and not 1688 or 1722. Without commenting on Radzinowicz's motivation, it is clear that 1750 is an advantageous starting point for writing a favorable history, for what Radzinowicz can do is emphasize procedure as a corrective to substance in the criminal law. The Black Act is assumed as something that was simply there, admittedly the creation of the Whigs, but still a regrettable moment that would be overcome by the goodwill of the Whigs. This is not to gainsay the importance of Thompson's argument. On the contrary, it is a vital exposure of Radzinowicz's intent to create a favorable impression of Whig legal history by the most fundamental move of shifting the starting time. It appears that Thompson's work is not comparable with Radzinowicz's because it deals with a different time, but actually Thompson's work makes questionable Radzinowicz's starting point. But we should not miss the main point in this overly brief consideration of Thompson's Whigs & Hunters. What is above all important is Thompson's ambivalence, seen in his lapse into contradiction. This reflection of the starting point of modem English criminal law leads us into Douglas Hay's well-known and controversial article in Albion's Fatal Tree. As we shall see, there is a similar problem in Hay's thinking. But make no mistake, it is these discordant notes that make the thinking of the Warwick School interesting. Hay argued that the criminal law was the chief element of establishing this new definition of property in the eighteenth century. In Hay's telling, the law is a caravan of bewigged justices moving about England in a virtual circus, applying the centralized royal power in the provinces by providing criminal justice, a function not so carefully differentiated from civil law at that time. Under the Whigs, royal power took the form of law, and the law exhibited not just the majesty of the crown but also its mercy and justice. The state held itself above the fray by limiting itself to adjudication and abstaining from prosecution. Hence the magistrate could easily take up the case of the defendant to balance the prosecution, and the king, duly advised, could easily show his mercy. The workings of assizes, or the king's circuit courts, gradually but effectively established Whig royal power in every county seat in England, and when word spread that royal justice, being more or less disinterested, was fair and effective, the ruling Whig oligarchy in London gradually established a hold on England unmatched in any previous century. But for Hay the grandeur of the system is deceiving. It was still all about a new regime of property, and at bottom it was all a conspiracy.

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Here Hay is at his most interesting, for he rescues the concept of conspiracy from the oblivion into which it falls when it is handled simplistically, as it often is in law.9 For Hay, conspiracy does not require that the conspirators agree explicitly on means. Members of a class are agreed on ends because they share like interests, and so there is no need for them to so much as talk to each other about common purposes. Similarly, there is no need to talk about means. Each does what he thinks most appropriate to gain the common ends, which for all practical purposes boil down to the common end of acquisition. If someone from the ruling elite occasionally steps over the bounds of propriety or the law, then all the better, for such individuals can easily be sacrificed. Indeed, the occasional aristocrat or grandee on trial for criminal offenses acts as a source of legitimacy for the system. In a different respect, Hay's argument is even more damning. Part of the mythology of liberalism was that it had overthrown monarchical absolutism and established a liberal rule of Parliament. Such a move, had it in fact been the case, might have been very liberating to the peasantry, who were locked into a set of feudal relations reaching up to the sovereign monarch. In fact it was the case; but the Whig oligarchy kept the shell of the monarchy in place and used it and its magnificent trappings to keep the peasantry in their place. The dominant theme of Hay's article is not really the criminal law at all, for he really does not talk about it in any detail. It is rather the use of monarchical trappings to consolidate the hold of the law. Put differently: the trappings of royal power are used to consolidate the new bourgeois power. But to say that Hay's writing is not really about the criminal law is misleading, because in fact Hay is dealing emphatically with the procedural side of the criminal law and thus complementing Thompson's work in Whigs & Hunters, which dealt with the substantive criminal law. The significance of this is that Hay actually responds to what is essential to the first volume of Radzinowicz's History, namely its implicit claim that British procedure was a superb corrective to the excesses of substantive criminal law. In fact that is the case, but not in the way Radzinowicz meant it. Criminal procedure in the eighteenth century is in Hay's presentation of it entirely strategic, and basically Hay's chief categories of majesty, justice, and mercy are reducible to forms of paternalism. But still there is something troubling about Hay's article that needs to be flushed out. Its logic is damning, but its tone is not nearly so critical, and finally Hay himself reads like a man reluctantly trapped by his own logic. The king's mercy is indeed a form of paternalism, but it is still real, and as mercy it is touching even to the critical Hay. But mercy is an arbitrary characteristic of action and is finally suspect for that reason.

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The merciful king says, Yes, I am within my rights in ordering your death, but I choose not to order it. Go and mend your ways. Every act of mercy is finally as arbitrary if not more so as the original damning judgment. Even more arbitrary is the king's majesty, for majesty is a matter of trappings tout court, and these trappings can be added or changed at will. The more majestic the king, or more specifically the crown court, then the more impressive its mercy when it comes, for obviously something as majestic as the crown has absolutely no strategic reason to show mercy. There is no way one can plausibly believe that the crown showing mercy did it to incur a debt that might later be cashed in. Majesty seems to deny the possibility of strategic thinking. Thus the majesty and the mercy of the crown court are not problematic characteristics of the law, because they are very much in harmony with the claim about the arbitrary character of that power. But the same cannot be said for justice. It is a universal characteristic and it is anything but arbitrary. When the king or his ministers at court occasionally did justice, that instance worked to say that the law was in fact not arbitrary, and if that was the case, Hay had pulled the rug out from under his own argument. Of course one might argue that justice was chosen occasionally for strategic reasons, that the crown or more specifically the Whig oligarchy did not always have its interests at stake. But such an argument only skirts the issue, for then justice is not justice at all but has rather reverted to being mercy. If justice is real, it is not arbitrary. It is thus that Douglas Hay's article on property and the criminal law takes on some of the same features of Thompson's book on the substantive criminal law. On the surface, both works describe arbitrary power, but in postscripts and subscripts, both writings describe something contradictory at work. Hay calls this justice, Thompson calls it the rule of law, but if we can disregard the differences in terminology, we can grasp that both men are talking about the same things-not just similar things, but the same things. The work of the Warwick School in the mid-1970s is deeply problematic, on account of its leaders' claims about the successful establishment of a just criminal law in the English eighteenth century. Indeed, to state that it is problematic is to understate the problem. The message of the Warwick School is contradictory.

To understand the apparently contradictory character of the writings of the Warwick School, we will need to go back to the great debates of the seventeenth century, but such a retrograde analytical move cannot be done without some explanation of why we are so intently following ar-

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guments about the eighteenth century, never mind the seventeenth. A simple and seemingly flippant answer is that the writings of Thompson and Hay were done in the 1970s and not two centuries ago, and so it is not unreasonable to expect that their perspective is contemporary. This in fact is the case, and the problem that shapes their perspective is simple and compelling. Legitimation in politics is said to be achieved when actions, in this case the actions of the state, correspond to interests, but that is a raw and unsatisfying definition of legitimation. While having no quarrel with such an analytical proposition, it may also be said that legitimation in politics is achieved through historical reflection as well. The value of history is to add a dimension-Goethe might call it colorto an otherwise flat and gray analytical present. To say that we humans are temporal beings is to say that we are historical beings, and this is the case because history works as a rudder to steer time. Legitimation is thus hard to imagine in full bodied terms without some sense of history. The great work of English criminal justice was Leon Radzinowicz's five-volume History of English Criminal Law and Its ~dministration.'~ Problematic for its tendentiousness, it is clearly a Whig interpretation of the development of English criminal law that sees it as a progressive movement forward to the welfare state. In this way, Radzinowicz legitimizes the English present by reconstructing a heroic past. If we were to imaginatively follow the contextualist method of Quentin Skinner, we would need also to grasp the context in which Radzinowicz wrote his History and not just the contemporeous context in which the criminal law was made. My point is that however one interprets that context-and there is space for creative disagreement-it is one in which the current welfare state is being legitimated as the product of English middle class genius. Thompson and Hay are taking a somewhat similar tack, but with opposed results. They are not writing or editing books like Whigs & Hunters and Albion's Fatal Tree because of a casual interest in the eighteenth century. If we contextualize their writing of their books, the most likely contemporary role they are playing is one that works to delegitimize Radzinowicz's work. This of course in an interpretation, but I think it is fully applicable even to James Fitzjames Stevens history of English criminal law, which was nothing if not an apology for Tory rule in the nineteenth century. But do the treatments of criminal law of Thompson and Hay and their collaborators succeed? If my argument in the past halfdozen pages is correct, the arguments of Thompson and Hay are somewhat contradictory; which is to say that they inadvertently work to support Radzinowicz's claims about the triumphal progress of English criminal law. If this is the case, there remains a need to gain some perspective on all

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three writers, a pursuit that will carry us into the next chapter, and hence a further retreat into English legal history, which is also political history. Thus this chapter is integrally linked to the next. But here and for the balance of this chapter, we do well to understand the development of legal thinking in the early modem period. Two schools of legal thought dominated the seventeenth century, and they were in such direct contradiction with each other that they were finally compelled to fight out their battles in the civil war of the 1640s and the upheaval of 1688. They are best described in the conceptual language of political theory and jurisprudence. In the late sixteenth century, the French thinker Jean Bodin introduced into political thought the notion that the fluid chaos of politics had at some point to come to rest in a power that was not reducible to something else, was indivisible, and was recognizable as the seat of final authority. Bodin called this point in the fluidity of politics sovereignty and located it with the crown. Bodin's concept is significant in the history of political thinking not because it is a new coinage but rather because it poses two issues that remain with us to this day. The first concerns the arbitrary character of sovereignty, and the second its location. In respect to the first question, Bodin wrote assiduously to support his claim that sovereignty was absolute, by which he meant that the power wearing the mantel of sovereignty could not be legitimately contested within its worldly sphere of rule. But Bodin also argued that worldly sovereignty was something less than absolute in God's universe; that it was subjected to universal rules of justice. There is thus something slightly contradictory about Bodin's thinking. He did not dissolve the difficult arbitrariness of a law that was based on one man's will. l' Bodin wrote against the spirit of a group known as the constitutionalists.12 These writers argued that France was constituted by a collection of precedents, arrangements, privileges, immunities, law, customs, and statutes that hemmed in the king and what he could do. Not surprisingly, the constitutionalists were made up of aristocrats, and the positions they were defending were favorable to them and hence would have divided up worldly power. The worldly arrangements they supported were thoroughly discredited in Bodin's thinking precisely because they divided up worldly power. Bodin, too, wanted to hem in the power of the crown; but he chose to do it with otherworldly prescriptions drawn from religion, because these at least allowed worldly power to be indivisible. The constitutionalists would have divided up worldly sovereignty, and Bodinhaunted by the specter of civil or religious war--demurred. When the sovereignty debate passed over to England, the issue of sovereignty's location became more complicated. Robert Filmer, a royalist

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political writer, sided with Bodin, assigned sovereignty to the crown, and created a patriarchal argument to justify that assignment. Thomas Hobbes was not so certain. He was content to assign sovereignty to an assembly of men, thus paving the way for the placing of sovereignty in Parliament, a radical decision by any standard. The Hobbesian direction would remake Parliament into a predominantly legislative body. The Levelers, a radical group in the English revolution, were even more extreme. They assigned sovereignty to the people and made clear that Parliament operated only at the behest of the people. By mid century, England was characterized by a threefold division on the question of the location of sovereignty. At one extreme was the indivisible king, at the opposite extreme was the entirely divisible people, and somewhere in midstream was Parliament. English political thought became more interesting than French political thought because of the unsettled character of the location of sovereignty. It would be mistaken to attach all importance to the question of the divisibility and location of sovereignty. In England, as in France earlier, the other question about sovereignty concerned its absolutist character. The French constitutionalists had argued that the king's power was thoroughly hemmed in by all manner of historical arrangements written into law, an argument that worked in practice to refute the modem theory of sovereignty. In England that argument took on a different tenor. Early in the century, long before Filmer, Hobbes, and the Levelers, the Lord Chief Justice Edward Coke began arguing that the real constitution of England was unwritten (for the most part) and was made up of a composition of ancient customs that together constituted a fundamental law for England. Here was the first intimation that English sovereignty was not absolute but was subject to a rule of customary law in its political doings. Writing in 1955, J. W. Gough concluded that there was no consistency in usage of the ternfundamental law in the English seventeenth century; but such a characterization, which concerns external consistency, is misleading and is probably true of any tern that is on its way to becoming established.13 A more meaningful question is whether the concept of fundamental law was used consistently in the writings of Coke, which is to ask whether Coke's thought had an internal consistency? It did. Coke used fundamental as synonymous with ancient, and thus his references to the timeless quality of law are more significant than is normally assumed. In Calvin's Case (1609), Coke wrote that our days upon earth are but "a shadow of the old ancient days and times past, wherein the laws have been . . . by long and continual experience, fined and refined, which not one man, albeit he had in his head the wisdom of all the men in the

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world, in any one age could ever have effected or attained unto."14 Obviously Coke had the king in mind, and he said as much in reporting on his interview with James I, wherein he told the king that "his majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes, of his subjects are not to be decided by natural reason, but by the artificial reason and judgment of law."15 Once again, we see Coke attempting a dissolution of the then contemporary notion of absolute sovereignty. Coke's notion of artificial reason is a little confusing, so therefore it needs to be emphasized that he means historical reason, or reason that is steeped in the customs of England, and that reason does not belong to individuals equipped merely with "natural," meaning unhistorical, reason. Coke's real successor in this line of argumentation would be Edmund Burke, not Hobbes. Filmer and Hobbes made their opposition to such emphatically customary thinking clear in their writings. In Patnarcha Filmer argued that "no law can be immemorial; before there can be law there must be a sovereign; and every law must have been made at a particular point in time."16 It was thus a posited king and not custom that made law. Hobbes was even more direct in respect to Coke's ancient constitution. Hobbes maintained that law was basically the product of reason, but the question concerned which reason it emanated from. For Hobbes, it was a construction "according to the intention of the legislator." Thus for Hobbes, law is not generated "of any private reason . . . , nor yet as Sir Edward Coke makes it, an artificial reason, gotten by long study, observation, and experience, as was his." It is in sentences like these that we have the origin of the modem doctrine of positive law. Law is the product of intention, the goodwill that Immanuel Kant would later speak so fondly of, the will to power that Friedrich Nietzsche would temfy us with. Hobbes drew a clear and emphatic line in the sand against Coke. I apologize to the reader for such a lengthy digression into history in respect to an issue that can be stated in deceptively simple terms as involving a conflict between positive law and natural law traditions, but the problem is that if one does not elucidate the actual histories of. each of these terms, they both seem equally arbitrary. In fact the variant on the natural law tradition premised in the works of Thompson and Douglas Hay is the notion of customary law developed by Coke and rejected by Hobbes. This is a powerful argument because it is rooted in feudal tradition, and I would also argue that it is much more powerful than contemporary human rights arguments, rooted as they are in nothing more substantial than the intuition that human rights are universal values. If, for example, one is arguing the rights of women, then probably one does best to use a contemporary human rights argument, because

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women's rights to equality do not have much of a base in Western tradition. But if one is arguing the rights of the working class or the poor, then it is highly desirable to take advantage of the feudal tradition in the European past and argue a concept of shared sovereignty. This is an argument in which the customary rights of the peasantry are trumps of sorts in respect to the will of the lord or the king. Thompson and Hay have chosen the latter course, and it is a strong line of argument in a country, such as England, with a strong feudal tradition. The latter argument is especially powerful if what you are dealing with is not the will of the king but rather the will of the king in Parliament, which of course is the dominant theory of the Whig ascendancy. This theory holds that sovereignty resides in the hands of the elected representatives of the people, assembled in Parliament, and it is spoken in the name of the king. Such a theory is attractive and strong but still vulnerable to a number of different lines of attack. The first is that the people were not really represented in the eighteenth century Parliament, and the device of assuming their tacit consent to the new property laws, a device that John Locke introduced in his chapter on property in The Second Treatise, is not adequate. But even if it were, it is not relevant to a book like Thompson's Whigs & Hunters, because it is obvious that no consent at all was being given by the Windsor foresters or the feudal peasantry which the foresters were symbolic of. In the case of the Bloody Code, its defenders, if there are any, fall back on a direct expression of positive law, but the burden of Thompson's argument was that the will behind the Bloody Code was not that of the king or even the king in Parliament, but of Robert Walpole. This argument, if true, delegitimizes this particular substantive criminal law. We can of course argue that this is the normal case in Parliament. If Tony Blair wants a piece of legislation on most anything, he merely has to manage the process and produce his comfortable majority. All true, but this was not the case in the early eighteenth century, when supposedly Parliament ruled and there was not real prime minister. In fact, what Thompson is relating is the story of England's first modem prime minister, or the first minister to be able to make Parliament do his bidding. Similarly in Hay's argument, the expression of sovereignty is in the hands of assize judges, and although it may have had to be thus, these judges are not the representatives of the king on circuit and neither are they the representatives of parliament in any strict sense of the term. They were well aware of this and thus they needed to cover their nakedness with some universal values, like majestas, mercy, and justice. But in the end, the assize judges traveling about the realm were making applications or even expressions of positive law, and their Whig theory of

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sovereignty gives scant support for them doing so. Thus they were vulnerable and needed legitimization. They gained it through their own devices, which amounted to demonstrations of prestige, compassion, and that greatest of classical virtues, justice. But still in both cases, the more powerful line of argument was not that the Whigs did not have a leg to stand on but rather that the foresters and peasants possessed an even more impressive leg to stand on. Either they had the backing of tradition and customary law, as is the case with Thompson's Windsor foresters, or they had the backing of an intuitively based natural law, as for example when they were hungry and were engaging in food riots. But even in the latter case, the rioting peasants may have acted for reasons of natural necessity, but they still had the customary rules of feudal exchange on their side, and at least had a bargaining position against the free markets in commodities being introduced by the followers of Adam Smith. It was noted earlier that the real follower of Coke was Burke, but more substantially, the successor of Coke as legal philosopher was Blackstone, who in his Commentaries capitalized on the intervening achievement of Isaac Newton to argue that the law is characterized by an elegentia juris. This is the belief that the law is a self-contained universe of logically consistent relationships, held together by the gravitational force of certain universal values like justice and fairness.17 It is on this basis that Blackstone speaks of the rights of individuals as being absolute. He means that they are not bounded by time or any worldly force but are rather ancient, immemorial, and not subject to legislative whim. One additional point concerning Parliament needs to be made. Hobbes was willing to assign sovereignty to Parliament because he viewed it as a legislative body. We have already seen intimations of this direction in Hobbes' thought, when he wrote that law is made by legislators and not by private reason or by custom. Curiously, Coke was also willing to assign responsibility for the ancient constitution of England to the same Parliament, but in his case because he took Parliament to be a judicial body, a court made up of judges who in their accumulated wisdom were adjudicating the immemorial customs of England. Could both men have been correct in their view of Parliament? Yes, of course they could have, but for Coke Parliament discovered laws; for Hobbes the assembled parliamentarians could do nothing better than invent laws. Before the seventeenth century was finished, Parliament had been reoriented much more strongly toward the legislative function of invention and away from the judicial function of discovery. Thus Hobbes may not have been more correct than Coke in 1650, but he was by the year 1688.

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The English common law as conceptualized by Coke in the early sixteenth century was, already in his time, more myth than reality. The myth of the common law was that it embodied custom, the origins of which were lost in the mists of something called time immemorial. That myth had ceased to be the case hundreds of years earlier, when the king's courts began to apply their justice through the land. Thereafter, common law simply became a body of interpretations of what was in origin the king's decree. But this debunking of Coke's myth is beside the point that the misty and romantic notion of customs dating from time immemorial restates a desire for universal values of justice, fairness, equity, and the rule of law. That desire--or if one likes, memory-was provoked by the shared experience that the applied statutory law of the eighteenth century did not incorporate those values. As a matter of fact, what peasants believed in the eighteenth century was that they had rights to cultivate strips of land that they and their fathers had owned from time immemorial and to graze their cattle on the common, which had also been there from time immemorial, as far as they were concerned. These customs and the conflicts generated out of them were often settled over ales in pubs that functioned like the customary courts that had disappeared hundreds of years earlier. What made settlements and agreements stick was not the set of rules per se but rather the sense that they were fair and just. When confronted with new statutes that dissolved feudal custom or enclosed the common, the peasants had the sense that they were being confronted with rules that had been made by men in Westrninster, in a word, positive law, and that those rules were often unjust and unfair. The wonder is not that the peasants thought this way, but that the aristocracy more than occasionally had a sense of the law as something other than a tool of its new power. If the aristocracy had only occasionally acted justly, Thompson and Hay would have recognized as much, but the import of Hay's hesitation and Thompson's willingness to claim that the rule of law actually came to characterize the English criminal justice system under the aegis of the Whigs is that the doing of justice became systematic. This claim is remarkably difficult to resolve. It entails some understanding of who the English aristocracy actually were in the eighteenth century. The ancient Catholic aristocracy had been uprooted in the sixteenth century, or at least a new Protestant aristocracy had been created by the Tudors through that great land reform program that followed in the wake of the dissolution of the monasteries in 1539. The eighteenth century aristocracy was thus more Protestant than Catholic, but more significantly, something like a second dissolution of the monasteries took

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place in the form of the extensive enclosures of the eighteenth century. This worked to create yet another new aristocracy made up of men who had made their fortunes in trade and had the foresight to contribute to the somewhat Potempkin monarchy that followed the events of 1688. In other words, the cutting edge of the English aristocracy of the eighteenth century was made up of erstwhile businessmen whose allegiance went to Parliament, which they staffed. They were backed by an older Protestant aristocracy, whose allegiance might have gone to the Stuarts, and an ancient but marginalized Catholic aristocracy (a kind of English variant on the theme of converses). If Hay and, more so, Thompson are correct in their intuitions, then a very basic question has to be raised about modem English criminal law. Was it the product of raw state power, taking the shape of positive law, occasionally punctuated by moments of mercy and justice, or did it eventually become a genuine rule of law, occasionally punctuated by miscarriages of justice? This boils down to the question whether the English are after all decent chaps, to put matters somewhat flippantly. That question is, fortunately, one that can be addressed in two ways. The first is demographic and entails speculation on the English ruling class, which is what I did above with my brief sketch of the modern aristocracy. That direction will not be followed here. The other way is by looking at the arguments that comprise Leon Radzinowicz's five-volume History of English Criminal Law and Its Administration, published between 1949 and 1986. It presupposes a good deal about the demographics of the English ruling class. To that set of books we turn in the next chapter. Americans who find it difficult to understand the machinations set forth above need only recall that much of the same script was played out in the American colonies and the early United ~tates." The Founders of the United States Constitution subscribed to the doctrine of absolute sovereignty, only they denied it to the indivisible king and assigned it elsewhere, namely, to the people. Madison's problem in Federalist No. 10 was to ensure that sovereignty remained popular, and hence he conceived the Constitution as a wonderful machine designed to thwart majority and minority factions. In this respect, the founders were complete believers in positive law. Yet John Marshall read and absorbed Blackstone and soon enough found himself in a position to implement the extralegal notions of justice, fairness, and logic. McCulloch vs. Maryland, the Dartmouth College Case, and the Yazoo Case were for the United States what Bonham's Case had been more than a century earlier in England insofar as they called on that hoary thing called immemorial tradition, in Mar-

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shall's case the immemorial law of contract, to overturn acts of popular will. The United States has since developed on the basis of a dual legal tradition. The positive law tradition might better be called secular law, and it is exercised by Congress, with little to thwart its will except the various machinations that ensure that Congress represents the will of the people. The Constitution functions in turn as a sacred law, beyond the reach of Congress and even the people, and interpreted by a caste of high priests. Indeed, the discussion sketched out in this section ought to be more understandable to American than to British citizens, for whereas the United States has a sovereignty very much restricted by law, Britain continues to function on the basis of the absolute sovereignty of Parliament, with little check from Britain's ancient and invisible constitution.

The question behind this chapter and the next is one that deals with the character of law: whether it is at base anything more than a technique of rule or whether it does not sufficiently partake of universal values and thus at some point work to trump political rule. Is law the worst of all worlds in that it takes away from the subject of rule that last remaining element of his dignity, which is his consciousness that he is in fact being told what to do? Is it, in other words, the worst of all political worlds in that it makes the victims of political rule complicit in their own demise? As political beings are they being made over into juridical beings, also called law-abiding citizens, so that the true rulers can do what they want? Or is the law, however flawed, the only hope of defeating or at least stalemating political rule? Is it not the march of God through history, only revealing its true and divine character at the moment when the traps laid by the ruling class work to entrap that selfsame class? These are questions that cannot be answered in any definitive way by empirical techniques bent on gathering evidence that will overwhelm by its sheer weight. These are, rather, questions that have to be answered by looking closely at the distribution of power in political institutions, and furthermore looking at that distribution over an adequate span of historical time. Thompson's Whigs & Hunters is a flawed book because his time frame was so narrow, and I suspect that his awareness of that flaw was what led him to right matters with his postscript on rule-of-law. The same may be said of Douglas Hay's delightful little essay on assize courts and the administration of justice in the middle of the English eighteenth century. Its time frame is broader, but not broad enough to

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support more ambitious conclusions about the character of the English criminal law. With this thought in mind, we turn to the writings of the scholar who has covered the greatest expanse of English criminal law, Leon Radzinowicz.

Notes 1. Douglas Hay, Peter Linebaugh, John G. Rule, E. P. Thompson, Cal Winslow, Albion's Fatal Tree: Crime and Society in Eighteenth Century England (London: Allen Lane, 1975). Hay's piece is called "Property, Authority, and the Criminal Law." 2. Edward P. Thompson, Whigs & Hunters (London: Allen Lane, 1975). Thompson often called himself simply "E. P." 3. E. P. Thompson, The Poverty of Theory, Or an Orrery of Errors (London: Merlin Press, 1979). 4. Thompson, Whigs, 269. 5. Thompson, Whigs, all quotes from 265-269. 6. This chapter refers often to Leon Radzinowicz's five-volume History of English Criminal Law and Its Administration (London: Heinemann, 1948, 1956, 1956, 1968, and Oxford: Oxford Univ. Press, 1986), which is treated in detail in ch. 9. 7. Thompson, Whigs, 260. 8. Eric Hobsbawm, Bandits (London: Weidenfeld & Nicolson, 1969). 9. Hay, "Property, Authority, and the Criminal Law," in Albion's Fatal Tree. 10. Hay, "Property, Authority, and the Criminal Law," in Albion's Fatal Tree. 11. Jean Bodin, Six Books of the Commonwealth (Oxford: Blackwell, 1965). 12. See Julian H. Franklin, Jean Bodin and the Rise of Absolutist Theory (Cambridge: Cambridge Univ. Press, 1973). 13. J. W. Gough, Fundamental Law in English Constitutional History (Oxford: Clarendon Press, 1955). 14.7 Coke's Reports, 3. 15. J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton Univ. Press, 1975), 214. 16. Robert Filmer, Patriarcha and Other Writings (New York: Cambridge Univ. Press, 1991). 17. William Blackstone, Commentaries on the Laws of England, 4 vols. (Chicago: Univ. of Chicago Press, 1979). 18. I am grateful to Guy Padula for information and insights provided me from his doctoral dissertation, called Madison vs. Marshall (City University of New York, 1999).

Chapter Nine

It is against the background of Stephen's work that Radzinowicz's must be understood. To an extent difficult to determine, Radzinowicz would show that in the hands of Whigs and liberals, and guided by a morality of managing poverty in the context of changing modem property relationships, the criminal law continued to be a force for social cohesion. It is profitable to bear in mind the work of the Warwick School when reading Radzinowicz and Stephen, for taken together they form three points on a triangle, or three related but still different perspectives for dealing with English criminal law. The three perspectives work to make us grasp how powerful the criminal law is as a tool for creating society, and this is well to bear in mind when reflecting on the neoliberal society introduced by Thatcher and dealt with in this book. There is no quarreling with the quality of scholarship in the five volumes of Radzinowicz's great work, but significant problems work to enhance the influence of that work and, especially, to limit it. A first problem is the sheer bulk of Radzinowicz's History, a characteristic partly determined by the bulk of Stephen's work. Radzinowicz's History is seldom (if ever) read as a whole. It had gained the status of an icon even before it was completed and was accorded respectful deference. But that very status encouraged a kind of fatalism in the minds of students, who regarded it as a marathon achievement, a fait accompli -a foundation that, having been laid, did not have to be returned to. If Radzinowicz made one great mistake in his career, it was his failure to write a single volume synopsis of his great work But it is the conceptualization of the book that is even more problematic. Radzinowicz's History was no simple chronicle of events. The author made clear as early as 1943 that legal scholarship in the strict sense of the term was not his purpose.3 On the contrary, he was mainly interested in what he then called the "historical development" of English criminal law and its institutions so that he could conceive the "course of its future evolution.'" So the first thing problematic about Radzinowicz's conceptualization is his strong historical determinism History itself has a lawful content, and once its secrets are revealed, then the present may be seen as outcome and the future foretold. It is fairly evident throughout Radzinowicz's work that its author was steeped in a Hegelian tradition of thought. Although it was cast in historical form, Radzinowicz's work was a kind of modem Leviathan, or a treatise that laid down the essential elements of the English practice of criminal law and administration. But being diachronic, Radzinowicz's History revealed its principles only piecemeal. Its central principle, not made clear until the end, was that welfare and the welfare state was the triumphal moment of liberalism's

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development, visible to none of the players weaving themselves into the historical tapestry, but still the cumulative consequence of all their brief incursions. It is this principle of triumphant welfarism that makes Radzinowicz's History specifically problematic.5 The reasons for Radzinowicz's enthusiasm for the welfare state are complex. On the one hand, and perhaps most immediately, he saw welfare as the key to reducing the high crime rates of the Victorian era; and thus he made a direct connection in his mind that envisioned welfare programs relieving the misery of the poor and, by that process, increasing the security of the rest of society against crime emanating from the erstwhile "dangerous" classes. This was and is an entirely respectable doctrine, believed across the broad center of the British political spectrum since the time of Lloyd George. Radzinowicz followed this logic to its conclusion. He understood that social welfare programs finally come to rest in law as a doctrine of obligations on the citizen, and these obligations necessarily had to be enforced by the punitive means of the criminal law. Two more points about Radzinowicz's conceptualization need to be made, one concerning his concept of class and the second his concept of the state. My comments amount to criticizing Radzinowicz for things he did not do, which is also a matter of saying that he has weak concepts of class and state. In Radzinowicz's case, his weak and simplistic conceptualization plays consistently to the advantage of his chosen ideological position enabling him to present the English middle classes as somewhat simpleminded evangelical do-gooders, more often than not Quaker ladies, and the English state as a well-intentioned albeit somewhat fumbling collective oaf, situated in Parliament and on its way to doing good as well. Unfortunately, things are much more complicated. Classes are loosely united aggregates, having little glue to hold them together naturally. For analytical purposes they can easily be disaggregated, or segmented, for the interests that glue people together are usually local and do not affect an entire class. But if we view an entire class, we usually say that interests holds the class together, but it needs to be recognized that the concept interest is an abstraction and can be very misleading. Interests can drive a class apart as well as hold it together. Mam recognized this in the Eighteenth Brumaire when he distinguished between the financial bourgeoisie and the industrial bourgeoisie, on the one hand, and between the lumpenproletariat and the working class, and even the aristocracy of labor, on the other. He was then able to show how one segment of a class could be used against the rest of the same class. The Lumpenproletariat was recruited to be used against the honest "working class," for example. But it might just as easily have worked

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the other way round. The industrial bourgeoisie was willing to unite with the working class against the financial bourgeoisie or the landed aristocracy. Simple class conflict is more often than not a fiction with little basis in reality. The protagonist of Radzinowicz's History is that diffuse and therefore elusive social phenomenon called the middle class, or the bourgeoisie. It is set off against an indifferent or opposed English aristocracy and a feckless, drunken, or otherwise depraved and immoral lower class, inclined to criminality and thus in desperate need of the order provided by a systematic enforcement of criminal justice norms. The English bourgeoisie, rising to real power after the Whig ascendancy of 1688, is portrayed by Radzinowicz as intermittently clumsy, clearly still in a process of moral development, but usually well intentioned. It is this bourgeoisie that has to receive the outpouring of desperate humanity brought to England's towns and cities by the enclosure movement and the deregulation of the agricultural market in the late eighteenth century. Economic and social upheaval in the English eighteenth century are generally underestimated because we view them through the prism of the seemingly much more turbulent nineteenth century. But a reading of Defoe easily works to support the claim that the eighteenth century was just as turbulent, if in its own less industrial way. Radzinowicz portrays these social and economic developments, if they are portrayed at all, as if happening offstage. The frrst major problem with Radzinowicz's History is the utter deficiency of this class portrayal. At the very least, a strictly empirical analysis of the bourgeoisie will reveal that it has a financial as well as a moral segment and that the two are often at odds with each other. Adam Smith and Adam Ferguson recognized some of this as early as the eighteenth century. In a stylized version of the matter, the bourgeois industrialist is creating the social problems that his good wife is hard at work to alleviate. He is running a factory and employing women and children twelve hours a day; she is lobbying, and perhaps lobbying her husband, for a shorter workday and child welfare laws. To see how bourgeois interests are very often at conflict with each other, one has to pay attention to the different kinds of law. Civil law deals with property and facilitates industrialization, while the criminal law deals with the most extreme social consequences of changing property relations. Radzinowicz pays no attention at all to the civil law. He is thus able to take a relatively unambivalent view of the bourgeoisie and to see them as intent upon doing good for a desperate and depraved class of workers that appears at their doorstep, as if from nowhere. It is a one-sided class view.

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The Quakers are in this respect a misleading element of the bourgeois class. There is no question, for example, that the Quakers were philanthropists interested in criminal r e f ~ r mBut . ~ they were also superb industrialists and bankers, and thus they were involved in creating many of the problems they were also ameliorating. The Rountree family in York is a case in point. In a manner not untypical of a group characterized by a good deal of personal abstinence and denial, as most Quakers were, the Rountrees became interested in the production of candy and sweets7 They thus founded a company that made chocolate and became very successful. Simultaneously they began using some of their profits to benefit the poor. The family continued both activities well into the twentieth century. But the actions of such Quaker families were more the exception than the rule. The rule was that the left hand did not know what the right hand was doing. This problem is in Radzinowicz's History. It takes a one-sided view of bourgeois activities, showing a keen consciousness of the philanthropic side but an unawareness that the means may have been ill-gotten. Radzinowicz's conception of the state is similarly unarticulated and naive. The "English state" in his version is Parliament, plain and simple. Its deliberations normally take the form of committees, inquiries, or commissions. They hear or inquire into a problem and are confronted with sudden outcroppings of collective evangelical concern, usually in the form of a desire to "save" or "care" for the men and women and children who are falling into sin and crime. The task of Parliament in Radzinowicz's portrayal of it is to process these expressions into laws that result directly in the establishment of order or, increasingly, in reformed institutional processes. Parliament is something of a clearing house or a holding company of the public's concerns. Given that it has sovereign authority, it is able to decide among competing claims and thus keep internecine fighting in civil society to a minimum. Radzinowicz's is a beautiful picture and, courtesy of the eighteenth century, even somewhat accurate; but it is also misleading. We need not go as far as E. P. Thompson in Whigs & Hunters, who portrayed the early Whig state as a purely executive affair, with Walpole acting like an absolutist monarch and Parliament as a rubber stamp of his will. Such extreme reassertion of secularized royal absolutism did occur in the eighteenth century. One thinks of Lord North, Pitt the elder and Pitt the younger. But these were increasingly exceptions to the rule of parliamentary sovereignty, and more than anything else they were an indicator of parliamentary disorganization and difficult circumstances such as the American war of independence and the French revolution.

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A more accurate depiction would show the modem state striving for a permanent and universal existence within the framework of parliamentary sovereignty. Take for example the creation of the British legislative state, which was the chosen locus of sovereignty, the chief embodiment of the outcomes of the civil war of the seventeenth century. Parliament was an intermittent institution until the seventeenth century, but increasingly began to meet permanently in the eighteenth century; and in keeping with its self-concept of being sovereign, it took on the mandate of being a legislative body. The acts of this legislature were often what the British like to call "one-offs," highly individualized legislative expressions addressing entirely local problems. But then, gradually, legislation was written in general terms and was intended to be national in scope, applicable in Scotland as well as Wales, in Ireland as well as the Midlands. Legislation thus began trumping the distinctly local common law. And even if questions were purely local, as enclosures often were, the solution more often than not was a piece of legislation that was national in scope. It took Parliament a while to accommodate the widening scope, but its learning curve, once initiated, was steep. This logic of expansion toward the universality of the legislative state continued at the informal level of parties. In conditions of royal absolutism, political parties begin as conspiracies, but in conditions of parliamentary sovereignty, such parties begin as legislative caucuses, small groups of men bent on controlling the collective will of the sovereign. These legislative parties first make it their business to take stands on issues that are probably first of all local in scope. But issues have a way of overnight becoming national in scope because distant persons, or their representatives in Parliament, identify with them. It is then in the interest of the parties to expand from Westminster and become actual national organizations. In such a manner the legislative state gradually fills up every nook and cranny in the land. This spreading legislative permanence and universality is compounded by the creation of a permanent executive state, as for example with the creation by Parliament of the Home Office in the 1780s. The state then exists in an even more securely permanent and embodied form than was suggested by the analysis of the spreading party organization, because the executive state transcends Parliament's frequent recesses. Like a political party, the Home Office gradually tends to spread its tentacles throughout the land because local issues and solutions are identified with by the central executive state, which then tries to provide its solutions. The creation of the police is a case in point. In the 1820s the Metropolitan police (the Met) was created as an adjunct to the Home Office, and from its inception was a national and not a local police force.

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be told seriatim to make its point clear. First, Parliament started the ball rolling, in the Criminal Justice Act 1949, with a simple provision for research to be done. That vague initiative appears to have been inadvertent, a momentary lapse on Parliament's part, expressing an impulse rather than a plan. Second, the Home Office followed up by commissioning a study by Hermann Mannheim and Leslie Wilkins that turned out to be successful, and on the basis of that success the Home Office founded the tiny Research unit? That act, too, appears to have been inadvertent, since several years lapsed between the legislation and the research, but in any case the legislative state quickly took on an executive dimension. Third, the 1959 white paper on criminal justice policy stated that from then on criminal justice policy would be based on research, a remarkable concession of power by the legislative state, made even more remarkable in that the white paper is for all practical purposes an expression of the will of the executive and not the legislative state. Fourth, everything might have stopped with the famous 1959 white paper, but then the then home secretary (Rab Butler) let it be known that he would like a research institute to be set up at a private university. Here was the executive state expanding beyond its own research unit and into the private sector to generate the research on which its actions would be based. Next, and fifth in our seriatim presentation, the ever reliable Quakers then entered the process in the form of Miss Margery Fry, who put her considerable moral energies into the effort to establish a private research institute. This involvement of the Quakers made the initiative look private in origin and even evangelical, and that approach no doubt made the prospective institute more palatable to Parliament. Sixth, several universities competed, and finally Cambridge was chosen. Logically and naturally, then, Leon Radzinowicz was put at the head of the institute. Radzinowicz was also eventually knighted, no doubt because of the History,but the knighthood worked to give the Institute added prestige.10 It would take an extraordinary degree of nayvet6 to believe that this creation of a research dimension to British criminal justice was all a oneway process from bottom to top." It was primarily a matter of the English executive state asserting itself to give body to a function that it believed needed institutionalization. The only thing that needs to be added to the above description of the creation of the Cambridge Institute is that this hitherto onedirectional expansion of the research state inevitably had consequences. With fitting irony, the National Deviancy Conference was conceived in 1968 at a conference taking place at Radzinowicz's institute, and clearly the impulse behind the new concept was the uninspiring acquiescence of the institute to the workings of the British executive state. At roughly the same time, the Birmingham Centre passed

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into the hands of Stuart Hall. Eventually, Her Majesty's loyal opposition would occupy the perimeters surrounding the Golden Triangle of royalist power positions. My point is also a critique of the welfare state tout court, and since Radzinowicz gave his allegiance firmly to the welfare state, it is a necessary critique. The idea that the economy can be conceded, which is the central concession of the Labour Party, and civil society constructed on the basis of progressive taxation and redistributive programs, the central concession of the Tories, entails a naive view of the way a modern industrial society can be glued together. Mere redistributive justice will always be correcting the effects of market forces and will thus be essentially reactive. Indeed, it makes the welfare liberalism and the welfare state into handmaidens to capitalism. Moreover, a distributive justice that is after all redistributive will invite the kinds of welfare fraud that worried the young Radzinowicz in 1943. Thus society will have to insist on a sense of obligation that is quite unnatural and the criminal law will have to enforce that that obligation with punitive sanctions. In effect, the welfare state will be involved in a massive effort to produce a population of law-abiding welfare citizens-docile bodies, as Foucault might call them The conceptual articulations of society and state contained in the preceding paragraphs are not exactly privileged positions beyond the reach of legal scholars. Throughout I have been describing the integration of civil society by means provided by the state. One of the few consistent ironies of modern political experience has been that the march of the state through history has been greased by a romantic mythology that assigns origins to the private initiatives of citizens, never for a moment suspecting that triumphal consensus might have been orchestrated at the center by the state. This is not especially a critique of the bourgeois experience. It is more a critique of the modern experience tout court, and if it is missing from Radzinowicz's volumes, they are for that reason deficient. Radzinowicz's choice was to do a Whiggish construction along lines that would have made Thomas Macaulay proud, but such reconstructions of history long ago ceased to be adequate.

In a programmatic 1943 article on sources in The Cambridge Law Journal, Radzinowicz himself provides evidence directly supportive of the previous section's critical analysis.12The article first of all reveals his enthusiasm for the project of a history of English criminal law and his chief reason for that enthusiasm. He was enthralled not so much by Eng-

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lish criminal law itself as by its archival sources. Radzinowicz noted that in "scarcely any country in the world does such a collection of information on criminal law exist and in the very few countries in which it is known, it never grew to such proportions, nor did it ever possess the advantage of such a continuity in its de~elo~ment."'~ Radzinowicz went out of his way to cite foreigners for the enthusiasm they felt for the sources he chose to use for his study. Elie Halevy from France, A. Lawrence Lowell from the United States, and P. F. Aschrott from Germany are only a few of the foreign scholars cited to back up Radzinowicz's claim that his chosen English sources were unique. Clearly, much that is in Radzinowicz's project was determined by sources. Fair enough, but what were these fantastic sources? Briefly, they are what Radzinowicz calls state papers, or sometimes blue papers, and they comprise commissions of inquiry, accounts and papers related to the commissions of inquiry, annual reports of state departments concerned with the administration of criminal justice, and other reports of parliamentary debates, as well as laws passed by Parliament. As an immigrant from authoritarian central Europe, Radzinowicz was understandably enthusiastic about such phenomena, and who is to fault him on this score? Anyone with the slightest experience of legal history knows that the law in parliamentary democracies is brought alive by the legislative process that drives it, and for someone from a country without such legislative process, the discovery of its documentation is breathtaking. But writing a history of law solely from legislative sources is circular and self-serving. At the very least, the characteristic documents of legislative process, conventionally conceived, are not likely to be critical. They will include opposition elements, but only that opposition that is organized and prepared to appear before parliamentarians, and that is likely to be a middle-class opposition. They are not likely to include the perspectives of outsiders to the parliamentary system itself, and as E. P. Thompson so often noted, such outsiders were the majority of people in the English eighteenth and first half of the nineteenth century. To a great extent, such papers are likely to read like corporate "progress" reports in the twentieth century. There is thus a distinctly closed and self-serving character to these sources. If Radzinowicz had been in the least critical in reference to the development of English criminal law, he would have gone beyond government sources to consult popular sources of the period he intended to cover. He might, for example, have looked at the literary treatments of Daniel Defoe or Henry Fielding, or the chapbooks of the eighteenth century, or the burgeoning working-class press of the nineteenth century; but such an

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orientation does not occur to him. He was content to remain with what other have labeled oficial discourse. No recent writers on British criminology have made these points more emphatically than two British criminologists: first Pat Carlen and later David Garland. In conjunction with Frank Burton, Carlen published a remarkable study of official records in 1979, based on their understanding of the new deconstructive analysis arriving in England from ~ r a n c e . ' ~ What Burton and Carlen made clear was that the official records were but the final product of a lengthy process. Garland took this aspect of the Burton and Carlen study of official discourse and put it to work in his first book, Punishment and WelfQre. But even more significant than the substantive findings of Garland's book is his conceptualization of official discourse. It is worth recovering in detail because it spells out how Radzinowicz's sources might have been handled.I5 Garland uses similar sources to those of Radzinowicz, official records, but he treats them as a discursive process that begins long before they arrive at the level of officialdom The italicized wording in the following is Garland's, not mine. First, there is a social crisis that is recognized as such, then it is interpreted in accordance with certain political positions and reformulated by political parties as programs to deal with that crisis. From the outset, then, the inarticulate masses are included in the process. They after all make the social crisis. But the social crisis has to be interpreted, and that is done in relatively narrow and preestablished terms. Garland is entirely correct in this perception, and it enables us to understand why the makers of a social crisis (the inarticualre masses) need to articulate their own needs. The Irish Republican Army, for example, represents an inarticulate and brutal response to an intolerable social situation, and their actions create one variant on the social crisis Garland speaks of. But then the Sinn Fein comes into existence to preempt the parliamentary parties from monopolizing the second phase of proposing solutions. Similar reasoning may be applied to the founding of the Labour Party. It was founded by the trade unions to articulate their concern in the political marketplace. This kind of articulation is most often what did not happen in the English eighteenth century, if one is to believe Radzinowicz, but in fact it did happen. Then, according to Garland, what takes place is a politico-discursive struggle in which the party programs are compromised and transformed. What needs to be made clear is that the compromises are parliamentary in scope and do not involve the sources of the social problem, the dissatisfied but inarticulate peasants, or the "dangerous" classes. Then comes another process, one of political filtering, in which these programs are

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translated finally into official discourse, where they reemerge as reports of commissions or inquiries, whose sole purpose it is to produce a compromise that can command more than 50 percent of the vote. This latter achievement represents success, for now the filtered wording becomes the recommended wording. The above then enters the legislative or administrative pipeline by becoming legislation, or simply by being adopted as policy.'6 The legislative reality, even Garland's reality, is a good deal more complex than the above stylized depiction conveys. Garland maintains that there is no agent of civil society driving the discursive process leading up to official discourse, and he is right about that, but it needs to be explained why this is the case. Garland reminds us that political processes seldom meet standards of scientific rationality because, finally, elements of the pro-cess are selected for success not because they are logically coherent but because they meet the needs of the state. What Garland is dealing with in the format of the legislative state is raison d'Ctat, a reasoning process that is finally rational, but only according to the logic of the state, and that is a logic determined by political needs." Garland and Radzinowicz handle the same sources, but the two writers, aged about a generation apart from one another, are in fact in a virtually identical position in respect to publication dates. Garland's book is about the criminology of the British welfare state and was published in 1985. The fifth volume of Radzinowicz's History, coauthored with Roger Hood, dealt with the same welfare state and was published in 1984. It is Garland who reveals how deficient Radzinowicz's approach was and is. In fairness to Radzinowicz, he conceived his study at a time when political science was still remarkably naive about legislative process. In the 1940s, legislative process itself existed in only a few countries-indeed, in only two: Britain and the United States. France, Germany in the Weirnar period, and Italy before World War I were legislatively rigid or legislatively warped by the domination of single parties or rigidly ideological parties. An adequate political science could thus develop only in those two anglophone countries; but even in them the political science of the time was thoroughly inadequate. It was dominated by law faculties or by their orientation toward results rather than the processes that created the results. Thus in 1943, Leon Radzinowicz was actually something of a pathbreaker in his manner of approaching the study of legal development, and he deserves a great deal of credit for a promising approach. But by the 1970s that approach was already being challenged from two significant directions. The first was Marxist scholarship, which took with a grain of salt any results that relied on conventional state sources.

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Antonio Gramsci, Otto Kirchheimer of the Frankfurt School, Christopher Hill and later Edward P. Thompson would make their mark by using oppositional sources to show how narrow Radzinowicz's perspective was. The other source was mainstream American political science, which, whatever its faults in the postwar period, did broaden the base of sources and did establish legislative process as a mainstream activity of political science. Beginning in the early 1970s it became standard practice for American undergraduates to learn how a bill becomes a law and to recite what they had learned on exams and in research papers. We thus do not have to go as far as the work of Garland to show that the study of legislative process had passed by Leon Radzinowicz, but it helps because Garland is a preeminent British criminologist. One final, significant point needs to be made about Radzinowicz's method. Common-law lawyers in both England and the United States like to believe that the law develops according to a logic immanent in, or internal to, the law. Thus there is a growth process that is slow, cumulative, and understood only by lawyers or those privy to the inner workings of the law. Occasionally the legislature intervenes with new statutes, but these are understood to be matters of only limited significance. They are developments that are still internal to the law, and work as tiebreakers where the law has become deadlocked. Legal research is thus conducted by lawyers in the inns of court or perhaps in the academy, but it is in no way a matter that can be entrusted to outsiders. The alternative is not to deny the internal logic of law, but to argue that there is also a distinctly external causal factor that originates in political processes, and a failure to pay attention to it results in a distorted appreciation of the liw. At its most radical, the emphasis on the external process is on political will, not on the law's immanent logic. As noted above, these two approaches can coexist peacefully, but the tendency of modem political science is to push matters to the extreme and see the process, even within the judicial branch of government, as little more than a collection of assertions of political will. An American example is revealing. Although the two cases are often connected in lectures, as if one was the daughter of the other, Brown vs. Board of Education of Topeka, Kansas, was not at all a development of Plessy vs. Ferguson. It was rather a response to external developments in the sociological scholarship of Gunnar Myrdal and political changes that brought radicals such as Hugo Black to the American Supreme Court. Brown would never have happened as a development of Plessy because Plessy never developed, or at least it never developed toward Brown. There is no internal logic to connect the two cases. A similar argument can be made in reference to the famous Miranda decision re-

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quiring the police to warn suspects of their rights when making an arrest. Miranda is as much an outcome of the television program Dragnet and the arrest techniques of Sergeant Friday as it is of any prior legal development.

Precisely because Leon Radzinowicz was writing in 1943, which had to be a high point of English enthusiasm for corporate life, his words are uncritically revealing in respect to his concept of welfare-liberalism. Radzinowicz was not a Marxist, but this did not prevent him from sounding like Marx when he wrote that "in a certain given period of its development society is confronted with certain specific problems and . . . it solves them in a certain way or disregards them altogether."'* The phrasing is only suggestive, but is still deterministic, because of its stark structure. That the certain way might involve the coerciveness that frightened Hayek did not bother Radzinowicz in the least. The welfare state was the culmination of liberal progress, and hence a social way of approaching liberal values would be enforced, not simply encouraged, and the criminal law would be one enforcement mechanism. Lest it be thought that this choice of words on my part is an exaggeration, Radzinowicz' own words can be used: Social responsibility and social duties have thus been enforced upon the individual. As might have easily been foreseen the progress of social legislation considerably extended the scope of criminal law since it was considered necessary to make an appeal to penal repression when the individual tried to escape from his new social duties. Now criminal legislation--connected with the public health, municipal administration, educational policy, and industrial protection-was steadily emerging and growing in order to deal with the new type of crimes sometimes called administrative ~riminality.'~ One searches fruitlessly in Radzinowicz's writings after World War I1 for a like statement of what he took the mission of British criminal justice to be: None has been found, not its existence reported. Hence the 1943 emphasis on extending the scope of criminal law is probably best considered a reflection of the spirit of the times, which is the spirit of the Beveridge ~ e ~ o r t But . ~ ' Radzinowicz goes beyond that document when he shows a willingness to consider the use of penal repression, not for criminals in the ordinary sense of the term, but for the individual who tries to escape from his new social duties. Arguably Radzinowicz was

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talking about nothing more dramatic than welfare fraud, but his choice of strong language makes it all sound like Stalinism. Radzinowicz's strong words betray precisely the spirit that Hayek was complaining about in the Road to Selfdom, and they lend credence to the right's persistent claim that Hayek was correct in his intuitions. To gain a sense of the spirit of the times, one can hardly do better than to read T. H. Marshall's 1949 essay on the emergence of welfarism as a political ~ulture.~'Marshall treated welfare as a right, and located it on a progressive scale of rights as the highest level of development. At first there were political rights, which afforded protection against the state. Then there were civil rights, which ensured the direction of civil society. And then finally in this historical progression, there were welfare rights, which set into place the conditions for the full flowering of the individual. Perhaps more important than the progressive format in Marshall's scheme of things was the sense of entitlement his scheme conferred. When political positions cease to be privileges and become entitlements, then it is entirely appropriate to call in the enforcement mechanisms of the state to ensure such rights. Bearing arms is a right in American society, not a privilege, and thus citizens treat restrictions on the right to bear arms as infringements of rights. In Attlee's Britain, welfare enjoyed something of the same position. The strong attitude did not last. Like so many others, Radzinowicz quickly retreated from the spirit of his 1943 writing. One seeks in vain for similarly strong language in Radzinowicz's later talks, lectures, and papers. The hallmark of these occasional writings is the absence of any reference to enforcing the social norms of the welfare state by resort to penal repression. On the contrary, by the 1960s, Radzinowicz had become an advocate of penal reform, meaning that he wanted the state to be less harsh in its sentencing policy and its administration. He wrote very much in the spirit of the white paper of 1959, which conveyed a new and less draconian mood.22Yet something of the old spirit was still apparent. In a moment of reflection on the Criminal Justice Act 1948, Radzinowicz did show nostalgia for the old welfare state. Here, too, his words are worth quoting in full: And although the [I9481 Act was in many ways a faithful reflection of the new social attitude of which the Welfare State itself is both a manifestation and a case, it did not weaken the authority of the criminal law, nor did it question the need to maintain public order by the threat or imposition of stringent penal sanctions. 23

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Radzinowicz is confusing because he states matters negatively. Of course the Criminal Justice Act of 1948 did not weaken the authority of the criminal law. If anything, it affirmed it. Of course it did not question the need to maintain public order, meaning, apparently, the welfare order, by stringent penal sanctions. Indeed, British prisons had never before been so crowded. Did Radzinowicz now think that the welfare state was so lacking in political will that it would actually weaken the criminal law and question the need to maintain public order by penal sanctions, if need be? I suggest that if Radzinowicz had been writing these sentences in 1943 about a proposed criminal justice reform, he would have kept the first half of the sentence, which is an elegant prioritization of the attitude we called the social earlier in this book, but changed the second half of the sentence to read: it would strengthen the authority of the criminal law and maintain the desirable public order by the threat or imposition of stringent penal sanctions. But Radzinowicz, more so than Hayek, had changed between 1943 and 1964. Radzinowicz is something of a classical liberal in presupposing or thinking in terms of a virtually totalistic view of civil society. The state in this vision is simply an adjunct of civil society, not altogether unlike Marx's "executive committee of the bourgeoisie." Civil society develops through and with the help of the state, but this only means that it filters its initiatives through a legislative process that eliminates fraudulent political ventures, contradictions, inefficiencies, and finally enables civil society to realize its goodwill. It never for a single moment occurs to Radzinowicz that the state has a raison of its own and thus, perhaps, an agenda that is different from and perhaps even hostile to the presupposed goodwill of civil society. The Kantian movement of the collective goodwill through the filter of the state is thus entirely unproblematic for him. This being the case, it thus seems not unreasonable to conclude that Radzinowicz's History is devoid of a concept of the state in any meaningful, by which is meant problematic, sense of the term. Garland tends to see the hand of a state with a raison that is its own in almost every aspect of the establishment of welfare. Despite "its tendency to depoliticise its own categories and techniques," Garland tells us, criminology in the early British welfare state "was quite explicit about its statism, as the social defense arguments of Ferri or Garafalo amply demonstrate." Garland goes on to show a rare degree of insight into the political function of the moral impulses of civil society. It was, Garland writes not the least of its advantages that the 'evangelized' version of criminology that was imported into official discourse dissolve . . . political terms into questions of care and benev~lence."~~ Elsewhere Garland looked at the early origins of probation and saw the intrusive form of the

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state in its details. Traditionally, he wrote, the aftercare of prisoners had been a private field dominated by churches and reformers. But at the turn of the century a change of mind began to occur in the state sector. It was now said that the entire process of reforming prisoners was too diEcult and too costly to be left to the private sector. The state thus began threatening the hitherto private process with its greater resources. Garland uses a report by a home secretary to make clear the expansive tendencies of the British state. It argued that the entry of the state would make everything more uniform, regular, and efficient, thus exploiting civil society at one of its weakest points, the inequality of treatment that was the inevitable outcome of multiple initiatives. The home secretary then argued that the state could extend the range and efficiency of existing penal resources by its entry into the field. None of this is to say that the state wanted to displace civil society. On the contrary, the coordination of the initiatives of civil society would allow the philanthropic logic and evangelical vocabulary of private agencies to be harnessed to the state's interest'in social control. For Garland, the story of the creation of the welfare state in the period from 1907 to the outbreak of war was one of relentlessly expanding state power.25 In Garland's own words, the "most notable outcomes . . . [of the reform process] are the extension of the role of the state, which becomes the subject of wider and more penetrating forms of social regulation."26 This tendency toward expansion is brought to a level of fine detail in Garland's analyses of criminal law during the period. For example, one of the key elements of the Prison Act 1898 was to shift the power to make prison rules from Parliament to the Home Office. That move achieved a shift in power from the legislative state to the executive state, a key move because it effectively shifted the focus of the power to punish from the criminal's act to the criminal's beha~ior.'~Garland takes things further by showing that in the same year, the Inebriate's Act specified that drunkards were to be treated not for their offense but rather for the underlying condition that caused the offense.28Clearly a shift was underway, from seeing the criminal in legal terms as a breaker of rules to seeing the criminal as a sick person, and once this was done, it was only a matter of time before the medical model of rehabilitation became the foremost tool of rehabilitative penal practice. The Prevention of Crime Act of 1908 confirmed this trend by replacing proportionate punishment with the indeterminate sentence. Now instead of serving five years for assault, the prisoner might be given three to seven years, depending on the progress he made toward curing the condition that led to the original assault. This change greatly increased the power of prison staff over the prisoner and was bound to affect the attitudes of the prisoner toward his

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keepers. Even more ominously, the Prevention of Crime Act was the first measure to draw the full consequences of the shift in focus from the offense to the condition by dealing with prisoners who were said to be incorrigible. Thus, regardless of the offense, a prisoner could be kept in custody indefinitely if it was determined that he could not be corrected. Garland is at his best when he reports on the shifting of punishment from a general process, equally applicable to all, to one that was individualized. With the 1908 Prevention of Crime Act, prisoners would no longer be treated as being alike in their punishment, differing only in length of sentence; now the punishment was supposed to be individualized, thus affecting the prisoner's body, mind, and character. Garland finds the Earl of Beauchamp declaring that the one principle underlying the law was that "there should be individual study of the character and habits of each prisoner." Not everyone felt this way about the law. Garland nicely finds the then Home Secretary Sir Evelyn Ruggles-Brise commenting, more than a decade later, to condemn the "evil habit [of] the 'individualisation' of the prisoner, mentally, morally, and physi-

all^."'^

But, according to Garland, perhaps the ultimate conferral of power onto the executive state occurred in the Mental Deficiency Act of 1913. The problem of mental deficiency had hitherto been treated as a local or a family problem. This act defined it as a national problem because it was said to threaten the Anglo-Saxon race as a whole. As a national problem, it could be treated by parliamentary statute-and so it was, by being virtually ~riminalized.~~ What can hardly escape being noticed is that it is not the act of a person that was being criminalized but rather the condition of the person. The distinction between the two is precisely the distinction between classical criminal justice and welfare. Increasingly, a welfare oriented criminal justice was treating conditions rather than discrete acts. Of course it could be argued that the condition could be reproduced, and thus the act of procreation by a mentally deficient person was itself criminal in that it was a threat to the race, a word that today would be replaced by the equally indeterminate the public or the people. By this logic, any number of at risk conditions could by criminalized in order to justify early intervention by the state. But perhaps the most insidious aspect of the 1913 act was the operational definition of mental deficiency. A moral-imbecile was said to be a person on whom "punishment has had little or no deterrent effe~t."~'An early instance of what later came to be called catch-22, such a definition is circular and can only be circumvented by conformity. We have seen something like this in Jock

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Young's The Drugtakers, but Garland takes it back half a century or more.

I have dwelled at great length on David Garland's portrayal of the early British welfare state because it provides supporting evidence for a claim that is central to this book. Rule of law is a matter of overcoming rule by decree through creating a matrix of formally accepted norms that will be enforced evenhandedly across civil society. What is required is a legislative mechanism that ensures as nearly as possible that it is the general will that is being incorporated into legislation and not this or that particular will. What is thereafter required is an executive enforcement mechanism that is equally an embodiment of the general, and not any particular, will. Both the legislative and the executive mechanisms evolve over a good deal of time in the modem period, even over centuries. The English Parliament in the eighteenth century was little more than a shill for class interest, and it remained that until the twentieth century. I take that to be an entirely forgivable fact. It would be naive in the extreme to have expected that Parliament as a legislative body would spring full blown out of Minerva's head. The story is similar with executive agencies of the English, or British, state. The Home Office and the Metropolitan police as well as the emerging Prison Service were little more than shills for class interest before the end of the nineteenth century. There is no surprise in this character of the executive state. Radzinowicz might agree with the above characterizations but argue in Whiggish fashion that by the twentieth century the agencies of the liberal state had evolved fully and that their outer expression was the welfare state. This in any case is the impression left by the fifth volume of the History. What Garland does is to correct Radzinowicz's analysis and show that something much more sinister was at work, namely the reassertion of rule by decree. In doing so, Garland pulls the rug out from under Radzinowicz by repeatedly showing that perhaps the greatest threat to rule of law is precisely the factor that Imrnanuel Kant thought of as the greatest good: the good will. The problem is not that good becomes evil by some magical transformation. The problem is rather that organized and collectivized good will, asserting itself through the legislative state, offers the executive state the opportunity to realize its peculiar raison by actually eliminating the intervening agencies of civil society and attaining a direct relation with the individual, and this means a direct power relationship. The result is a triumph of rule by decree.

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Friedrich Hayek was concerned with the welfare state for only one reason: he saw it as a threat to rule of law. If that does not seem like a plausible interpretation of Hayek's position, then look again at his arguments in The Road to Serfdom. They are buttressed by an epistemological position that holds that human beings are incapable of more than finite knowledge. But finally Hayek's concern is for administrators who have to individualize general rules by making decisions on their own. Rule by decree then reasserts itself under the aegis of rule-of-law, Hayek's preference is for a minimal regulatory state that does not individualize treatment but rather leaves those decisions to the individual. Similar thinking informs Garland's Punishment and Welfare. Implicit throughout Garland's book is a set of assumptions about how law works, and they can easily be taken as Garland's critical comments. If the welfare state individualizes punishment, Garland-implicitly at leastwould generalize it. Equal protection of the laws amounts to a demand that the state not discriminate among wrongdoers on grounds of behavior, and that nondiscrimination amounts to a way of retaining the integrity of the original criminal act.

Notes 1. Leon Radzinowicz, History of English Criminal Law and Its Administration, 5 vols. (London: Heinemann, 1949, 1956, 1956, 1968, the 5th volume written with Roger Hood and pub. by Oxford Univ. Press, 1986. For background see Leon Radzinowicz, Adventures in Criminology (New York: Routledge, 1999). 2. James Fitzjames Stephen, A History of the Criminal Law of England, 3 vols. (London: Macmillan, 1883). See also Leslie Stephen, The Life of Sir James Fitzjames Stephen (New York: G. P. Putnam, 1895), especially 410-428. His book on Mill is Liberty, Equality, Fraternity (Indianapolis: Liberty Fund, 1993). 3. Leon Radzinowicz, "Some Sources of Modem English Criminal Legislation," The Cambridge Law Journal, viii, 2, 1943. 4. Radzinowicz, Some Sources, 181. 5. Radzinowicz has recorded his own reflections on ideology, in Leon Radzinowicz, Ideology and Crime: A Study of Crime in Its Social and Historical Context (London: Heinemann, 1966). 6. James Walvin, The Quakers (London: John Murray, 1997). 7. This interest in candy is of course a remarkable feature of Quaker culture. Besides the Rountrees, the Frys and the Cadburys were also Quaker family enterprises making chocolate. A similarly strong interest in sweets can be seen in Mormons or any other group that denies easy access to alcohol, tobacco, or sex. 8. Radzinowicz, The Cambridge Institute of Criminology: Its Background and Scope (London: Her Majesty's Stationary Office, 1988).

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9. Hermann Mannheim and Leslie Wilkins, Prediction Methods in Relation to Borstal Training (London: Her Majesty's Stationary Office, 1955). 10. Knighthood is not an automatic reward for achievement in the British criminal justice system but there is a certain logic to its distribution since it is mainly the political parties which determine who gets knighted. In policing, the commissioner of the Met almost always gets knighted before, during, or after his service at the Met. 11. That this is more like the modus operandi of the Home Office is illustrated in Paul Rock's Helping Victims of Crime: The Home Ofice and the Rise of Victim Support in England and Wales (Oxford: Clarendon, 1990). Rock is extremely generous to the Home Office, but it is clear even from his descriptions that the Home Office is orchestrating the process being described. 12. Radzinowicz, Some Sources. 13. Radzinowicz, Some Sources, 189. 14. Frank Burton and Pat Carlen, Oficial Discourse: On Discourse Analysis, Government Publications, Ideology and the State (London: Routledge & Kegan Paul, 1979). 15. David Garland, Punishment and Welfare (Aldershot: Gower, 1985). 16. Garland, Punishment and Welfare, 207. 17. Garland, Punishment and Welfare, 162. Garland calls these characteristicsfragmentation, and thereby captures the pluralism of much of the process. 18. Radzinowicz, Some Sources. 19. Radzinowicz, Some Sources, 192. 20. William Beveridge, Report on Social Insurance and Allied Services, issued in November, 1942. For the expanded version of the report, see Beveridge's Full Empoloyment in a Free Society (London: G. Allen & Unwin, 1944). 21. T. H. Marshall, Class, Citizenship, and Social Development (New York: Doubleday, 1965). 22. A key document in the modem history of British criminology, Penal Practice in a Changing Society: Aspects of Future Development expresses the thinking of Rab Butler, the home secretary in the Macmillan government (London: Her Majesty's Stationary Office, 1959). 23. Leon Radzinowicz, Criminology and the Climate of Social Responsibility (Cambridge: W. Heffer, 1964), 13. 24. Garland, Punishment and Welfare, 207. 25. For a different version of this story, see George Dangerfield, The Strange Death of Liberal England (Stanford, CA: Stanford Univ. Press, 1997). 26. Garland, Punishment and Welfare, 225. 27. Garland, Punishment and Welfare, 216-217. 28. Garland, Punishment and Welfare, 2 17-218. 29. Both quotes in Garland, Punishment and WelfQre,220. 30. There is some question of whether we are dealing with criminal law here. The point of Garland's book, Punishment and Welfare, is that the boundary between the two categories of his title was being increasingly blurred. 3 1. Garland, Punishment and Welfare, 223-224.

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the state is an especially complex task when those powers are said to be devoted to liberation, especially of the working class, as was the case with the welfare state. The third value is rule of law, also understandable in terms of protecting the individual against the overweening tendencies of the state. But as we have seen, rule of law is also not without its problems insofar as the law functions in a productive as well as protective capacity, and the concept of production becomes even more problematic when it is recognized that individuals are being spoken of. The discussion in this book has raised some hard questions about the meaning of rule of law and does thus by shifting the focus from the word law to the word rule. Before anything else is said about crime and liberalism, the more basic theme of this book, something needs to be said about what we have seen of these values in practice.

The Autonomous Individual Let me organize this first reflection by asking whether the figures dealt with by Jock Young, Stan Cohen, Geoff Pearson, and Ron Clarke were effects or causes of the disintegration of the welfare state. As effects, the drugtakers, motorcyclists, and artists dealt with by Young, Cohen, and Pearson bore testimony to an age of repression. Why would any right-minded person want to take drugs? Clearly for Young the answer was to escape the repressive character of British society. What was there to escape? Clearly it was the welfare value of solidarity and the institutional arrangements that sustained it. Why would youth want to express themselves so outlandishly and look like folk devils? The most likely answer was to have a moment of fresh air in Brighton before joining the administered life that worked as fate for so many in welfare Britain. Deviance could not even be conceived of in its own terms. It was first of all an effect of a prior cause, the repressiveness of welfare society and state. As causes, figures like Young's drugtakers, Cohen's motorcyclists, Pearson's artists, and even Clarke's rational criminals look a bit different than they do as effects. They were challenging the reigning solidaristic notion of society. Young, Cohen, Pearson, Clarke, and others came from proper families that expected their sons to behave; but those four sons and others aged eleven-plus in the 1950s had in the 1970s suddenly emerged on the forefront of change, and who was to say they were wrong? As causes, these young authors were emerging as the pioneers of a new Britain, but they had been put into that position by the very society they were challenging. What better effect of welfare liberalism than to

Conclusions

20 1

produce autonomous individuals who challenged the very premises of the welfare liberalism that had produced them? We might bookmark our somewhat simplistic opening, recognizing that social cause and social effect are not mutually exclusive categories, and come back to it once we have enough insight to make it less stark. It is more important to note that all of the argumentation about eliminating or coming to terms with deviance was happening in an economy that would eventually recenter itself on enterprises that had themselves no sense of obligation to social solidarity. Instead of midlands mills filled with armies of unionized workers, all feeling and expecting solidarity, the dominant forces by the 1990s in the British economy were financial, accounting, advertising, and legal, all operating out of London. They were outward-looking and global, indifferent as to the origin and destination of capital, as long as it passed through the City. If a mall was to be built in Sheffield, its finances were organized in London, and it was probably designed there as well, but chances are that it was one of many competing global business enterprises and not something specific to Yorkshire. Such an opportunity provided the old working class with lower paid jobs, it mandated the twoincome family, and it worked against a backdrop of disguised unemployment among the remnants of the old industrial working class. The celebrants were the new white-collar classes in London, or nearby suburbanites called Essex men, and it was clear to all that these nouveau riche Englishmen had everything but communal consciousness. It was equally clear for all to see that drugtakers were soon to be all over London, so much so that it was speculated that a million tabs of recreational drugs were consumed every weekend in that city alone in the 1990s. Riding motorcyles and wearing deviant clothing were not only no longer problematic but were actually de rigueur in London society. A new autonomous individual had appeared on the scene, expressive as never before, but firmly tied to the financial milieu of the home counties, those abutting on don.' This was the outer face of Britain's faustian pact with modernity. Deviance was no longer a particularly meaningful term in the 1990s. To be sure, by the last decade of the old century the social was dead not just because its ritual and corporate basis was gone, but also because the new individuals of England identified themselves with categories of risk that did not lend themselves to communal solidarity. When a worker ceases to believe that he or she has a lifetime job or marriage but believes instead that he is obliged to change with a changing economy or society, then he will be keyed to reinventing himself, probably with the help of ongoing training and education and a commitment to an open social life.

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Carried to his or her extreme, the autonomous individual of the twentyfirst century is committed only to the self. Carried to this extreme, which is unlikely ever to be in fact the case, there is little glue holding the United Kingdom together, and one can expect it to show stress at the first faint breeze. Things have not come this far, but they have come far enough to make it difficult to recognize the significance of arguments made thirty years ago. Arguments that were quite daring in the 1970s now seem trite and commonplace, but British criminology was then in the vanguard of something more than just a new frisson of social change. That is a main conclusion arising out of the three early chapters: it is our perspective on books such as Young's Drugtakers and Pearson's Deviant Imagination, as well as Ron Clarke's writings, that has changed. As a result, we who are writing and reading in the first decade of the new century are likely to miss the significance of the challenges mounted decades earlier. Most likely, writers such as Young, Cohen, Pearson, Clarke, Cornish, and others were both causes and effects of the changes that were coming about. If they had been writing in the Soviet Union of the 1970s, they would have been called dissidents. They would have wanted to wear blue jeans, drink Coca Cola, dance to rock, and make the inmates of Soviet psychiatric hospitals into juridical beings. From the perspective of 1999, they seem not at all so remarkable. Now everyone wears blue jeans and rocks on weekends, but back then the dissidents were causes of change, and they succeeded because they were also effects of change that was happening under their feet. The old social solidarity was eroding, and they were the pioneers of a new order. The new order first of all entailed a normalization of the abnormal in word as well as deed. Witness terms such as drugtakers and reasoning criminals. These terms announce that the activity being described is perfectly normal, meaning acceptable, or not a threat to the order of society. But of course drugs, crime, motorcycles and the like were a threat to the old order because the old order had staked its existence on conformity. Thus the normalization of such activities as drug usage presupposed a vision of a new order. The new order was procedural rather than substantive, and thus it entailed a move back to such decisively juridical notions as that of responsibility and the more ambitious notion of responsibilization. Young, Cohen, Pearson, and even Clarke were saying that so-called "deviants7'in Clarke's case criminals-were already responsible for what they were doing. The difference between Young, Cohen, and Pearson on the one hand and Clarke on the other was that the first three were claiming that the

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behavior in question was harmless but Clarke was not. Clarke was simply saying it was not "sick," according to the medical model, and this meant that it was not deviant. Actually, the first British criminologists to make Clarke's claim were Stan Cohen and Laurie Taylor in Psychological Survival, for if one reads the book with care, they are never once claiming that the inmates they met with were not criminals. They were rather saying that these criminals were also normal human beings whose psychological survival was called into question by conditions created by the state. Everything argued by Young, Cohen, Pearson, Clarke, and Cohen and Taylor points in the same direction, and that is to the responsibilization not of individuals but rather of the British state. Individuals were already responsible. It was the British state that needed to be reformed. Thus we conclude this brief reflection by noting that the reassertion of individual autonomy has significance because it points dramatically to the need to reform the powers of the state.

Limiting the Powers of the State The classical notion of state autonomy was characterized as a recognition of raison d'etat, or the sense that observers since Machiavelli had had that state action proceeded according to a logic of its own, characterized by the central element of most forms of logic: necessity. But still, matters were simple in the world of princes and did not become really complicated until the permanent executive state began to arise. There is nothing more thrilling than visiting the Tower of London, for what it amounts to is a kind of genetic code for the British state. There it all is: royal residence, state church, military barracks, prison, stone barrier to the outer world, and then finally the surrounding water. It is the single cell that contains the DNA of an entire nation. It replicates itself in places like the citadel at Plymouth, in the H. M. S. Victory at Portsmouth, in royal castles like Caemarfon in Wales, in palaces like Hampton Court and Balmoral, and in prisons like Pentonville and Strangeways. They are all redoubts and thus versions of the original back at the eastern edge of the Roman city. The raison d'etat of the Tower is expansion, and all one needs to know about that expansion one can gather by looking at the single cell. In the case of British criminal justice, the modem executive state did not get under way until the Home Office was created in the 1780s. That landmark event was understood to be a way of ensuring that the momentum of the legislative state was not lost in all of those long recesses of Parliament. There was no thought that the Home Office might take on

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a logic of its own, and indeed such change was highly improbable for as long as Great Britain did not have public policing. But with the creation of the Metropolitan police force in the 1820s, and with the subsequent creation of county forces in the ensuing decades, the possibility of an executive state increased considerably. The Home Office did take on a logic of its own. With the coordination of policing forces, the vision of the executive state and the prospect of its acting according to its own particular raison became more readily apparent. Such coordination took place almost naturally with the creation of such entities as the Police Federation and the Association of Chief Police Officers, or ACPO, and later, more artificially, with the rejuvenation of Her Majesty's Inspectorate and with the increasing authority given to Home Office circulars, which function as regulatory law. By the 1980s, it was not unreasonable to speak of British policing in the singular voice. The differences between Merseyside or Greater Manchester on the one hand and the Met on the other were not as great as the similarities. What is interesting about Stuart Hall's argument in Policing the Crisis is not that it was flawed as an empirical study but rather that it was taken seriously at all as an argument. That it was criticized only as a flawed empirical study is itself testimony to how seriously the claim of the executive state's autonomy was taken by the late 1970s. That claim would be taken even more seriously after the miners' strike and the demonstration that the British police could operate as a unit of sorts, one that was led by the Metropolitan police, directed by ACPO, under the political guidance of the Home Office and the Home Secretary. Whatever conclusions one reaches about the miners' strike, it evidenced the extraordinary power of the British executive state, and that was a distinctly illiberal trend. The experience of Ron Clarke with situational crime control is appropriately highlighted when put against this background. The middle three chapters would be a dreary tale indeed if they chronicled nothing but the increasing integration of the police and the expansion of incapacitating prisons. Ron Clarke is a blessing because his activities represent not so much a valiant and heroic attempt to thwart the overweening state as they do a perspective that incorporates into its position the notion of a responsible citizenry. Much misunderstood, situational crime control was looked at as a narrow initiative relative to criminal justice. It was thought of as a matter of persuading people to lock their bikes, check their windows, and perhaps install closedcircuit television at strategic sites. But arguably situational crime control was much more than this. At essence it

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was a broad perspective that sought to return the fullest autonomy to the citizen by restoring to the citizen his or her fullest juridical attributes. In many respects, Clarke was doing nothing more than repairing to the eighteenth century, with its remarkably clear vision of the citizen as fully responsible for his or her own security. If a citizen was victimized by crime, it was his task to catch or identify the perpetrator, initiate the prosecution, and argue the case or at least supply the compelling evidence. If a citizen engaged in a criminal act, it was his task to defend himself in terms of the accepted doctrine of excuses, and, if failing in that task, to suffer the consequences. Clarke's proposition of restoring the citizen to autonomy was no more preposterous in the 1980s than it had been when Defoe or Fielding wrote. Indeed, it was less preposterous. Welfare rights were well established by the 1980s, and Thatcher made few changes in them. Rather, she relied on them as cushions to make her economic changes possible. Films such as Brassed Of and The Full Monty are valuable because they point up the difference between the conditions portrayed in Moll Flanders and those today. Moll's "What's a girl gonna do?" is a way of saying that rationality was trumped by necessity, which it probably was until the late nineteenth century. Moll acted according to a logic all her own, and Defoe wrote to communicate it to us. But that logic was irrelevant in the 1980s, when necessity was seldom behind the criminal life. There was no juridical excuse for being a criminal in the 1980s, and hence Clarke was on solid ground in arguing for the relatively modest changes represented in situational crime control. But still Clarke's idea was stymied as the executive state retained its hydra-headed form by adopting the multiagency approach; there is no point to going over that dreary ground again. The point is more metaphysical. It is that everything Ron Clarke did, including situational crime control, is conceivable as a facet of a political initiative that embodied a juridical notion of individual responsibility. As such, Clarke's initiatives were little short of hostile to the overweening executive state. What is confusing about Clarke's actions is that they were initiated by a functionary of the selfsame executive state, but they are not for that reason any the less antipathetic to that state. People like Clarke are truly confusing because they are not, in the literal sense of the word, statesmen. Like Mikhail Gorbachev, Clarke was trying to reform the executive state, and also like Gorbachev, he would fail at doing that. But where Gorbachev's failure actually resulted in the destruction of an extreme version of the executive state, Clarke was defeated by being swarmed by a more modest executive state.

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This is not to say that situational crime control ever really had much of a chance. But it is an insistence that it does need to be understood in the context of political liberalism. The difference between classical liberalism, which posited the laissez-faire state, and neoliberalism, which posits a more ambitious state, is what happened in between. The welfare state created a culture of dependence, and this determined what the putative neoliberal state had to do. To end the dependency of the unemployed, one needed to create job-training programs. To get single welfare mothers back to work, one needed to create childcare programs. And if one wanted to wean a population of dependence for their security on the police, then one had to create something like situational crime control. In other words, to end welfare dependency, one had to create new welfare programs whose clear intent is to do just that. This was all a matter of one state trying to be born by destroying the old state. Clarke tried to be a midwife to the birth of that new state. Reflection on the experience of situational crime control in its passage through the British bureaucracy enables us to speculate on still another facet of the liberal experience. If every liberal state is keyed to disciplinary measures intended to produce the individuals it presupposes, then the neoliberal state will be no exception. It may engage in programs such as situational crime control with the best of intentions, but they are always in danger of metamorphosis into something else. They may produce a docile animal rather than a responsible individual. The early welfare state was intent on replacing the eighteenth century's symbology with a disciplinary regime, specifically the prison. It was a new and well organized technique of power, designed to produce the individuals that this particular liberal form of state presupposed. The neoliberal state proceeds differently, and this is why the experience with situational crime control was problematic. Implicit to situational crime control are individuals keyed to assessing situations and constructing life as a response to perceived and understood risks. The task of the state is to create programs that will empower such individuals. It is entirely possible to imagine the police reinventing themselves as an actuarial agency whose first and perhaps only task is the collection and dissemination of security information. But short of this extreme point, the state's mandate is clearly to retreat from the actual provision of security into a new and at least partially actuarial functioa2 Whether such a vision is realistic is irrelevant, the question at hand is a logical one as well as a pragmatic one: If every liberal state produces the individuals presupposed in its values, then the goal of the neoliberal state ought to be to produce citizens who are maximally self-sufficient in respect to security. If such a project fails, then the appropriate question is

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why that failure came about, and this-I suspect-will be a pragmatic question. I think that was the point Sir John Hoskins struggled to make. It is quite literally impossible to make a revolution with bureaucrats who are committed to a different set of values. Hoskins did not mean that they had a different set of political values, although that might have been the case and often was in the Home Office of the 1980s. It also meant that bureaucratic values are also in play, and they work against any political change. England experienced a spectacular revolution in the mid-seventeenth century, one that banned the hereditary monarchy and introduced a republic. But the success was short-lived, and after the Restoration only the memory of the Puritan revolution lived on in England. It eventually became the radical tradition, but it lived under the constant supervision of a symbolically oppressive monarchical regime that was determined on maintaining the relative power of the central state. Even in America the Puritan revolution took this form: the revolution of 1776 was short-lived, the restoration occurred in 1789, and a symbolically supreme federal government, determined on establishing and then maintaining the relative power of the central state, has proved to be oppressive to a radical tradition. But however problematic things are in America, they are arguably worse in England. This point is actually the one argued by Sir John Hoskins. If you want to make a social and political revolution, then pay close attention to who is making it. Ron Clarke tried to make a revolution with the existing Home Office bureaucracy, and from the outset it was clear from who attended the meetings that the revolution would have problems. The creation of the multiagency approach was really the final blow, for arguably all it did was expand the size of the concerned policy committees and further dilute the revolutionary potential of situational crime control. It is also clear, in retrospect, that Margaret Thatcher lost interest in this comer of her social revolution, if she ever had any. From a liberal perspective, defiance of central state power is legitimate if it is keyed to restoring individual autonomy. Symbolic defiance in the form of rebellions of outsiders are mindless events unless they anchor themselves to the vision of something like individual autonomy. The life and even more so the death of the Princess of Wales was remarkable as political theater because it showed a defiant assertion of individual autonomy in the face of a monarchical system made of cement. But eventually it failed. There is actually little demand for individual autonomy in the British political landscape, and thus programs like situational crime control are easily hijacked or appropriated by the hydra-headed bureaucracy.

208

Conclusions

The conclusion of this section is thus pessimistic. In the period under review, the power of the British state has grown, and it has grown in the teeth of a movement-Thatcher's neoliberalism-nearly as radical as the Puritan movement in the seventeenth century. But Thatcher's neoliberalism stopped when it reached criminal justice. It was content to bust the unions but not the police power that helped bust the unions. It finally opted not to destroy the Tower.

The Rule of Law Even the idea of criticizing rule of law in liberal democracies in the twentieth century has something of a absurdist cast to it. However faulty liberal democracies have been, they are exercises in reason itself in comparison to the experiences of the Soviet Union and Nazi Germany, each of which waged something akin to war on the liberal value of rule of law. We do well to remind ourselves that the criticisms made and dealt with in the preceding chapters are for the most part immanent, even those issued by Marxists such as E. P. Thompson and Douglas Hay. At their sharpest, those criticisms make the point that rule of law was an ideology of rule. That is, it had political roots, but it would take a singularly naive consciousness to believe that it could ever have been anything but an ideology of rule. The English middle classes did honor to the liberal ideal of rule of law by relying on it to rule, but such reliance is a venial sin in the lexicon of wrongs in the twentieth century. It might even be a sin one would want to encourage. There are worse things than trying to rule through a legal framework. And yet there is a horror to the very thought of rule of law, mainly because of the presence of the word rule. It is entirely salutary to follow the lead of thinkers like Carlyle, Ruskin, and Moms and repair to the gothic middle ages for a different standard. Coke's presentation of customary law provided us with that. In an ideal gothic world, there is no Parliament because there is no need to make law. Law grows organically out of social relations set in nature, and it takes shape in customs, traditions, and the like. The vision is not entirely a romantic myth, as recourse to the opinions of Coke tells us. The vision of the gothic world enables us to recognize that the modem criminal law is an invention, just as the modern Parliament was itself an invention of the new ruling classes of the late seventeenth century. They had to have a place where they could invent the law. Among the thinkers we surveyed, only Leon Radzinowicz celebrated law as an invented thing. He saw it as emerging in the goodwill of ordinary people who had achieved a degree of autonomy, the English middle

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classes. They set forth their ideas for law with evangelical fervor, and the state's function was to act as a clearinghouse, adding to the natural impulses of ordinary Englishmen the values of efficiency, clarity, and rigor. Thompson, Hay, and David Garland never denied that the law was an invented thing, a matter of what we call positive law,but throughout they doubted the adequacy of the mechanisms to bring the invention to fruition as anything more than an instrument of rule. The result, entirely implicit, was a withering critique of Radzinowicz's monumental work. We gain some perspective on this problem by recalling one last time the impulse behind Radzinowicz's work, namely, the goodwill of the English middle classes. When he was not a Hegelian, which was most of the time, Radzinowicz was a Kantian, clearly if not simply. Kant's thinking is rightly called moral philosophy because it is interested in finding a formula that averts the problem of will to power, and he finds this in a posited goodwill. What never occurred to Radzinowicz was that the indubitable goodwill of the English middle classes might be countered by a malign will in the political sphere of life. And indeed, as soon as this became the case, the law in all its majesty became complicit with the will to power in political life. This is pretty close to being the message of Thompson, Hay, and Garland. At the time of Robert Walpole's government, Parliament was being touted as the will of the people triumphant over monarchical absolutism, but according to Thompson, the will being expressed was that of Walpole alone. Similarly in the analysis of Hay, the majesty and occasional mercy with which the law surrounded itself was there to intimidate and deceive. In Garland's presentation, the evangelical spirit of the law was a shill behind which the will to power could hide and be more effective. At the end of the day, the claim being made was that the legislative processes that Radzinowicz took so seriously were problematic because they worked as camouflage behind which the executive state had its way. The way out of this impasse is nothing other than a sharpened critical consciousness of the institutional processes by which the law is made and controlled. In this respect, the analyses of Stuart Hall and David Garland are fundamentally different than those of E. P. Thompson and Douglas Hay, and the reason is simple enough. Thompson and Hay are in the eighteenth century, which was dominated by the legislative state, but Hall and Garland are firmly in the twentieth century, which was and still is dominated by the permanent executive state. Hall and Garland are thus much more pessimistic in their conclusion than were Thompson and Hay, and rightly so. The question is not whether we may be rid of the permanent executive state but rather whether the factors and impulses identified by Thompson

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Conclusions

and Hay can right the problems so well identified and analyzed by Hall and Garland. At first glance it would seem a dim prospect indeed. The factor Thompson pointed to most often was the universality of law. The limitation of Thompson's analysis was that he simply asserted the universal value of law. Universality is a real characteristic of law and not just a value to be sought. By definition, law is universal or it is not law. In effect, then, there is real advantage for everyone if the ruling class chooses to rule by law, for they can never exclusively possess their own tool. That's the significance of law's universality. At first glance, the same argument cannot be made for Hay's values of majesty, mercy, and justice, but as I noted in the text, Hay's value of justice is the equivalent of Thompson's value of universality, and thus Hay tends to conclusions similar to those of Thompson. But in the twentieth century, how seriously are we to take these faint indications of a rule of law existing in nuce in the form of impulses to justice, equity, fairness, and equality before the law? One answer is that such ideas can be institutionalized and made to work as limiting factors in the form of a doctrine of rights, and these can keep the executive process honest. The unwritten and unwieldy British constitution is at the millennium about to acquire such a constitution in the form of the European Convention on Human Rights, which will be enforceable in British criminal courts. Whatever it lacks in majesty, the European Convention adds the kind of abstract values that Thompson thought were also universal values. Has then the Kantian goodwill found a way to express itself in the form of various categorical imperatives that function as determinants of positive law? If we posit for just a moment a yes answer to this question, then we will have found a way to redeem Radzinowicz's faulty effort. The chief problem with his work was that it depended fully on a posited class sovereignty that worked its way to expression in the formal mechanisms of the sovereignty of the queen in parliament. What Radzinowicz's naive vision of legislative process needed was a recognition of the role that might have been played by rights, or rather a doctrine of rights, that would have enabled citizens to litigate. This of course is only one technique among others. The real point is that legislative process must be rigorously fleshed out in terms of processes that constantly test it to ensure that it is meeting a variety of standards agreed upon by society. These become all the more imperative as the executive state grows so that the legislative state is disabled from knowing what is really happening. There is no possible way to arrive at an optimistic conclusion about rule of law. The best analyses-and I mean by this the analyses of Gar-

Conclusions

21 1

land, Thompson, and Hay as well as the seemingly unrelated analysis of Hall-tell us a story of the emergence and growth of the executive state. That story was also told in reference to the complex activities of that mole within the executive state, Ron Clarke. If there is anything positive to say about rule of law, it is that the law can be used, and sometimes is, to do battle with rule by decree. Thompson actually thought that law had won that battle, and one would like to agree with him. Finally, in respect to the productivity of law, there is little more to be said except that it is presupposed in every fecund discussion of law, so much so that it is nearly impossible to imagine what philosophy of law would be without it. Thompson, Hay, Garland, Radzinowicz, and Hall all share at least this insight, and hence their discussions were themselves productive, to use that word in a different sense. That they came to different conclusions is of course to be expected, given that they wrote at different times and from different perspectives. But they all recognize that the law will produce the individuals presupposed by whatever vision of social order is in power.

Crime and Liberalism Most everything has been said, but quite a few questions were opened up in this book's introduction, and so it might be well to address them up before definitively concluding with some reflections on Anglo-Saxon liberalism itself. I use the term Anglo-Saxon liberalism and not just British liberalism because Britain and the United States have gone through remarkably similar changes in the last few decades. Both states were characterized in the 1960s by welfare-liberalism, both sensed that the social underpinnings of such a liberalism were evaporating in the 1 9 7 0 ~and ~ so both initiated radical change in the form of Thatcherite and Reaganite neoliberalism in the 1980s. That shift is no doubt the most momentous domestic political change of the Anglo-Saxon twentieth century, greater even than the collapse of the old Liberal Party in Britain and its replacement by the Labour Party in the 1920s. But why link the shift with such a pedestrian and unfashionable area of social and political life as crime, or more precisely, criminal justice? The answer is relatively simple. No other area of social activity and state policy more anticipated the vast changes in Anglo-Saxon liberalism than did that of crime and criminal justice. The effort to redefine crime was the leading edge of the larger effort to redefine the contours of society. The old notion of social solidarity could not tolerate harmless wrongdoing and thus felt compelled to call it deviance. It also could not tolerate

212

Conclusions

crime, which had to be reclassified as sickness. Young, Cohen, Pearson, and Clarke were sending out the wake-up call. If their arguments succeeded, then the social was dead years before Nikolas Rose contemplated its obituary. Much the same thing was happening in the United States, but unless I am badly mistaken, it was happening without the precision and pathos of England. The death of the social seemed more like an intellectual conspiracy originating on the right in the United States, one with little popular base. The American working classes never had the sense of solidarity of their British counterparts, and hence the palpable vision and reality of the social was never particularly American. Thus the life and death of the social was more real in England than it ever could have been in the United States. The result was that change, when it came, was more vividly defined in England. Any state that would actively seek to change its citizenry by responsibilizing them was demonstrating a new feature of liberalism, one never before seen. Mill was saddled with a vision of the laissez-faire that disabled him. He could not even conceive of a state that took the initiative to turn its citizens into juridical beings, and thus, not surprisingly, he was at wit's end with citizens who had been denatured, to use one of his terms. The truth is that the laissez faire state was never laissez faire in its actions toward its citizens. It was as productive as any other kind of liberal state. Thus, the shift from the welfare-liberal state to the neoliberal state was never really a shift back to the supposedly non-interventionist laissez-faire state of classical liberalism. Such a state never existed. The shift was rather to a state that was every bit as interventionist as the welfare state had been, only the interventions were guided by different values or, if not different, then at least the constituency they were serving was markedly different. The laissez-faire liberal state of the eighteenth century produced a landed aristocracy. The welfare liberal state produced an elite of trade unionists who eventually produced a political party to represent their interests. The neo-liberal state of Margaret Thatcher recognized that the landed aristocracy that had for so long formed the foundation of the Tory Party was dead, and she thus shifted the base of the party to a new group of people who had made their way in what used to be called "trade." So basic and so persuasive was this move that the Labour Party followed suit, and eventually it took enough of that new constituency away from the Tory Party to win the 1997 general election. The Thatcher victories and eventually the Blair victory represented the triumph of the market in Britain as never before. The introduction of a market model to the top levels of police command structures was a remarkable but frankly not surprising and not il-

Conclusions

213

logical innovation. It was beyond the imaginations of the welfare-state as well as the laissez-faire liberal state. Similarly, even mooting the idea of having contractual relations with British prisoners, as the Woolf Commission did, was a uniquely radical turn in thinking that partook of a widespread desire to create autonomous individuality in even the remotest comers of British society. At its best, the neoliberal state was and still is an imaginative and revolutionary venture. This new and aggressive neoliberal state was first evident within the institutional confines of criminal justice, and I daresay it was very much the consequence of the ideas and actions of Ron Clarke, above all others. Unfortunately, this does not mean that Thatcher's state followed these very much visions, very much marginalized in the research unit of the Home Office, of a new order of liberalism. With no exaggeration, Thatcher may be described as one of the great modernizers of Britain, but Thatcher was interested only in reconstructing the British economy. The neoliberal state emerged all right, but not as much in criminal justice as one might have been justified in guessing in 1980 or even as late as 1983. Had the gist of Clarke's thinking been grasped in the late 1980s, then Thatcher might have instituted a republican resurgence such as had not been seen since the middle of the seventeenth century. She chose not to. None of this detracts from the luster of the debates aired out in this book. They may not take their place among the immortal arguments of Western civilization, but they did play a significant role in the social and political revolution that moved Britain from the welfare state to the neoliberal state. And finally they played a decisive role in bringing British criminology out of its dogmatic slumber and making it into the most exciting British academic discipline of the 1970s. But still in the end one regrets the failure of the initiatives mapped in this book to come to fruition. The product of Thatcher's revolution is a Britain with no defining vision of itself beyond consumerism. Present Britain has no constructive vision of Europe, and thus it plays a lesser role than it might in Brussels. It pines for its old position as the leader of a seaborne empire upon which the sun never sets, but it only sketchily reexperiences that sovereign majesty by playing the role of cockboat to the American man-of-war. The alternative to a consumerist national ethos might have been a republicanism in which the British state left no stone unturned to ensure that its citizens were "responsibilized and turned into the most completely autonomous beings possible. At least the vision of such a Britain was sketched in the deviance sociology of Jock Young, Stan Cohen, and Geoff Pearson, in the critique of the rnanipulative state mounted by Stuart Hall, in the internal critique of the medical

214

Conclusions

model mounted by Ron Clarke and others in the Home Office Research Unit, and in the critiques of rule of law mounted by E. P. Thompson, Douglas Hay, and David Garland. That vision will have to serve as its own memorial.

Notes 1. It may seem odd to say that Britain had never been as expressive as it was in the 1990s, but earlier eras of expressiveness-the 1960s, for example-were more a matter of rebellions against the inexpressiveness of conventional society. By the 1990s, Britain had loosened up as a nation, and so its expressiveness was no longer reactive. 2. I am of course thinking of Richard Ericson's argumentation at this point. See Richard V. Ericson and Kevin D. Haggerty, Policing the Risk Society (Toronto: Univ. of Toronto Press, 1997).

216

Selected Bibliography

Clarke, Ron, and Mike Hough, eds. The Effectiveness of Policing. London: Her Majesty's Stationery Office, 1984. Clarke, Ron, and Ian Sinclair. Toward a More Effective Treatment Evaluation. London: Her Majesty's Stationery Office, 1974. Cohen, Stan. Folk Devils and Moral Panics. London: MacGibbon & Kee. 1972. Cohen, Stan, and Laurie Taylor. Psychological Survival. Harmondsworth: Penguin, 1972. Cohen, Stan, and Jock Young, eds. The Manufacture of the News. London: Constable, 1973. Cornish, Derek, and Ron Clarke, eds. The Reasoning Criminal: Rational Choice Perspectives on Offending. New York: Springer Verlag, 1986. Cornish, Derek, and Ron Clarke. Residential Treatment and Its Effects on Delinquency. London: Her Majesty's Stationery Office, 1975. Dangerfield, George. The Strange Death of Liberal England. Stanford, Calif.: Stanford Univ. Press, 1997. Ericson, Richard V., and Kevin D. Haggerty. Policing the Risk Society. Toronto: Univ. of Toronto Press, 1997. Evans, David J., Nicholas R. Fyfe, and David T. Herbert. Crime, Policing, and Place. London: Routledge, 1992. Feinberg, Joel. Hamless Wrongdoing. Oxford: Oxford Univ. Press, 1968. Filmer, Robert. Patriarcha and Other Writings. New York: Cambridge Univ. Press, 1991. Foucault, Michel. Discipline and Punish: The Birth of the Prison. Trans. Alan Sheridan. New York: Vintage Books, 1979. Franklin, Julian H. Jean Bodin and the Rise of Absolutist Theory. Cambridge: Cambridge Univ. Press, 1973. Gamble, Andrew. The Free Economy and the Strong State. 2nd ed. Basingstoke: Macrnillan, 1994. Garland, David. Punishment and Modem Society. Chicago: Univ. of Chicago Press, 1990. . Punishment and Welfare. Aldershot: Gower, 1985. Gilling, Daniel. Crime Prevention: Theory, Practice, Politics. London: Univ. College of London Press, 1997. Glendon, Mary Ann. Rights Talk. New York: The Free Press, 1991. Goffrnan, Irving. Asylums. New York: Doubleday Anchor, 1961. Gough, J. W. Fundamental h w in English Constitutional History. Oxford: Clarendon, 1955. Gouldner, Alvin. Pattems of Industrial Bureaucracy. Glencoe: Free Press, 1954.

Selected Bibliography

217

. The Coming Crisis of Western Sociology. London: Heinemann., 197 1. Gramsci, Antonio. Selections from the Prison Notebooks. London: Lawrence and Wishart, 197 1. Habermas, Jiirgen. Legitimation Crisis. Trans. Thomas McCarthy. Boston: Beacon Books, 1975. Hall, Stuart, Chas Critcher, Tony Jefferson, John Clarke, and Brian Roberts. Policing the Crisis, Mugging, the State, and LQw and Order. London: Macmillan, 1978. Hay, Douglas, Peter Linebaugh, John G. Rule, E. P. Thompson, and Cal Winslow. Albion's Fatal Tree. London: Alan Lane, 1975. Hayek, Friedrich. The Constitution of Liberty. Chicago: Univ. of Chicago Press, 1961. . The Road to Se$dom. Chicago: Univ. of Chicago Press, 1944. Heal, Kevin, and Gloria Laycock. Situational Crime Prevention: From Theory into Practice. London: Her Majesty's Stationery Office, 1986. Hirsch, Andrew von. Doing Justice: The Choice of Punishment. New York: Hill and Wang, 1976. Hobsbawm, Eric. Bandits. London: Weidenfeld & Nicolson, 1969. . The Invention of Tradition. New York: Cambridge Univ. Press, 1992. Home Office. Penal Practice in a Changing Society: Aspects of Future Development. London: Her Majesty's Stationery Office, 1959. Hood, Roger, ed. Crime, Criminology, and Public Policy. London: Heinemann, 1974. Hope, Tim, and Margaret Shaw. Communities and Crime Reduction. London: Her Majesty's Stationery Office, 1986. Humboldt, Wilhelm von. The Limits of State Action. Indianapolis: Liberty Press, 1993. Ignatieff, Michael. A Just Measure of Pain. New York: Pantheon Books, 1978. Jacobs, Jane. The Death and Life of Great American Cities. New York: Random House, 1961. Jeffery, C. Ray. Crime Prevention Through Environmental Design. London: Sage, 197 1. King, Roy D., and Rod Morgan. The Future of the Prison System. Aldershot: Gower, 1980. Lemert, Edwin. Social Pathology: Studies in the Sociology of Deviance. New York: McGraw Hill, 195 1. Lipton, Douglas. The Effectiveness of Correctional Treatment. New York: Praeger, 1975.

218

Selected Bibliography

Locke, John. Two Treatises of Government. Cambridge: Cambridge Univ. Press, 1988. Maguire, Mike, Rod Morgan, and Robert Reiner. The Oxford Handbook of Criminology. Oxford: Oxford Univ. Press, 1997. Mandeville, Bernard. The Fable of the Bees or Private Vices, Public Benefits. Indianapolis: Liberty Press, 1988. Mannheim, Herrnann, and Leslie T. Wilkins. Prediction Methods in Relation to Boorstal Training. London: Her Majesty's Stationery Office, 1955. Marshall, T. H. Class, Citizenship, and Social Development. New York: Doubleday, 1965. Matthews, Roger, ed. Privatising Criminal Justice. London: Sage, 1989. Mill, John Stuart. Utilitarianism. Indianapolis: Hackett Publishing Co, 1979. Mischel, Walter. Personality and Assessment. New York: Wiley, 1968. Moms, Norval. The Future of Imprisonment. Chicago: Univ. of Chicago Press, 1974. Murray, Charles. Does Prison Work? London: Institute of Economic Affairs, Health and Welfare Unit, 1997. . Losing Ground. New York: Basic Books, 1984. Nairn, Tom. The Enchanted Glass. London: Radius, 1988. Newman, Oscar. Defensible Space. London: Architectural Press, 1973. Nietzsche, Friedrich. On the Genealogy of Morals. Trans. Walter Kaufmann. New York: Vintage Books, 1967. O'Connor, James. The Fiscal Crisis of the State. New York: St. Martin's, 1972. O'Malley, Pat. Crime and the Risk Society. Aldershot: AshgateDartmouth, 1998. Pearson, Geoff. The Deviant Imagination. London: Macmillan, 1975. Pocock, J. G. A. The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition. Princeton. Princeton Univ. Press, 1975. Pollitt, Chris. Managerialism and the Public Services: The AngloAmerican Experience. Cambridge, Mass.: Blackwell, 1990. Poulantzas, Nikos. Political Power and Social Classes. London: New Left Books, 1973. Radzinowicz, Leon. Adventures in Criminology. New York: Routledge, 1999. .The Cambridge Institute of Criminology: Its Background and Scope. London: Her Majesty's Stationary Office, 1988. . Criminology and the Climate of Social Responsibility. Cambridge: W. Heffer, 1964.

Selected Bibliography

2 19

. A History of English Criminal law and Its Administration. 5 vols. London: Heinemann. 1949-1968. Vol. 5 with Roger Hood. Oxford: Oxford Univ. Press, 1986. Rawls, John. A Theory of Justice. Cambridge, Mass.: Harvard Univ. Press, 1971. Reiner, Robert. Chief Constables. Oxford: Oxford Univ. Press, 1994. . The Politics of the Police. London: Harvester Wheatsheaf, 1992. Rhodes, Richard. Why They Kill. New York: Alfred Knopf, 1999. Rock, Paul. Helping Victims of Crime: The Home OfJice and the Rise of Victim Support in England and Wales. Oxford: Clarendon, 1990. Rock, Paul. Victimology. Aldershot: Dartmouth, 1994. Rose, Nikolas. Powers of Freedom, Reframing Political Thought. Cambridge: Cambridge Univ. Press, 1999. Rothrnan, David. The Discovery of the Asylum. Boston: Little, Brown, & Co. 1971. Sereny, Gitta. Cries Unheard. New York: Henry Holt, 1999. Sinclair, Ian. Hostels for Probationers. London: Her Majesty's Stationery Office, 1971. Skinner, Quentin. The Return of Grand Theory to the Social Sciences. Cambridge: Cambridge Univ. Press, 1985. Stephen, James Fitzjames. A History of Criminal Law in England. London: Macrnillan, 1883. Stephen, James Fitzjames. Liberty, Equality, Fraternity. Cambridge: Cambridge Univ. Press, 1967. Stephen, Leslie. The Life of Sir James Fitzjames Stephen. New York: G. P. Putnam, 1895. Sumner, Colin. The Theory of Deviance: An Obituary. New York: Continuum, 1992. Taylor, Ian, Paul Walton, and Jock Young. Critical Criminology. London: Routledge & Kegan Paul, 1975. . The New Criminology. London: Routledge & Kegan Paul, 1973. Thompson. Edward P. The Making of the English Working Class. New York: Vintage, 1966. . The Poverty of Theory, Or An Orrery of Errors. London: Merlin Press, 1979. . Whigs & Hunters. London: Allen Lane, 1975. Tonry, Michael, and Norval Morris, eds. Crime and Justice: An Annual Review of Research, vol. 6. Chicago: Univ. of Chicago Press, 1985 Tully, James. An Approach to Political Philosophy. Cambridge: Cambridge Univ. Press. 1983. Walvin, James. The Quakers. London: John Murray, 1997. Weatheritt, Mollie. Innovations in Policing. London: Croom Helm, 1986.

220

Selected Bibliography

Willis, Paul. Learning to Labour. Aldershot: Gower, 1977. Wilson, James Q. Thinking about Crime. New York: Basic Books, 1975. Young, Jock. The Drugtakers. London: MacGibbon & Kee, 197 1. Young, Jock. The Exclusive Society. London: Sage, 1999. Zifcak, S. New Managerialism: Administrative Reform in Whitehall and Canberra. Buckingham: Open Univ. Press, 1994.

222 133,134,139 Circular 4011986, 145 Clarke, Ron, xi, 10,12, 13,25,29,30,31,32,33,35,6379, 103, 123, 126, 127, 132, 138, 147, 154,156 Cohen, Stan, 5,8, 13,21,49, 51,55-59, 103, 106, 113, 119, 159 Coke, Edward, 170-176 consent, 107, 115-116 Cornish, Derek, 17,29,31,64, 65,78,79 Crime Act 1948,61 Crime Prevention Unit, 133, 134,135 Criminal Justice Act 1991, 157 Crown Prosecution Service, 153, 158 Cubbon, Brian, 132,133 cultural studies, 111 Dear, Geoffrey, 145 Delagarde, Gerry, xii Defoe, Daniel, xiii, 190 Department of Employment, 135 Department of the Environment, 147 deviance, sociology of, 1 Dixon of Dock Green, 112 Downes, David, xii, 58 eleven-plus generation, 2 Essex men, 122 Falklands War, 137 Faulkner, David, 119, 135 Feinberg, Joel, 19 Felson, Marcus, xii, 74-79 Filmer, Robert, 171- 174

Index Financial Management Initiative, 33, 132, 149, 150 Five Cities Project, 135 Fordism, 48 Foucault, Michel, 2,3,7,8,34, 167 Freud, Sigmund, 44 Friedman, Milton, x, 152 Gaitskell, Hugh, 122 Garland, David, xii, 1, 11, 13, 34,36, 154, 160, 197-199 George, Lloyd, 117 Giddens, Anthony, 35 Gilling, Daniel, 140 Gilroy, Paul, 24 Glover, Edward, 78 golden triangle, 5, 18, 189 Gough, J. W., 165 Gouldner, Alvin, 2,21,43,44, 58 Gramsci, Antonio, 23, 115, 116, 117

Grunhut, Max, 18 Guardian, The, 139, 140 Habermas, Jiirgen, 106, 119 Hall, Stuart, xiii, 3,5, 10, 13, 22,23,53,103-120 Hay, Douglas, xi,lO, 11, 13, 116, 165-70 Hayek, Friedrich, x, 7,8, 10,55, 103,104,107,111,113,119, 131,152,200 Heal, Kevin, xii, 132, 136, 137, 139,140,141 Heath, Edward, 131 Hills, Arthur, 105, 106 Hindess, Barry, 2, 114 Hirsch, Andrew von, 78 Hirst, Paul, 2, 114, 115

Index History of the Present, xii Hobbes, Thomas, 165 Hobsbawm, Eric, 72,79,109, 120,167 Home Office, creation of, 186 Home Office Research Unit, xii, 17, 18,33,34,76,78, 123, 138 Hope, Tim, xii, 33, 123, 124, 135,136,137,138,140 Hoskyns, John, 121,122, 123,124,137,138,139 Hough, Mike, 17,31,79, 132 Howard, Michael, 12, 131, 151, 153 Hurd, Douglas, 35, 131,136

Inspectorate of Constabularies, 145 Institute for the Scientific Treatment of Delinquency, (ISTD), 61 Jacobs, Jane, 73,74,79 Jefferson, Tony, 119 Jeffery, C. Ray, 73,79 Jones, Trevor, 140 juridification, 7,23 Kant, Immanuel, 8,9,20,25, 70,214 Labour Party, xiii, 22,28,57, 74,122,135 Laing, R. D., 44-46,59,62 Laycock, Gloria, 123,126, 127, 135,139,140 Lea, John, xii, 24,48 left idealism, 106 Lemert, Edwin, 59 liberalism, 7,23,25, 138;

223 advanced, xii; Anglo-Saxon, 3,5, 12, 13, 17, 18,215; laissez-faire, xiii, 9; neo (see neoliberalism); welfare, xiii, 9, 36,49, 53, 158 liberty: negative; 4, 10,77; positive, 8 limiting state powers, 207-212 LSE. See London School of Economics Locke, John, x, 7, 12,59,70, 107,120,175 Lodge, Tom, 62 London School of Economics, 5, 18, 19,58 Loveday, Barry, xii Luther, Martin, 20 Macmillan, Harold (govt.), 27, 143 Major, John (govt.), 147, 149, 150,151 Mandeville, Bernard, 64-65,78 Mannheim, Hermann, 18,62,78 Marshall, T. H., x, 4, 195 Martinson, Robert, xi, 30,55, 63,78, 154,160 May Report, 154, 155, 156 Mayhew, Pat, 62, 123 medical model, 1l,45, 85-86 Metropolitian Police, creation of, 186-187 Mill, John Stuart, 25,48 Mischel, Walter, 69,70,71,79 Morgan, Rod, 154, 160, 161 Morris, Norval, 79, 160 mugging, 105, 108, 109, 110, 112 Murphy, Dale, 123, 124, 138 Murray, Charles, xi, 79, 154, 160

224 Nairne, Tom, 111,120 National Association of Probation Officers (NAPO), 127, 139 National Deviancy Conference (NDC), 5, 19,21,44,55 National Health Service (NHS), 28 National Police Training (NPT),

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Xlll

National Union of Miners (=), 32 Next Steps Program, 126 neoliberalism, 4,9, 10,35,36, 158 Newburn, Tim, xii, 33,140 New Left Review, 23,114 Newman, Kenneth, 132, 133 Newman, Oscar, 73,79 Nietzsche, Friedrich, 7,9 Norrie, Alan, 66-67,78 Northumbria Case, 145, 159 Nuttall, Chris, 135 O'Connor, James, 106, 119 O'Malley, Pat, xii, 7,35, 36 Patten, John, 130, 136 Police Act 1964, 137, 143, 144, 146,159 Police and Criminal Evidence Act 1884,160 Police and Magistrates Courts Act, 1994, 146, 148, 160 Pearson, Geoff, 5, 8, 13,21,48, 55-59,79, 103 Pease, Ken, 126,127,135,139, 157,161 Pollitt, Chris, 118, 122, 138 Poulantzas, Nikos, 115, 116,117, 119, 120 Prison Service, 154, 156, 157

Index Probation Service, 126,127 Prosecution of Offenses Act 1985,160 Quakers and criminal justice, 185-188 Radzinowicz, Leon, 6, 13, 18, 19,25,62,78, 167, 168, 169, 171, 181-196 Reiner, Robert, xii, 119, 129, 139,159 responsibilization, 7, 35 risk, 4,3536 Rock, Paul, xii, 58 Rose, Nikolas, xii, 5 Rothman, David, 2,62 routine activity theory, 74-76 rule of law, 181-200,212-214 Rutgers University School of Criminal Justice, 134, 138 Safer Cities Project, 136 Scargill, Arthur, 32, 131 Scraton, Phil, 24 Sereny, Gitta, 70,79 Shaw, Margaret, 33,136,137, 139,140 Sheehy Report, 147,150,160 Sinclair, Ian, 17,79,55 situational crime control, 74, 126,129,130,134,137,138 Skinner, Quentin, 44,59, 170 sociology of deviance, 1 Solzhenitsyn, Aleksandr, 3 Standing Conference on Crime Prevention, 133 Stephens, James Fitzjames, Stephens, Leslie, 47 Surnner, Colin, 24, 107, 119 Sunday Express, 109 Sunday Times, 109

Index Szasz, Thomas, 46 Taylor, Laurie, 5,57,58, 113, 119 Thatcher, Margaret, ix, 5, 32, 33,35,76, 121, 122, 125, 126, 130, 131, 132, 133, 136, 137, 138, 144,149, 150, 151, 153, 159 Thompson, Edward P., 23,24, 25,26,72,79, 105, 114, 115, 116,118,119,165-170 Titmuss, Richard, x Tizard, Jack, 63 Tonry, Michael, 79 Tory Party, toryism, x, 57, 108, 131, 150-151 Tuck,' Mary, 123, 135 Tully, James, 7 Walpole, Robert, 166 Walton, Paul, 58 Warwick school, 165-178 Whitelaw, William, 131, 137 Wilkins, Leslie T., 62,78 Willis, Paul, 59, 105, 119 Wilson, James Q., 55,78 Woolf Report, 155-161 Young, Jock, xi, 54-59,204-207 zero tolerance, 29, 152