Social Dynamics of Crime and Control: New Theories for a World in Transition (Onati International Series in Law and Society)

SOCIAL DYNAMICS OF CRIME AND CONTROL

Foreword In Social Dynamic of Crime and Control critical criminology has come of age. Long restricted to the margins of the discipline in which a correctional perspective has been the centerpiece, this volume reflects the growing importance of "social reaction", "constructionist", "constitutive" and cultural approaches to crime and social order. It includes extensive discussions of the influence of the social dynamics of markets on crime, the limits and contexts of legal control, the cultural dynamics of crime, and it incorporates a serious approach to a theory of crime linking labelling to systems theory. Although most of the contributors are European, it includes major contributions from the US and Australia and reflects throughout the perspectives of an international criminology. The book is the product of a workshop held several years ago at the International Institute for the Sociology of Law (IISL) in Onati, Spain. The HSL is a partnership between the Research Committee on the Sociology of Law and the Basque Government. For more than a decade it has conducted an international master's programme in the sociology of law and hosted hundreds of workshops devoted to sociolegal studies. It maintains an extensive sociolegal library open to scholars from any country and any relevant discipline. Detailed information about the IISL can be found at wtutv.iisj.es. This book is the most recent publication in the Onati International Series in Law and Society, a series that publishes the best manuscripts produced from Onati workshops conducted in English. A similar series, Colecion Onati: Derecho Y Sociedad, is published in Spanish. William L.F. Felstiner Eve Darian-Smith

Preface This volume assembles recent perspectives and fresh approaches in the field of criminology. It gives an overview of new paths that criminologists take to meet the challenges of social dynamics in different fields of the discipline. Scholars of criminology and sociol-legal studies have contributed to the volume thus furthering an integrative and complex perspective on crime and control. This volume includes the papers from a conference that took place at the International Institute for the Sociology of Law at Ofiati, Spain, from 23 to 24 October 1997. The VW-Foundation in Germany generously funded the conference. We are in particular indebted to Dr Hagen Hof of the VW-Foundation for his advice and support. We owe further thanks to the staff of the International Institute at Ofiati, especially Mrs Malen Gordoa, who all contributed to the perfect organisation and the inspiring atmosphere of the workshop. SUSANNE KARSTEDT, KAI-D. BUSSMANN

Bielefeld, Halle (Saale), September 1999

Contents List of Contributors 1. Introduction: Social Change as a Challenge for Criminological Theory Susanne Karstedt and Kai-D. Bussmann

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PART I: CRIME AND THE SOCIAL DYNAMICS OF MARKETS

2. Market Dominance, Crime and Globalisation Steven F. Messner and Richard Rosenfeld 3. Subterranean Sources of Subcultural Delinquency Beyond the American Dream John Hagan, Gerd Hefler, Gabriele Classen, Klaus Boehnke, and Hans Merkens

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4. Knights of Crime: The Success of "Pre-Modern" Structures in the Illegal Economy Susanne Karstedt

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5. Extortion, Corruption and Trust: A Structural-Constructionist Perspective Thomas Ohlemacher

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PART II: SOCIAL DYNAMICS AND THE LIMITS OF LEGAL CONTROL

6. Republican Theory, the Good Society and Crime Control John Braithwaite 7. After the Welfare State: Whither Informal Law? Wolfgang Ludwig-Mayerhofer 8. Shaming and the Regulation of Fraud and Business "Misconduct": Some Preliminary Explorations Michael Levi

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9. Multinational Firms as Agents of Civic Virtues Erhard Blankenburg

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PART HI: CULTURAL DYNAMICS: CONTEXTS OF CRIME AND CONTROL

10. Translating Social Control: Reflections on the Comparison of Italian and North-American Cultures Concerning Social Control, with a Few Consequences for a "Critical" Criminology Dario Melossi

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11. "Community" and Governance: A Cultural Comparison Nicola Lacey and Lucia Zedner

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12. The Gang Myth Jack Katz

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13. Explaining the Absence of Violence: A Comparative Approach Willem de Haan

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PART IV: THE INDIVIDUAL IN A DYNAMIC SOCIETY: CHALLENGES AND CHANCES

14. Desistance from Crime: Life History, Turning Points and Implications for Theory Construction in Criminology Elmar G. M Weitekamp, Hans-Jurgen Kerner, Wolfgang Stelly and Jiirgen Thomas 15. A Theory of Motivation and the Life Course Joan McCord

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16. Variation, Selection and Stabilisation: An Evolutionary Theory of Crime and Control Kai-D. Bussmann

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Index

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Contributors Klaus Boehnke, Technical University Chemnitz—Zwickan, Germany Erhard Blankenburg, Vrije Universiteit, Amsterdam, The Netherlands John Braithwaite, The Australian National University, Canberra, Australia Kai-D Bussmann, Martin Luther University, Halle-Wittenberg, Germany Gabriele Classen, Free University, Berlin, Germany Willem de Haan, Department of Criminal Law, University of Groningen, The Netherlands John Hagan, University of Toronto, Canada Gerd Hefler, Technical University, Chemnitz—Zwicken, Germany Susanne Karstedt, Institute for Demographic Research and Social Policy, University of Bielefeld, Germany Jack Katz, Department of Sociology, UCLA, USA Hans-Jiirgen Kerner, Institute of Criminology, University of Tuebingen, Germany Nicola Lacey, Department of Law, London School of Economics, UK Michael Levi, Cardiff School of Social Sciences, UK Joan McCord, Temple University, Philadelphia, USA Wolfgang Ludwig-Mayerhofer, Department of Sociology, Ludwig Maximilians University, Munich, Germany Dario Melossi, Faculty of Law, University of Bologna, Italy Hans Merkens, Free University, Berlin, Germany Steven Messner, Department of Sociology, SUNY—Albany, NY, USA Thomas Ohlemacher, Institute of Criminological Research, Lower Saxony, Germany Richard Rosenfeld, Department of Criminology and Criminal Justice, University of Missouri St Louis, USA Wolfgang Stelly, Institute of Criminology, University of Tuebingen, Germany Jiirgen Thomas, Institute of Criminology, University of Tuebingen, Germany ElmarWeitekamp, Institute of Criminology, University of Tuebingen, Germany Lucia Zedner, Corpus Christi College, University of Oxford, UK

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Introduction: Social Change as a Challenge for Criminological Theory SUSANNE KARSTEDT and KAI-D. BUSSMANN

its title to one of the most influential sociological works of the century: Pitirim Sorokin's "Social and Cultural Dynamics". Sorokin's classic gives a broad perspective on the history of social and cultural change. In contrast, this volume is very modest in its intentions. It assembles very different perspectives on social dynamics, crime and control that direct theorising and research in the field. Like other social scientists, criminologists struggle to keep pace with the transformation of societies all over the world, and to link their theories with the dynamics of social change. Criminologists traditionally are vivid observers of social change. Increasing rates of crime are seen as indicators of the "dark side" of social change, and the disruptive and disintegrative processes that are an integral part of social transformation. In fact, these dark sides seem to be fairly obvious. De-industrialisation, widespread unemployment and the emergence of the "service society" change the face of cities and regions. The increasingly competitive mechanisms of markets put pressure on the bonds that are the foundations of society. The powerful mechanisms of self-regulation in social institutions, communities or even families seem to fall apart in an increasingly "individualised" society, and consequently, the "non-state" forms of social control are weakened. There is no doubt that the dismantling of the welfare state has an impact on crime and social control at national levels. In a "fragmented society" violent conflicts as well as property crimes will spread. Criminologists forecast an increase of violent crimes in those groups of society that are most affected by social and economic pressures. The structure and distribution of different types of crimes will reflect the emerging distributions of winners and losers in national societies. The populations in West and East European countries experience new uncertainties in their life courses. The dynamics of social change directly affect the life courses of juveniles through situations of stress and strain, which are causal factors for delinquent involvement. Furthermore, globalisation provides new opportunities for white collar and organised crime. Criminologists predict an increase of economic and corporate crime on the national level and in the global marketplace.

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HIS VOLUME OWES

2 Introduction: Social Change as a Challenge Now, such profound and rapid changes generate apocalyptic and dramatic predictions of rising crime rates, as well as of an extraordinary spread of violence on a yet unknown scale. But theories that link social change and criminal behaviour have to be aware of the "double movement" (see Messner and Rosenfeld, Chapter 2) of social change and the counteracting forces that emerge during the process. Social change does not necessarily and inevitably cause soaring crime rates. But crime, and in particular violent crime, provide "symbols" of the insecurity and anxieties of a population that experiences the dynamics of social change in everyday life. Moral panics and popular "myths" about crime (see Katz, Chapter 12) therefore seem to be an integral part of social change. Recognition of these transformations in societies stimulated a broad range of new theoretical approaches in criminology. Not a single, but many "futures" opened up for criminological theory (Nelken 1994). Post-critical, realistic, reflexive, republican and constitutive criminology provide if not answers, at least new questions and innovative theoretical concepts. Behind the diversity of theoretical reasoning, we find some common lines of arguments. Theories mostly promote an integrative perspective, that bridges the gap between classical etiological criminology and a constructionist approach. Criminologists realise the limits of state control, and they direct their attention to informal mechanisms of social control as well as to the interaction of formal and informal control. Socio-legal and criminological research thus becomes more integrated. Finally, they base their approaches on a diversity of theoretical models of social structure and power. At the same time, criminologists return to their well-established traditions. The dynamics of social change at the end of the twentieth century seem to have much in common with the first industrial revolution and the process of modernisation in the nineteenth and at the beginning of the twentieth century. The extension of markets, the break-down of institutions that restrained markets, the rapid pace of social change, and the devastating impact on parts of the population: these characteristics of the first industrial revolution seem to repeat themselves. Just like during the first industrial revolution these processes become first and most distinctly visible in the cities. The emergence of a "new underclass" in American inner cities or in French suburbs has redirected attention to the relation between social conflicts, inequality and crime. In the metropolitan areas of Western industrialised countries, criminologists find the visible signs of processes of social exclusion, the "tribalisation" of urban social life, and the "decay of the civilized city" (Eisner 1997). This volume gives an overview of the different paths that criminologists take to meet the challenges of social dynamics in their theoretical approaches, in empirical research and criminal justice policies in various fields of the discipline. Scholars of criminology and socio-legal studies have contributed to the volume, thus furthering an integrative perspective on crime and control. They gathered at a conference at the International Institute of Law at Onati, Spain, in October 1997, which was funded by the VW-Foundation. The four sections of this vol-

Introduction: Social Change as a Challenge

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ume represent the leading perspectives and topics that the participants forwarded in their papers and discussions. The social dynamics of markets and their impact on crime in national societies as well as in global markets are analysed in the first section. The second one centres on the impact of social dynamics on the control of crime. The third section brings the concept of culture more to the centre of criminological analysis. In the fourth section new concepts of individual offenders and relationships to wider social contexts are presented that will contribute to our understanding of the impact of social change at the micro-level.

CRIME AND THE SOCIAL DYNAMICS OF MARKETS

Post-modern societies more than ever rely on innovative products and innovative needs. They promote a culture of individualism and hedonism in ths population of (prospective) consumers, particularly in the young generation. "Consumer societies" find themselves confronted with a double task. On the one hand they need to unleash individualistic, hedonistic behaviour and to encourage innovative behaviour, even if it trespasses the line between legal and illegal behaviour. On the other hand they have to establish, restore and preserve a regulatory order that holds the deviant tendencies of such behaviour at bay. The second task seems to be increasingly difficult, since the disciplinary networks in families, schools and communities have come under pressure from rampant market individualism. "Omni-market societies" reinforce value orientations and behavioural patterns like "machiavellism" and "hierarchic selfinterest", that might directly be related to different forms of deviant behaviour. In Chapter 2, Steven Messner and Richard Rosenfeld start from the argument that in modern market societies institutional restraints of markets have been weakened or abolished. Their "institutional-anomie theory" owes as much to Durkheim as to Polanyi's "Great Transformation". They diagnose an increasing disequilibrium between markets and non-market institutions. Failures to restrain markets result in increasing crime rates, in national societies as well as in global markets. The authors develop three scenarios of the dynamics of markets and their institutional restraints: the Great Retrogression, the New Great Transformation and the Fundamentalist Counter-Transformation. Each scenario predicts different outcomes for criminal behaviour and control. Messner and Rosenfeld are most sensitive to counteracting forces in the process of social transformation. They show how the classics can contribute to our understanding of crime in modern societies, and they demonstrate the potential of classic concepts in innovative theories of social change and crime. John Hagan, Gerd Hefler, Gabriele Classen, Klaus Boehnke and Hans Merkens (Chapter 3) address the problem of criminogenic impacts of dominant values in market societies. The American society provides the most advanced

4 Introduction: Social Change as a Challenge setting to analyse criminogenic value orientations like individualism, selfinterest and autonomy. Messner's and Rosenfeld's study on "Crime and the American Dream" as well as Bell's study "Crime as an American Way of Life" are foundations for Hagan and his colleagues to refine the basic arguments. They take a subcultural and "subterranean" turn: the dominant value patterns of market societies will cause delinquency when reinterpreted and linked to other value patterns within subcultural contexts. The spread of market society all over the globe will contribute to the emergence of such criminogenic subterranean patterns in many different societies. Hagan and his colleagues put their argument to an empirical test. Their comparison of adolescents in West and East Germany contrasts a well-established with an emerging market society. Their results confirm a subterranean causal web that is linked to core values of market society, and the existence of strands in this causal web that can lead to subcultural delinquency. Global markets in particular are characterised by a lack of regulatory order and institutional restraints. The global economy is run by new and internationally operating elites who are closely linked together in business, political and bureaucratic networks. Simultaneously with global economic networks illegal ones emerge. Susanne Karstedt (Chapter 4) analyses the impact of such structural characteristics on transnational and economic crime in global and national markets. She argues that competitive advantages result from common structural patterns and "key transnational practices" in legal and illegal business alike. She puts forward the proposition that "patrimonial-feudal" patterns are resurrected or re-emerge in global markets, because they provide high levels of trust, solidarity and informal control that function as equivalents to universal legal regulations and law enforcement in global markets. Organised crime, with roots in specific subpatterns of the patrimonial feudal complex, easily links to such patterns in legal markets and among the new global elites. Thomas Ohlemacher (Chapter 5) analyses the relation between markets and the institutional system from a contrasting perspective. Do experiences of illegal market transactions like extortion and corruption affect trust in the institutional system, and particularly in the political system of society? His approach opens up a new perspective on the relationship between markets and institutional restraints. In contrast to the institutional approach by Messner and Rosenfeld, he centres on individual actors and networks. Ohlemacher bases his empirical study of restaurant owners in Germany on a network approach. His findings indicate that reported victimisations play a minor role in establishing trust; in contrast, common perceptions of such crimes are related to trust in the political system. In conclusion, he finds a causal web linking experiences, common perceptions and trust, that assigns a dominant role to the media.

Introduction: Social Change as a Challenge 5

SOCIAL DYNAMICS AND THE LIMITS OF LEGAL CONTROL

Social change affects the total system of social control; as some might argue, its impact is more profound here than on deviancy and crime. Social change affects the very social relationships and the institutional structure where mechanisms of social control are embedded, and that are reproduced by successful social control (see Melossi, Chapter 10). The structural and cultural change puts pressure on the efficiency of the penal justice system and institutions of formal social control. "Omni-market societies" and individualism seem to destroy the informal mechanisms of social control, or at least restrict the efficiency of vital networks of informal control: families, schools, neighbourhoods and communities. Consequently, social change will shift the established spheres of formal and informal social control. The limits of state control and disciplinary institutions become more visible, and the linkages between formal and informal control become most important. Criminologists are well aware of the limits of formal control strategies. New criminal justice policies in particular redirect attention to the mechanisms of informal social control. Though the retrenchment of state control comes with a package of legal problems, it is seen as a chance to restore what might be called "natural" social controls. John Braithwaite was one of the first to promote such a perspective and to give criminal justice policies a new foundation. In this volume, he puts forward the idea of a normative criminological theory (Chapter 6). His republican theory on crime and control is designed as a normative theory that integrates political, legal and criminological theory. He particularly emphasises the social-democratic character of a republican theory on crime and control. He argues that criminal justice policies based on a republican theory are superior to those based on legal positivism and liberalism. Republican norms are built on three key elements: liberty, equality and community. The problem of crime is conceived of as an attack on the concept of maximising freedom as non-domination. Therefore deterrence and incapacitation still have a place in this concept, which suggests strengthening the potential of the individual and of civil society. Braithwaite offers a challenging combination of legal and criminological theories and political programme. He strives for a position between moral relativism that might regard rape and murder as acceptable, and legal positivism that finds high imprisonment rates morally agreeable. Wolfgang Ludwig-Mayerhofer's call for the "re-politicization" and "redemocratization" of crime control (Chapter 7) coincides with the main lines of argument in Braithwaite's republican theory. He starts from a brief review of the history of informalisation of law. Ludwig-Mayerhofer discusses the multilayered consequences of the retrenchment of the welfare state for crime control. In the context of criminal policy "outsourcing" of police functions and prisons is one of the consequences. At the same time this development is accompanied by tendencies toward informalisation of the penal law system, which could be,

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in terms of Max Weber, welcomed as a substantivisation of law. However, these tendencies have an often overlooked aspect—they might also contribute to shielding corporate practices from public control. Since neither procedural nor "reflexive law" nor a re-formalisation of law seem to be appropriate remedies, Ludwig-Mayerhofer proposes strategies of "re-politicisation" and "redemocratisation", that give the individuals concerned more opportunities to express their concerns. He in particular forwards procedures through which more egalitarian policies may be found by democratic discourses. In the following chapters, Michael Levi (Chapter 8) and Eberhard Blankenburg (Chapter 9) both analyse the problem of informal controls and of informalisation in the global arena. In particular, they evaluate the potential of particularistic and moralistic modes of social control in contrast to universal and legalistic ones. Will they be more effective in the global marketplace, where international legal regulations are absent and a corresponding system of formal control is lacking? Both authors arrive at very different conclusions. Michael Levi analyses whether Braithwaite's shaming model of crime control might work for financial fraudsters, corporate crime and corruption on the national level and in the global economy. From the many cases that he presents, he draws the conclusion that business elites seem to be quite invulnerable to shaming processes at the national level. Globalisation even enhances their opportunities to evade shaming. He argues that potential damage to business prospects might be the more salient factor in the formal and informal control of crimes in the global economy. In contrast, Erhard Blankenburg sees in public shaming "a fulfilment of criminologists' dreams". Public shaming steps in where criminal law ends. It is a particularly effective strategy for global players in global markets, since it makes organisations responsible for internal controls, and it penalises a general performance rather than individual breaches of rules. International trade will increase the risks, and it will make corporate actors more vulnerable to attacks from worldwide operating moral entrepeneurs, for example Greenpeace. In anticipating such risks and attacks, corporations act as "agents of civic virtues". This more optimistic scenario corresponds to what Messner and Rosenfeld define as "The New Great Transformation" in the global economy. Erhard Blankenburg's case study of the Brent Spar incident can be read as a confirmation of their proposition that "with new forms of social solidarity emerging from global consciousness, it is likely that levels of crime would moderate and perhaps even fall".

CULTURAL DYNAMICS: CONTEXTS OF CRIME AND CONTROL

In the social sciences, the concept of culture has moved from the periphery to the very centre of scientific investigation. Culture figures as a primary rather than dependent variable in global change. Criminology has been no exception to this

Introduction: Social Change as a Challenge 7 development. The concept of culture in particular contributes to an integrative perspective on crime and social control: family patterns, socialisation practices, moral values, informal networks, and finally the punitive system are shaped by overarching fundamental cultural values in societies. Globalisation will contribute to bringing the concept of culture even more to the centre of criminological research. The transfer of innovative schemes of crime prevention and criminal justice between countries, the adaptation and revival of indigenous forms of restorative justice and "conferencing" as in Australia, New Zealand and South Africa, or the import of American practices to Europe and Asia: all this will inevitably put "culture" on the agenda of criminologists. The concept of culture defines differences. Consequently, it implies a comparative perspective. The authors in this section centre on the culture of social control and the legal culture of criminal justice systems, and they put the concept of culture into the broader context of the political system and social institutions. Dario Melossi (Chapter 10) contrasts Italian cultural traditions of social control with those in the USA. He characterises Italian culture as a sort of "soft" authoritarianism that is linked to low levels of repression. It tends to combine tolerance on moral issues with rigour against open challenges of social, religious and political hierarchies. The USA is characterised by "democratic rhetoric" and simultaneously high levels of penal repression. The prison has always functioned as the "gateway" toward inclusion in the democratic society. He argues that the transfer and "translation" of critical criminology—a discourse that was especially critical of the puritan, strictly binary and rigid concept of law and order—from its American origins to continental Europe was quite functional in promoting the underlying anarchism and arrogance of power in Italy. Nicola Lacey and Lucia Zedner examine community-based criminal justice initiatives in Britain and Germany (Chapter 11). Their findings suggest that the political discourse, the institutional settings and political cultures of both countries account for a broad range of differences in adapting and implementing "community safety projects". This in particular applies to differences in "community rhetorics" in both countries. Though in Germany appeals to the concept of "community" are nearly non-existent in contrast to Britain, the discourse on foreigners (Auslander) instead seems to direct the implementation of locallybased crime prevention strategies. Lacey and Zedner provide an intriguing example of cultural differences between countries that without doubt are modern, individualised societies. As in Melossi's article the vital role of different political cultures and institutional settings of control becomes visible. Jack Katz (Chapter 12) examines the diversity of metropolitan cultures of control within the same legal culture of the USA. His comparison of presence (Los Angeles) and absence (New York) of "gang myths" in two metropolitan areas of the USA shows how law enforcement cultures are embedded in the political and institutional system of criminal prosecution. Despite quite similar rates of homicides in both areas, the "gang myth" resulted in extremely large

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differences in arrest rates for homicides. In Los Angeles the strategies of policing that were based on the gang myth and nourished by media discourse, finally resulted in one of the most serious cases of civil strife in American history. Willem de Haan centres on culture as an explanatory factor of different rates of violent crime (Chapter 13). Even when industrialised, modern societies like the Netherlands, Switzerland, Sweden, the USA or Southern Europe are compared, large differences are found. De Haan considers various explanations for the relative absence of violent crime in the Netherlands; Dutch cultural traditions that today combine into an "oversensitivity" toward violence seem to be a most important factor in explaining the low rates of violent crime. De Haan in particular pleads for case studies that provide in-depth analysis of the cultural, socio-economic and political context of violent crimes in different countries. Globalisation will contribute to rising rates of violent crime in all modern societies. The impact of globalisation on national societies will be most visible in metropolitan areas, where new cultures of conflict and violence will emerge. Consequently, globalisation might contribute to making cultural patterns of violence more uniform.

THE INDIVIDUAL IN A DYNAMIC SOCIETY: CHALLENGES AND CHANCES

This part focuses on the individual and the causal mechanisms that link the patterns of social change to criminal behaviour among juveniles and adults. Beck's concept of "risk-society" integrates the common characteristics of several directions of change in post-modern societies. Traditional social bonds break down in the process of "individualisation", thus allowing for more autonomy and selfdirection, but simultaneously increasing pressures and strains on the individual. Demands for mobility, flexibility and "crisis-management" during the life course are continuously increasing. The young generation in particular faces challenges to meet the risks of less stable careers and patterns of employment. Characteristic of post-modern societies are "fragmented biographies" of their populations. Taking up these concepts, criminologists have changed their perspective on deviant careers in two directions. They abandoned the more deterministic approach to criminal careers and directed their attention toward "turning points" in the life courses of offenders. Individual offenders are seen as active agents in shaping their lives, making rational (or irrational) decisions. Criminologists are in particular interested in the specific social and historical context of the life course of offenders, and the way criminal careers change with them. Social and individual dynamics are thus linked together. Elmar Weitekamp, Hans-Jiirgen Kerner, Wolfgang Stelly and Jiirgen Thomas (Chapter 14) put the new concept of "individualisation" of the life course to a test. They base their rejection of a deterministic approach on data from two longitudinal studies. Patterns of criminal careers are much less the result of early childhood experiences, socialisation patterns and disadvantages than of current

Introduction: Social Change as a Challenge 9 life circumstances. Macro-level conditions and micro-level life events open up "windows of opportunity" that change the direction of the life course. Criminal careers seem to change as much as "normal" careers in modern societies. Joan McCord (Chapter 15) and Kai-D. Bussmann (Chapter 16) bring to criminological theory what is generally regarded as the fundamental category of modern social sciences: communication. Joan McCord puts criminological reasoning into the wider context of modern philosophy and linguistics by forging a link between post-empiristic philosophy, psycho-linguistics and a general theory of deviant behaviour in the life course. She rejects the perspective that drives, needs, wants or any other type of "force" is required to explain criminal behaviour. Her Construct Theory of motivation starts from the very core of criminological reasoning: voluntary, intentional action. The theory conceptualises motives as potentiating reasons, that is, as reasons seen by the agent to warrant action. The scientific approach to understanding reasons rests on the idea that reasons are learned and understood by learning how to use language. She draws on a variety of studies on language learning, child-rearing practices and particularly the impact of punishment. Reasoning— extending far beyond the narrow concept of "rational choice"—is established as a determinant factor in criminal behaviour, and as the target of intervention. By stressing the mutuality and interdependency of the process of acquiring reasons, she outlines a humanistic approach in criminology. While McCord's approach focuses the micro-level of the individual life course, Bussmann introduces a macro-level perspective and a system theoretical approach. He links criminological theory to the most recent socio-legal theories. Penal law and criminal justice systems direct processes of communication by providing "semantic codes" (Luhmann) that influence reasoning already at an early stage of behaviour. The impact of "legal communication" is underrated within the context of crime control. Within this context penal law functions as a "master system" and a latent medium of communication. Moreover, Bussmann's theoretical approach conceptualises the social and cultural dynamics of crime and control according to three elements: variation, selection and stabilisation. Deviancy and crime contribute to the variation and innovation of behaviour. Selection of legal/illegal behaviour is directed by (legal) communication and discourses; in the final stage, law and criminal justice institutions provide a (temporary) stability. However, very close to Durkheim, Bussmann criticises the common unquestioned "negative concept" of crime from an evolutionary perspective of society. He argues that crime results in a "productive paradox", because the concept "crime" also is an integral and productive part of social and cultural dynamics. In particular variations of individual behaviour—some of them are for different reasons defined as crime—are in principle necessary elements for the development of the entire society. In brief, this volume sheds further light on the social dynamics of crime and control. It addresses pressing questions about how and why social change affects the patterning of crime and criminal justice. It is well beyond the scope

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of this volume to address all aspects of these complex issues, but it directs attention to innovative schemes of theory and research.

REFERENCES

Beck, Ulrich, 1992, Risk Society (Mark Ritter (trans.), London: Sage). Eisner, Manuel, 1997, Ende der zivilisierten Stadt. Die Auswirkungen von Modernisierung und urbanerKrise auf Gewaltkriminalitat (Frankfurt a.M.: Campus). Nelken, David, 1994, "Reflexive Criminology?" in The Futures of Criminology (D. Nelken (ed.), London: Sage).

Parti

Crime and the Social Dynamics of Markets

Market Dominance, Crime, and Globalisation STEVEN F. MESSNER and R I C H A R D R O S E N F E L D 1

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HE PURPOSE OF this chapter is to consider the potentially criminogenic consequences of recent changes in the social and economic organisation of advanced capitalism. Our point of departure is Karl Polanyi's classic work on the emergence of industrial capitalism and recent studies that further develop Polanyi's insights. We draw on these analyses to pose a fundamental issue confronting all capitalist societies: the need to restrain the market and prevent the economy from dominating other institutional realms. We explain how this general institutional challenge bears specifically on the problem of crime and crime control with reference to our recently proposed "institutional-anomie theory". Finally, we use Polanyi's general analytic framework to explore the possible consequences of some of the changes in the structure of contemporary capitalism that are commonly subsumed under the general rubric of globalisation.

ECONOMIC DOMINANCE IN MARKET SOCIETIES2

In a series of influential writings, Karl Polanyi (1957 [1944]; 1968a [1947]; 1968b [1957]) provides an incisive account of the evolution of industrial capitalism over the course of the nineteenth and early twentieth centuries. Polanyi identifies two, essentially dialectical, processes that constituted a "double movement" in the history of capitalism and that profoundly altered the organisation of economic and social life. One process involved the unprecedented expansion of the market as the mechanism for coordinating economic activity. The other involved "counter-moves" to prevent the market from undermining the very foundations of the social order. Taken together, these processes lead to what Polanyi referred to as "The Great Transformation".

1 Presented at the workshop on "Social Dynamics and Regulatory Order in Modern Societies" International Institute for the Sociology of Law, 23—24 October 1997. 2 This section draws on material from Messner (1996).

14 Market Dominance, Crime, and Globalisation To explicate these changes, Polanyi distinguishes between three types of economic transactions or transactional modes: reciprocity, redistribution, and market exchange. Reciprocity is characterised by obligatory gift-giving, usually between kinship units. Redistribution refers to obligatory contributions to central political or religious authorities, who then use these resources for their own sustenance and for collective services (Dalton 1968, p. xiv). Market transactions involve the exchange of goods and services in response to prices among actors motivated by the pursuit of profit and gain. Each of these transactional modes is present to some degree in virtually all societies, but their relative importance is highly variable. The defining characteristic of mature capitalist societies, according to Polanyi, is the preeminence of market exchange as the transactional mode around which economic activity is organised.3 This increased reliance on the market has profound implications for social relations. Reciprocity and redistribution intrinsically express non-economic social relationships (Dalton 1968, p. xiv). As a result, economic activity involving these two transactional modes not only yields benefits in the sense of coordinating the activities required for material subsistence; such economic activity is at the same time socially integrative. Market exchange, in contrast, is more readily divorced or "disembedded" from other social relationships. It can be conducted with little regard for the social ties between parties and thus entails minimal social obligations. In that sense, market behaviour is more purely "economic", and it lacks the socially integrative qualities characteristic of the other transactional modes. Moreover, given the necessity of material resources for human survival, the separation of economic activity from other social relations implies that these other relations will become subservient to economic activity. Polanyi emphasises the dangers associated with total reliance on market mechanisms in the organisation of economic life, a situation he refers to as the "self-regulating market". He warns that any effort to allow the market free rein would ultimately be self-destructive because it would undermine the cultural and moral foundations of human existence: "robbed of the protective covering of cultural institutions, human beings would perish from the effects of social exposure" (Polanyi 1957 [1944],-p. 73). According to Polanyi, capitalist societies responded to the social devastation accompanying the expansion of markets by developing welfare capitalism—the companion component of the "double-movement". The welfare state can be viewed as an institutional arrangement for "re-embedding" the economy by regulating markets (Dalton 1968, p. xxvi). The welfare state uses redistributive mechanisms to enable citizens to meet material needs independently of market mechanisms. As a result, personal well-being does not depend solely on an individual's capacity to sell his or her labour power on the market (see Esping3 As Randall Collins has observed more recently, contemporary capitalist societies are "omnimarket" societies (1990, p. 132).

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Andersen 1990). Rather, human labour power is, in Esping-Andersen's expression, "de-commodified". It is not treated as a commodity identical to other commodities. Economic activity is thus effectively embedded in social relationships involving mutual obligations of fellow citizens to one another. Polanyi's analysis of the dynamics of market economies has been challenged over the years. In particular, critics have charged that his portrait of concrete market transactions is something of a caricature. Bernard Barber (1977), for example, asserts that all exchange institutions, including markets, are always "interdependent with their environing value patterns and other institutional subsystems" (p. 27). On this point Barber echoes Durkheim's (1964 [1893], pp. 206-219) remarks about the non-contractual elements of the economic contract. The very conception of human social relationships in the form of a contract, Durkheim insisted in his critique of the eighteenth century social contract theorists, presupposes prior cultural agreement. Granovetter (1985) similarly takes issue with the suggestion that market exchange is somehow asocial, noting that all purposive action is embedded in ongoing systems of social relations or social networks. Accordingly, the characterisation of market transactions as totally "disembedded", in contrast with other kinds of transactions, gives them a misleading independence from other social relationships (Barber 1977, p. 27). In response to these types of criticisms, Fred Block (1990) has attempted to refine Polanyi's analysis of markets, proposing that economic transactions in market societies be conceptualised as variable along a continuum of "marketness". At the high end of this continuum, transactions are motivated primarily by the self-interested pursuit of economic gain and are governed almost exclusively by market benefits and costs. At the lower end, other considerations come into play as well, considerations such as personal loyalties, friendship bonds, and social obligations.4 The character of these transactions in the aggregate, then, determines the overall "marketness" of the economy and the extent to which economic activity is embedded in, or disembedded from, non-economic social relationships. Similarly, the recent work of Gosta Esping-Andersen extends Polanyi's analysis by describing in greater detail the various types of political responses to the threat of market dominance that have appeared across capitalist societies. Esping-Andersen argues that different historical conditions have promoted distinctive class coalitions that, in turn, have led to varying forms of welfare states. He identifies three basic types of welfare state regimes which vary with respect to their capacity to de-commodify labour and to tame the market: liberal welfare states, conservative/corporatist welfare states, and social democratic 4 Of course, non-market relations are not necessarily harmonious and peaceful. Also, the market may have both integrative and disintegrative consequences for social order and interpersonal relations. The debate over whether or not the market has salutary or deleterious consequences for social order is at the centre of much classical social thought in the eighteenth and nineteenth century. See Hirschman (1992) and Silver (1990). We elaborate on this point in our discussion below of the institutional-anomie theory of crime.

16 Market Dominance, Crime, and Globalisation welfare states. In Esping-Andersen's view, the liberal welfare state regime is the least de-commodifying, while the social democratic is the most. Both Block and Esping-Andersen thus call attention to the fact that capitalist societies have responded to the institution of market exchange as the preeminent form of economic transaction in different ways, and with different consequences for social relationships, including by implication those that give rise to crime. In sum, Polanyi's classic analysis of "The Great Transformation" identifies a profound and enduring institutional challenge confronting market capitalist societies. The organisation of economic activity around the self-interested pursuit of profit and gain lacks the socially integrative qualities inherent in other forms of economic organisation. Indeed, adherence to market imperatives often disrupts other social relationships. Moreover, to the extent that material wellbeing is determined by market criteria, non-economic institutions will become dependent on the economy. This implies that the interrelationship among social institutions is inherently precarious in market societies, and that some institutional arrangement to regulate or tame the market is essential for the protection of the social order. Recent extensions of Polanyi's work highlight the variability in such institutional arrangements across capitalist societies, in both form and consequences. In the section that follows, we discuss how such variability is related specifically to crime.

ECONOMIC DOMINANCE AND CRIME

Recent criminological theory and research suggest that levels and patterns of serious crime in developed societies can be understood with reference to the balance between the economy and other social institutions. Societies with greater market penetration, such as the USA, exhibit comparatively high crime rates, especially rates of violent, predatory offending. In Crime and the American Dream (Messner and Rosenfeld 1997a), we argue that economic dominance promotes high rates of crime through both structural and cultural mechanisms. Economic dominance undermines the capacity of non-economic institutions to control behaviour. As classic control theory stipulates, social bonds to conventional institutions provide important restraints against the temptations of crime (Hirschi 1969). These bonds develop through participation in institutional roles. When non-economic institutions are subservient to the economy, their roles are less appealing, and these institutions are thereby unable to exert strong external control. The absence of external restraints, in turn, increases the level of crime in society. At a cultural level, economic dominance is likely to contribute to crime by promoting anomie, both in the classical Durkheimian sense of insufficiently regulated goals and in the Mertonian sense of insufficiently regulated means (Durkheim 1966 [1897]; Merton 1968). With respect to goals, a distinctive feature of a market economy is the organisation of economic exchange around

Market Dominance, Crime, and Globalisation

17

profit and loss. These kinds of economic goals are elusive and have no clear stopping points. However much profit or gain one accumulates, there is always more that could in principle be attained. The goals associated with the market economy, therefore, have an inherently anomic quality. Moreover, to the extent that the economy dominates the institutional balance of power, less anomic goals associated with non-economic institutional realms lose their salience in the lives of individuals. Economic dominance is also conducive to a breakdown in commitments to the normative means for pursuing goals. When taken to their logical extreme, cultural orientations towards action that undergird market behaviour are resistant to any moral restraint. The norms guiding purely economic action are relevant only to the extent that they promote material gain at minimum cost; they are, in Merton's apt characterisation, "efficiency norms". The paradoxical task confronting market societies is thus to nurture cultural orientations that support market behaviour, but in a qualified way. Successful execution of this task ultimately requires that institutions not guided by the logic of the market be sufficiently powerful to imbue the means of action with moral force. When the economy dominates the institutional balance of power, non-economic institutions are less able to perform their distinctive functions, including that of socialising actors into pro-social means of achieving personal ends.5 As noted earlier, the historic mechanism for circumventing the problems associated with economic dominance in market societies has been the creation of the welfare state, which attempts to tame the market and de-commodify labour. Welfare states vary considerably in their capacity to accomplish this task (see Esping-Andersen 1990). At one end of the spectrum are states with welfare policies that offer nearly universal and non-conditional entitlements covering most or all of the relevant conditions requiring assistance. At the other end are those states with policies that enforce strict eligibility criteria and that cover a narrow range of conditions meriting assistance. On the basis of the arguments advanced above, it is reasonable to expect that welfare state policies that are de-commodifying should serve to "re-embed" the economy in society and mitigate criminogenic pressures otherwise associated with market arrangements. Sparse but suggestive research indicates that crime rates in advanced welfare states do in fact vary along with indicators of the scope and strength of social welfare policies (Fiala and LaFree 1988; Gartner 1990; 1991). We have recently conducted research that operationalises EspingAndersen's concept of de-commodification and evaluates its relationship with the homicide rates of a large number of nations (Messner and Rosenfeld 1997b). Our results indicate that, net of other influences, rates of criminal homicide are reduced in societies with de-commodified social policies in the form of broad 5

Various scholars have suggested that the USA illustrates a society wherein economic dominance has reached extreme levels, leading to high levels of crime. In addition to Messner and Rosenfeld (1997a), see Bellah et al. 1991; Currie 1997; Schwartz 1994).

18 Market Dominance, Crime, and Globalisation and generous welfare programmes. We interpret our findings in terms of the central claim of the institutional-anomie theory of crime: societies that are able to protect other institutions from extreme market penetration have lower levels of serious crime. Can the welfare state continue to curtail the criminogenic pressures associated with market arrangements in the long-run? The literature on "crises of the welfare state", drawing on both Marxist thought (O'Connor 1973) and critical theory (Habermas 1989), raises serious questions about the viability of this mechanism for taming the market and mitigating its more undesirable consequences (see Messner 1996, for an extended discussion). In the section that follows, we consider the fate of the welfare state, and by extension, the future of crime, under conditions of globalisation.

ALTERNATIVE SCENARIOS OF GLOBALISATION AND CRIME

A necessary starting point for assessing the consequences of globalisation on market dominance and crime is a reasonably coherent definition of globalisation. Malcolm Waters (1995) provides a highly useful summary of classical and more recent sociological accounts of the globalisation process. At the most general level, globalisation refers to the confluence of social and cultural changes that loosen the constraints of geography on the orientations and actions of individuals and collectivities (Waters 1995, p. 3). Globalisation in this account is nothing new; it is contemporaneous with the emergence of modern capitalism and the accelerating pace of economic, political and cultural interconnections within and between nations (this discussion is based on Waters 1995, pp. 62-64). Yet the essence of globalisation is not merely rapid or accelerating economic or political change associated with capitalist development. Globalisation is fundamentally a symbolic process that shatters the hold of place on economic activity, political allegiance, social attachments, and cultural commitments. Time replaces space as the organising principle of action and orientation in a globalised context. The world does not literally become smaller but is experienced by ever-widening populations as contracting, and as growing more unified and inclusive. In Waters' terms, "Globalization implies the phenomenological elimination of space and the generalisation of time" (p. 63). As a symbolic process, globalisation is self-aware and reflexive. At all levels of social action, from village politics to corporate advertising, persons consciously orient themselves to worldwide standards of reference. Place-bound statuses give way to, or must contend with, a shared sense of humanity. With the world as a reference group, traditional distinctions between what is private, particular, and local and what is public, universal, and global begin to dissolve. As a result, a sense of personal risk and uncertainty increases as persons extend trust from immediate and concrete relationships to "patterns of symbolic exchange that appear to be beyond the control of any concrete individual or

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group of individuals" (pp. 63-64). All that is certain is the uneasy sense that one's fate is in the hands of people all over the world. Waters distils his characterisation of globalisation from diverse streams of social thought. Although a fair amount of agreement exists with respect to the broad contours of globalisation, there is considerable disagreement over the implications of these changes for the future of capitalist societies. Three distinct scenarios have been described in the literature. One scenario echoes the themes of early Marxist critiques of capitalism and emphasises the self-destructive nature of contemporary market arrangements. In essence, the globalisation of capitalism represents something of a "Great Retrogression", a return to the selfregulating market of the nineteenth century. A second scenario, in contrast, points to the flexibility of capitalism and its capacity to coexist with a variety of institutional arrangements, including those that offer protections from the potentially destructive consequences of markets. This scenario might be described as a "New Great Transformation", a second double movement wherein the global expansion of markets is accompanied by developments that counter-balance the drive to completely "marketise" all social relationships. Finally, a third scenario calls attention to the possibility of active resistance to markets, and a heightening of ethnic, religious, and tribal identities and conflicts. This might be referred to as the "Fundamentalist CounterTransformation". We suggest that each of these scenarios carries implications for the levels and patterns of crime that would likely emerge in the corresponding new world order.

The Great Retrogression A representative proponent of the Great Retrogression scenario is Gary Teeple (1995). In his book Globalization and the Decline of Social Reform, Teeple offers a neo-Marxist analysis of global capitalism and its self-destructive tendencies. He proposes that the Keynesian welfare state emerged to meet the needs of the national bourgeoisie; state-legislated reform was a response to demands by the working class to ameliorate the horrific excesses associated with capitalist accumulation. However, as capitalism becomes transnational, factors affecting national economic policy move beyond the control of nation-states, which are increasingly at the mercy of global financial, capital, and labour markets. 6 As the capitalist class becomes increasingly supranational and monolithic, trade unions remain distinctly national and fractured (Teeple 1995, p. 133; see also Cox 1996, p. 22). * The capacity of national political structures to deal with international economic issues has been questioned for some time. Over 20 years ago Daniel Bell (1980 [1977], p. 226) speculated that the nation-state would be an "ineffective instrument" for dealing with economic and social problems in a world economy. See Waters (1995, pp. 99-100) for a recent summary of literature on crises of the welfare state.

20 Market Dominance, Crime, and Globalisation A key consequence of these developments is that social reform sponsored by the welfare state declines. This is reflected in the preeminence of a neo-liberal political agenda that is spreading throughout the capitalist world and calls for ever greater privatisation, deregulation, the down-sizing of government, and the general dismantling of the welfare state.7 The direction of all these changes is essentially backwards towards the self-regulating market. Teeple acknowledges that the expansion of the market is meeting some resistance, but he is pessimistic about the prospects of these oppositional movements because the capitalist class is able to control the "ideological systems" in capitalist society. He concludes that "a tyranny is unfolding—an economic regime of unaccountable rulers, a totalitarianism not of the political sphere but of the economic" (Teeple 1995, p. 151). Teeple's analysis of globalisation and the accompanying class dynamics may be overdrawn and somewhat simplistic. The neo-Marxist imagery of a monolithic, globalised, capitalist class is particularly suspect. Nevertheless, his observations about the "unleashing of the market" warrant serious consideration. As Stephen Gill (1996, p. 208) has similarly observed, "the 'self-regulating' market, with its associated processes of commodification, has tended to encompass larger fractions of the world's population." 8 It is thus worth asking the following question: if globalisation does in fact foster self-regulating markets accompanied by emasculated nation-states, what are the implications for crime? Two developments concerning crime seem likely to us. The first is the increasing globalisation of crime itself. Expanding opportunities for crime on an organised, large-scale basis would undoubtedly accompany the "Great Retrogression" scenario. Various scholars have suggested that such global criminal enterprises have in fact been emerging and expanding in recent years. Mittelman (1996a, p. 237), for example, calls attention to the involvement of transnational criminal groups in a wide range of activities, including drug trafficking, "car theft, trade in nuclear materials, smuggling of migrants, arms deals, money laundering, and sales of human organs". This globalisation of organised crime might be viewed as both a consequence of weakened nation-states and a force further undermining these nation-states. This latter point has been argued by Manuel Castells (1997, pp. 259-261), who claims that the "wheelings and dealings of the criminal economy" have deeply affected and destabilised many national governments. In addition to the growing opportunities for organised, globalised crime accompanying the decline of the nation-state, we propose another likely consequence of a Great Retrogression: the spread of anomie throughout the marketised world. As noted earlier, institutional-anomie thoery stipulates that economic dominance in the institutional balance of power is accompanied by an 7 See Olsen (1996) for a discussion of the emergence of the neo-liberal agenda in Sweden, an exemplar of the capitalist welfare state. 8 In contrast with Teeple, however, Gill is more optimistic about the prospects for resistance to the self-regulating market.

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anomic cultural orientation. The self-regulating market is precisely the kind of social arrangement that promotes economic dominance and thus leads to widespread anomie. Moreover, given such anomic cultural tendencies, crime is likely to be widespread and particularly violent because people are encouraged to use the technically most expedient means to pursue their goals. Indeed, this is the explanation that we have offered to account for the comparatively high levels of predatory crime in the USA compared to other advanced nations. What we are suggesting, then, is that a Great Retrogression might very well be accompanied by a greater "Americanisation of crime" throughout the world, that is, by higher levels of crime of a more unrestrained, violent nature.

A New Great Transformation A second scenario for the evolution of globalised capitalism is more optimistic. According to this point of view, the expansion of market arrangements beyond national boundaries does not necessarily lead to an untamed, socially destructive, self-regulating market. Rather, market expansion might be accompanied by the emergence of new social formations that serve as protective mechanisms. In Stephen Gill's (1996, p. 225) words: "We may . . . be in the midst of a 1990s version of Polanyi's double movement as social movements are remobilised and new coalitions are formed". What specific social formations might be part of this new double movement? One possibility is the creation of supranational governance bodies grounded in re-constituted nation-states. Some critics of the conventional wisdom on globalisation question whether the nation-state is in fact an emasculated relic of the past. For example, Hirst and Thompson (1996; see also Mittelman 1996) argue that while nation-states are clearly less autonomous than they were previously, they still serve important and unique functions. Most importantly, nation-states have the capacity to lend legitimacy to supranational bodies and agreements. These supranational entities might assume some of the responsibility for the regulation of global markets from individual nation-states, thereby inhibiting the complete marketisation of social relationships. In addition, supranational agencies may be able to confront the problem of the globalisation of crime through coordinated law enforcement efforts across multiple nation-states. Various scholars have also pointed to the possibilities for new forms of social relationships to emerge along with globalisation. Judith Blau (1993) calls attention to the tendency of expanding markets to be accompanied by expanding opportunities for "social contracting", i.e., cooperative relationships for achieving shared social goals. These social goals often reflect a new global consciousness, as reflected in concerns over environmental threats such as ruptures in the ozone layer, global warming, deforestation, soil erosion, the depletion of fishing stocks, and so on (Cox 1996, p. 29; see also Waters 1995). More generally, a globalisation of civil society might emerge as a response to the deleterious

22 Market Dominance, Crime, and Globalisation effects of economic globalisation, creating new forms of social solidarity (Mittelman 1996b, p. 10). The implications for crime of the New Great Transformation scenario are clearly quite different from those of the previous scenario. With a rejuvenated nation-state supplying international regulation of the market and international means for crime control, and with new forms of social solidarity emerging from a global consciousness, it is likely that levels of crime would moderate and perhaps even fall. The recent global rise in crime might thus be a transitional phase as the more prosocial component of the double movement catches up with its more "economic" counterpart. The Fundamentalist Counter-Transformation The third scenario concerning the likely consequences of globalisation for the future of world capitalist development envisions multiple sources of conservative reaction to the spread of the very economic, political, and cultural forces that define globalisation itself. In his book jihad Versus MacWorld, Benjamin Barber (1995) presents a provocative account of these counter movements that seek to protect traditional ways of life from the secular, rationalising, and corrosive impact of modernisation. A singular interpretation of the fundamentalist reaction to globalisation is inherently difficult to draw given the immense variety of ethnic, religious, and political forms of fundamentalism, and the differences in specific grievances, targets, programmes, and tactics pursued by reactionary groups throughout the world. However, one unifying theme stands out. In spite of their other differences, the counter movements, from the rural militias of the USA to the ruling circles of Iran, are united in their opposition to the symbols of globalisation that Waters describes. All have the character of symbolic crusades against universalism, the "phenomenological essence" of globalisation, and seek to restore or sharpen particularist allegiances and identities. In that important respect, all are profoundly anti-market in word if not always in deed (terrorists must often resort to the international arms market to obtain their weapons). Markets are universalising social arrangements, and global markets could not operate effectively if buyers and sellers had to be linked to one another through relationships other than the abstract and impersonal connections forged by the pricing system. The fundamentalist reaction to globalisation is, then, ultimately a reaction to the universalising tendencies of market dominance. Moreover, this reaction often inspires acts, sometimes violent, that contravene widely-shared conceptions of human rights, even if they are not always crimes in a strict legalistic sense. Given these observations, what are we to make of a theory that locates the sources of crime, violent crime in particular, in the marketplace? The third scenario of a fundamentalist counter-transformation brings constructive pressure to bear on our thesis of market dominance and high crime

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rates. Examples of appalling violence are easily observed in non-market contexts. Even if we could bracket the pogroms, ethnic cleansings, and mass murders committed in the name of religious conversion as somehow beyond the scope of theories designed to explain less spectacular, more conventional crime, how should we understand the mundane yet highly prevalent interpersonal violence found throughout the cities and countryside of the pre-capitalist world? Or the well documented decline in violent offending that accompanied the "civilising process" set in motion by the emergence and spread of capitalism over the past two centuries in Europe (Elias 1978 [1939]; Gurr 1989)? The answer, we propose, lies in the concept of institutional balance that is central to the explanation of crime offered by institutional-anomie theory. The violence associated with the fundamentalist reaction to market dominance serves as an important reminder that the relationship between markets and the moral order cuts both ways. Anomie, disorder, and crime result, we have argued, when the market dominates society, rendering other institutions incapable of effectively exercising social control or performing vital socialisation functions. However, alternative forms of institutional imbalance also can lead to disorder and crime. The dominance of so-called "civil institutions", such as the kinship system or religion, leads to a kind of hyper-moral vigilance that encourages crime in the defence of the moral order itself, albeit understood in narrow and particularistic terms. This type of cultural orientation, and the crimes of social control that accompany it, although perhaps less pronounced than under pre-industrial conditions, are far from absent in a post-industrial, globalising world. They are usefully viewed as reactions to a spreading institutional order that is perceived to be dominated by the market and therefore destructive of traditional institutions and values.9

THE CHALLENGE OF INSTITUTIONAL BALANCE

We have presented in this chapter an explanation of crime under conditions of market dominance and have sketched out some implications of this explanation for the future of crime in a global context. We do not claim exhaustiveness for the three scenarios of globalisation offered here, nor do we have reason to believe that one of them is superior to the others. The scenarios are not mutually exclusive; elements of all three warrant consideration in a comprehensive account of the impact of globalisation on the level and pattern of criminal activity in post-industrial society. Following Malcolm Waters' discussion of globalisation, and consistent with a basic tenet of the institutional-anomie theory of crime, we have placed 9 A third possibility that we do not develop in this chapter is the domination of the institutional structure by the state. Although highly speculative, a hypothesis meriting future investigation is that political dominance results in widespread cynicism in the population regarding the legitimacy of political authority, which invites corruption on the part of the powerful and powerless alike.

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considerable emphasis on the symbolic and cultural consequences of the globalisation process. A full understanding of the cultural sources of crime in postindustrial society must consider not only the values and beliefs that are favoured when a particular institution dominates the institutional balance of power within and across societies, but also the consequences for crime when alternative cultural prescriptions and associated symbolic representations are renounced. The market promotes crime when the freedom of action that it encourages is left unchecked by considerations of collective order and mutual obligation. Political and social values, likewise, assume degraded forms in the absence of attention to individual rights and liberties—doctrines promoted throughout the world by the universalising tendencies of markets. The horrors of both anomic and moralistic violence in post-industrial society, it follows, are reduced when the respective cultural orientations of the full range of social institutions are balanced such that each serves as a continuous reminder of the indispensability of the others.

REFERENCES

Barber, Benjamin R., 1995, Jihad vs. McWorld (New York: Times Books). Barber, Bernard, 1977, "Absolutization of the Market: Some Notes on How We Got From There to Here" in Markets and Morals (Gerald Dworkin, Gordon Bermant, and Peter G. Brown (ed.), Washington, DC: Hemisphere Publishing Corporation), pp. 15-31. Bell, Daniel, 1980 Reprint, "The Future World Disorder: The Structural Context of Crises" in Daniel Bell, The Winding Passage: Essays and Sociological Journeys 1960-80 (Cambridge, MA: Abt Books), pp. 210-227 (Original edition, 1977). Bellah, Robert N., Richard Madsen, William M. Sullivan, Ann Swidler, and Steven M. Tipton, 1991, The Good Society (New York: Alfred A. Knopf). Blau, Judith R., 1993, Social Contracts and Economic Markets (New York: Plenum Press). Block, Fred., 1990, Postindustrial Possibilities: A Critique of Economic Discourse (Berkeley, CA: University of California Press). Castells, Manuel, 1997, The Power of Identity (Oxford: Blackwell). Collins, Randall, 1990, "Market Dynamics as the Engine of Historical Change" Sociological Theory 8 at 111-35. Cox, Robert W., 1996, "A Perspective on Globalization" in Globalization: Critical Reflections (James H. Mittelman (ed.), Boulder, CO: Lynne Rienner), pp. 2-31. Currie, Elliott, 1991, "Crime in the Market Society: From Bad to Worse in the Nineties" Dissent (Spring), 254-259. Dalton, George, 1968, "Introduction" in K. Polanyi, Primitive, Archaic, and Modern Economics: Essays of Karl Polanyi (Garden City, NY: Anchor Books), pp. ix-liv. Durkheim, Emile, 1964, Reprint, The Division of Labor in Society (New York: Free Press). (Original edition, 1893). , 1966, Suicide: A Study in Sociology (New York: Free Press). (Original edition, 1897).

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Elias, Norbert, 1978 Reprint, The Civilizing Process: The History of Manners (New York: Urizen). (Original edition, 1939). Esping-Andersen, Gosta, 1990, The Three Worlds of Welfare Capitalism (Princeton, NJ: Princeton University Press). Fiala, Robert and Gary LaFree, 1988, "Cross-National Determinants of Child Homicide" 53 American Sociological Review 432—445. Gartner, Rosemary, 1990, "The Victims of Homicide: A Temporal and Cross-National Comparison" 55 American Sociological Review 92-106. , 1991, "Family Structure, Welfare Spending, and Child Homicide in Developed Democracies" 53 Journal of Marriage and the Family 231-240. Gill, Stephen, 1996, "Globalization, Democratization, and the Politics of Indifference" in Globalization: Critical Reflections (James H. Mittelman (ed.), Boulder, CO: Lynne Rienner), pp. 205-228. Granovetter, Mark, 1985, "Economic Action and Social Structure: The Problem of Embeddedness" 91 American Journal of Sociology (November), 481—510. Gurr, Ted Robert, 1989, "Historical Trends in Violent Crime: Europe and the United States" in Violence in America, Volume 1 (Ted Robert Gurr (ed.), Newbury Park, CA: Sage), pp. 21-54. Habermas, Jiirgen, 1989, "The Crisis of the Welfare State and the Exhaustion of Utopian Energies" in Jurgen Habermas on Society and Politics: A Reader (Steven Seidman (ed.), Boston: Beacon Press), pp. 284-299. Hirschi, Travis, 1969, Causes of Delinquency (Berkeley, CA: University of California Press). Hirst, Paul and Grahame Thompson, 1996, Globalization in Question: The International Economy and the Possibilities of Governance (Cambridge, MA: Blackwell). Merton, Robert K., 1968, Social Theory and Social Structure (New York: Free Press). Messner, Steven F., 1996, "Crime and the Institutional Balance of Power in the Advanced Welfare States", paper presented at the Sixty-sixth Annual Meeting of the Eastern Sociological Society, 28-31 March, Boston, MA. and Richard Rosenfeld, 1997a, Crime and the American Dream (Belmont, CA: Wads worth). , 1997b, "Political Restraint of the Market and Levels of Criminal Homicide: A Cross-National Application of Institutional-Anomie Theory" 75 Social Forces 1393-1416. Mittelman, John H., 1996a, "How Does Globalization Really Work?" in Globalization: Critical Reflections (James H. Mittelman (ed.), Boulder, CO: Lynne Rienner), pp. 229-241. , 1996b, "The Dynamics of Globalization" in Globalization: Critical Reflections (James H. Mittelman (ed.), Boulder, CO: Lynne Rienner), pp. 1-19. O'Connor, James, 1973, The Fiscal Crisis of the State (New York: St. Martin's Press). Olsen, Gregg M., 1996, "Re-Modelling Sweden: The Rise and Demise of the Swedish Compromise in a Global Economy" 43 Social Problems (February), 1-20. Polanyi, Karl, 1957, Reprint, The Great Transformation: The Political and Economic Origins of Our Time (Boston: Beacon Press). (Original edition, 1944). , 1968a, "Our Obsolete Market Mentality" in K. Polanyi, Primitive, Archaic, and Modern Economics: Essays of Karl Polanyi (Garden City, NY: Anchor Books), pp.

59-77.

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Polanyi, Karl, 1968b, "The Economy as an Instituted Process" in K. Polanyi, Primitive, Archaic, and Modern Economics: Essays of Karl Polanyi (Garden City, NY: Anchor Books), pp. 139-174. Silver, Allan, 1990, "Friendship in Commercial Society: Eighteenth-Century Social Theory and Modern Sociology" 95 American Journal of Sociology 1474—1504. Teeple, Gary, 1995, Globalization and the Decline of Social Reform (Atlantic Highlands, NJ: Humanities Press). Waters, Malcolm, 1995, Globalization (London: Routledge).

Subterranean Sources of Sub cultural Delinquency Beyond the American Dream JOHN HAGAN, GERD HEFLER, GABRIELE CLASSEN, KLAUS BOEHNKE, andHANS MERKENS

INTRODUCTION

* LTHOUGH THE CONCEPT of subculture has its origin in sociology (see / \ Yinper 1960), its most influential application is in criminology, where it is A. \ . a focal point of contributions not only by sociological criminologists (e.g., Cohen 1955), but by anthropologists (e.g., Sullivan 1989) and political scientists as well (e.g., Banfield 1968). This does not mean, however, that there is consensus about the role of subcultures in the explanation of crime. Criminologists frequently disagree about the meanings, origins, and influences of subcultures; about whether and in what form subcultures exist, and if so, about where subcultures come from, and the nature and extent of subcultural influences on individuals and groups. At the core of this debate are conflicting assumptions about whether subcultural crime and delinquency are wholesale rejections or subterranean reflections of core values of the dominant culture; and therefore about whether the problems of crime and delinquency come primarily from outside, or whether they often are generated through subterranean values that come from inside the dominant culture itself. Thorsten Veblen (1899), Robert Merton (1938), and Daniel Bell (1953) saw such issues as uniquely American, however, American culture and its economy are now global forces, and the questions posed by subcultural theories are no longer isolated in their implications. This chapter has several purposes. First, we make the point that the concept of subterranean values has never been fully developed and investigated empirically. Secondly, we emphasise that while the idea of subterranean values was developed in the USA, its potential application is much broader, especially now that the ethos of market economy and society are so globally ascendant. Thirdly, we will illustrate and explore the implications of the prior two points by exploring the descriptive and explanatory value of the subterranean tradition

28

Subterranean Sources of Sub cultural Delinquency

in understanding delinquency in the rapidly changing settings of East and West Germany.

SUBCULTURES FROM SELLIN THROUGH SUTHERLAND

Subcultural theories of crime have their origins in the ideas of two founding figures of sociological criminology, Thorsten Sellin and Edwin Sutherland. Although Sellin and Sutherland were contemporaries, Sellin's influence came earlier and reflected a different period in American history. Sellin's (1938) contributions emerged during the depression, while the first great wave of immigration of this century was still fresh in the minds of Americans. His work evolved in the context of political conflicts surrounding immigration, for example, in the form of legislative efforts to outlaw alcohol and drug use associated in the public mind with immigrants. Sellin saw these struggles as "culture conflicts" involving the "conduct norms" of nativist, immigrant and other groups. He was mindful that legislation could criminalise behaviours that were regarded as acceptable and appropriate within particular cultural groups in society. Subsequent notions of subcultural conflict elaborated this view that adherence to subgroup norms could lead directly into conflict with dominant groups (e.g., Void 1958). This tradition emphasised that subcultures were distinctively different from the dominant culture, that they occupied subordinate locations in the social structure, and that their influence on participants was direct and strong. Meanwhile, Edwin Sutherland's contributions gained prominence in American criminology during the middle of this century. He too was concerned about the influence of culture on crime, but his vision ranged over the entire social structure and included consideration of the crimes of all classes. Of course, Sutherland's (1949) most famous contribution was his conceptualisation of white-collar crime, which he explained with the same differential association theory he applied to other crimes. He asserted that business groups simply acted like other subcultural groups in defining their illegal behaviours as acceptable. Sutherland's student, Donald Cressey (1965), ironically called these behaviours "respectable crimes". This element of respectability signalled a broad-based societal tolerance for some illegal forms of behaviour. The Sutherland tradition therefore differs from Sellin in suggesting that subcultures are connected rather than opposed to the dominant culture, that they can occupy positions ranging from superordinate to subordinate in the social structure, and that their influence may be more surreptitious and diffuse than direct or overt.

Subterranean Sources of Sub cultural Delinquency

29

FROM THE DELINQUENT SUBCULTURE TO THE SUBCULTURE OF DELINQUENCY

The ideas of Sellin and Sutherland remain enormously influential in two distinct subcultural traditions of modern criminology. Sellin's emphasis on the distinctiveness, subordination, and strength of subcultural effects is reflected in midcentury theories of delinquent subcultures, including the classic works of Cohen (1955), Miller (1958), Cloward and Ohlin (1960), and the later works of Wolfgang and Ferracuti (1967) and Banfield (1968). Although there is notable variation in the specific dynamics of causation associated with each of these contributions to the theory of the delinquent subculture, all are agreed that this subculture is strongly opposed in its norms and values to the dominant culture, that this subculture is located in the lower levels of the social structure, and that the influence of this subculture on the behaviours of its members is direct and strong. The alternative conceptualisation of the subculture of delinquency has evolved from the work of Sutherland, through the writings of Matza and Sykes (1961; Matza 1964), and more recently Coleman (1987) and Hagan (1991; Hagan et al. 1995). These writings refocus the notion of subcultural delinquency to acknowledge that this behaviour often finds ironic direction from norms and values in the dominant culture, that this direction is democratic in its dispersion throughout the social structure, and that this influence can be covert, contingent and diffuse. At the core of this approach is Matza and Sykes' (1961) concept of subterranean values, which refers to normative traditions that "are familiar and within limits tolerated by broad segments of the adult population". These traditions may converge in encouraging behaviours as diverse as occupational and organisational crime and as common as minor forms of delinquency. Matza and Sykes (1961) locate a source of this subterranean convergence in Veblen's (1899) classic observation in his Theory of the Leisure Class that delinquents conform to the norms of conventional society's business sector, rather than deviate from it, when they place a desire for "big money" in their value system. They go on to note that wealth-motivated and entrepreneurial traditions in American society encourage adventure, excitement, and thrill-seeking, which seemingly further promote deviance when compared with such conformity-producing values as security, routinisation, and stability. Their point is that the former risk-oriented "edge values" exist side by side with the latter more cautious "mainstream values". Matza and Sykes (1961, p. 717) conclude that, "the delinquent has picked up and emphasised one part of the dominant value system, namely, the subterranean values that coexist with the other, publically proclaimed values possessing a more respectable air". Hagan (1991) more recently has argued that subterranean values that pervade contemporary popular culture subtly encourage a larger but less threatening "party subculture" that exists alongside and to some extent overlaps with a much smaller but more ominous "delinquent subculture". Both may be part of a larger subculture of delinquency

30 Subterranean Sources of Sub cultural Delinquency that has Veblenesque origins in the higher rather than lower reaches of the social order. Meanwhile, the former theory of the delinquent subculture has not fared well empirically. Kornhauser (1978) simply concludes that the delinquent subculture is nonexistent, and there is evidence that she is right. Short and Strodtbeck (1965) found that gang youth in lower class neighbourhoods accepted the prescriptive norms of conventional society, and Hirschi (1969) found little evidence of the focal concerns associated with "lower class culture" among the children of lower status parents. There is some evidence in both the studies by Short and Strodtbeck and Hirschi that some segments of the population are more accepting than others of delinquent behaviour, but Kornhauser notes that the delinquent subculture theory claims more than mere toleration of such behaviours. As Brownfield (1996, p. 108) similarly notes, theorists in this tradition predict a strong influence of "preferred and positively endorsed values requiring criminal behavior." The problem, Brownfield concludes, is that offenders are found in the empirically based research literature to be instrumental in their indifference to conventional morality rather than holding the oppositional values that the delinquent subculture theory depicts. Kornhauser notes that this is better evidence of anomie and amorality than of a delinquent subculture.

SUBTERRANEAN ASPECTS OF A CULTURE OF COMPETITION

Yet recall that a sense of amorality is exactly what the Sutherland inspired tradition of the subculture of delinquency leads us to expect. Sutherland (1947) himself developed the thesis that criminality in capitalist societies is fostered by an emphasis on competition and individualism, which he argued reduces commitment to social welfare. He observed that "it is difficult to imagine a respectable philosophy which would be more in harmony with and conducive to criminality than this philosophy of individualism" (p. 73). Sutherland reasoned that the principle of individualism was historically useful in moving from feudalism to capitalism, but that then it became a negative principle, undermining social welfare and leading to rationalisations conducive to crime. Such rationalisations and what Kornhauser identifies as anomie amorality are portrayed by Sykes and Matza's (1957) as "techniques of neutralization". Cressey (1953) was perhaps the first to recognise this kind of "anomie amorality", although he did not call it that, in accounts that embezzlers give of their crimes. Cressey found that before beginning their criminal careers, embezzlers often redefine their acts as "necessary" forms of "borrowing", so that in their minds the force of urgent circumstances (i.e., typically a shortage of funds) alters the meaning of their contemplated criminal behaviours. This understanding of necessity marks a cognitive crossing point into a subterranean world of anomie amorality that Coleman (1987) also finds operating more broadly in areas of white-collar crime.

Subterranean Sources of Sub cultural Delinquency

31

Coleman (p. 411) observes that "There are . . . ample data from both sociological research and the public statements of convicted offenders to construct a typology of the techniques of neutralisation used by white-collar criminals", and he goes on to illustrate six such neutralisations that again often involve the push of necessity. The necessity in many of these instances, however, does not come so much from immediate financial problems as from peers, employers and the marketplace that surround these "respectable criminals". Coleman reviews a well-developed research literature in which a majority of white-collar employees report being surrounded by expectations that encourage unethical and criminal behaviour. The prevalence of these subterranean beliefs is consistent with a Sutherland tradition in which an anomic form of amorality devolves from the dominant culture, is dispersed throughout the world of work, and exercises its influence in a diffuse pattern that influences not only employed adults, but adolescents as well. Building on Sutherland, Coleman goes on not only to make a case for the existence of these beliefs, but also for the need to understand their origins and to demonstrate their operation. Coleman's (1987, pp. 414-415) key point is that it is one thing to recognise the existence and operation of techniques of neutralisation at various levels of society and in relation to various kinds of delinquency and crime, but it is quite another to account for the origins of the motivations that lead to these neutralisations. He insists that the latter explanation is structural and that its roots are in the political economy of industrial capitalism that produces a "culture of competition" (see also Sutherland and Cressey 1978, pp. 102—110). This culture is the logical outgrowth of seventeenth century writings, for example, by Hobbes and Locke, that underpin our modern ideas about market society: From this perspective, each person is seen as an autonomous individual with the powers of reason and free choice, who is, in large measure, responsible for his or her own condition. The pursuit of economic self-interest and the effort to surpass their fellows in the accumulation of wealth and status are of critical importance to these autonomous individual actors. The key ideas in the culture of competition therefore involve central assumptions in market-oriented society about a highly individualised competition for success. We believe that this culture of competition expresses itself as a form of hierarchic self-interest that we operationalise in the form of a latent structure LISREL model below. Oddly, this culture of competition and hierarchic selfinterest have not previously been documented empirically in sociological or criminological research, even though this step is fundamental and crucial to the argument that subcultural crime and delinquency derive from core cultural values. Meanwhile, there is also a further consequence of the culture of competition that is infrequently discussed, and this is a pervasive sense of insecurity that this culture produces. Coleman (1987, p. 416) observes that "This fear of failure permeates every stratum of contemporary society from the corporate leaders to the

32 Subterranean Sources of Subcultural Delinquency underclass". The desire for success and the fear of failure therefore are powerful motivating forces in market society: powerful enough to justify the realisation of ambitions through deviant as well as conventional means. In the abstract, society is able to respond with an emphasis on high ethical standards of conduct. However, Coleman (p. 421) notes that while these ethical standards are easily combined with the values of competitive individualism on the theoretical level, "in actual practice there is often an obvious contradiction between the two". And this is where the anomic amorality of the techniques of neutralisation come into play. While Coleman focuses on the subcultural manifestations of these neutralisations in white-collar settings, his point, and that of Sutherland, Merton and others before him, is that the institutional structure and culture of market society are riddled with subterranean neutralisations that engender a range of criminal and delinquent activities. Before discussing these anomic neutralisations further, however, we elaborate our conception of the culture of competition and hierarchic self-interest.

THE CULTURE OF COMPETITION AS HIERARCHIC SELF-INTEREST

The culture of competition that is at the core of Coleman's subcultural theory is expressed in a social psychology of self-interest with sociological as well as economic connections to the stratification of market-driven societies. Veblen (1934) described this social psychology as a hierarchical striving in market societies that goes beyond simple monetary concerns to simulate an insatiable desire to maintain a high status or to improve a lesser one. Merton (1938) made a similar point in his classic essay on "Social Structure and Anomie", reminding sociologists of Durkheim's observation that modern capitalism provoked a material "longing for infinity". Lipset and Bendix (1959, p. 61) elaborated this theme by emphasising that people are motivated "to protect their class positions in order to protect their egos, and to improve their class positions in order to enhance their egos". This paired preoccupation with enhancement and protection parallels Coleman's twinning of the search for success and the fear of failure. The result is a social psychology of social and economic stratification that we conceptualise and operationalise as hierarchic self-interest. Hierarchic self-interest is a subterranean tradition in advanced market societies. This construct is neither consistently repudiated nor revered, although in some periods and settings, for example, during the "Reagan Revolution" and in films like Wa// Street, notions such as "greed is good" can become subjects of cultural fascination if not celebration. Values such as equality of opportunity ordinarily receive much greater emphasis. The defence of hierarchic self-interest tends to emerge as inequalities of life chances are revealed by lay and academic analyses of educational and occupational outcomes, and as the underpinnings of the quest for advancement and affluence are more fully laid bare by individual experience and social commentary and debate. Nonetheless,

Subterranean Sources of Sub cultural Delinquency

33

the underpinnings of this quest are sufficiently salient that they are the subjects of several conceptually related but practically disconnected areas of social psychological research. The first of these areas of research derives from Leon Festinger's (1954) social comparison theory of self-conceptualisation and its attention to how, why, and with whom individuals evaluate their attitudes and abilities. Social comparison theory is in many ways an outgrowth of the attention given by Mead, Hyman, and Merton to reference groups in the formation of self-conceptions and evaluations (see Suls 1977, p. 2). Festinger emphasised that individuals are driven to evaluate their own abilities, and that in addition to using nonsocial sources to do this, they also make comparisons with others to reach conclusions about themselves. The result is that other people become standards of social comparison. Festinger notes, like Durkheim, Veblen, Merton, and Lipset and Bendix, that there is a strain in individuals' comparisons of abilities to push constantly for higher self-assessments, which gives this theory a strongly proactive and competitive component. Festinger also notes that there is an ego- or selfenhancing aspect of this process that is inherently self-serving and that makes this theoretical approach especially relevant to considerations of hierarchy and self-interest. Below we present a set of survey items developed to capture the contribution of social comparisons to the measurement of a competitive dimension in individual hierarchic self-interest. The second area of social psychological work involves research by Hui and Triandis on idiocentrism and allocentrism, a trait level distinction that corresponds to sociocultural conceptions of individualism and collectivism. This approach as well is concerned with conceptions of the self, with the focus placed most distinctively on how independent actors see themselves as being free from reliance on others. Hui and Villareal (1989, p. 311) write that, "Individualists believe that the self is the basic unit of survival, while collectivists hold the view that the unit of survival lies in a group or several groups". The assumption is that an individual's location on a cultural continuum from individualism to collectivism will have consequences in terms of life-style, interpersonal relationships, and psychological well-being. These consequences include associations among individualism, the need for achievement, and preferences for interpersonal competition (Triandis 1983). Waterman (1984) finds that individualists are among those most likely to display achievement motivation. More generally, the argument is that collectivists tend to be self-effacing, while individualists are self-enhancing (see Hui and Villareal 1989, p. 313). It is the overall emphasis of individualism theory on self-preservation, autonomy, achievement and selfenhancement that ties this tradition to our conceptualisation and measurement of hierarchic self-interest, as we note in further operational terms below. The third area of social psychological work that is relevant to our notion of hierarchic self-interest focuses on materialism and success. The origin of this line of work is Ronald Inglehart's early writing about The Silent Revolution and his thesis that the advanced Western nations are moving toward "postmaterialist"

34

Subterranean Sources of Sub cultural Delinquency

values and political styles. "The values of Western publics have been shifting", Inglehart (1977, p. 3) wrote two decades ago, "from an overwhelming emphasis on material well-being and physical security toward greater emphasis on the quality of life". Although evidence of the directional change predicted in this work is at best mixed, Inglehart's research is nonetheless important in the attention it gives to material achievement. This focus on achievement is developed at both the individual and societal levels by including not only measures of individuals' goals in school and work, but also items tapping support for societal efforts to maximise economic growth, for example, through the development of nuclear energy. The latter focus adds a macro dimension to the measurement of individual dispositions favouring hierarchies of material success. We elaborate the measurement of materialism and success orientation through the further contributions of Boehnke (1988) below.

ORIENTING HYPOTHESES

We spell out in this section the specific strategy we use to measure the latent concept of hierarchic self-interest. A key aspect of this strategy is the premise that the above social psychological dimensions coalesce into a higher order set of preferences. The initial hypothesis that organises our work below is therefore that: HI: Hierarchic self-interest is a latent construct that emerges as a higher order representation of personal preferences for an individualised competition for success.

Messner and Rosenfeld (1994, p. 84) write in a parallel context that, "These tendencies are expressed at the cultural level in the preeminence of the competitive, individualistic pursuit of monetary success as the overriding goal". Note that these preferences do not require criminal behaviour in the sense that the delinquent subculture theories assert, but their unbridled competitive thrust nonetheless does raise linked prospects of social inequality, individual and group failure, and anomic amorality that may follow.

From hierarchic self-interest to acceptance of inequality and anomic amorality The embrace of hierarchic self-interest enervates the endorsement of inequality as an organising feature of society. From Marx to Parsons to the present there is an enduring theoretical and empirical interest in how societies legitimate social and economic inequalities. Equality of opportunities is invoked as the most compelling source of legitimisation for inequalities in outcomes. For example, Mayer et al. (1992, p. 53) note that "inequalities based on technical and scientific competence are justified through the equality of educational opportunity". The issues therefore may be less whether and how this justifica-

Subterranean Sources of Sub cultural Delinquency

35

tion is offered, than the extent to which self-interested hierarchic attitudes stimulate the acceptance of these inequalities. The second hypothesis that organises our work is therefore that: H2: Hierarchic self-interest engenders the acceptance of inequality.

As Parkin (1972) has noted, those who already have the most also have the most to gain from the acceptance of inequality. Messner and Rosenfeld (1994, p. 10) further observe that: "A competitive allocation of monetary rewards requires both winners and losers; and 'winning' and 'losing' have meaning only when rewards are distributed unequally. In addition, the motivation to endure the competitive struggle is not maintained easily if the monetary difference between winning and losing is inconsequential". An underemphasised implication of this reasoning is therefore that the embrace of hierarchic self-interest and its underlying acceptance of inequality sets in motion a process in which "losers" and "out-groups" are created and degraded in society. This leads to our third hypothesis that: H3: The acceptance of inequality encourages a repudiation of societal outgroups.

Given this willingness to repudiate outgroups, it should come as little surprise that hierarchic self-interest also encourages a subterranean tradition of anomie amorality. This form of anomie is conceptually distinct but empirically connected to the hierarchic self-interest of the dominant market culture; indeed, it is a predictable product of this culture, and it is therefore our fourth hypothesis that: H4: Hierarchic self-interest is a source of anomie amorality.

That is, anomie is a further value that is inculcated, less overtly but nonetheless extensively, by the culture of modern capitalism, as a logical outgrowth of its subterranean tradition of hierarchic self-interest. This form of anomie is a prescription of normative flexibility that facilitates the achievement of the more publically proclaimed cultural goals involving monetary success and achievement (see Orru 1987). The point is that market culture places the goal of material success ahead of the rule of law in its value hierarchy, and in this context, flexible redefinitions of law come to be valued. This is a basis of an ironic subterranean interdependency of good and evil in market-oriented value systems.

From anomie amorality to group delinquency The amorality of the anomie we describe is captured in commonplace references in market society to such tactics as "finding an edge", "cutting a corner", and "winking at the law". The point of these expressions is that, in Sykes and Matza's (1957) terms, they "neutralize" violations of law. It is in this sense,

36 Subterranean Sources of Sub cultural Delinquency finally, that much crime and delinquency is not a challenge to the social and cultural order, but rather a "disturbing reflection or caricature of it". Of course, delinquents do not need to think all of this through in contemplating and engaging in delinquent acts. They presumably rarely do so. Instead, all that is required is that there is a sufficient societal diffusion of hierarchic self-interest through a resulting anomic amorality that the subculture of delinquency becomes commonplace as a group-supported response to the challenge of developing an achievable adolescent life-style (see Greenberg 1977). This is the basis of our fifth hypothesis that: H5: Anomic amorality encourages adolescent participation in group delinquency.

Matza and Sykes echo Veblen in noting (1961) that, "Adolescents in general and delinquents in particular [are] members of the last leisure class". That is, their involvements in delinquency give adolescent expression to what Veblen called leisure class values like hierarchic self-interest that reflect rather than reject subterranean traditions in the dominant culture. These delinquent acts tend to be committed by individuals in the company of others, who are also engaging in delinquent activities. Hierarchic self-interest and anomic amorality thus form the diffuse background conditions that respectively make the delinquent life-style culturally purposeful and possible. Although much resulting delinquency has an apparent random component (see Matza 1964, p . 44), some subcultural delinquency also is given further direction by the availability of degraded and therefore neutralised targets, such as the "members of debased minorities" (p. 175). We already have noted that hierarchic self-interest through the acceptance of inequality can lead to the repudiation of societal out-groups, and therefore: H6: The repudiation of societal outgroups further encourages group delinquency.

That is, repudiation associated with out-group membership can serve as a "denial of the victim" that justifies and thereby directs subcultural delinquency.

Both gendered and generic Thus far, we have presented hypotheses about the subterranean sources of subcultural delinquency that are largely unqualified by demographic, institutional or societal settings. Although we will argue that these hypotheses have a generic quality in their operation in market-oriented societies, some further, final sources of hypothesised variation can be identified. First and foremost is the influence of gender. We expect that: H7: Males are more prone to hierarchic self-interest than females.

Messner and Rosenfeld (1994, p. 69) note that "cultural prescriptions and mandates are filtered through prevailing gender roles, which implies that the inter-

Subterranean Sources of Sub cultural Delinquency

37

pretation and meaning of cultural messages differ to some extent for men and women". The concept of hierarchic self-interest may help to operationalise a central role assigned to hierarchy in the feminist literature on crime (see Simpson 1989), and it may therefore also help to explain some of the gender difference in delinquency (cf., Hagan et al. 1985). Messner and Rosenfeld (1994, ch. 4) further note that a societal emphasis on competitive individualism involves an institutional imbalance in which the economy takes priority over other institutions. The same argument applies to hierarchic self-interest, and the implication of this position is that: H8: The prominence of market-oriented values such as hierarchic self-interest will supersede restraints from noneconomic institutions such as the family and schools.

We have noted that there is a long tradition in American social theory of arguing that this problem is uniquely problematic in the USA, but we have suggested that the forces of hierarchic self-interest are increasingly global, and highly competitive individualised values may now be especially prominent in settings undergoing rapid social change toward market principles. Messner and Rosenfeld (1997) suggest that there may be a lag in the evolution of market economics and the development of abilities of other social institutions to constrain their criminogenic potential. An implication is that: H9: Hierarchic self-interest will be most pronounced in circumstances of rapid market transitions.

However, to say that males in settings of market transitions are especially susceptible to hierarchic self-interest is not to claim that these individuals are affected uniquely by the basic processes involved. Rather, they simply are more effected by these processes. Thus our final hypothesis is that: H10: Although hierarchic self-interest is more characteristic of males and in settings of rapid market-oriented social and economic change, the influence of hierarchic selfinterest is more broadly generic.

In particular, we believe that the influence of hierarchic self-interest, that we treat as a crucial subterranean source of much group delinquency, is a diffuse but pervasive cultural process that extends globally beyond the USA to marketoriented societies around the world.

WHERE EAST MEETS WEST

The data used to test the above hypotheses were collected in 1994 and 1995 in four sites in the former East and West Germanies. These sites provide uniquely interesting settings in which to test our hypotheses. In the aftermath of the Second World War, the two Germanies were consciously subsidised in efforts by their sponsoring powers to establish the opposed benefits of market driven

38 Subterranean Sources of Sub cultural Delinquency and centrally planned principles of social and economic organisation. Then, with the rapid demise of the German Democratic Republic and the subsequent unification of the two Germanies following the collapse of the Berlin Wall in 1989, the former East Germany became the object of an extraordinarily rapid and highly capitalised market transition organised largely by the former West Germany. Borneman (1993, p. 319) articulates a predictable expectation that, "with the collapse of their state and social system, East Germans lost their time and space coordinates". Yet it is not entirely clear where and how this might have effected adolescents. Two obvious sites in which to explore the possibilities are East and West Berlin. Borneman (1993, p. 17) uses the metaphor of "mirror-imaging" to describe the consequences of the investment of resources in this divided city during and since the Cold War. However, citizens in East and West Berlin, even more than in the rest of the two Germanies, were and are connected through extensive family ties and acquaintances, and even before the Wall fell most East and West Berlin youth watched the same television, and they were therefore exposed to the same latent and manifest themes of advanced capitalist culture and its dominant market values. We expected East Berlin youth to be more vulnerable than West Berlin youth to the accentuation, exaggeration and distortion of these marketdriven values during the rapid market transition, in part as a result of their direct and extensive exposure to West Berlin culture; however, we did not know whether to expect this difference to be greater, smaller, or the same as between other former East and West German settings. Two further sites therefore were included in this research. The sites selected were in the former Karl-Marx stadt region now called Chemnitz to the south of Berlin in East Germany, and in the region surrounding the town of Siegen in West Germany. Both the Chemnitz and Siegen metropolitan areas have smaller populations than Berlin. Both are also much more heavily dependent on industrial work than Berlin, and both are currently sites of considerable economic restructuring and unemployment. These settings diversify our representation of East and West Germany and thus allow an assessment of the uniqueness of the East and West Berlin comparison. We sampled students from seventh t o tenth grades in each of the four sites in 1994. Schools were selected following detailed pilot work (e.g., see Kirchhofer et al. 1991). While exact enrolment figures are not available for all schools, the response rates are estimated to be between 60 per cent and 70 per cent. Proportions of students do not differ significantly on demographic variables such as gender and parental work status, across grades and comparable kinds of schools; by these measures the sampling of adolescents seems closely representative of the communities from which they are drawn.

Subterranean Sources of Sub cultural Delinquency

39

EAST-WEST DIFFERENCES

Aside from the exogenous variables of age, gender, and coming of age in East and West Berlin, the remaining variables in our analysis are measured with multiple item scales. Descriptions of the scale items, descriptive statistics, and alpha scores are presented in Table 3.1. There are persistent differences between the East and West German sites. For example, our scale measures of parental control asked if the youth surveyed could meet friends after 8.00 p.m., stay over at a same/different sex friend's home, or take a holiday trip without asking permission of parents. Parental control tends to be greater in the former East than West German sites. The scale of school achievement is based on self-reports of general achievement, German and Math grades, and overall academic performance measures. These measures tend to be higher in the Eastern than Western sites. Five items initially used to measure competitiveness ask respondents to assess their achievements relative to others, in the sense of "being among the best", "better than others", "better than average", "above average", and finding out "how well I did in comparison with others". Competitiveness tends to be higher in the East than West. Later we will test the effect of deleting the "better than average" item, because it seems the least sensitive of the measures to the issue of competitiveness. The next items are drawn from Boehnke's (1988) operationalisation of aspects of Inglehart's work on post-materialism. These items focus on "performing well", "the importance of achievement", "success at school and on the job", the "need for nuclear power plants", and "what is good for industry". Success orientations are stronger in the East than West. The last two items address macro- as contrasted with micro- aspects of orientations to success, in the sense that they focus on public policy matters. Later we assess the implications of removing these latter items from our analysis. Three items are included next that load most heavily in a study by Hui and Villareal (1989) of individualism-collectivism among American undergraduates. These items involve feelings about "going on a trip with friends", "looking after themselves", and "standing alone", with all three items coded to reflect a commitment to individualism. There is some tendency for individualism to be higher in the East than West. We initially used eight items to measure anomic amorality. These items asked about the importance of getting ahead versus playing by the rules, the association between success and dishonesty, breaking rules to make money, obeying the law when it doesn't serve one's interests, getting ahead by doing things that are not right, breaking the law if you can get away with it, "idiots" who let others take advantage of them, and respect for the law. Overall, youth score higher on this scale of anomic amorality in the East than the West. The reliability of this scale was later improved by removing the second, fourth, and eighth of these items.

1.50 .69

1.66

.86

Female=2 Mean score on the three item scale of checking with parents (yes=l) Self-reported grades (0=poor to 5=excellent) Mean of Likert style measures of dis/agreement (not at all true=0 to completely true=3) As Above

As Above

Gender

Parental Control (alpha = .71/70)* Meet friends after 8:00 PM Stay over at friend's house (same/different sex) Take holiday trip without checking with parents

School Achievement (Self-Reported)(alpha = .69/71)* General achievement German and Math grades Overall Academic performance

Competitiveness (alpha = .66/.58)* "I would like to be among the best in all areas of life (Yi) "For me, to be successful in life means to be better than others"(Y2) "My ambition is always to be better than average'^Ys)** "I am only satisfied when my performance is above average"(Y,t) "In any kind of examination or competition it is important for me to find out how well I did in comparison with others"(Yj)

Success Orientation (alpha = 70/.67)* "People who don't perform well won't be happy"(Yg) "The most important thing in life is achievement"(Y7) "Success in school and later on the job is most important in life"(Yg) "We need nuclear power plants"(Y9)** "Whatever is good for our industry is good for us"(Yio)*'1

Individualism (alpha = .52/M)* "To go on a trip with friends makes one feel less free and mobile; as a result there is less fun"(Yn)

1.75

3.31

14.48

Years of Age

Age

.57

.65

.60

.68

.35

.50

1.09

East Berlin (n=327) X SD

Measures

Variables

.83

1.56

1.64

3.01

.61

1.48

14.57

.61

.67

.57

.68

.35

.50

.47

West Berlin (n=322) X SD

Table 3.1: Inventory of variables, measures and descriptive statistics for East and West German youth, 1994-1995

.66

3.24

.82

1.63

.51

.60

.55

.33

.64

1.58

.50

.87

1.52

15.18

(n=626) SD X

Chemnitz

.62

.55

.72

.60

.65

.36

.50

1.08

1.48

1.42

2.98

.53

1.53

15.22

Siegen (n=643) X SD

.74

.72

1.26

.84

As Above

Mean scores on four self-report delinquency items (never=0 to often=3)

Ethnocentrism (alpha = .80/.78)* "Foreigners are better off in their homeland" "Foreigners are not as trustworthy as Germans" "Foreigners should be dismissed from jobs before Germans" "There are too many foreigners in Germany" "Foreign aid is too philanthropic"

Group Delinquency (alpha = .80/.76)* "What kinds of things does your group do?" Steals Things Damages Property Provokes Fights Gets into Fights

1.23

1.26

.66

.61

.60

.72

1.33

.89

.67

1.29

.58

1.15

.63

.65

.58

.65

.56

.91

1.37

1.14

* Alpha scores are reported for East/West Berlin and Chemnitz/Siegen combined samples. The alphas pertain only to items used in the final versions of the scales. ** Deleted from final scale. See Table 2.

.61

1.30

As Above

Acceptance of Social Inequality (alpha = .60/.55)* "Rank differences between people are acceptable, because they show what you make of the chances you have" "On the whole, the social differences in our country are just" "Today in Germany economic profits are distributed justly"

.61

1.36

Mean of Likert-style measures of dis/agreement ( 0=strongly disagree to 3=strongly agree, with inverse items reverse coded)

Anomic Amorality (alpha = .73/.75)11 "It is more important to get ahead in life than to play by the rules" "People who are the most successful in life often are the most dishonest" "I want to make a lot of money, even if I must sometimes break the rules" "People should obey the law, even if it doesn't serve their interests" "If you want to get ahead, sometimes you must do things that are not right" "It is okay to break the law, if you can get away with it" "Idiots deserve it when others take advantage of them" "I have great respect for the law"

"We would be better off if everyone would just look after themselves" (Y,2) "To be superior, a man must stand alone"(Yi3)

.60

.56

.52

.59

42

Subterranean Sources of Sub cultural Delinquency

Three items measuring the acceptance of inequality were included from Mayer et al.'s (1992) work on opportunity and inequality. These items ask about the "acceptability" and "justice" of "rank differences between people". The scores on these items indicated that the former East German youth were less likely than the West German jjoiith to accept social inequality. Ethnocentrism was measured by Likert-style responses to six items asserting that "foreigners" are better off in their homelands, not as trustworthy as Germans, should be dismissed from jobs before Germans, are too numerous in Germany, that foreign aid is overly philanthropic, and that Germany's first priority should be to restore its "earlier greatness". East German youth scored notably higher on these items than did West German youth. Finally, subcultural delinquency was measured by asking "what kinds of things does your group do?" Youth were asked to indicate whether their groups were never to often involved in stealing things, damaging property, provoking and getting into fights. Again, the East German youth scored higher on these items than the West German youth. On these and the other multi-item scales we have presented, the former East German youth are consistently different from the West German youth, regardless of whether we consider the paired comparisons of East and West Berlin or Chemnitz and Siegen. Next we begin to explore the subterranean place of hierarchic self-interest in this differentiation of East and West German youth.

SUBTERRANEAN MODELS OF HIERARCHIC SELF-INTEREST

We used LISREL 8 to confirm a set of theoretical expectations about the subterranean nature of hierarchic self-interest (see Table 3.2). LISREL's use of observed measures to trace the structure of latent concepts is an appropriate match with the subterranean theme in this theory of hierarchic self-interest. More specifically, LISREL allows us to specify and test a layered measurement model in which hierarchic self-interest is represented as a second order latent concept that is abstracted from the three more directly observed dimensions identified in our discussion of competititiveness, success orientation, and individualism above. This use of LISREL also allows us to test the distinctiveness of this second order latent construct from the acceptance of inequality and anomic amorality, also introduced above. We began our development of a measurement model of hierarchic self-interest with a single factor Model (A) that included all of the items in Table 1 measuring competitiveness, success orientation, individualism, anomie, and the acceptance of inequality. Although it is conceivable that these factors might collectively represent some kind of overarching materialist orientation, this model did not in fact fit the data well, with a ratio of chi-square to degrees of freedom of more than 14 and a goodness of fit index of .71. Treating the anomic amorality or acceptance of inequality items as uncorrelated second factors (Models B

Subterranean Sources of Sub cultural Delinquency

43

Table 3.2: Development of LISREL Measurement Model of hierarchic self-interest in East and West Berlin Model A. Single Factor Model B. Two Factor Model with Anomie as Uncorrelated Second Factor C. One Factor Model with Anomie Items Omitted D. Two Factor Model with Inequality as Uncorrelated Second Factor E. One Factor Model with Inequality Items Omitted F. Two Factor Model with Competitiveness as Uncorrelated Second Factor G. Two Factor Model with Individualism as Uncorrelated Second Factor H. Two Factor Model with Success as Uncorrelated Second Factor I. Competitiveness, Individualism, and Success as Three Uncorrelated Factors J. Second Order Factor Model of Hierarchic Self-interest with Competitiveness, Individualism, and Success as Three Correlated First Order Factors K. Second Order Factor Model of Hierarchic Self-interest with Y9 and Y10 deleted L. Second Order Factor Model of Hierarchic Self-interest with Y3 removed

x2

df

GFI

AGFI

3666

252

.71

.66

2824 1523

252 104

.80 .83

.77 .78

1366

104

.85

.80

1094

65

.85

.79

1113

65

.87

.81

1190

65

.84

.78

1080

65

.87

.82

1096

65

.86

.81

609

62

.92

.88

288

41

.95

.93

151

32

.97

.95

and D) improved this situation somewhat, as did simply omitting the anomie and inequality items (Models C and E); and omitting both the anomie and inequality items produced a one factor Model (E) that increased the goodness of fit to .85, but with a chi-square ratio that was still nearly 17. We then created three separate two factor models in which competitiveness (F), individualism (G), and success orientation (H) were each respectively treated as uncorrelated second factors. Each had a similarly inadequate fit, as did Model (I), which treated competitiveness, individualism, and inequality as three uncorrelated factors. Only Model (J) significantly improved this situation by taking the theoretically proposed step of treating competitiveness, individualism, and success orientation as three correlated first order factors in a second order factor model of hierarchic self-interest. This reduced the chi-square ratio to just under 10 and increased the goodness of fit to .92. Deleting the two more abstract, macro-level measures of success orientation (Model K), involving nuclear power plants and

44

Subterranean Sources of Sub cultural Delinquency (x2 = 530.86; DF = 191; GFI = .95)$

* Seigen and West Berlin ** Chemnitz *** East Berlin § coefficients significant at p<.01 Figure 3.1: LISREL multigroup analysis of hierarchic self-interest in East and West Berlin, Chemnitz and Siegen

industry, reduced the chi-square ratio to 7 and increased the goodness of fit to .95. Finally, removing the least sensitive, "above average" measure of competitiveness (Model L) decreased the chi-square ratio to 4.7 and increased the fit to .97. The fit of this second order factor model of hierarchic self-interest is consistent with the theoretical expectation that hierarchic self-interest is a subterranean latent construct that bridges attitudes about competitiveness, success, and individualism. To further confirm the applicability of the concept of hierarchic self-interest in the four German settings of our research, we also estimated multigroup, stacked models which set equality constraints on the loadings of the first order factors on the second order construct in all four sites. The strict equality model achieved a goodness of fit of .95 and a chi-square ratio of 2.83. We then slightly altered this model by following the modification indices and removing the equality constraints for the loading of competitiveness on hierarchic selfinterest in the two former East German settings. This resulted in a model with a goodness of fit of .95 and a chi-square ratio of 2.7. Although this modified model introduced some variation in Figure 3.1, involving loadings of competitiveness that ranged from .68 to .94, the overall indication is that the latent, second order construct of hierarchic self-interest operates as a subterranean construct in all four settings. As suggested in the first hypothesis of this chapter, then, hierarchic self-interest is a latent construct that emerges as a higher order representation of personal preferences for individualised competition for success.

Subterranean Sources of Sub cultural Delinquency

45

FURTHER TESTING THE MARKET

The remaining nine hypotheses above all focus on hierarchic self-interest as a subterranean influence in market-oriented societies. We next explore these hypotheses through the structural models estimated with LISREL in Figures 2 and 3. These models treat group delinquency as influenced by gender, age, and coming of age in the former East and West Germanies, acting through hierarchic self-interest, parental control, and school achievement, which in turn may lead to or restrain anomie and attitudes toward inequality, with ethnocentrism and group involvement in delinquency as respective penultimate and ultimate outcomes. The Appendix to this CHAPTER details a descriptive history of the structural models we summarise below. The multigroup analyses presented in Figures 2 and 3 split the sample along lines of setting and gender to specifically assess assumptions of homogeneity. Figure 2 creates two East/West paired groupings, with East and West Berlin in the first grouping and Chemnitz and Siegen in the second. Figure 3 splits the sample into males and females. Although we indicate specific group differences in the models, these multigroup analyses largely confirm that the model we explore is generic with regard to sites and gender. For example, the second and third hypotheses developed in our theoretical discussion assert that hierarchic self-interest results in an acceptance of inequality, which in turn encourages a repudiation of societal out-groups. The structural model confirms these two linkages across sites and gender in Figures 2 and 3. In each of the figures, the effect of hierarchic self-interest on the acceptance of inequality is strong, and in turn this acceptance of inequality significantly increases ethnocentrism. So hierarchic self-interest affects the acceptance of inequality directly, and it increases enthnocentrism indirectly. Hypotheses four and five further assert that hierarchic self-interest is a source of anomie amorality and that the resulting anomie encourages adolescent participation in group delinquency. The paths that link hierarchic self-interest and anomie amorality in Figures 2 and 3 are quite strong, and the effects of anomie on group delinquency are also notable. The multigroup models confirm that these effects are consistent across sites and gender. There is also a significant effect of anomie amorality on ethnocentrism in the multigroup gender model, although this effect is not quite significant in the multi-site model. Nonetheless, our sixth hypothesis proposes that ethnocentrism has a direct effect on group delinquency, arguing that the repudiation of societal out-groups encourages group delinquency. A causal path that reflects a weak but significant effect of ethnocentrism on group delinquency appears in both Figures 2 and 3; that is, this weak effect is consistent across sites and gender. To this point, our analysis indicates that hierarchic tendencies toward the pursuit of self-interest that are a subterranean force in market-driven societies

Competitiveness

Individualism

-.09

Figure 3.2: LISREL Structural Model of sources of sub cultural delinquencyin East and West Germany

Success

a' s

s

<5

IP

Subterranean Sources of Sub cultural Delinquency

47

are indirect and diffuse causes of group delinquency. This causal influence is diffused through the intervening mediums of anomic amorality, the acceptance of inequality, and ethnocentrism. The image is of a dense causal web in which subterranean market values exercise remote and indirect effects on group delinquency. That is, it is not that these values are themselves directly criminogenic, but rather that they cause other problems, such as anomie and ethnocentrism, that lead to group delinquency. The structural models presented in Figures 2 and 3 reveal further aspects of the place of hierarchic self-interest in market-oriented society. For example, as predicted in our seventh hypothesis and by Messner and Rosenfeld, there is strong evidence that males are more prone to hierarchic self-interest than females. Figure 2 indicates that this is especially the case in the more urban settings of East and West Berlin, but it is also the case in Chemnitz and Siegen. Males are much more inclined in all settings to express attitudes of hierarchic self-interest, and this indirectly accounts for a part of the tendency of males to be more involved in group delinquency than females. Meanwhile, there is no evidence in either Figure 2 or 3 that parental controls or school achievement constrain these expressions of hierarchic self-interest. This is consistent with our eighth hypothesis and Messner and Rosenfeld's suggestion that an imbalance in institutions of market society leads to market-oriented values such as hierarchic self-interest superseding restraints from noneconomic institutions such as the family and schools. Our ninth hypothesis extended the notion of institutional imbalance to note that hierarchic self-interest will be most pronounced in circumstances of rapid market transitions. The implication of this hypothesis is that in settings like East Germany, where market principles are being rapidly introduced, the impact of hierarchic self-interest may be especially pronounced. The results in Figures 2 and 3 indicate that this is indeed the case: youth in East German settings are more likely to express hierarchic self-interest. However, while this and the finding for gender earlier indicate that hierarchic self-interest is more characteristic of males and in settings of rapid market-oriented social and economic change, the influence of hierarchic self-interest is nonetheless more broadly generic. That is, and as noted earlier, the influence of hierarchic self-interest is nearly identical across sites and gender. To the extent that male and East German youth differ with regard to hierarchal self-interest, it is simply that they are more imbued with these attitudes, not that they are affected differently by these attitudes. Male and female and East and West German youth are all similarly inclined by these attitudes to be more anomic in their attitudes, more accepting of inequality, as well as indirectly more ethnocentric and more involved in group delinquency. This influence of hierarchic self-interest is generic.

48

Subterranean Sources of Subcultural Delinquency

DELINQUENCY AND THE GLOBALISATION OF THE AMERICAN DREAM

A recurring theme in American social theory is that core values in American society contain an undercurrent which can cause subcultural delinquent and criminal behaviour. This theme is bold enough that it is found in titles ranging from Bell's classic article on "Crime as an American Way of Life" to Messner and Rosenfeld's Crime and the American Dream, and this theme is central enough that it has stimulated theoretical traditions from Merton's anomie theory to Matza and Sykes' theory of subterranean values and techniques of neutralisation. Nonetheless, we argue that American criminology has trivialised and neglected this theme, while also failing to see its global implications. The trivialisation and neglect have occurred through the translation of this theoretical tradition into empirical tests that distort and discard its central tenants. The core of this theoretical tradition is the idea that subterranean versions of market-oriented values stimulate subcultural crime and delinquency. These subterranean values involve what Coleman usefully has called a "culture of competition". We have argued that the subterranean themes of this competitive culture are expressed in measurable forms of hierarchic self-interest and anomic amorality. These aspects of Coleman's culture of competitition have not previously been effectively operationalised in American criminology. Instead, American criminology has focused on two presumed implications of the competitive emphasis on success in American society: that this would lead either (a) to an inversion of middle class values and to the adoption of the oppositional values of a delinquent subculture, or (b) to a disjuncture between success-seeking aspirations and real world expectations and resulting subcultural delinquency. When little support was found for either process, attention turned away from the culture of competition and the implications of the values of a market society. However, these empirical approaches have missed indirect and diffuse influences of subterranean values and their anomic consequences in market society which extend far beyond the USA. To make this point we have operationalised and tested the subterranean influences of hierarchic self-interest and anomic amorality in the changing circumstances of East and West Germany. Across four separate German settings, we have found consistent evidence that hierarchic self-interest is a latent construct that emerges out of personal preferences for the individualised competition for success. We have found further that this form of self-interest engenders an anomic amorality, an acceptance of inequality, and a repudiation of societal out-groups, and that these in turn lead to group delinquency. None of these forces alone is overwhelming, but they combine to form a subterranean causal web that is linked to core values of market society, and the strands in this causal web can lead to subcultural delinquency. Males are more likely to succumb to the constraints of these causal forces, and they are not effectively protected from doing so by families or schools. This is

Subterranean Sources of Sub cultural Delinquency

49

perhaps, as Messner and Rosenfeld have noted, because there is an institutional imbalance in market society that protects, nurtures, and extends the influence of economically-oriented subterranean forces. This may especially be so in circumstances of rapid transitions to market forms of social and economic organisation, and we have found that East German youth are therefore currently more at risk to these subterranean processes than are West German youth. The influence of these subterranean processes among youth in settings of market transitions that may ostensibly seem far removed from the USA underlines an ironic failure of American sociologists to appreciate fully the significance of one their most important theoretical traditions.

REFERENCES

Banfield, Edward, 1968, The Unheavenly City (Boston: Little Brown). Bell, Daniel, 1953, "Crime as an American Way of Life" 13 The Antioch Review 131-154. Boehnke, Klaus, 1988, Prosoziale Motivation, Selbstkonzept und politische Orientierung: Entwicklungsbedingungen u. Verdnderungen im Jugendalter [Prosocial Motivation, Self-Concept and Political Orientation: Development and Change in Adolescence] (Frankfurt: Lang). Borneman, John, 1993, Belonging in the Two Berlins: Kin, State, Nation (Cambridge: Cambridge University Press). Brownfield, David, 1996, Criminological Controversies (Boulder, CO: Westview Press). Cloward, Richard and Lloyd Ohlin, 1960, Delinquency and Opportunity: A Theory of Delinquent Gangs (New York: Free Press of Glencoe). Cohen, Albert, 1955, Delinquent Boys (New York: Free Press of Glencoe). Coleman, James, 1987, "Towards an Integrated Theory of White-Collar Crime" 93 American Journal of Sociology 406-439. Cressey, Donald, 1953, Other People's Money: A Study of the Social Psychology of Embezzlement (Glencoe, IL: Free Press of Glencoe). , 1965, "The Respectable Criminal: Why Some of Our Best Friends are Crooks" 2 Transaction 12—15. Festinger, Leon, 1954, "A Theory of Social Comparison Processes" 7 Human Relations 117-140. Greenberg, David,1977, "Delinquency and the Age Structure of Society" 1 Contemporaray Crises 189-223. Hagan, John, 1991, "Destiny and Drift: Subcultural Preferences, Status Attainments and the Risks and Rewards of Youth" 56 American Sociological Review 567-582. Hagan, John, A.R. Gillis, and John Simpson, 1985, "The Class Structure of Gender and Delinquency: Toward a Power-Control Theory of Common Delinquent Behavior" 90 American Journal of Sociology 1151-1178. Hagan, John, Hans Merkens and Klaus Boehnke, 1995, "Delinquency and Disdain: Social Capital and the Control of Right-Wing Extremism Among East and West Berlin Youth" 100(4) American Journal of Sociology 1028-1052. Hirschi, Travis, 1969, Causes of Delinquency (Berkeley: University of California Press).

50 Subterranean Sources of Sub cultural Delinquency Hui, C. Harry and Marcelo J. Villareal, 1989, "Individualism-Collectivism and Psychological Needs: Their Relationships in Two Cultures" 20(3) Journal of CrossCultural Psychology 310-323. Inglehart, Ronald, 1977, The Silent Revolution (Princeton, NJ: Princeton University Press). Kirchhofer, Dieter, Hans Merkens and Irmgard Steiner, 1991, Schuljugendliche im vereinten Berlin: Pilotstudie (School Youth in the United Berlin: A Pilot Study) (Berlin: Freie Universitat Berlin). Kornhauser, William, 1959, The Politics of Mass Society (New York: Free Press). Lipset, S. M. and R. Bendix, 1959, Social Mobility in Industrial Society (Berkeley: University of California Press). Matza, David, 1964, Delinquency and Drift (New York: John Wiley and Sons). Matza, David and Gresham Sykes, 1961, "Juvenile Delinquency and Subterranean Values" 28 American Sociological Review 712-720. Mayer, Karl Ulrich, Vered Kraus and Peter Schmidt, 1992, "Opportunity and Inequality: Exploratory Analyses of the Structure of Attitudes Toward Stratification in West Germany" in Social Mobility and Political Attitudes (Frederick C. Turner (ed.), New Brunswick, NJ: Transaction). Merton, Robert, 1938, "Social Structure and Anomie" 3 American Sociological Review 672-682. Messner, Steven and Richard Rosenfeld, 1994, Crime and the American Dream (Belmont, CA: Wadsworth). , 1997, Market Dominance and Crime in Post-Industrial Society, paper presented at the workshop on "Social Dynamics and Regulatory Order in Modern Societies", Onati, Spain, 23-24 October 1997. Miller, Walter, 1958, "Lower Class Culture as a Generating Milieu of Gang Delinquency" 14 Journal of Social Issues 5—19. Orru, Marco, 1987, Anomie: History and Meanings (Boston: Allen & Unwin). Sellin, Thorsten, 1938, Culture Conflict and Crime (New York: Social Science Research Council). Short, James and Fred Strodtbeck, 1965, Group Process and Gang Delinquency (Chicago: University of Chicago Press). Simpson, Sally, 1989, "Feminist Theory, Crime and Justice" 27 Criminology 607-631. Sullivan, Mercer, 1989, Getting Paid: Youth Crime and Work in the Inner City (Ithaca, NY: Cornell University Press). Suls, Jerry, 1977, "Social Comparison Theory and Research", in Social Comparison Processes (Jerry M. Suls and Richard L. Miller (eds), New York: John Wiley and Sons). Sutherland, Edwin, 1947, Principles of Criminology (Philadelphia: Lippincott). , 1949, White Collar Crime (New York: Dryden). Sutherland, Edwin and Donald Cressey, 1978, Criminology (Philadelphia: Lippincott). Sykes, Gresham and David Matza, 1957, "Techniques of Neutralization: A Theory of Delinquency" 22 American Sociological Review 664—670. Triandis, Harry, 1983, Allocentric vs. idiocentric social behavior: A major cultural difference between Hispanics and the Mainstream, Technical Report No. ONR-16 (Champaign: Department of Psychology, University of Illinois). Veblen, Thorsten, 1899, The Theory of the Leisure Class (New York: Viking Press).

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, 1934, The Theory of the Leisure Class: An Economic Study of Institutions (New York: Modern Library). Void, George, 1958, Theoretical Criminology (New York: Oxford University Press). Waterman, A.S., 1984, The Psychology of Individualism (New York: Praeger). Wolfgang, Marvin and Franco Ferracuti, 1967, The Subculture of Violence (London: Tavistock). Yinger, J. Milton, 1960, "Contraculture and Subculture" 25 American Sociological Review 625-635.

Knights of Crime: The Success of 'Pre-Modern" Structures in the Illegal Economy SUSANNE KARSTEDT

THE ILLEGAL GLOBAL ECONOMY

economy, crime will become transnational. In fact, citizens and politicians are scared by the recently discovered threat of transnational crime. This category includes a diversity of quite well-known crimes: terrorism, industrial espionage, drugs and arms trafficking, international wholesaling of pornography and prostitutes, trade in people, antiques, and endangered species, internationally organised economic crime, particularly in financial markets, tax evasion, environmental crimes, and internationally coordinated right-wing extremism. Organised crime is identified as the main suspect in transnational crime: the Sicilian Mafia, the Columbian drug cartels, the Yakuza in Japan, the Chinese Triads, crime networks in South Africa or Nigeria, the Mafia in Russia or other East European post-communist states (Nelken 1998). The development of transnational crime reflects two decisive and simultaneous processes of globalisation and its legal economy: the growth of integrated networks of economic, political and bureaucratic elites at the top, and the increase of streams of migrant workers at the bottom. Many of the illegal transactions that are included in the category of transnational crime involve members of national and international elites who cooperate in personal and interorganisational networks. Organised crime is the "great bridge" between elite criminality and illegal markets, and finally related forms of "nonelite deviance" like property and street crimes at the bottom of society (Simon and Eitzen 1990, 288-289). In the global economy, both the horizontal networks of business, political and bureaucratic elites and the vertical linkages to organised crime contribute to the increase of elite crimes. Organised crime seems to be particularly responsive to the new chances that open up in the global economy, and easily adapts its traditional forms to the changing conditions in global markets. It extends its

I

N THE GLOBALISED

54

Knights of Crime: "Pre-Modern" Structures

activities in the global economy from firmly established local bases. The Italian and more recently the Russian Mafia, the Yakuza and Triads seem to become major players in the global economy, legal and illegal likewise. I will argue that this development is not exclusively caused by the extended opportunities that global markets offer for transnational crime, though, this is obviously a decisive factor. The changing nature of global capitalism favours legal business practices and give rise to specific patterns, that give transnational crime competitive advantages, and may even result in higher growth rates for illegal business than for legal transactions in the global marketplace. During the last decade, it became obvious that the Western model of business and legal practices was not universally adopted in the global economy. The global marketplace favours informal organisations, personal networks, and tightly-knit clan relationships. Kotkin (1993) shows how family and kin relations that originate in religious or ethnic groups are unusually successful in global markets. Traditional bonds are resurrected, "unfreezed", and gain unexpected importance in the global economy. Appelbaum (1998) argues that in particular Chinese business practices have emerged in the global economy as a pattern of "key transnational practices" (Sklair 1991); they "seem to have an affinity for the informalism and personal networks long associated with Chinese business" (p. 188). Instead of spreading the Western models of legal rational authority principles, contractual relationships and the respective transactional values, the process of globalisation seems to revive traditional cultural patterns of transactions and business practices. Both Kotkin and Appelbaum identify a variety of "pre-modern" structural patterns in vertical as well as in horizontal direction that are highly advantageous for transnational crime. Illegal transactions are by nature embedded in informal patterns and tightly-knit networks. In particular, organised crime has been characterised as a pre-modern structural pattern (Gambetta 1988; Arlacchi 1989). In this chapter, these patterns will be analysed as a patrimonial-feudal type of pattern. This concept seems to be most suitable to grasp the specific characteristics and traditions of those business practices in the global economy that contribute likewise to the success of legal and illegal business. First, I will analyse, how the revival of patrimonial-feudal structures is related to the development of global markets. Next, I will show in which ways the different components of the patrimonial-feudal pattern influence crime in the global economy.

THE "PATRIMONIAL-FEUDAL" PATTERN IN THE GLOBAL ECONOMY

Incomplete modernisation or new hybrids? Since the term was coined at the beginning of the modern age, feudal structures have been regarded as ancient and pre-modern. They were contrasted to the age of enlightenment and modernity, and were seen as relics in the developing new

Knights of Crime: "Pre-Modern" Structures

55

social order of Europe. Theories of modernisation and economic development resumed this perspective in the twentieth century. Patrimonial-feudal structures were regarded as main obstacles in the process of modernisation, industrialisation and full economic development in third-world countries (Hirschmann 1993). This perspective comes with a certain amount of ideological packaging. The spread of capitalist market economies to all parts of the world and the emergence of a global economy defy the notion that patrimonial and feudal structural patterns are pre-modern, or that they are merely impeding relics in the modernisation process. The development of modern market economies in South East Asia, Japan and China demonstrates how the process of modernisation and the transition to capitalist economies profits from those structures, transactional patterns and value orientations that are generally regarded as pre-modern (see Appelbaum 1998; Whitely 1996; Jones 1994; Kotkin 1993). The Asian economies provide convincing examples, how pre-modern structures like family and kin relations, patriarchal and patrimonial structures in corporations, and collectivistic orientations at the assembly line are in no way adverse to the most modern forms of capitalism, but to the contrary. Traditional ethnic and religious affiliations and networks emerge as basic organising principles in the global markets (Kotkin 1993). Chinese business practices that combine clan patterns dominated by powerful patriarchs with business networks that are embedded in extended families, or that are organised around leader-followerrelationships have gained considerable importance in the global economy (Whitely 1996; Appelbaum 1998). "Hybrid" (Appelbaum 1998, p. 188) economic institutions and practices emerge, which challenge the dominance of the Western model of bureaucratic and legal rationality. It comes as a paradox that we might turn to Max Weber for an explanation of the success of such types of patrimonial and feudal patterns in the global economy. He emphasised that "there is no general economic formula which would determine whether a patrimonial or feudal structure will prevail". In fact, "patrimonialism is compatible with . . . absence and presence of capitalist economy". Limitations for capitalist expansion that result from feudal and patrimonial structures only apply to "production-oriented modern capitalism, based on the rational enterprise, the division of labor and fixed capital, whereas politically oriented capitalism, just as capitalist whole-sale trade, is very much compatible with patrimonialism" (1968, p. 1091). Though Weber identifies somewhat stronger restrictions for feudal structures in a narrower sense (ibid.), the historical process of modernisation in Japan shows that the feudal structures of its past proved to be extremely adaptable, and survived during industrialisation (Kotkin 1993, p. 130 et seq.; Halliday 1975; Tabb 1995; Duus 1993; Hall 1962). The success of Japanese industries in the global markets is based on a combination of clan relationships in the sphere of production and bureaucraticcontractual policies in worldwide trade relations (Arlacchi 1989, p. 239). In general, the Asian way of capitalism seems to incorporate a rather wide range of

56

Knights of Crime: "Pre-Modern" Structures

components of the patrimonial-feudal complex, but in very different ways in Japan, China and Korea (see Jones 1994; Leach, Mukherjee and Ward 1985; Coulborn 1956; Trocki 1997; Whitely 1996; Appelbaum 1998). Weber's statement that patrimonial structures and capitalist wholesale trade are "very much compatible", in particular applies to the present situation of the global economy. The global economy is a market economy; it is only loosely coupled to the (national) spheres of production, and is mainly determined by transactions in the various markets of commodities, goods and capital. It might be characterised as worldwide capitalist wholesale trade. It is the "new regimes of flexible accumulation . . ..especially in buyer-driven commodity chains" that favour the structural patterns of the patrimonial-feudal type (Appelbaum 1998, p. 188). The influence of nation-states in these markets is limited. This has considerable consequences for the legal control and enforcement of economic transactions. Though the global marketplace is legally regulated, nonetheless, legal uncertainty is prevalent in many of its sectors. As a consequence, (personal) relations of trust and solidarity will prove to be superior to exclusively contractual ones in many sectors of the global economy. The patrimonial-feudal pattern provides these types of relationship, in which specific forms of trust and solidarity are embedded in a variety of relational patterns. As I will show in the section below, the variety of patterns and related values and types of trust account for the high flexibility and adaptability of the patrimonial-feudal pattern and its advantages for legal and illegal business. According to Kotkin (1993), pre-existing traditional ethnic and religious groups, and in particular family and clan relations have a competitive advantage in establishing such networks of trust and solidarity. He compares them to traditional "tribal" structures. Ethnic and religious groups provide a sense of identity for their members, they convey feelings of affiliation, and build strong ties between members. The "tribes" in particular profit from two developments in the global economy. First, national affiliations and cultural identities that are based on the nation-state do not provide sufficient foundations for building relations of solidarity and trust in the global economy; consequently, the importance of ethnic or religious affiliation increases. Second, modern communication and transport technologies help to renew and strengthen the traditional cohesion of these groups, and forge strong group identities. Those networks that are constituted by "trading diasporas" in particular gain advantage from global communication. Trading or business diasporas are "a nation of socially interdependent, but spatially dispersed communities" (Cohen 1971, p. 267). The most important trading diasporas that emerge in the present global economy are Chinese migrant communities, Indians in East Africa, Jewish communities in Europe, Asia and the Americas, and other ethnic communities that have their origins in the migration waves of the nineteenth and twentieth century. Kotkin's analysis of the role of "tribes" in the global economy is complemented and supported by analyses of the intrusion of Chinese business culture in the global mar-

Knights of Crime: "Pre-Modern" Structures 57 ket place (see Appelbaum 1998). They converge in an important fact: traditional patterns, affiliations and networks gain importance and strength in the process of globalisation.

"Pre-modern" structures and organised crime The historical roots of organised crime—of the Italian Mafia, the Japanese Yakuza and the Chinese Triads—are embedded in a feudal past and patrimonial society. In particular, the history of the Italian Mafia cannot be written without recurrence to feudal patron-client relationships (Hess 1993; Arlacchi 1989). In modern societies, organised crime is strong in an environment of business and politics where it can link itself to patrimonial and feudal patterns: to Italian "business politics" (Pizzorno and della Porta 1993) or to the system of feudal practices and systems of privileges in the communist states (Los 1988; USSR: Lampert 1984). Incomplete modernisation and failures in the transition to a modern market society and bureaucracy contribute to organised crime and related crimes like corruption and corporate crime. Consequently, deficiencies in the process of modernisation are made responsible for the development and rise of the Italian Mafia (Gambetta 1988; Arlacchi 1989) as well as of the Mafia in the post-communist states of Eastern Europe (Varese 1994). But on the other hand, the traditional structures of organised crime quite easily adapted to the changing conditions of the economy and business management. Arlacchi (1989) shows that the traditional feudal and clan structures of the Mafia were extraordinarily flexible. The pre-modern "Mafia ethics" merged with the "spirit of capitalism", and integrated modern managerial strategies with expert knowledge. This prepared the Sicilian Mafia for the invasion of new legal and illegal markets, the development of new business organisations, and its infiltration of politics. Consequently, the Italian Mafia seems to be particularly well equipped for the (illegal) global economy. The obviously successful import of the Sicilian Mafia into the modern market economy and industrial society of the USA demonstrates its adaptability, and proves the success of its structural pattern in one of the most advanced economies of the world. This clearly defies the notion that organised crime is the result of an incomplete transition to a modern market economy, or that the relics of premodernity have gone underground. It is in particular the "informalism" and the tightly-knit relations of trust and solidarity that contribute to the flexibility of the structural patterns of organised crime. In addition they combine a variety of structural and network patterns and very different relations of solidarity, loyalty, and trust in horizontal as well as in vertical direction that can be activated and used. Linkages to legal business and to the administration may be more easily forged if similar structural patterns are prevalent in these realms. Insofar as the changing nature of global capitalism gives rise to the respective structural patterns in legal business it will provide those conditions

58 Knights of Crime: "Pre-Modern" Structures on a global scale that further the growth and spread of organised crime on the transnational level.

The patrimonial-feudal structural pattern In this study feudalism is conceptualised as a set or complex of related structural patterns. This concept is based on Duus' (1993) definition of feudalism as a "coherent narrative", that integrates different perspectives of related phenomena. It was originally developed by Marc Bloch (1961, original 1939) who defined feudal structures as a specific pattern of social relationships and its "related cultural meanings". This conceptualisation does neither connect feudalism to a particular historical period nor does it restrict feudalism to a particular region, nor does it imply a specific stage of economic development. As such it can serve as a foundation for a comparative perspective on different regions of the world and different stages of economic and societal development.1 Patrimonial and feudal patterns are differentiated into two patterns or substructures, that originate from the same general type: "patriarchalism and patrimonialism".2 The two subpatterns will be analysed according to four dimensions: the dominant and pervading structural principle of society; the type of hierarchical relationship; the structural principle that determines relationships with and within the lowest strata of society; the typical cultural patterns and value orientations ("related cultural meanings"). Figure 4.1 gives an overview of the dimensional analysis of the two substructures. The patrimonial substructure is defined by family and kin relations. Extended family relations are the dominant structural principle, and accordingly, the type of domination is patriarchal. Family and kin relations determine social life in the different realms of society: in politics, business, and in the administration. Between different hierarchical levels patron-client relationships reproduce the patriarchal pattern. Value patterns are collectivistic: they stress solidarity, trust, and obligation within the extended kin group, but exclude those, who are not defined as members. A pattern of exclusion and inclusion regulates relationships between different levels of the social hierarchy as well on the same level. But the patriarchal principle includes orientations toward personal care and welfare, and therefore the establishment of welfare institutions is an important feature of the patrimonial substructure (Weber 1968, p. 1107). This orientation attenuates the exercise of power in patrimonial societies, though it does not reach beyond the bonds of the extended family. Patron-client

1 The analysis of Japanese feudalism has played a prominent role in such comparisons (Hall 1962; Duus 1993; Coulborn 1956). The comparative perspective is criticised by Reynolds (1994), who even rejects the notion of an universal European feudal structure and relational pattern. 2 It should be noted, that Weber referred to them as "types of domination". 1 do not adopt this more narrow perspective, though "domination" certainly is a decisive dimension of the concept.

- feudal lord - vasall - personal fealty - personal obligation of mutual protection v

patriarchal domination

- Family/kinship relations - landed nobility - patron-client relations

- welfare obligations - "clan"-solidarity

Type of domination

Type of organization at lower levels

Value orientations/ cultural pattern

\

Figure 4.1: The patrimonial-feudal complex

- code of honour - loyalty

I

patrimonial - landed nobility officials as bureaucracy - peer relations on "servants" each hierarcharchical level ("professional relations")

J

- mutual obligations - contractual obligations - pledge

Family/kinship relations

— bureaucracy - prebendal system

• unconditional subordination - unconditional obligations of clients - high social distance - high segregation between social groups

- landed nobility - patron-client relations

manorial system (seigneurial power)

- power relations - exploitative relations

feudal structure

Dominant structural principle

patrimonial structure

i"

o O

a

60 Knights of Crime: "Pre-Modern" Structures relationships that have their origin in the feudal substructure lack this type of attenuation, and are more exploitative. The feudal pattern has two distinct substructures. One substructure is established by personal fealty as a vassal-type structure; the other is the manorial system that is established by land-ownership.3 The feudal substructure that is defined by personal fealty, relies on a system of mutual obligations and commitments between leadership and follower ranks. Obligations of allegiance and duties of loyalty characterise between-rank relations. Each hierarchical level consists of groups of peers with largely equal obligations and duties, their power and influence being based on the resources that they can mobilise in order to fulfil their obligations. Relationships between peers are egalitarian in principle, including a common "professional" orientation. The hierarchical and the egalitarian structural pattern constitute different value orientations. Loyalty, allegiance and trust determine the relations between leadership and follower ranks. Values stressing the prestige of the group and self-esteem from being one of its members correspond to the egalitarianism of the peer group. A code of honour regulates relationships between different hierarchical ranks as well as between peers. Within the manorial substructure, authority is based on land-ownership and control of regions (and people). The manorial system is characterised by extraordinarily high differences of power and authority. A rather small number of powerful landowners dominate the mostly powerless rural population. Their unrestricted power results in semi-formalised exploitative relations. Obligations are not mutual, but unilateral. Patron-client relationships in particular lack those attenuations in the exercise of power that characterise extended family and kinship relations in the patrimonial pattern. Instead, we find the type of "generalised exchange" that Eisenstadt and Roniger identify as a decisive characteristic of patron-client relationships (Eisenstadt and Roniger 1984; Roniger 1994). Extreme differences in power impede the development of mutual and consequently more limited obligations that are based on contracts. These patron-client relations allow for nearly unrestricted demands on the clients and continuously extended obligations of the clients, depending on the resources that patrons command. In contrast to the patrimonial pattern, welfare and solidarity play a minor role in the value pattern of the manorial substructure; instead, it is dominated by rigid values of power distance, hierarchical orientations and social exclusion. The total patrimonial-feudal complex combines a variety of distinct subpatterns: they range from more contractual to family relations, from mutual obligations to unequal and one-sided patron-client relations, from egalitarian peer relations to extreme differences in power and dependency. Nonetheless, the different patterns have important common characteristics. Relationships are 3

Reynolds (1994) clearly distinguishes between these two substructures, while Weber as well as Bloch both mark the difference, but adopt a more integrative perspective.

Knights of Crime: "Pre-Modem" Structures

61

defined as personal, or at least as substitutes for personal relationships. Structural and cultural patterns are highly integrated, with distinct value orientations closely related to the specific relational pattern. The boundaries of groups—families, peers, super-/subordinate groups—are distinct; strong within-group ties correspond to closure and exclusion in interactions with other groups. All these are preconditions for a rather rigid social control of all those who are affiliated to a group or who are subordinated in hierarchical relations. The patrimonial-feudal patterns combine a variety of territorial and nonterritorial organisations and structural bonds that operate below the level of the nation-state as well as above; they forge bonds that reach beyond its boundaries and limits (Arrighi 1994, p. 16). This rough sketch of the patrimonial-feudal complex will give a foundation to identify the respective structural patterns in modern societies and within the global economy. Several types of patterns and their origins are to be named: Japan, China, (former) communist states, societies with a specific rural economy and respective traditions, and immigrant communities. Many scholars regard Japan as the archetype of a society that adapted the social and cultural traditions of its feudal past to the requirements of modern industries, a market society, and a democratic system (Duus 1993; Hall 1962; Tabb 1995; Halliday 1975). The preservation of a hierarchical structure that is characterised by mutual obligations of loyalty (from below) and protection (from above) (Abe 1992), and the tight peer relations among equals are seen as driving forces in the process of industrialisation, in the modernisation of the economy, and its final success. But at the same time these patterns seem to be highly conducive to white collar crime and corruption on a large scale (Kerbo and Inoue 1990; see Alatas 1975). Chinese business practices are embedded in the traditional patrimonial pattern, and complemented by a system of mutual obligations between peers and different ranks {guanxi: see Appelbaum 1998; Yang 1994; Ong and Nonini 1997)). Not from traditions, but within the planned economies of the communist states of Eastern Europe and in the former USSR, a genuinely modern feudal structure developed. Both the state economy and the party bureaucracy operated as prebendal systems by providing access to profitable positions, or scarce consumer goods and spare parts. This resulted in patronage and clientelism that was based on a system of graded privileges as its core mechanism (USSR: Jowitt 1983, p. 283; Lampert 1984; Poland: Los 1988; Tarkowski 1983; former GDR: Thaa et al. 1992; Meier 1990). These types of feudal structures had a decisive role in keeping the state economies running. They spread illegal practices to all realms of social life, and interconnected the legal economy and political administration with organised crime. Organised crime seems to have been an integral part of state economies even before the process of transformation and privatisation started (Jowitt 1983). Substantial parts of the patrimonial-feudal pattern may survive in modern societies. This is particularly found for patron-client relationships in rural economies with big estates, that are characterised by high differences in power

62 Knights of Crime: "Pre-Modern" Structures and by exploitation. Patron-client relations will pervade the political system as well as the administration on the community and state level, when rural elites consolidate their positions in politics and bureaucracies. The South of Italy (Putnam 1993; Pizzorno and della Porta 1993) as well as Latin American states are prominent examples of such a development. Finally, clan relations are imported by immigration into modern societies. It is particularly under the circumstances of mass immigration, that they gain extraordinary importance for their members. They have a decisive function in the process of integration, e.g. by providing employment for recently arrived immigrants in the (ethnic) economy, or capital for businessmen (Fukuyama 1995). As a result, import, stabilisation and establishment of patron-client relationships are equally promoted (see for the American Mafia Chandler 1975). In which way, however, the particular components of the patrimonialfeudal pattern were integrated into the process of modernisation or emerged in modern societies, they provided social and cultural capital, that proved to be an advantage in the national economies. In the same way, patrimonial-feudal patterns constitute competitive advantages in the global economy. Solidarity and trust in family relations, codes of honour and mutual obligations among peers, or obligations of allegiance and duties of loyalty in hierarchical relations function as equivalents for reliable rules, contractual relations, formal social control, and law enforcement in global business. Since these patterns operate below and above the level of the nation-state they gain advantages in the emerging global economy over those institutions and organisations that are dependent on the nation-state. Though this might stretch the historical comparison a little bit too far, the conditions in the global economy might be similar to those that in Europe gave rise to feudal structures during the respective historical periods: the lack of a central power, which was much later established by the nation-state. The different substructures of the patrimonial-feudal complex will invade the global economy in two ways. First, existing patterns on the national, cultural and ethnic level will be transferred to the international level. This gives "trading diasporas" (Cohen 1971) a competitive advantage in the global economy. Secondly, the process of globalisation itself might be conducive to the development of global patrimonial-feudal structures, which—because of their competitive advantages—might serve as models throughout the global marketplace (see DiMaggio and Powell 1983). Resurgence of extended kinship networks, hierarchical allegiances of the leader-follower type, loyalty, trust and "codes of honour" among elite peers seem to be the most probable results of such a process of modelling.

TRANSNATIONAL CRIME AND PATRIMONIAL-FEUDAL PATTERNS

Transnational crimes have two characteristics: first, legal and illegal transactions are closely interconnected, and, secondly—determined by this—different

Knights of Crime: "Pre-Modern" Structures

63

types of crime are often interconnected in a single illegal transaction as e.g. corporate and economic crimes, corruption and organised crime. Elites, respectively high-ranking decision-makers in corporations, administrations and politics, are involved in the most prominent forms of transnational crime. Transnational crimes are embedded in horizontal networks beween different organisations, as well as in vertical networks that are established down to the lowest levels of organised and street crime. In the same way as organised crime is the bridge between elite crimes and street crime it is the bridge between the transnational and the national local crime scene. As on the national level transnational crime in the illegal global markets nearly exclusively relies on relations of solidarity, loyalty, allegiance and trust. Since legal players are involved to a certain extent, it is vital for all to keep to a code of honour. There is no other way to establish consent to common goals, and ensure standards of illegal reliability in illegal markets, except for pressure and violence. These relationships are more important and efficient as mechanisms of moral control than internal discipline and threats of violence. Their superiority is based on the fact that they decisively cut down transaction costs in risk markets. It is the common interest of all involved to run transactions as smoothly, reliably and automatically as possible; to solve the problem of order in illegal markets; and to avoid the "natural state" of war of all against all (Arlacchi 1989, pp. 236-242). Traditional organised crime is well equipped with the structural prerequisites, and easily linked to the emerging forms of business practices that were described above, because the structural patterns are congruent. The different types of organised crime networks transfer specific components of the patrimonial-feudal pattern into the global markets in the same way as traditional business cultures invade the legal global markets. The Japanese Yakuza is typically organised in more hierarchical relations of allegiance and loyalty. The Italian Mafia and the Chinese Triads have at their disposal extended kinship networks that reach across several continents; they are embedded in ethnic enclaves and trading diasporas. Patrimonial patterns are characteristic for the Chinese Triads while the Mafia combines two components: patron-client relations and clan relations. The substructures of the patrimonial-feudal pattern obviously support the horizontal as well as the vertical networks of transnational crime. The different substructures allow for the calculation and control of illegal transactions on all levels of transnational crime. On the lower levels of national and local drug markets they provide protection for high-risk transactions. On the higher levels of corporate and financial crime they establish trust and solidarity between high-ranking peers. The similarity or even identity of the structural patterns in legal and illegal markets gives rise to strong connections between both. Legal and illegal transactions may be easily linked within the same clan, a patron-client relationship or a peer group of equals. Accordingly, those involved slip from legal to illegal transactions and occupations within these types of structure.

Feudal structure: — hierarchical relations/allegiance — peer relations within/between high ranking groups — patron-client-relations

Patrimonial structure: — extended family and kinship relations, "clans" — patron-client-relations

Structural/relational pattern

— — — —

— — — —

corporate crime elite-crime corruption organised crime: Italian Mafia, Mafia in post-communist states

white collar crime corruption organised crime organised crime with Asian traditions

Type of crime

Table 4.1: The patrimonial-feudal complex and types of crime

all types of corporate crime transnational crimes of globally operating corporations, e.g. taking illegal advantages of national differences of regulation illegal financial transactions subsidy crime illegal channelling of foreign aid and investment illegal markets (drugs, arms)

illegal markets (drugs, arms) linking legal and illegal financial transactions by-passing regulations of international trade (export regulations) illegal markets

Type of illegal transactions

3

-«

o —«-, O

ON

Knights of Crime: "Pre-Modern" Structures

65

In Table 4.1, the different substructures of the patrimonial-feudal complex are related to specific types of crime and transnational crime. Patron-client relations are dominant in traditional organised crime. They mostly operate locally, and on the lower levels of illegal markets. The extremely unequal distribution of power is a precondition to enforce discipline in high-risk markets. Pressure is easily exerted through established mechanisms of generalised exchange. Within relationships of (personal) subordination, and mostly marginally developed solidarity relations, violence and threats of violence are important means to maintain order on this level of illegal markets even if it is rarely used within the group. 4 Extended patrimonial family and kin relations provide stable networks with a high level of trust and solidarity. These characteristics combine the preconditions for illegal transactions on a large scale that involve many different actors for a considerable stretch of time. Family and kin networks are equally conducive to illegal transactions that integrate economic crimes, corruption and organised crime. In addition, they provide well-developed patterns that allow for connecting legal and illegal transactions. High levels of trust and solidarity give competitive advantages in high risk markets and for innovative schemes. The feudal pattern is most strongly related to elite crimes. The hierarchical component of the feudal structure is conducive to criminal behaviour in globally operating corporations, for example environmental crimes, or taking illegal advantages of national differences of regulation. Hierarchical relations of loyalty and allegiance are typical preconditions of corporate crimes. Since mostly the middle-management is finally (legally) responsible for committing corporate crimes, tacit consent between hierarchical ranks about adopting illegal practices is a most important factor in corporate crimes (Jenkins and Braithwaite 1993). Esprit de corps and codes of honour provide techniques of neutralisation. A system of privileges for those who cooperate in illegal transactions ensures allegiance and loyalty. Tacit involvement in illegal corporate transactions furthers relations that come close to those types of generalised exchange that include farreaching obligations for the lower levels of the hierarchy. Kerbo and Inoue (1990) identify such a pattern at the roots of the development and structure of corruption and corporate crime in Japan. 5 The egalitarian component of the feudal structure—networks of highranking peer groups—provides the foundation for those types of elite crimes that involve relations between different organisations and types of business. Usually, several actors from business, administration and politics are involved 4 Violence tends to become endemic in markets where two patron-client systems compete with each other. Pressure and the need of discipline within each patron-client network cause high levels of in-group violence (Arlacchi 1989, p. 247). 5 It should be noted that the traditional practices of exchanging gifts between hierarchical ranks blurs the line between legal and illegal transactions. Exchange of gifts is a central characteristic of patrimonial and feudal pattern that has survived in Japan (Abe 1992) and in China (Gransow 1992, Yang 1994). It is hard to tell when these practices amount to corruption, and to define legal gifts and respective obligations exactly (see Appelbaum 1998).

66

Knights of Crime:

"Pre-Modern"Structures

in illegal financial transactions or subsidy fraud. They are associated by mutual obligations, and regard themselves as an exclusive, powerful group. Affiliation to such a prestigious group and a code of honour ensure standards of reliability for those involved in illegal transactions, and provide techniques of neutralisation for the commitment of crimes. Though the peer networks presumably are not as stable as family and kin relationships, they establish linkages between legal and illegal transactions, and interconnect different types of crimes. Members of high-ranking and prestigious groups are well equipped to protect themselves against formal and informal social control. They will influence institutions of social control and inquiries through their peer networks, and thus shield themselves against inquiries. Extremely high differences in power, social inequality, and high social distance between elites and other groups of society all contribute to the invulnerability of elites on the national level. In the realm of globally operating corporate managers, bureaucrats in international organisations and professionals, who are knit together in elite networks, countervailing forces are practically non-existent (see Levi, Chapter 8 in this volume). The most recent ELJ-scandals have demonstrated the proneness of these elite networks to corruption as well as their invulnerability with regard to controls.

CONCLUSIONS

In this chapter I have argued that the changing nature of global capitalism favours business practices and structural patterns that contribute to the growth and spread of illegal transactions in the global economy. Traditional and premodern structural patterns, that were mostly regarded as relics, have had an unexpected come-back in the global marketplace and advance from their local base into the global markets. The concept of patrimonial-feudal structural patterns seems to be a suitable tool in the analysis of legal as well as illegal business in the global marketplace: it relates a variety of structural components, it accounts for the importance of trust, loyalty and allegiance in global business practices, and it stresses the cultural and traditional roots of business transactions in the global marketplace. In particular, the concept helps to identify the similarity and even identity of the structural patterns of legal and illegal business transactions in the global economy, and consequently the linkages between both of them, and their common conditions of growth and spread. As much as the global economy will give rise to new and "hybrid" forms of patrimonial-feudal patterns, transnational organised crime will encounter very favourable conditions of exeptional growth in the global economy.

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Kulturvergleichs (J. Matthes (ed.), Soziale Welt, Sonderband 8, Gottingen: Schwartz), pp. 239-248. Alatas, Sidh H., 1975, The Sociology of Corruption. The Nature, Functions, Causes and Prevention of Corruption (Singapore). Appelbaum, Richard P., 1998, "The Future of Law in a Global Economy" 7 Social and Legal Studies 171-192. Arlacchi, Pino, 1989, Mafiose Ethik und der Ceist des Kapitalismus (Frankfurt a.M.: Cooperative). (English edn., 1986, Mafia Business. The Mafia Ethic and the Spirit of Capitalism (London: Verso)). Arrighi, Giovanni, 1994, The Long Twentieth Century (London: Verso). Bloch, Marc, 1961, Feudal Society (London: Routledge & Kegan Paul). Chandler, David L., 1975, Brothers in Blood. The Rise of Criminal Brotherhoods (New York: Dutton). Cohen, Abner, 1971, "Cultural Strategies in the Organization of Trading Diasporas" in The Development of Indigenous Trade and Markets in West Africa (C. Meillassoux (ed.), London: Oxford University Press), pp. 266-281. Coulborn, Rushton (ed.), 1956, Feudalism in History (Princeton: Princeton University Press). DiMaggio, Paul and Walter R. Powell, 1983, "The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields" 48 American Sociological Review 147-160. Duus, Peter, 1993, Feudalism in Japan, 3rd edn. (New York: McGraw-Hill). Eisenstadt, Samuel N. and Luis Roniger, 1984, Patrons, Clients and Friends. Interpersonal Relations and the Structure of Trust in Society (Cambridge: Cambridge University Press). Fukuyama, Francis, 1995, Konfuzius und Marktwirtschaft. Der Konflikt der Kulturen (Munchen: Kindler). (Original: Trust. The Social Virtues and the Creation of Prosperity (New York: Free Press)). Gambetta, Diego, 1988, "Fragments of an Economic Theory of the Mafia" 29 Archive Europeennes de Sociologie 127-145. Gransow, Bettina, 1992, "Die Gabe und die Korruption. Form- und Funktionswandel des Tausches in China" (1991) 22 Internationales Asienforum No. 3—4, 343-360. Hall, John W., 1962, "Feudalism in Japan—A Reassessment" 5 Comparative Studies in History and Society 15-51. Halliday, Jon, 1975, A Political History of Japanese Capitalism (New York: Pantheon). Hess, Henner, 1993, Mafia. Ursprung, Macht und Mythos (Freiburg: Herder). Hirschmann, Albert O., 1993, Entwicklung, Markt und Moral. Abweichende Betrachtungen (Frankfurt: Fischer). Jenkins, Anne and John Braithwaite, 1993, "Profits, Pressure and Corporate Law Breaking" 20 Crime, Law and Social Change 221-232. Jones, Carol A. G., 1994, "Capitalism, Globalization and Rule of Law: An Alternative Trajectory of Legal Change in China" 3 Social and Legal Studies 195-221. Jowitt, Ken, 1983, "Soviet Neotraditionalism: The Political Corruption of a Leninist Regime" 35 Soviet Studies 275-297. Kerbo, Harold R. and Mariko Inoue, 1990, "Japanese Social Structure and White Collar Crime: Recruit Cosmos and Beyond" 11 Deviant Behavior 139-154. Kotkin, Joel, 1993, Tribes. How Race, Religion and Identity Determine Success in the New Global Economy (New York: Random House).

68 Knights of Crime: "Pre-Modern" Structures Lampert, Nick, 1984, "Law and Order in the USSR: The Case of Economic and Official Crime" 36 Soviet Studies 366-385. Leach, Edmund, Sidh N.Mukherjee, and John Ward (ed.), 1985, Feudalism: Comparative Studies (Sidney Studies in Society and Culture, 2, Sidney: Sidney Association for Studies in Society and Culture). Los, Maria, 1988, Communist Ideology, Law and Crime (New York: St. Martin's Press). Meier, Arthur, 1990, "Abschied von der sozialistischen Standegesellschaft" 16/17 Aus Politik und Zeitgeschichte 3-14. Nelken, David, 1998, "The Globalisation of Crime and Criminal Justice: Prospects and Problems" in Law at the Turn of the Century fM. Freeman (ed.), Oxford: Oxford University Press). Ong, Aihwa and Donald M.Nonini (ed.), 1997, Ungrounded Empires: The Cultural Politics of Modern Chinese Transnationalism (New York: Routledge). Pizzorno, Alessandro and Donatella della Porta, 1993, "Geschaftspolitik in Italien. Uberlegungen im Anschluf? an eine Studie iiber (Corruption" 45 Kolner Zeitschrift fur Soziologie und Sozialpsychologie 439—464. Putnam, Robert D., 1993, Making Democracy Work. Civic Traditions in Modern Italy (Princeton: Princeton University Press). Reynolds, Susan, 1994, Fiefs and Vassals. The Medieval Evidence Reinterpreted (Oxford: Oxford University Press). Roniger, Luis, 1994, "Civil Society, Patronage and Democracy" 35 International Journal of Comparative Sociology 207—220. Simon, David R. and D. Stanley Eitzen, 1990, Elite Deviance, 3rd edn. (Boston: Allyn and Bacon). Sklair, Leslie, 1991, Sociology of the Global System (Baltimore: Johns Hopkins University Press). Tabb, William K., 1995, The Postwar Japanese System. Cultural Economy and Economic Transformation (New York: Oxford University Press). Tarkowski, Jacek, 1983, "Patronage in a Centralized Socialist System. The Case of Poland" 4 International Political Science Review 495-518. Thaa, Winfried, Iris Hauser, Michael Schenkel, and Gerd Meyer, 1992, Gesellschaftliche Differenzierung und Legitimitatsverfall des DDR-Sozialismus (Tubingen: Francke). Trocki, Carl A., 1997, "Boundaries and Transgressions: Chinese Enterprise in Eighteenth- and Nineteenth-Century Southeast Asia" in Ungrounded Empires: The Cultural Politics of Modern Chinese Transnationalism (A. Ong, D.M. Nonini (eds), New York: Routledge), pp. 61-85. Varese, Federico, 1994, "Is Sicily the Future of Russia? Private Protection and the Rise of the Russian Mafia" 35 Archives Europeennes de Sociologie 224-258. Weber, Max, 1968, Economy and Society. An Outline of Interpretative Sociology (G. Roth and C. Wittich (eds), New York: Bedminster Press). Whitely, Richard, 1996, "Business Systems and Global Commodity Chains: Competing or Complementary Froms of Economic Organization?" 4 Competition and Change: The Journal of Global Business and Political Economy 411—425. Yang, Mayfair Mei-hui, 1994, Gifts, Favors and Banquets: The Art of Social Relationships in China (Ithaca NY: Cornell University Press).

5 Extortion, Corruption and Trust: A Structural-Constructionist Perspective THOMAS OHLEMACHER FROM NETWORK ANALYSIS TO STRUCTURAL ANALYSIS TRUCTURE is ONE of the most fundamental terms in sociology. Although everyone uses it, there is hardly a common, shared understanding of the substance of the term. In one sphere of sociological discourse, structure represents the counterpart of culture—structure either being the prerequisite for or the "output" of culture, in both cases constituting the objective side of the cultural subjective (Parsons and Shils 1951). It has been claimed that there is also such a thing as cultural structure, as opposed to social structure (Berger 1995). Structure is described either as static or as dynamic, structure can be metaphor or mathematical formula, it can have a volatile meaning or it can be based on a logical composition producing a vast amount of inertia. In short: structure is a central element of sociology in use by nearly everyone without an underlying basic consensus (for a further discussion, see Sewell 1992). Of course, a certain amount of under-determination seems to be inevitable in the sociological discourse due to the "soft" material being analysed. In the first place, the sociological use of structure is a kind of distancing move, a shift away from the French tradition of Structuralism a la Levi-Strauss. Structure in this older understanding goes beyond the sum of individual behaviour, and forms the deep foundation of human reasoning. A desire to reach beyond this "idealistic structuralism" (Berkowitz 1982, p. 160) has been one of the motivating factors for sociological structural analysis. Structural analysis, in its "American version" (Schenk), refers to Simmel and Durkheim as two classics of the discipline, especially when clearing structure of any subconscious aspects. Structures, according to this understanding, are any "regular, persistent pattern (s) in the behaviour of the elementary parts of a social system" (Berkowitz 1982, p. 1). Especially Peter Blau in his later works (Blau 1977; 1982; Blau, Beeker and Fitzpatrick 1984; Blau and Schwartz 1984; Blau 1994) and Ronald S. Burt (1982; 1987; 1992; also Burt and Doreian 1982) have promoted structural

S

70 Extortion, Corruption and Trust analysis and turned it into one of the promising currents of empirical sociology in the USA. Structural analysis seeks to describe societal structures in the sense just defined—and to establish what causal connections may exist between these structures and the behaviour of societal actors. In contrast to methodological individualism, structural analysis sets out to explain action not in terms of individual calculation but as the product of structural influences (Giddens 1988, p. 270). Ronald Burt (1982) laid the foundations of a "Structural Theory of Action" in a book of the same title. He starts from the assumption of a divided sociology: one faction he calls atomistic, the other a normative school. He classes the theoretical and empirical work of Coleman (1973), Olson (1965) and the early studies of Blau (1964) as belonging to the atomistic school. For example, he points up the line of descent from Adam Smith's work to present-day utility theory and exchange theory. As for the normative school, he refers to Parsons as a prominent theorist, mainly deriving action from internalised norms. This idea of a fundamental schism in sociology has been taken up by Mark Granovetter when he speaks of "undersocialized vs. oversocialized conceptions" of sociological theory (1985). He locates the neo-classical approaches such as rational choice in the group of undersocialised theories, based as they are on ideas of Hobbes and Smith. Like Ronald Burt, Mark Granovetter endeavours to show that: (a) individual action cannot be analysed independently of societal context and (b) contrary to the assumptions of rational-choice theories, macro-phenomena cannot be explained as emerging solely from individual action. As one of the fundamental characteristics of oversocialised versions, he identifies the mono-causal approach of taking internalised norms to be the exclusive foundation of individual action. Consequently, Burt and Granovetter try to build a theory "half way" by synthesising the two polarising approaches. In his first sketch of a structural perspective, Burt built on the formal models of sociological network analysis in order to find a schism-transcending theoretical foundation: during the 1970s network analysis had emancipated itself from its ethnological and sociometric breeding grounds. Network analysis had developed a differentiated repertoire of methods to describe formally social structures (profiting, for example, from the pioneering work of Laumann and Pappi 1976; White, Boorman and Breiger 1976; Boorman and White 1976; Fischer et al. 1977; Fischer 1982; for a summary of this considerable development phase, see Burt and Minor 1982). In terms of terminology the consensus was to understand social networks as "the relations between and among social actors and institutions"—whatever this relation was based on (Berkowitz 1982, p. 3 et seq.). One of the most important theoretical foundations of network analysis was the so-called "anti-categorical impetus", i.e. refusing to accept the correlation of socio-structural variables without looking at the integration of individuals (and the specific variable categories connected with them) in a specific social context (Wellmann 1988). Consequently, the perception of categories and

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their "meaning" in a related social context had to be taken into account. One need not necessarily share the view of Berkowitz, who saw "signals (of) the beginning of a scientific revolution" (1982, p. 150) stemming from sociological network analysis, but there certainly is a—now flourishing—loosely-coupled family of methods of data analysis, integrated by a special theoretical perspective common to all of them (Burt 1982; Emirbayer and Goodwin 1994). The most important contribution in conceptual terms was provided by Boorman, White and colleagues when they introduced structural equivalence in terms of applicable mathematical models (Boorman and White 1976; White, Boorman and Breiger 1976). They worked on the assumption that individuals do not act on a basis of cohesion alone (i.e. the actual contact to others) but on one of competition with (potentially unknown) others incorporating the same (or a similar) structural role in a societal context. Burt's theory, as a foundation, does not derive action exclusively in a direct way from structure: his conception proposes a modelling ("patterning") of the interests of the actor by social structure as the "context of action" (number 2 in Figure 5.1). Interests themselves "determine" the action, whereas structures impose "constraints" on the options for action (number 3). Action itself has an impact on social structure (being "responsible", number 4). In his "Theory of Structuration" Giddens (1988 [1984]) has made the point that structural analysis of this kind does not take into account (a) the subjective perceptions of supposedly "objective structural parameters" by individuals, (b) the potential of social structure to enable action and (c) the potential of action to transform fundamentally structural contexts. The potential of structure to enable actions (and of actions to transform contexts) can be seen as an already integral (although not prominent) part of Burt's theoretical proposals. However, the diagnosis of a need to devote closer attention to the cultural dimension as a desideratum of structural analysis seems to be a fair and adequate critique. Actor interests Social structure as context of action 1

Figure S.I: The structural theory of action as put forward by Burt 1982

CONSTRUCTIONIST ENRICHMENTS OF STRUCTURAL FOUNDATIONS

The critical remarks by Giddens are implicitly taken up by Emirbayer and Goodwin (1994). In their theoretical paper they cluster the studies mentioned

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earlier within the paradigm of structural analysis. They distinguish between three main currents: (1) they identify a pure, structural-determinist school, i.e. an approach that just builds on the objectively measurable relationships regardless of what the actors involved perceive (of those relationships). Wellmann (1988) sees the same trend and calls it radical structuralism. The broad structuralism he separates from this is further differentiated by Emirbayer and Goodwin into (2) a structuralist-determinist approach, i.e. the inclusion of instrumentalist calculations within the structural settings (e.g. similar to Bun's approach, see Figure 5.1). The structural-constructionist approach (3), however, transcends the previous two in that it includes the cultural dimension by incorporating cultural frames of interpretation (see also Ellingson 1995). Additionally and in contrast to the structural-instrumentalist approach, the constructionist version develops a dynamic perspective of analysis. This necessarily includes a higher rating of the actors' perceptions: perceptions are the filters through which structural factors diffuse—and thereby influence the actors' norms and interests. As examples of structural-constructionist studies the authors refer to Gould's work on the Paris Commune (1991; 1993a; 1993b), Padgett and Ansell's analysis on the rise of the Medici family in Florence (1993) and, above all, to the work of Doug McAdam (and collaborators) on the mobilisation of political protest. McAdam's studies, details of which have appeared in various books, articles and papers (for a basic publication, see McAdam 1988), are empirically based on the mobilisation of the "Freedom Summer" Civil Rights Campaign of 1964. The analyses employ various empirical methods to explain the decision of activists to take part in these high-risk activities. Beside structural-instrumentalist variables (e.g. biographical availability), these also encompass cultural-cognitive variables (e.g. attitudinal affinity). Nevertheless, the most decisive asset as far as the decision to take part is concerned are preexisting network ties between the activists. Expanding on his early publications which focus on the quantitative structural elements (1986), McAdam uses his recent publications to develop a more qualitative view, concentrating on establishing the foundations of networks, i.e. differentiating and describing the network contents and contexts (e.g. McAdam and Paulsen 1993). In this article, for example, ties and contexts are qualified by a cultural description. In addition, McAdam et al. try to apply a dynamic perspective to the development of participants' identities—an approach that is a clear improvement on the determinist and instrumentalist versions mentioned earlier. In contrast to rational-choice approaches, this perspective also emphasises the possibility of social change; an argument which in turn makes it possible to label rationalchoice studies as basically structural-instrumentalist.

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MICRO-MACRO POTENTIALS: STRUCTURES, FRAMES AND PERCEPTIONS

Taking these considerations into account, one can present a more elaborated version of Burt's fundamental scheme. Figure 5.2 shows the integration of some of the elements discussed above into a more sophisticated theoretical system. The newly added features are: (1) the formerly central explanatory elements (social structure and interests of the actors) are embedded into an interplay with cultural frames of interpretation; (2) perception is included as a second filter influencing the actor's interests (social relations being the first); (3) social structure is viewed as both constraining (Burt) and enabling (Giddens) actions; and (4) all elements are seen as dynamic and in perpetual change. The most promising potential of a structural-constructionist approach, in my view, lies in its ability to offer ways of partly bridging the micro-macro gap. By locating actions on the micro level (except when looking at organisational action) micro action can constitute and change structures and frames on the macro level. Perceptions can also be located on the micro level, while structures are both micro and macro. Like perceptions, structures are combined with the actors at the micro, whereas structures are also a macro element just perceivable in a kind of aerial view (e.g. structural equivalence as a derived macro component). Frames themselves are macro elements, which are broken down on the micro level by individual perceptions (i.e. frame amplification, frame bridging). In a special intermediary process of perceived societal existence and persistence of frames, they again have an impact on the micro level of society (as a kind of proxy macro variable), i.e. by influencing actors' decision to act: frames thereby influence the micro from the macro via intermediary processes. In conclusion: By combining structural and cultural assets the structuralconstructionist approach seems to be capable of at least providing a kind of infrastructure as a starting point for bridging the micro-macro gap. Possible perceptions (mainly as frames) and the perceptions of perceptions are the crucial relay (or the operational filter) between frames and structures on the one hand, and interests and actions on the other. However, structures seem to have an independent influence on action, whereas frames rely on perceptions to develop their impact. Hence structural analysis, even in the constructionist version, claims that structures exert an independent and direct influence on action. One of the most interesting questions raised by this presumption is whether there can be a total roll-back of structural influence by perceptions as a substituting factor: is there such a thing as freedom of structural determination, or are there residual factors from which actors cannot emancipate themselves? This again evokes the question of the relevance of sociology (or at least this current of it) as an explanatory approach to human action.

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Frames

Social structure as the . mntext of action S/constrainingBurt)

enabling(Giddens)'-..

being responsible (Burt) Figure 5.2: The structural theory of action in its constructionist version

FROM PROTEST ACTION TO DEVIANT BEHAVIOUR

What does the inclusion of frames into an analysis actually mean when it is applied in empirical research? Frames are reference systems for interpreting and constructing reality, according to Snow et al. (1986). Taking an example from the analysis of social movements—i.e. unconventional and collective behaviour of a certain stability combined with the intention to initiate social change—I want to illustrate the fruitfulness of a combined structural and constructionist interpretation. Gerhards and Rucht (1992) analyse the protest mobilisations in West Berlin (a) during the visit of the then President of the United States Ronald Reagan in 1987 and (b) during the Annual Meeting of the International Monetary Fund (IMF) in 1988. On the one hand they scrutinise the spectrum of groups and associations supportive to the protest campaigns (looking at the context of all existing associations and groups in Berlin). For the groups actually mobilised (the activated mobilisation potential), they look at their underlying frames of reference—in particular, they search for links between the groups' internal frames and the so-called master frames of the overall campaigns. By analysing leaflets central to the campaign, they identify the master frames of "imperialism" (IMF) and "military world dominance" (Reagan visit). These master frames are the central points of reference for all groups. They are the condensed "packages of interpretation" (Gamson 1988) all groups can lock in or on to. By further differentiating diagnostic, prognostic and motivational frames (following Snow and Bendford 1988), Gerhards and Rucht are able to

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reconstruct and explain the process of activating broad segments of the mobilisation potential. Stepping back a little, one can include some more studies into this "tradition" leading to the empirical studies of Gerhards and Rucht, McAdam and Gould. Gamson (1975); Gamson and Modigliani (1989); McCarthy and Zald (1987); Ellingson (1995) and Diani (1995) are also integral parts in this line of reasoning when considering, and researching on, social movements. Speaking in theoretical terms they have mainly built on two concepts, namely the resource-mobilisation perspective and the political-opportunity approach. Early protest analysis having been dominated by collective behaviour approaches with its mass-psychological and irrational appeal, these new approaches have stressed the rationality of the protest actors, whether individuals or collectivities. Recent studies in social movements and protest have developed roots in institutional terms and founded networks of reasoning reaching into larger theoretical families (e.g. into the rational-choice approach; for a broader overview see Rucht 1991; 1994). The explanandum of these approaches is unconventional behaviour of a special kind: political protest mainly in its collective version. Protest itself lies on the borderline of political sociology and the sociology of deviant behaviour: protest per se is unconventional, though not necessarily criminal behaviour—in part there is a certain overlap in terms of civil disobedience. Criminal behaviour itself can have an element of political or social protest, but this is not necessarily the case. Looking more closely, both at the political-opportunity approach and at the resource-mobilisation perspective, one can identify a question common to both (which leads to the shared structural perspective). Both approaches ask: what makes protest successful? Success is defined on a micro basis in terms of activating citizens, but also on the macro level in terms of influencing political decisions. Gamson (1975), McCarthy and Zald (1987) and Tilly (1978) speak of social resources a social actor can mobilise as a prerequisite of his or her success. Political opportunities in the version suggested by Tarrow (1983; 1989) include all elements on the political level of society that can promote or hinder the development of political protest. Both approaches can be interpreted as encompassing both structures and frames as factors explaining the rise and fall of protest and social movements. Especially the inclusion of the framing approach by Snow et al. (1986) made it possible to stress the cultural additives such as frames and perceptions. Taking this as a starting point and then moving the analysis further away from the meso-level of society (movements, organisations, political success) down to the micro level of individual perceptions, interests and actions will make it possible to improve the study of deviant behaviour—as I would like to show in the following passages.

76 Extortion, Corruption and Trust DEVIANT BEHAVIOUR IN A STRUCTURAL-CONSTRUCTIONIST PERSPECTIVE: PERCEPTIONS OF ORGANISED CRIME

What does all of the above have to do with the study of deviant behaviour? And what improvements might be inherent in these theoretical suggestions? In the following, I want to show their potential fruitfulness by applying the structuralconstructionist approach to a field previously deserted in terms of empirical research: organised crime. In this last part of the chapter I wish to outline the conceptual ideas and the main empirical basis of a project conducted by the Criminological Research Institute of Lower Saxony. The project, in its sociological parts, is based on the central hypothesis of a presumed correlation between a cumulatively growing confrontation with crime (either directly or indirectly via personal networks) on the one hand and a gradually diminishing trust in democracy as a system for regulating conflicts on the other (Weatherford 1987, for details see Ohlemacher, 1999). The conceptual assumption was that business-people (or in this specific empirical project, restaurateurs and bar-keepers) are endangered in a double way. First, they are potential victims of private victimisation and, secondly, they are possible victims of business-specific victimisation. This double threat means business-people as a group are subject to particular stress—and have their own particular demands on the political system. We also hypothesised that organised crime in its specific variant of extortion might endanger the restaurateurs' and bar-keepers' trust in democracy in a very special way: police chiefs and politicians have publicly announced that "the state" cannot do anything against extortion (e.g. paying "protection money") in terms of actual help—as these crimes are handled as forms of organised crime. A possible result of this dominant frame of interpretation, that is echoed by nearly the whole of the public discourse, is the feeling of "being left alone" on the part of the actual and potential victims, which might urge them to look for potential functional equivalents (e.g. "taking the law into their own hands", or anti-democratic changes). Additionally, we included the restaurateurs'/bar-keepers' confrontation with corrupt civil servants in our conceptual scheme, because being confronted with corruption (a) is obviously a challenge to system trust and (b), according to the public discourse reflected and reinforced by the media, corruption is a field which is increasingly being conquered by organised crime. All of these elements are of even more concern to restaurateurs and bar-keepers stemming from ethnic minorities: they are more liable to become victims of everyday crime, of corruption and of extortion (this—at least—is also a dominant frame in the public discourse). We therefore focused our project on business-people, concentrating on restaurateurs and bar-keepers of German, Greek, Italian and Turkish ethnic origin. In winter 1995/1996 the opinion research institute EMNID (Bielefeld) surveyed restaurateurs of both German and foreign ethnicity. The survey was undertaken in two independent parts: sample A was interviewed via a stan-

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dardised telephone interview, sample B was supplied with a written questionnaire. The two samples were strictly independent of each other. Telephone interviews and questionnaires were bilingual, using German and/or the mother tongue of the restaurateurs interviewed.1 Beside confrontations with "normal" crime, we particularly asked for information on their experience of extortion, especially demands for protection money, and corruption among civil servants of any kind. In the telephone interview we asked them to tell us: (a) about any experience of these things among their friends or acquaintances and (b) the rate of victimisation as they perceived it. We only asked them to provide an account of their own encounters and victimisations in the (anonymous) written questionnaire.2 All the restaurateurs in both samples were offered the opportunity to call EMNID (anonymously and free of charge) to provide more detail about their experience with extortion. However, only a few of the restaurateurs took up this opportunity (25 in total) and none provided information we did not already have. We created our samples starting from a list of all sections of Deutsche Telekom's yellow-pages directory covering restaurants, pubs, bars, take-aways and the like. Using the yellow-pages information (i.e. name and address of the business, sometimes the name of the owner or proprietor) all businesses were sorted according to the assumed ethnic origin of the owner or proprietor. In the area of the former German Democratic Republic (with the exception of Berlin) only businesses with an assumed German ethnic background were included, due to sheer lack of numbers. Thus we only surveyed ethnic minorities in the "old" Federal Republic of Germany. A random selection of all presumably "German" addresses and all the addresses of those presumed "Greek", "Italian" or "Turkish" made up the initial sample base. In practice, only a smaller than expected percentage of the restaurateurs approached were willing to take part in the survey.3 The response rate was 21 per cent for the telephone interviews and 11.4 per cent for the written questionnaires. We therefore do not claim to present a representative survey, although tests have shown that the structure of our sample comes close to the sampled population as regards type of business and regional distribution (both in overall geographical and in urban versus rural terms). Table 5.1 shows the sample structure of those actually interviewed, according to their self-attributed ethnic origin. In order to gain an overview as far as victimisation is concerned, some of the main results are summarised below (for more details see Ohlemacher 1998):

1 For an alternative research design with face-to-face-interviews see Chin, Kelly and Fagan 1993; Chin, Fagan and Kelly 1992. 2 A complete documentation of the sampling procedures and research instruments can be found in Gabriel et al. (1995; 1996). 3 Following from that, at least in the telephone sample we were able to meet several quota via stratification based on informations from the yellow pages, i.e. regional distribution and subbranches.

78 Extortion, Corruption and Trust Table 5.1: The ethnic structure of the two samples; telephone and written questionnaires Ethnic origin

Telephone interviews

Written questionnaires

German Greek Italian Turkish

2,397 (54.5%) 640 (14.6%) 903 (20.6%) 453 (10.3%)

2,755 (72.8%) 204 (5.4%) 379 (10.0%) 151 (4.0%)

Total

4,393(100%)

3,489(100%)

(1) The results of our survey indicate that the lifetime prevalence rates of extortion4 are probably lower than the public discourse claims. Direct experience with extortion was reported—varying by ethnic origin—by 4 per cent to 13 per cent of the respondents and, within that figure, cases of extorting protection money were reported by 2 to 6 per cent of the respondents. Additionally, in the telephone interviews between 15 per cent and 28 per cent of the respondents reported cases of extortion among their acquaintances. The highest percentage in this range of vicarious victimisation (28 per cent) is reported by Turkish respondents; about 40 per cent of these cases are claimed to be cases of "asking for donations", e.g. to exile political groups. For the Greek, German and Italian respondents the estimates of victimisation rates vary from 8 per cent to 13 per cent; only the Turkish respondents with an average estimate of 27 per cent, see their fellow ethnics as more likely to experience extortion. Even the estimates in the biggest cities (over 500,000 inhabitants) do not lead to the high percentages commonly cited in the public discourse—the highest perceived victimisation is that of the Turkish business-people in big cities, which amounts to some 31 per cent. (2) The restaurateurs with direct or indirect experience of extortion are even more likely to be victims of everyday crime. Those having such experiences tend to describe the "typical extortion" in their city or region as starting with an economic relationship of dependence in which, for example, a blackmailer might use his or her knowledge about illegal practices on the victim's part. Restaurateurs with extortion victims in their social networks recall that such dependence provided the background for extortion in about 60 per cent of the cases known to them. Extortion therefore appears to be a field of crime that is connected to crime-prone contexts and/or relies on prior economic contact. 4 The introduction read as follows: "Now for another field of crime—the extortion of money, goods and services (we include relationships of dependence on criminal groups and the extortion of protection money and donations)". Extortion in this wider view therefore encompassed protection money in a classical sense but also (a) the extortion of other favours (e.g. better prices or favourable contract conditions) and (b) the exploitation of economic dependence as the basis of blackmail.

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(3) It is interesting to note that administrative corruption5 occurs to the same quantitative extent as extortion by private persons, as far as direct confrontations (lifetime prevalence), the experiences mediated by social networks and the perceived rates of confrontation are concerned. Direct confrontation with corruption is reported, depending on their ethnic origin, by 3 to 6 per cent of respondents, and cases involving friends or acquaintances are reported by 15 to 28 per cent. The average rates estimated by respondents are in a range between 14 per cent and 22 per cent.6 The respondents of Greek and German origin have more problems with administrative corruption, whereas the Italian and Turkish respondents reported more trouble with extortion, as described above. In the theoretical context presented here, an analysis based on the telephone data is of special interest: we asked the interviewees both (a) restaurateurs/barkeepers they know personally who are or have been confronted with extortion and/or corruption (i.e. indirect victimisation by having victims in the personal network) and (b) what rate of victimisation they would estimate for the establishments in their city/town run by restaurateurs/bar-keepers of the same ethnic origin (i.e. perceived or estimated victimisation in the wider network). We correlated both indirect and perceived victimisation of extortion and corruption, using an indicator of system trust. This indicator is based on four standard items of surveys on trust in institutions and democracy, i.e. the effectiveness and legitimacy of democracy as a regime or political order. These four items are isolated theoretically as empirical indicators of specific and specific-diffuse support (in contrast to efficacy-items on the one hand and to the diffuse support of the philosophical idea of democracy on the other). This theoretical idea was empirically confirmed by a factor analysis (showing that these four items all load on to one factor). Reliability tests produce an a = 0.61 (mean=2.63 [1,4], SD=0.63). The items (in translation) read as follows: (1) "How satisfied are you with the democracy in the Federal Republic, i.e. our whole political system, that is how it works at the moment?' (2) "My (German, Italian, Turkish, Greek) colleagues and I, we are feeling very well represented in the political system of the Federal Republic." (3) "How satisfied are you with the democracy in the Federal Republic, i.e. our political system, that is how it is laid down in the constitution?" (4) "How much of the time do you trust the Federal Government to do what is right?" 5 The corruption questions focused on civil servants. The introduction read as follows: "People in your business often have to deal with public authorities. You may find that you get in touch with a civil servant who wants to profit in private terms. We refer to civil servants who either ask for money, goods or other services in return for fulfilling their official obligations, or else try to use their knowledge to put pressure on the business person. People doing any of these things may be civil servants or officers in the police or from other authorities". 6 This highter rate of perceived corruption, compared to reports of direct confrontation, is also confirmed for the catering sector in the Netherlands (van Dijk and Terlouw 1996, p. 161).

80 Extortion, Corruption and Trust The bivariate (overall mild) correlation reveals two results: (a) the correlation between corruption and system trust is higher than between extortion and trust, both for indirect victimisations and for perceived victimisations; (b) the correlation between perceived victimisations and trust, both for corruption and extortion, is higher than the correlations between indirect victimisations and trust. Thus in the multivariate regression analysis the perceived victimisation of corruption is the only variable having a significant, independent correlation with trust (see Table 5.2). Table 5.2: Bi- and multivariate regression of perceived victimisation and indirect victimisation (racketeering/corruption) with system trust (scale); telephone sample

System trust (scale) bivariate (r-values) multivariate (beta-values) R=.27 (n=1546)

Indirect victimisation racketeering

Perceived victimisation racketeering

Indirect victimisation corruption

Perceived victimisation corruption

-.06** (n=4.015) -.01

-.15** (n=2.219) -.05

-.10** (n=3.993) -.04

-.26" (n=2.218) -.22**

** p < .01

Two conclusions can be drawn from this: (1) corruption is the factor exerting the greater influence on trust, (2) perception in the form of perceived, generalised rates is more important than structural assets in the form of personal relations to victims. Some elements of the conclusion are open to doubt to the extent that dependent and independent variables could be confused. In other words: showing distrust in democracy prompts the interviewee to claim corruption to be widespread, in a bid to produce consistent patterns of answering to avoid cognitive dissonance. The conclusion with regard to extortion appears to have a more incontestable validity. Consequences of this will be discussed in the final paragraph. In terms of deviant behaviour on the interviewees' side, i.e. self justice as a consequence of the victimisations, we only found very few respondents who actually "took the law in their own hands". This is true for both data sets (and especially valid for the written questionnaires as the more anonymous instrument). We also found only mild correlations between victimisations and the willingness to act in this way. However, the highest correlation could be registered between perceived victimisation rates and willingness to self justice. However, there is no strong association between system trust and the willingness to act in terms of self justice in our data.

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CONCLUSION

The first conclusion might be that perceptions (i.e. generalisations in the form of estimated victimisation rates) are more important than structures (i.e. victims one knows personally) when it comes to the formation of individual attitudes. This conclusion is supported by the bi- and multivariate analysis reported above, and by an additional bivariate correlation between perceived and indirect victimisations: victimisations in respondents' personal networks correlate only mildly with levels of generalisations. Obviously, structures are not a necessary prerequisite for perceptions. The highest correlations between deviant actions (or willingness to act) could also be found in connection with estimated rates of victimisation. This leads to the second conclusion: the importance of the handling of frames of interpretations within the public sphere. That especially applies to the mass media's handling of (re-)constructions of society—being a virtual reality in many parts of social life, but the only available (e.g. with special kinds of victimisations). In this perspective the construction and perpetuation of frames is an important asset of social change, and a precarious element in the public discourse to be handled with care by all public actors. Structures may well act as a fundamental basis, but perceptions (steered by frames) seem to overrule or—at least—moderate their influence.

CREDITS

The description of the data set and a small section of the data presentation are taken with kind permission from Kluwer Academic Publishers from the article Ohlemacher (1999, p. 49ff): "Viewing the Crime Wave from the Inside. Perceived Rates of Extortion among Restaurateurs in Germany" published in: European Journal on Criminal Policy and Research 7 (1/1999).

REFERENCES

Berger, Bennett M., 1995, An Essay on Culture: Symbolic Structure and Social Structure (Berkeley and Los Angeles: University of California Press). Berkowitz, Stephen D., 1982, An Introduction to Structural Analysis (Toronto: Butterworths). Blau, Peter M., 1964, Exchange and Power in Social Life (New York: John Wiley). , 1977, "A Macrosociological Theory of Social Structure" 83 American journal of Sociology 26-54. , 1982, "Structural sociology and network analysis: An overview" in Social Structure and Network Analysis (Peter V. Marshden and Nan Lin (eds), Newbury Park: Sage).

82 Extortion, Corruption and Trust Blau, Peter M., 1994, Structural Contexts of Opportunities (Chicago: University of Chicago Press). and J.E. Schwartz, 1984, Cross-Cutting Social Circles (Orlando: Academic Press). Carolyn Beeker, and Kevin M . Fitzpatrick, 1984, "Intersecting Social Affiliations and Intermarriage" 62 Social Forces 585-606. Boorman, Scott A. and Harrison C. White, 1976, "Social Structure from Multiple Networks. II. Role Structures" 81 American journal of Sociology 1384-1446. Burt, Ronald S., 1982, Toward a Structural Theory of Action. Network Models of Social Structure, Perception, and Action (New York etc.: Academic Press). , 1987, "Social Cohesion and Innovation. Cohesion versus Structural Equivalence" 92 American Journal of Sociology 1287-1335. , 1992, Structural Holes: The Social Structure of Competition (Cambridge: Harvard University Press). and Patrick Doreian, 1982, "Testing a Structural Model of Perception. Conformity and Deviance with Respect to Journal Norms in Elite Sociological Methodology" 16 Quality and Quantity 109-150. •and Michael J. Minor, 1982, Applied Network Analysis. A Methodological Introduction (Beverly Hills/London/New Delhi: Sage). Chin, Ko-Lin, Robert J. Kelley, and Jeffrey A. Fagan, 1993, "Methodological Issues in Studying Chinese Gang Extortion" (1993) 1, 2 The Gang Journal 25-36. Chin, Ko-Lin, Jefrey Fagan and Robert Kelley, 1992, "Patterns of Chinese Gang Extortion" 9 Justice Quarterly 625-646. Coleman, James S., 1973, The Mathematics of Collective Action (Chicago: Aldine). Diani, Mario, 1995, Green Networks: A Structural Analysis of the Italian Environmental Movement (Edinburgh: Edinburgh University Press). Ellingson, Stephen, 1995, "Understanding the Dialectic of Discourse and Collective Action: Public Debate and Rioting in Antebellum Cincinnati" 101 American Journal of Sociology 100-144. Emirbayer, Mustafa and Jeff Goodwin, 1994, "Network Analysis, Culture, and the Problem of Agency" 99 American Journal of Sociology 1411-1154. Fischer, Claude S., 1982, To Dwell Among Friends: Personal Networks in Town and City (Chicago: University of Chicago Press). Fischer, Claude S., Robert Max Jackson, C. Ann Stueve, Kathleen Gerson, and Lynne McCallister Jones, 1977, Networks and Places: Social Relations in Urban Setting (New York: Free Press). Gabriel, Ute, Eberhard Mecklenburg, Thomas Ohlemacher, and Christian Pfeiffer, 1995, "Die KFN-Geschaftsleute-Erhebung. PreTest, Sampling- und Instrumententwicklung" (Projektbericht 1) Forschungsberichte des Kriminologischen Forschungsinstituts Niedersachsen (KFN), no. 50 (Hannover: KFN). Gabriel, Ute, Eberhard Mecklenburg, and Thomas Ohlemacher (with collaboration of Dieter Boumans and Imke Margraf), 1996, "Die KFN-Geschaftsleuteerhebung. Hauptuntersuchung: Durchfiihrung, Stichprobenbeschreibung und Fragen der Reprasentativitat" (Projektbericht 2) Forschungsberichte des Kriminologischen Forschungsinstituts Niedersachsen (KFN), no. 58 (Hannover: KFN). Gamson, William A., 1975, The Strategy of Social Protest (Homewood, 111.: Dorsey). , 1988, "Political Discourse and Collective Action" in International Social Movement Research I, B. Klandermans, H. Kriesi and S. Tarrow (eds), (Greenwich, Conn., JAI) at 219-244.

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and Andre Modigliani, 1989, "Media Discourse and Public Opinion on Nuclear Power: A Constructionist Approach" 95 American journal of Sociology 1-37. Gerhards, Jiirgen and Dieter Rucht, 1992, "Mesomobilization: Organizing and Framing in Two Protest Campaigns in West Germany" 98 American journal of Sociology 555-595. Giddens, Anthony, 1988, Die Konstitution der Gesellschaft, Grundziige einer Theorie der Strukturierung (W. H. Krauth and W. Spohn (trans.), Frankfurt/New York: Campus) (English original, 1984, The Constitution of Society. Outline of the Theory ofStructuration (Cambridge: Polity Press)). Gould, Roger, 1991, "Multiple Networks and Mobilization in the Paris Commune, 1871" 56 American Sociological Review 716-729. , 1993a, "Trade Cohesion, Class Unity, and Urban Insurrection: Artisanal Activism in the Paris Commune" 98 American Journal of Sociology 721-754. •, 1993b, "Collective Action and Network Structure" 58 American Sociological Review 182-196. Granovetter, Mark, 1985, "Economic Action and Social Structure: The Problem of Embeddedness" 91 American Jourmal of Sociology 481—510. Laumann, Edward O. and Franz Pappi, 1976, Networks of Collective Action: A Perspective on Community Influence Systems (New York: Academic Press). McAdam, Doug., 1986, "Recruitment to High-Risk Activism. The Case of Freedom Summer" 92 American journal of Sociology 64—90. , 1988, Freedom Summer (New York: Oxford University Press). and Ronelle Paulsen, 1993, "Specifying the Relationship between Social Ties and Activism" 99 American journal of Sociology 640-667. McCarthy, John and Mayer N. Zald, 1987, "Resource Mobilization and Social Movements. A Partial Theory" in Social Movement in an Organization Society (Mayer N. Zald and John D. McCarthy (eds), New Brunswick/Oxford: Transaction Publishers). Ohlemacher, Thomas, 1998, Verunsichertes Vertrauen? Gastronomen in Konfrontation mit Schutzgelderpressung und Korruption (Baden-Baden: Nomos). , 1999, "Viewing the Crime Wave from the Inside. Perceived Rates of Extortion among Restaurateurs in Germany" 1 European journal on Criminal Policy and Research 43-61. Olson, Mancur, 1965, The Logic of Collective Action (Cambridge: Harvard University Press). Padgett, John F. and Christopher K. Ansell, 1993, "Robust Action and the Rise of the Medici, 1400-1434" 98 American journal of Sociology 1259-1319. Parsons, Talcott and Edward Shils, 1951, Toward a General Theory of Action (Cambridge, Mass.: Harvard University Press). Rucht, Dieter (ed.), 1991, Research on Social Movements—The State of the Art in Western Europe and the U.S.A. (Frankfurt am Main: Campus; also Boulder, Colorado: Westview Press). Rucht, Dieter, 1994, Modernisierung und neue soziale Bewegungen. Deutschland, Frankreich und USA im Vergleich (Frankfurt/Main: Campus). Sewell, William H., 1992," A Theory of Structure: Duality, Agency, and Transformation" 98 American Journal of Sociology 1—29. Snow, David A., E.A. Burke Rochford, Jr., Steven K. Worden, and Robert D. Benford, 1986, "Frame Alignment Processes, Micromobilization, and Movement Participation" 51 American Sociological Review 464—481.

84 Extortion, Corruption and Trust Snow, David and Robert D. Benlord, 1988, "Ideology, Frame Resonance and Participant Mobilization" in International Social Movement Research 1 (B. Klandermans, H. Kriesi and S. Tarrow (eds), Greenwich, Conn., JAI) at 197-218. and 1992, "Master Frames and Cycles of Protest" in Frontiers in Social Movement Theory (Aldon D. Morris and Carol McClurg Mueller (eds), New Haven: Yale University Press). Tarrow, Sidney, 1983, Struggling to Reform: Social Movement and Policy Change During Cycles of Protest, Western Societies Program, Occasional Paper No. 15 (Ithaca: Cornell University). , 1989, Democracy and Disorder. Protest and Politics in Italy 1965-1975 (Oxford: Clarendon Press). Tilly, Charles, 1978, From Mobilization to Revolution (Reading, Mass.: AddisonWesley). Van Dijk, Jan J.M. and Gert Jan Terlouw, 1996, "An International Perspective of the Business Community as Victims of Fraud and Crime" 7 Security Journal 157-167. Weatherford, M. Stephen, 1987, "How Does Government Performance Influence Political Support?" 9 Political Behavior 5-28. Wellmann, Barry, 1988, "Structural Analysis. From Method and Metaphor to Theory and Substance" in Social Structures (Barry Wellmann and Stephen S. Berkowitz (eds), New York: Cambridge University Press). White, Harrison C , Scott A. Boorman, and Ronald R. Breiger, 1976, "Social Structure from Multiple Networks I. Blockmodels of Roles and Positions" 81 American journal of Sociology 730-780.

Part II

Social Dynamics and the Limits of Legal Control

6 Republican Theory and Crime Control JOHN BRAITHWAITE*

INTEGRATING NORMATIVE AND EXPLANATORY THEORY

is a dangerous discipline because its disciples alternate between taking the law for granted (by contributing to a statist project of crime control) and being critical criminologists who deconstruct crime. Most in fact slide back and forth between legal positivism and critical moral relativism. While criminologists take explanatory theory increasingly seriously, they do not take normative theory seriously at all. Explanatory theories are ordered sets of propositions about the way the world is; normative theories, ordered sets of propositions about the way the world ought to be. The meta-theoretical message of this paper is that one cannot be serious about normative theory without rejecting both a moral relativism that might find rape and murder okay and a legal positivism that finds high imprisonment rates morally acceptable. I will show that normative theory of the sort that moral philosophers and jurisprudes tend to advocate is dangerous because its prescriptions relate to possible worlds rather than to worlds which explanatory theory and evidence lead us to conclude do exist or may come to exist. Obversely, explanatory theory that appears to be silent on norms carelessly builds in unexamined norms, which are typically legal positivist or liberal. This paper argues for examinable republican norms as superior to legal positivism and liberalism. And it argues for an integration of explanatory and normative theory. That has been my own meta-theoretical project. The categories in my predominantly normative theory books have been shaped by the categories in prior explanatory theory books, and vice versa. However bad the execution, attempting integration seems better than a status quo where moral philosophers do normative theory with some sloppy remarks in their final paragraph about the relevance of their work to the real world and social scientists have some throw away remarks in their final paragraph about the "policy relevance" of their explanatory theory.

C

RIMINOLOGY

* Paper to International Institute for the Sociology of Law, Onati, 23-24 October 1997, Social Dynamics and the Regulatory Order in Modern Societies—New Theoretical Perspectives on the Causes of Crime and Social Control. My thanks to Christine Parker, Philip Pettit, the editors and participants at the Onati workshop for helpful comments on earlier drafts of this paper

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An attraction of the republican normative theory of criminal justice is that the key concepts about to be outlined—freedom, equality, parsimony, checking of power, reprobation and reintegration—map nicely onto key concepts of complementary explanatory theories (Braithwaite 1979,1989, 1997,1999)—concepts of freedom, equality, restorative justice as an alternative to punitive justice, separations of powers and reintegrative shaming. A chapter like this is part of an ongoing process of "iterated adjustment" (Parker 1999) of the categories in explanatory and normative theories, shuttling back and forth "between facts and norms" as Habermas (1996) puts it. This is desirable because powerful explanatory theories of criminal justice risk tyranny when unconstrained by normative theory (witness the justifications of deterrence and theories of selective incapacitation for morally unacceptable levels of incarceration). Obversely, a normative theory like just deserts can be a coherent theory in some possible world but not in any existing or sociologically possible world (and hence needs to be constrained by explanatory theory) (Braithwaite and Pettit 1990, Ch. 9).

THREE ATTRACTIONS OF REPUBLICAN THEORY

A republican theory of criminal justice has three appeals compared with the most influential alternative theories such as retributivism and deterrence theory. First, it provides attractive answers to the key normative questions of criminal justice, such as what should be deterred, how should trials be conducted, what should be shamed, and how? Second, those answers are informed by a wider social democratic programme for the transformation of contemporary societies into something more decent. Without a broader social and political agenda, it is hard to see how to build a society with less crime and what place, if any, criminal law has in such a project. I will argue that the key elements of that republican political program are about liberty, equality and community: • • • • •

continually continually continually continuous continually the polity.

strengthening freedom as non-domination struggling to increase equality improving the quality of deliberation in communities improvement of justice reinvigorating separations of powers, the checks and balances in

These are not the only phenomena republicans should want continuously to improve. They should also want, for example, continuously to improve environmental stewardship—replenishing our obligations to the land and the living things that depend on it (Pettit 1997, pp. 135-8). One of the reasons for focusing on the above list of key elements of the republican political program, however, is their relationship to the crime problem. The third attraction is that republican theory hypothesises that implementing these key elements of its political program will substantially reduce crime.

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Three Attractions of Republican Theory (1) a normative ideal for criminal justice policy; (2) that it is part of a broader political programme that inspires societal transformation; (3) that it might reduce crime.

These three attractions of republican theory organise the essay. First, freedom as non-domination is explained as the ideal at the foundation of republicanism that can guide criminal justice policy. The next section explains how freedom as non-domination motivates the key elements of the political programmeme outlined by the above set of bullet points. Finally, the chapter explains why such a programme might reduce crime in the conditions of many contemporary societies.

THE REPUBLICAN IDEAL AS A GUIDE TO CRIMINAL JUSTICE POLICY

My republican ideal is shared with Philip Pettit (1997; Braithwaite and Pettit 1990) and Christine Parker (1999; Braithwaite and Parker, 1998) as the pursuit of freedom as non-domination (or dominion). In this work, the core of the liberal tradition is seen to be freedom as non-interference, while freedom as nondomination is the mark of the good society in the republican tradition (Spitz 1995). This civic republican tradition spreads from Rome to the early modern Northern Italian republics to Dutch and English republican writing in the 17th century, Montesquieu, Paine, Madison and Jefferson. The republicans wanted more than liberty in the impoverished sense favoured by the liberals who increasingly dominated Western political discourse through the nineteenth century. Republican freedom required more than the accident of managing to escape interference; it required the assurance of not even being exposed to the possibility of arbitrary interference by an uncontrolled power. Formal assurance against domination was especially important for minorities who suffer repression by states, communities and markets. In practice republicans equated being free with living under a rule of democratic law and civic norms that would make everyone secure against interference without giving anyone cause for complaint that they were not being treated as equals. The free individual was an equal member of a free community so that there was a solid basis for the connection the French made in 1789 between liberty, equality and fraternity (or community). Or sorority (Wollstonecraft 1995). Traditional republicans were excessively narrow in their conception of who could be citizens; they limited the citizenry to propertied, mainstream males.

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Contemporary republicans see women, the propertyless and most pointedly, criminals, as citizens with an equal claim on our consideration for their freedom. This normative commitment means that we cannot take away the freedom of criminals unless we are confident that doing so will more profoundly enhance the freedom of others. Indeed, we cannot define something as a crime unless so defining it will increase freedom as non-domination. The freedom of criminals counts for no less simply because they are criminals. Republicans are consequentialist about maximizing freedom as non-domination. Braithwaite and Pettit (1990) have derived from this republican premise presumptions in favour of parsimony (if in doubt, punish less), checking of power, reprobation and reintegration. These presumptions guide the answers Braithwaite and Pettit (1990) provide to key questions of criminal justice policy such as what should be a crime, when and how should such laws be enforced, what should be the upper limits on punishment, why there should be no lower limits (mercy as just) and so on. Parsimony is a particularly important principle because it motivates incremental downward movement (decrementalism) in the extent to which punishment is used until such time as sufficiently clear evidence emerges that crime has notably increased.

PETTIT S ELABORATION OF THIS REPUBLICAN IDEAL

Philip Pettit's (1997) Republicanism: A Theory of Freedom and Government has recently delivered to us a systematic attempt at building a political programme from the republican foundation of the pursuit of freedom as non-domination. I will not here seek to summarize this in all its sweep; it touches everything from defence policy to the welfare state. Rather, my comments will be restricted to those key elements of the programme which I will argue are relevant to reducing crime.

Equality Pettit argues that citizens cannot enjoy freedom as non-domination in conditions of poverty. The slum-dwellers of our cities live under the tyranny of slum landlords; they suffer discriminatory treatment by the legal system because they cannot afford to pay for legal advice. In such a condition, freedom is impossible, all choice is subject to the daily dominations poverty engenders. Hence, Pettit argues that republicans must support a strong welfare state that assures citizens of a safety net that will prevent them from falling into poverty. This rather than the maximisation of equality is Pettit's ideal. Pettit, along with other prominent republicans like Cass Sunstein (1988), believes that equality of results (as opposed to equality of opportunity) is an unachievable ideal and therefore one lacking practical political appeal. So long as equality before the law ensures

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that no citizens are systematically accorded truncated opportunities for economic advancement, so long as the welfare system assures all citizens enough economic security that they can make undominated choices, then the fact that some become much richer than others is not a concern for Pettit. While he is right that absolute equality is both unattainable and unjust, we cannot sweep under the carpet the fact that accumulations of wealth and power increase prospects of domination. The more wealth is concentrated, the more domination there is, the less freedom as non-domination there is. Money talks; it talks in the courtroom where the billionaire with up-town lawyers will always be advantaged in a contest with a middle class person; it talks in the boardroom, in the media and in contests for political favours. So it seems to me that the greater the inequality of wealth and power in a society, the lesser will be the freedom as non-domination in that society (and that this is a monotonic, though not a linear relationship). While there are possible worlds where excessive equality is unjust toward those who work harder, in sociologically existing worlds, injustice favours the strong overwhelmingly more than the weak. The reality for social democrats is constant struggle for greater equality, knowing that concentrations of power will always fight back to reinstitute inequality. The fightbacks of the powerful against egalitarian reform are such a constant of history that we can never hope to attain a world where the poorest will enjoy even a tenth of the riches cornered by its wealthiest. The dangers, injustices and political liabilities of absolute equality are not things the social democrat need worry about in any sociologically possible world. The social democrat's objective is not absolute equality, nor is it to settle for equality of opportunity; it is to struggle against the odds for the greatest improvement in equality of results as can be accomplished. In the contemporary conditions of global capitalism this mostly means doing one's political best to stem increases in inequality rather than accomplishing permanent actual reductions of inequality. Moreover, the greatest disservice one can do to the republican objective of equality of opportunity is to fail to resist inequality of results.

Deliberation in communities A crucial feature of a republic for Pettit (1997) is that it be a deliberative democracy, a "contestatory democracy", in which reasons for decisions must be discussed, evaluated. Social movements such as the women's movement, the environmental movement, the labour movement, the consumer movement, movements for indigenous rights, and the like, are central to republican governance. Freedom from domination requires that arbitrary power be vulnerable to contest. It does not require that everyone participate in political deliberation, nor that participation be maximized. Rather it depends simply on enough citizens participating to ensure that decisions are contested from diverse perspectives. All this seems sensible.

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Yet there is a parallel to our analysis of continuous struggle for greater equality, as opposed to valuing absolute equality. Most citizens of contemporary democracies are totally alienated from political life, beyond perhaps casting their vote at election time. While political decisions that are media events attract more than adequate contestation, governments daily issue hundreds of policy decisions that are not adequately contested. A public hearing of an industry commission is called on the protection of the cotton industry; only cotton farmers turn up—no one contests the proposal as a representative of consumers. A new standard concerning the safety of car tail lights is issued after the only contestation has come from the motor vehicle industry. At lower levels of governance, the challenges of securing enough participation to deliver the contestatory ideal are even more profound: the meeting of the workplace health and safety committee is called and no workers turn up, or white male workers only. The more disadvantaged constituencies are, the more profound are contestation deficits. Even at the level of the World Trade Organization—the most powerful level of governance in the world system—in my research with Peter Drahos we were told of a meeting on the trade needs of Least Developed Economies to which no representatives of Least Developed Economies turned up. The small number of representatives of these nations were simply overloaded with demands to participate in other Geneva meetings. Hence, republics need constantly to nurture interest in participation, feelings of obligation to participate where one can and resources for participation by the resource-poor. Not an obligation of citizens to participate in every committee that makes decisions affecting their interests, but an obligation to do their bit as a participating citizen. Even this is not a sufficiently demanding standard of republican participation. At the lowest levels of governance—the governance of families, of our immediate work groups, particularly the governance of more junior work colleagues who depend on us for decent work practices—freedom as non-domination depends on an obligation to listen and deliberate thoughtfully. Fathers who have nothing to do with their children, bosses who do not bother to engage in discussion of work practices, are the most common destroyers of freedom as non-domination. These are the reasons why a republic should mean a struggle for continuous improvement in the quality and diversity of deliberation and in the proportion of the population that feels an obligation to participate. Diversity in a contestatory republic argues for getting more citizens to participate somewhere rather than a few conscientious citizens to participate relentlessly.

Justice In his republican writing, as opposed to his earlier work, Pettit has remarkably little to say about where justice fits in as a republican desideratum, a neglect remedied by work Christine Parker (1999) has done building on Pettit's work.

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Following Campbell (1988, pp. 3 ^ ) , Parker (1999, pp. 45-7) makes a Rawlsian distinction between the concept and the conception of justice in her republic of justice. Parker's concept of justice is: "those arrangements by which people can (successfully) make claims against individuals and institutions in order to advance shared ideals of social and political life" (Parker 1999, 46). A concept of justice thus conceived as means, formal and informal, by which people seek to secure social and individual relations they think are right will yield different views (conceptions) of Tightness. Parker's (1999) republican conception of substantive justice is of freedom as non-domination (following Skinner 1984; Pettit 1993,1997). The just society then institutionalises processes of disputing that will maximize freedom as non-domination. So Parker (1999, p. 49) integrates concept and conception in a definition of justice that I will adapt only slightly here: Justice is "that set of arrangements that allow people to make claims against other individuals and institutions in order to secure freedom against the possibility of domination" . Access to justice is mostly not accomplished through courts of law. There are simply too many serious daily injustices in the world, not to mention myriads of more minor ones, for courtroom justice to be affordable beyond a small minority of cases. Consumer protection agencies, for example, never approach litigating even one per cent of the complaints they receive (Grabosky and Braithwaite 1986). Worse, nor do they informally deliver justice for the majority of their complainants. Again, therefore, the reality is that access to justice for all is an impossible ideal. Continuous improvement in access to justice is an attainable objective, however. Christine Parker (1999) has worked through the republican reforms required for continuous improvement in access to justice. She suggests, for example, that all organisations above a certain size have access to justice plans that, through consultation with stakeholders: (1) identify the various types of injustices (to consumers, workers, minorities, creditors, etc) that are common consequences of its activities; (2) set up restorative justice fora to correct these injustices when they arise; and (3) deploy preventive law measures to ensure compliance with the law and remove blockages to access to justice. Performance indicators would be required under these plans to demonstrate improved access to justice this year compared to last year (continuous improvement). The results of independent audits against these performance indicators would be made public. Responsively regulated access to restorative justice plans in the large organisation sector then frees up more finite legal aid resources for injustices inflicted in small organisations like families and by individuals.

Separations of powers Republicans believe in a variety of separations of powers as central to accomplishing a contestatory democracy (Pettit 1997). The best known is

94 Republican Theory and Crime Control Montesquieu's separation of legislature, executive and judiciary. An absolutely strict separation of powers, however, would pose profound risks of abuse of power. This is because we want separated powers to overlap sufficiently so that they can contest each other's power. No point in having a judiciary so independent of the legislature that the legislature cannot write new laws to overturn case law written by the courts. No point having a legislature so independent of the judiciary that courts cannot strike down unconstitutional laws. The ideal is of enough independence for one branch of private or public governance to be able to make its best contribution to advancing republican freedom without being prevented from doing so by the domination of some other branch. The ideal is also of enough interdependence for many branches to be able to check the power of one branch from dominating others. Constitutional designs for robust separations of powers tend to crumble over time. Tyrants relish dominating the weak, but are more likely to opt for peaceful coexistence with other powerful actors. Checks and balances deteriorate into truces whereby you stay in your backyard and I mine. Hence, separations of powers within and between both the private and public sectors need to be regularly reinvigorated to ensure that they deliver checks and balances. In another paper I have discussed in some detail the institutional nuts and bolts of how this might be done (Braithwaite 1997).

A SOCIAL DEMOCRATIC PROGRAMME?

Pettit does not really present his political programme as a social democratic one, though he explicitly connects the republican tradition to the socialist tradition of the dignity of labour, freeing workers from conditions of wage slavery. On questions such as equality, perhaps he and others in the tradition like Sunstein (1988), who is explicit in stating "political equality" rather than economic equality as one of his four republican objectives, want to bring a non-socialdemocratic liberal audience along with them. This seems a mistake. It is just not possible to achieve equal treatment— equality before the law, equality of opportunity—by making equal treatment your objective. Given the way economic and political power works in practice, the best way to pursue equal treatment is through democratic struggle to equalise wealth and power as far as one can persuade the electorate to support it. Pettit persuasively makes a republican connection to feminism via the republican writings of Mary Wollstonecraft (1995) and others. But the agenda of progressively reducing inequalities between men and women should have more political appeal to feminists than the pursuit of equal treatment in patriarchal societies where this usually means men take the spoils. You can allocate prizes of land by applying the rules of jousting with scrupulous equality between a knight and a peasant woman; but the woman will end up skewered on a lance.

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In most spheres of inequality, the more that unequal contestants are granted equal treatment, the wider the gap between the haves and have nots becomes (Galanter 1974). Equal treatment does not go far enough to inspire confidence among social democrats, feminists, or social movements of oppressed ethnic minorities. Absolute equality goes too far. A credible programme of institutional reform to deliver continuous improvement in freedom as nondomination, equality, community, justice and separations of powers is a good start toward an inspiring social democratic platform. But of course it is not enough. Equal rights to pollute up to a limit has little appeal to the green political constituency, just as zero tolerance of environmental harm goes too far (being an impossibilist programme). Credible commitment to continuously and substantially reducing environmental impacts by major industrial polluters and households alike, independently audited and publicly reported, is a programme that can and will inspire reform that might save the planet. The gradual closing of the Ozone hole is its light on the hill.

CAN THIS REPUBLICAN PROGRAMME REDUCE CRIME?

Reducing inequality For the first decade or so of my life as a criminologist I worked on the relationship between inequality and crime (Braithwaite 1979; Braithwaite 1991). I found then the evidence to be reasonably strong that inequality in economic outcomes, not just the number who were poor, but inequality between the poor and the average income earner, between the rich and the poor, is associated with higher crime rates. And I read the evidence for this association as growing stronger in recent times with the addition of new kinds of evidence such as that of Wright and Decker (1994,1997) on the importance of a "need for cash" as a motivation of burglars and armed robbers. The most recent evidence on unemployment and crime (Weatherburn and Lind forthcoming) makes a republican case for labour market programmes in Western economies that completely abolish long-term unemployment (Braithwaite and Chappell 1994).

Improving the quality of deliberation in communities Republicans tend to work with a productively loose conception of community. I would conceive a community as any aggregation of people that share some common bonds or identities. Republicans can have no truck with a kind of communitarianism that privileges a national society. Nor is a nostalgic longing for a lost village community of previous centuries attractive. Privileging either of these forms of community is in fact a threat to freedom as non-domination. Republican freedom is most likely to be nourished in a world of cross-cutting

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communities: where one's professional community might act as a check and an alternative to the dominations of one's village, one's church a check on the dominations of one's family, one's network of friends with a common recreational interest a check on the dominations of one's church, and so on. Republicans should not believe in a strong community, but in strong communities. The most important communities to enhancing freedom in contemporary democracies are communities of social movement activists. I have argued elsewhere that social movement politics is more important to the control of crime than criminal justice policies because, for example, the shamefulness of crimes against women is primarily advanced by the women's movement, the shamefulness of environmental crimes by the environment movement (Braithwaite 1995). The very crimes that social movements mobilise around are those that are out of control because powerful interests want to render their shamefulness muted and ambivalent. Social bonds and dialogue within communities are important for preventing crime at all levels. The most impressive body of empirical evidence to support this claim are at the level of the micro-community of the family, but the evidence at more intermediate levels of community between family and nation is also strong (Cullen 1994). A new generation of scholars are coming up with new ways of measuring the strength of community, such as Chamlin and Cochran's (1997) discovery of an association between the level of contributions to charity and property and violent crime rates across cities. At the most aggregated levels, community is important to the prevention of crime. The international community is important to the prevention of war crimes. I have a PhD student, Eliza Kaczynska-Nay, working on the mechanisms of social disapproval within the international community that has delivered the surprisingly high level of participation in and compliance with the nuclear non-proliferation regime, in defiance of President Kennedy's prediction 35 years ago that within twenty years there would be twenty nuclear powers. On the safety as well as the non-proliferation side of nuclear regulation there is a global community. Joe Rees (1994) says it is a community of shared fate. They help one another to operate much more safely than they used to because they know that another Three Mile Island or Chernobyl could bring them all down. So, for example, the self-regulatory programmes of the World Association of Nuclear Operators pairs all nuclear power plants in Russia mostly with sister plants in Germany who help them to upgrade to international standards. Like Joe Rees, I read the evidence as rather compelling that this kind of communitarian regulation has improved safety. For example, scrams (automatic emergency shutdowns) declined in the US from over 7 per unit in 1980 to 1 in 1993. Of course, as I argue in Crime, Shame and Keintegration (Braithwaite 1989), strong community is a double-edged sword; it keeps the burglary rate down in Japan at the same time as it is a resource for the Yakusa and circles of corruption in the Diet. The theoretical claim in that book, nevertheless, is that for those kinds of crime that are viewed by overwhelming majorities of citizens as

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harmful, the crime preventive effects of strong community controls exceed the crime inducing effects of strong criminal subcultures. A controversial theoretical position no doubt, and a controversy not pursued here. Durkheim notwithstanding, I take retributive criminal justice practices to be destroyers of community, and restorative justice, The Politics of Redress as Willem de Haan (1990) puts it, as restoring community. Moreover, the evidence is beginning to look encouraging, though it is far from compelling in these early days of research on restorative justice, that this form of communitarian justice might outperform courtroom justice in reducing subsequent crime (Braithwaite 1999).

Continuous improvement of justice One of the most interesting things about Jack Katz's (1988) empirical work in The Seductions of Crime is the way it shows that so much crime is livid with a sense of injustice. Far from viewing himself as a perpetrator of evil, at least at the moment of committing an assault or a murder, the criminal often views himself as an agent of justice, the victim as someone deserving retribution. While just deserts theorists see their agents as dispassionate judges, their world view, artfully promulgated by Hollywood, may have enrolled much larger numbers of men with clenched fists and guns who in little private encounters see themselves as the true agents of just deserts. Then there is John Hagan and Bill McCarthy's (1997) recent work connecting the injustice of being a victim of physical or sexual abuse to subsequent increased crime among homeless youth. This is not a new notion, dating at least from Donald Black's (1984) "Crime as Social Control". The theme of Tom Tyler's (1990) Why People Obey the Law is that people comply when they view the regulatory order at issue as procedurally just. Some of the data coming out of my own research group supports the US evidence that Tyler has accumulated in support of an association between procedural injustice and crime (Makkai and Braithwaite 1996). One reason we think restorative justice conferences will do better than court in preventing crime is that the evidence from the first 548 offenders randomly assigned to court versus conference in Canberra is of notably higher perceptions of procedural justice among those assigned to conference (Sherman and Barnes 1997). This is why within my research group we are inclined to think that crime might be reduced by a republican regulatory transformation that, among things, mandates access to justice plans which secure continuous improvement in access to justice.

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Continually reinvigorating separations of powers Separations of powers are designed to check abuse of power. This is as true of an auditor-general or a court publicly checking the power of a government Minister as it is true of an internal environmental auditor or a Board Ethics Committee privately checking the power of the CEO of a company. It has long been a theme in my writing that such separations of powers in the design of both private and public institutions actually work in reducing crime (Braithwaite 1979, 1997). A more specific point here is that rich and robust separations of powers enable restorative justice to work more effectively in preventing crime. Let me begin to illustrate how with the story of Solomons Carpets, a tale from my experiences as a Commissioner with Australia's national antitrust and consumer protection agency, the Trade Practices Commission. Solomons ran advertisements claiming that certain carpets were on sale for up to $40 per metre off the normal price. This representation was false. The Commission had difficulty deciding what action to take on this alleged breach of its Act. It was a less serious matter than others that were putting demands on its scarce litigation resources. The Commission decided to convene a meeting with Solomons to negotiate an administrative settlement which would seek to include voluntary compensation for consumers in an amount exceeding the criminal fine that was likely should they be convicted. The facts of the matter made it fairly unlikely that any court would order compensation for consumers, but likely that a modest fine would be imposed. All the Commissioners felt that Solomons would reject the administrative settlement because it would be cheaper for them to face the consequences of litigation. Moreover, Solomons management at the early meetings were tough nuts, treating the Commission as if it were bluffing on the threat of criminal enforcement. The Commissioners (including me) turned out to be wrong in assuming that such decisions are necessarily made by companies according to a deterrence cost-benefit calculus. Unknown to the Commission at the time, there was also a soft target within the company, namely the Chairman of the Board, the retired patriarch of this family company. For him, as a responsible businessman, it made sense to accept the Commission's argument that resources should be spent on correcting the problem for the benefit of consumers rather than on litigation and fines. During the restorative deliberation, the Chairman of the Board was dismayed at the prospect of allegations of criminality against his company, and was concerned for its reputation. He was also angry with his chief executive for allowing the situation to arise and for indulging in such a marketing practice. The CEO, like his underlings, had proved a hard target, determined to tough it out. The chairman sought the resignation of his chief executive and instructed the remaining senior management to co-operate with an administrative settlement that included the following seven requirements:

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(1) Compensation to consumers (legal advisers on both sides were of the opinion that the amount was considerably in excess of what was likely to be ordered by a court). (2) A voluntary investigation report to be conducted by a mutually agreed law firm to identify the persons and defective procedures that were responsible for the misleading advertising. (3) Discipline of these employees and remediation of those defective procedures. (4) A voluntary Trade Practices education and compliance programme within the firm and among its franchises directed at remedying the problems identified in the self-investigation report on an ongoing basis and at improving Trade Practices compliance more generally. (5) An industry-wide national Trade Practices education campaign funded by Solomons to get its competitors to also improve their compliance with regard to advertising of carpets. (6) Auditing and annual certification of completion of the agreed compliance programmes by an agreed outside law firm at Solomons' expense. (7) A press release from the Commission advising the community of all of the above and of the conduct by Solomons that initially triggered the investigation, (the press release attracted significant coverage in most major Australian newspapers.) In addition, although it was not part of the deed of agreement, Solomons volunteered to conduct an evaluation study of the improvement (or absence thereof) in compliance with the Act by its competitors as a result of the industry-wide education campaign that it funded. Solomons was a restorative justice watershed for the Commission. There were subsequent cases where executives were soft targets who came away from these encounters deeply ashamed of what their company had done. Many subsequent cases were handled through a process of working up the organization until a soft management target was found who would trigger a dialogic process of responsive reform among those below the soft target. Fisse and Braithwaite (1993) developed this strategy into an Accountability Model that seeks to mobilize corporate private justice systems to hold responsible all who are responsible (generally at sub-criminal levels of responsibility). While holding the axe of law enforcement over an organization's head, the company is required, generally with an independent law firm, to produce a self-investigation report identifying all the persons and procedures responsible for the wrongdoing, and proposing remedies. Again, the idea is that some of the persons identified as having a responsibility under this process will be soft targets who will initiate responsive processes of reform, recompense and prevention for the future. The theory of crime prevention underlying the Accountability Model is that the causation of any crime in which organizations are involved is overdetermined, as the philosophers say, by the acts and omissions of many individuals, organizations and sub-units of organizations. While only a small number of

100 Republican Theory and Crime Control individuals may be involved in committing an organizational crime, Fisse and Braithwaite's empirical work shows that a much larger number usually have the power to prevent it. In any overdetermined criminal offence, some of those with a preventive capacity will be: (1) hard targets who cannot be deterred by maximum penalties provided in the law (like the Solomons CEO); (2) vulnerable targets who can be deterred by maximum penalties; and others will be (3) soft targets who can be deterred by shame, by the mere disclosure of the fact that they have failed to meet some responsibility they bear, even if that is not a matter of criminal responsibility (like Mr Solomon). An organization or a government that has rich and plural separations of powers has more soft targets. What a separation of powers creates is actors who have some capacity to prevent crimes from which they do not benefit (Braithwaite 1997). In organizations or governments with a weak separation of powers, in contrast, the only targets are likely to be hard targets; knowledge of the crime only passes to those who directly or indirectly (through patronage) share in the benefits of the crime. Separations of power create third party enforcement targets like auditors, other gatekeepers and directors with preventive capabilities. The richer and more diverse the separations, the more potential third-party targets for enforcment there will be and the greater the chances that some of them will be soft targets. In political systems with rich separations of power, dialogic regulation works through relying on the strength of weak sanctions. So when the police get a lead on an organisational crime at a low level of the organization, they can slowly work up the organisation with the investigation until they find a soft target who will spill the beans and cooperate in a restorative justice conference to repair the harm done and put in place policies and procedures to prevent recurrence of the crime. More formally, the conclusion here is that the more plural the separations of powers in an organization or a polity: "(a) the more overdetermined is the capacity to prevent abuse: and (b) the more cases there are of disjuncture between an interest in the abuse and a capacity to prevent it" (Braithwaite 1997, 38).

CONCLUSION

Republican theory guides crime control policy by the normative ideal of maximizing freedom as non-domination. This normative ideal connects to a wider programme of social democratic transformation toward societies with strong governments, strong markets, strong communities in civil society that constitute strong and diverse individuals (Braithwaite 1998). The idea here is about checks and balances: markets can be trusted to be strong only when governments and civil society are strong; governments can be trusted to be strong only when civil

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society, individuals and markets are strong, and so on. According to the political programme this republicanism defines, republicans must engage in a dialogue with citizens to seek to persuade them to direct these plural strengths toward continuously expanding and securing freedoms, continuously struggling to increase equality, continuously improving access to justice and continuously reinvigorating the checks and balances in the polity. This means that republicans have interest in working constructively with the business community and antitrust agencies to strengthen markets, with social movements, professions and community groups to strengthen civil society, with the three branches of government and particularly with social democratic parties and the significant numbers with republican values in liberal, conservative and green parties. Through institutions of state, market and society, republicans also seek to engage with international institutions such as the IMF and the World Trade Organization that have more profound impacts on liberty, equality and community than most states. One of the attractions of such a programme, though hardly the main one, is that there are reasons for believing it would reduce crime. Republicanism therefore allows us to steer the criminological agenda away from punishment and confinement as its natural topics onto freedom, equality and community. Deterrence and incapacitation must continue to have a place in a republican regime, but a decentred one since most needed social control can be delivered through the strength of weak sanctions. Overall, republicanism motivates a kind of scholarship that is hardly recognisable as "criminology". Its ultimate focus is on maximizing freedom as nondomination, where criminalizing conduct can only be one of many contingently useful paths to that end. In the process of iterated adjustment of the categories of republican normative theory and complementary explanatory theories that are useful within the normative frame, crime always emerges as an important category of republican analysis. For the republican, criminology has its virtues in nurturing scholarly community and inculcating habits of rigor in empirical and theoretical analysis. But it is also a vice, a "discipline" that regiments young minds into myopic ways of seeing the world, a servant of tyranny, sometimes accepting definitions of crime that reduce freedom as non-domination, sometimes studying how to control it in the absence of a principled normative stance on when the control techniques are and are not morally acceptable threats to freedom. Criminology will become more virtuous when it devotes as much attention to habits of rigor in normative theory as it does to rigorous evaluation of explanatory theory, when it embraces integration of the two rather than their dangerous separation. Republicanism is just one developed position on how to accomplish that. A delightful irony is that republicanism requires there to be other robust integrations of normative and explanatory theory to vigorously contest republicanism. Republicans like to lose debates because there would be no republic in a society where republicans were not continually losing in contests over ideas and institutions.

102 Republican Theory and Crime Control REFERENCES

Black, Donald, 1984, "Crime as Social Control" in Toward a General Theory of Social Control (D. Black (ed.), New York: Academic Press). Braithwaite, John, 1979, Inequality, Crime and Public Policy (London: Routledge and Kegan Paul). , 1989, Crime, Shame and Keintegration (Cambridge: Cambridge University Press). , 1991, "Poverty, Power, White-Collar Crime and the Paradoxes of Criminological Theory" 24 Australian and New Zealand Journal of Criminology 40-58. , 1995, "Inequality and Republican Criminology" in Crime and Inequality (J. Hagan and R. Peterson (eds), Palo Alto: Stanford University Press). , 1997, "On Speaking Softly and Carrying Sticks: Neglected Dimensions of Republican Separation of Powers" 47 University of Toronto Law Journal 1-57. , 1998, "Institutionalizing Distrust, Enculturating Trust" in Trust and Democratic Governance (V. Braithwaite and M. Levi (eds), New York, Russell Sage Foundation), 343-375. , 1999, "Restorative Justice: Assessing Optimistic and Pessimistic Accounts" in Crime and Justice: A Review of Research Vol 25 (M. Tonry, ed., Chicago: University of Chicago Press). and Christine Parker, 1998, "Restorative Justice is Republican Justice" in Restoring Juvenile Justice: An Exploration of the Restorative Justice Paradigm for Reforming Juvenile Justice (Lode Walgrave and Gordon Bazemore (eds), Monsey, New York: Criminal Justice Press). and P. Pettit, 1990, Not Just Deserts: A Republican Theory of Criminal Justice (Oxford University Press). Campbell, T., 1988, Justice (Hampshire: MacMillan). Chamlin, Mitchell B. and John K. Cochran, 1997, "Social Altruism and Crime" 35 Criminology 203-227. Cullen, Francis T., 1994, "Social Support as an Organizing Concept for Criminology: Presidential Address to the Academy of Criminal Justice Sciences" 11(4) Justice Quarterly 527-559. De Haan, W., 1990, The Politics of Redress: Crime, Punishment and Penal Abolition (London: Unwin Hyman). Fisse, B. and J. Braithwaite, 1983, The Impact of Publicity on Corporate Offenders (Albany: State University of New York Press). Fisse, B. and J. Braithwaite, 1993, Corporations, Crime and Accountability (Cambridge: Cambridge University Press). Galanter, Marc, 1974, "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change" 9 Law and Society Review 95—160. Grabosky, Peter and John Braithwaite, 1986, Of Manners Gentle: Enforcement Strategies of Australian Business Regulatory Agencies (Melbourne: Oxford University Press). Habermas, Jurgen, 1996, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (London: Polity Press). Hagan, John and Bill McCarthy, 1997, Mean Streets: Youth Crime and Homelessness (Cambridge: Cambridge University Press). Katz, Jack, 1988, Seductions of Crime: Moral and Sensual Attractions of Doing Evil (New York: Basic Books).

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Makkai, T. and J. Braithwaite, 1996, "Procedural Justice and Regulatory Compliance" 20(1) Law and Human Behavior 83-98. Parker, C , 1999, Just Lawyers (Oxford: Oxford University Press). Pettit, P., 1993, "Liberalism and Republicanism" 28 Australian Journal of Political Science 162-189. , 1997, Republicanism: a Theory of Freedom and Government (Oxford: Clarendon Press). Polk, Ken, 1994, "Family Conferencing: Theoretical and Evaluative Questions" in Family Conferencing and Juvenile Justice (Christine Alder and Joy Wundersitz (eds), Canberra: Australian Studies in Law, Crime and Justice, Australian Institute of Criminology). Putnam, Robert. D., 1993, Making Democracy Work: Civic Traditions in Modern Italy (Princeton, NJ: Princeton University Press). Rees, Joseph V., 1994, Hostages of Each Other: The Transformation of Nuclear Safety Since Three Mile Island (Chicago: University of Chicago Press). Sherman, L.W. and G. Barnes, 1997, Restorative Justice and Offenders' Respect for the Law, Paper 3, RISE Working Paper, Law Program (RSSS, ANU, Canberra). Skinner, Q., 1984, "The Idea of Negative Liberty: Philosophical and Historical Perspectives" in Philosophy in History: Essays on the Historiography of Philosophy (R. Rorty, J. Schneewind and Q. Skinner (eds), Cambridge: Cambridge University Press). Spitz, Jean-Fabien, 1994, La Liberte Politique (Paris: Presses Universitaires de France). Sunstein, Cass, 1988, "Beyond the Republican Revival" 97 Yale Law Journal 1539-1590. Tyler, Tom 1990, Why People Obey the Law (New Haven: Yale University Press). Weatherburn, Don and Bronwyn Lind, forthcoming, The Economic and Social Antecedents of Delinquent-Prone Communities (Cambridge: Cambridge University Press). Wollstonecraft, Mary, (S. Tomaselli (ed.)) 1995, A Vindication of the Rights of Men and a Vindication of the Rights of Woman (Cambridge: Cambridge University Press). Wright, Richard T. and Scott Decker, 1994, "Burglars on the Job" (Boston: Northeastern University Press). and , 1997, Armed Robbers in Action (Boston: Northeastern University Press).

7

After the Welfare State: Whither Informal Law? WOLFGANG LUDWIG-MAYERHOFER

the role of law and its relationship to the state in present-day penal control, a topic that has been neglected in most of the literature on modern penality. But modern penal control is inevitably tied to the state, and all modern states deploy the law as an important source of legitimation and as a means of social regulation. Thus, the law and its particular form are an indicator of the ways and modes of governance. Yet, the role (and rule) of law has been discussed primarily with respect to the changes of governance through law that occurred after the Second World War and especially during the 1960s and the 1970s. But since the 1980s, major changes were observed in the ways penal control is administered and effected and earlier analyses of law have to be revised. Stated briefly, what was seen as a major characteristic during the 1960s and the 1970s was informal law, which was considered as a corollary of increasing state intervention into social life. Informal law was regarded as an expression of the welfare state, that is, the enormous growth of the modern state and its pervasive involvement in all social spheres, based on the idea of governance through inclusion (Luhmann 1981). But the 1980s and 1990s have seen major shifts away from the interventionist welfare state; even though it has not vanished, its remainders are continually petrifying. Therefore, a new analysis is called for. This chapter will proceed as follows: in the first section, it reviews modern theories of law to show how in these theories informal law is related to the growth of the interventionist welfare state. The next section discusses responses to what for reasons of brevity may be called the crisis of the welfare state. The main thrust of this analysis is to compare two seemingly different responses, one where privatisation plays a major role and one where privatisation is largely absent, at least in a nominal sense. The USA and the United Kingdom stand for the first response, the FRG for the second. Even though the differences between these two responses may not be as large as it seems at first sight (LudwigMayerhofer 1996), they warrant investigation and discussion. The final section discusses some remedies that are proposed in current German legal theory to find ways out of what is seen as the malaise of modern informal law.

T

HIS CHAPTER EXPLORES

106 After the Welfare State: Whither Informal Law?

THEORIES OF STATE INTERVENTION:THE WELFARE STATE AND INFORMAL LAW

According to Max Weber, one of the decisive characteristics of modern law is its formality. By this, he meant a system of consistent application of legal rules, guaranteeing "calculability" or predictability of legal decisions. Such formality—or formal rationality—is, in Weber's view, mainly the result of societal differentiation and the corresponding development of an (at least partially) autonomous sphere of legal thought and practice. The outcome, in Weber's view, is a coherent, ideally "gapless" system of legal rules that permits legal decisions to be derived from general, pre-defined characteristics of the case under consideration (see especially Weber 1980, pp. 396-397 [1978, pp. 656-658]).1 Even though Weber, under the influence of the legal school of so-called Begriffsjurisprudenz, certainly overestimated the actual formal qualities of modern law, he was also among the first who noted that the formality of modern law was endangered—in his judgment—by tendencies toward informalisation, or, in his terms, substantivisation.2 Among the reasons for this development Weber mentions, if only parenthetically, the "monarchical welfare bureaucracy" (Weber 1980, p. 507 [1978, p. 886]). In addition, in pointing to the influence of the interests of the "underprivileged classes" (Weber 1980, pp. 511, 512 [1978, pp. 892, 893]), of the demands of "lay people" for an intelligible system of justice {verstdndliche Justiz) (Weber 1980, pp. 512-513 [1978, p. 894]) and of the "social demands of democracy" (soziale Forderungen der Demokratie; Weber 1980, p. 507 [1978, p. 886]), Weber names factors that are related to the principle of inclusion characteristic of the modern welfare state. Still, in Weber's times the welfare state (especially in the broad sense in which we understand that term now) was only beginning to develop, and therefore much of his discussion of informalisation, or substantivisation, was devoted to the demands of legal practitioners for more "creative" legal decision-making (Weber 1980, pp. 507-508, 513 [1978, pp. 886-889, 894]). It was during the 1970s that the critique of the welfare state and its working toward informalisation was fully articulated. In order to achieve its aims, the story goes, the welfare state increasingly has to use "open-ended standards and general clauses" (Unger 1976, p. 194); in addition, it is characterised by a "turn from formalistic to purposive or policy-oriented styles of legal reasoning" {ibid; see also Habermas 1992, pp. 519-527; as applications to the field of criminal justice, see, for instance, P. Young 1980 or Humphries and Greenberg 1981). Eventually, the welfare state leads into a trap that is perhaps best epitomised in 1 References to Weber's "Economy and Society" are given both for the German (Weber 1980 ) and the English edition (1978). 2 Although Weber claimed that law can be rational formally as well as substantively (Weber 1980, pp. 396—397 [1978, pp. 656-657]), he considered the two types of rationality as opposites (ibid. and Weber 1980, pp. 505-513 [1978, pp. 883-895]), and several remarks show that his preferences were on the side of formal rationality.

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Nicholas Kittrie's "The Right to Be Different" (1971): a state that claims to strive for the well-being of everyone ultimately has to strip off all legal rules that may restrain its power to intervene on behalf of the "best interest" of its citizens (see also SachEe 1986). Quite interestingly, a similar shift of emphasis from "formality" to "informality" has occurred in Marxist thinking about law, and again it was related to the welfare state. Of course, there is no such thing as "the" Marxist theory of law; but at least in certain strands of Marxist thinking the Weberian theme is echoed, albeit with different instrumentation. Most notably, the "formal nature" of law was stressed by Pashukanis. Certainly his notion of "formality" was different from Weber's, because in his theory the formality of law was seen as reflecting the formal nature of commodity relationships in capitalism. But in one respect, both approaches were quite similar: They conceived of the formality of law as the restriction of legal thinking and decision-making to certain abstract properties, which leads to the neglect of other concerns that are "beyond"the law. But during the 1970s, Marxist theorists too observed changes in the nature of law. Balbus (1977), while sharing with Pashukanis the belief in "the homologous relationship between the legal form and the commodity form" (p. 585), noted that this was "a theoretical starting point which in many ways has already been historically surpassed" (p. 586). Especially the growing role of the state, the "development of State-regulated, monopoly capitalism" has led to "an erosion of the rule of Law and the emergence of less formalistic, more instrumentalist and technocratic modes of social and political control" [ibid.). Likewise, Kamenka and Tay (1975) observed "a crisis of Gesellschaft law" (p. 140)—a type of law based on "a society made up of atomic individuals and private interests, each in principle equivalent to the other", whose "model for all law is contract and the quid pro quo associated with commercial exchange, which also demands rationality and predictability" (p. 137). This Gesellschaft law, they observe, is increasingly overridden by "the immeasurable strengthening and extension of bureaucratic-administrative strains" (p. 142), which are better attuned "to the fact of social interconnection and interdependence or the supraindividual requirements of social activities and social living" that necessitate "massive social organisation and/or state intervention" (p. 140). The relationship between these developments and those in the field of penality are quite obvious. Strategies of diversion and de-institutionalisation that came into being by the end of the 1960s and became prominent during the 1970s, especially in the USA, emphasised the move away from formal proceedings in the courts. Thus, they soon were viewed as yet another instance of increased state intervention, one that was considered more perilous than previous modes of control because it implied even more breaking-down of the barriers between the state and law on the one hand and the social life-world on the other. Diversion and informal justice—dispute resolution by non-professionals, based on rather open and flexible standards—for many critics were just another

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variety of a law that increasingly fails to secure those boundaries that might restrain the overwhelming powers of the Leviathan (Gorelick 1975). Some in fact even regarded informal justice as an intensification of such processes precisely because it came under the guideline of cutting back the state (Hofrichter 1987; Santos 1982); conspiracy theories of the state were replaced by these authors by what one might term "disguise theories". Such views on diversion and de-institutionalisation were also supported by Foucault's analysis of modern penality. At the end of Discipline and Punish, Foucault had envisioned the end of the prison as a consequence of the increasing "normalising" and "disciplinary" powers of professions such as medicine, social work, or psychology. Thus, informal justice and diversion were seen as an example of this "dispersal of discipline" into the community (Cohen 1985; for a recent critique see Lacombe 1996).

AFTER THE WELFARE STATE

That much for the past, even though for a past that after all is not too far away. But currently such a picture of the state hardly seems defensible in view of the developments that have occurred. For if there has been one dominant theme in the literature on the state during the last two decades, it was the crisis of the welfare state. To be sure, there is some debate about whether such a crisis actually exists (Alber 1988). But nobody denies that the unprecedented growth of the welfare state during the post-war period either has slowed down, has been completely halted or was even reversed in the 1980s and 1990s. In addition, debates about the "crisis" of the welfare state in themselves are a sign that the welfare state project as a previously widely accepted notion has lost much of its power; in short, at its core the crisis of the welfare state is a legitimation crisis. And the doubts about the legitimacy of the "welfare state project" (if we want to avoid the term crisis) are not a result of the allegedly detrimental effects of the welfare state, as conservatives would have it; they are largely due to the insight that the welfare state's promise of overall societal regulation has never been realised (Keane 1983, pp. 14—20; Rosanvallon 1981). This is all the more important in the light of the observation that actually the state continues to play a dominant role in influencing and restricting the choices of individuals, with state expenditures in all modern capitalist states still being very high. What, then, have been the major responses? The obvious, "natural" response to a "welfare state crisis" seems to be privatisation. It expresses the commitment of politicians (usually from conservative parties) to cut back the role of the state to a minimum—at least so it seems. And in many instances this is indeed true, as when formerly state-owned enterprises are transformed into private ones. Thus, the privatisation strategy was also important in the field of penal control, especially in the USA, but also in the United Kingdom. It has occurred both at the "hard end", as in the privatisation of prisons, and at the

After the Welfare State: Whither Informal Law? 109 "soft end", as in many programmes developed to "divert" offenders from courts (Curran 1988). Given that conspicuous role, it is no wonder that privatisation now is at the centre of much debate and critique of social control. Most prominent has been Nils Christie's (1993) accusation of privatisation as the driving force behind the tremendous increase in the number of prisoners in the USA since the mid-1980s. As private enterprise is more and more involved in penal control—so the story goes—its never-ending hunger for profit and its inherent tendency towards growth are the root causes for an unprecedented expansion of social control: "The economic interests of the industry . . . will all the time be on the side of oversupply, both of police and of prison capacity. This establishes an extraordinarly strong force for expansion of the system" (Christie 1993, p. 110). It is no doubt true that privatisation has added new dimensions, new colours to the overall picture of penal control. Yet the accusations against private profitmaking have led Christie and other observers to neglect the central role that is still played by the state, privatisation rhetoric and practice notwithstanding. As far as criminal justice and sentencing are concerned, it is still state authorities that enforce laws; and it is still judges who mete out sentences that are in accordance with laws proposed by government and approved by parliamentary majorities. It is still the state administration that decides on expenditures for penal institutions, even if these are run by private enterprise. Thus, in many ways privatisation talk, as a talk about cutting back the state, actually has distracted observers from the increasing role of politics and the state. It is this shift of conservative politics away from a (therapeutic) welfare model (that never was fully implemented, by the way) and towards more exlusionary and punishing measures that is responsible for the increased use of imprisonment (Garland 1996). What, then, is the role of law in these developments? Overall, privatisation strategies seem to be accompanied by strategies of deregulation. Yet, this seems to be only partly true with respect to the field of penality. Privatisation here may well be related to an increase of formal law, because "outsourcing" of punishment, e.g., having prisons run by private enterprise, can work only on the basis of firm contracts. But in addition, we observe that the "strong state", privatisation rhetoric notwithstanding, relies on formal law in order to cut back judicial discretion and to enhance strategies of unconditional sentencing like "three strikes and you are out". Privatisation has also occurred in the FRG (Sack et al. 1995), even though privatisation talk was much less important than in the USA and the United Kingdom (Ludwig-Mayerhofer 1996). But it was of a quite different type, with little involvement of private enterprise (except in the security business). Rather, it involved mostly non-profit, or "welfare" organisations, which acted in the "soft end" sector of penality. That is, "privatisation" mainly was associated with diversionary policies. And these policies were not meant to represent a complete shift away from the state; indeed, initially they were boosted as a

110 After the Welfare State: Whither Informal Law? welfare-oriented policy. Even though it is now clear that the main effect of these policies was an administrative rationalisation of the penal system, they developed under conditions that are typical for welfare-state politics and can best be characterised as a corporatist system. By corporatism, policital scientists denote a system of governance where the state entertains close and regular relationships with organised interest groups (see Cawson 1986). It was observed and studied first in the field of labour relations; but there are other fields that are organised in a corporatist way, among which in Germany the "welfare sector" is one of the most important. Even though the idea of a welfarist approach towards crime has lost much of its legitimacy during the last two decades, the corporatist-welfarist structures have survived thus far. Such corporatist structures are characterised by two features: first, close relations between the state and other actors usually lead to a more mutual influence between state agencies on the one hand and the relevant organisations and actors on the other. Secondly, because of these tight and mutual relations, the state administration has a much more active role compared to the parliament and the government than conventional ideas of democracy usually assume; in addition, also judicial control of state action often is undermined. The features of a system of "corporatist crime control" are clearly visible in the FRG. 3 For instance, we observe that crime policies are increasingly developed outside the parliament. Indeed, to implement diversion policies, no changes in law were necessary at all, since the regulations related to diversion by the courts and the prosecutors (sections 153, 153a, and 154 of the Code of Criminal Procedure and sections 45 and 47 of the Juvenile Justice Act, respectively) set up rather vague limitations regarding their applicability, especially in juvenile criminal law. The government often assumes a role of giving its agreement to changes in the administration of justice that have developed without its influence, as could be seen in the First Juvenile Justice Amendment Act (1. Gesetz zur Anderung des Jugendgerichtsgesetzes) in Germany. Thus, one can observe a de-centralisation and fragmentisation, at least from the viewpoint of the central federal government; a system of federal, state, and municipal administrations, corporate agencies, together with judges, prosecutors, social workers, and police, who all to some degree influence the decisions that ultimately take place at the local level. Certainly, the actors in this field have differential power. For instance, the vague legal regulations concerning diversionary decisions are increasingly filled in by the state ministries of justice, as far as the prosecutors are concerned. But even here, the prosecutors do not have to follow these rules under all circumstances, and in most cases the ministerial decrees give only rough guidelines as to the types of offence that might be suitable for diversion. 3 Perhaps it should be emphasised that corporatist structures of penality can also be found elsewhere, especially in the British juvenile justice system (Crawford 1994; Matthews 1995; Pratt 1989). The difference between "privatised" and " corporatist" systems, therefore, is only one of emphasis, not one of two completely different systems.

After the Welfare State: Whither Informal Law?

Ill

While the parliament, that is, the legislator, has certainly lost much of its influence on crime policy, it seems that the role of the judges has remained unchanged, thus permitting independent control of the government and the administration. While this is true in principle, we observe some tendencies which undermine the role and the importance of the judiciary. First, it is increasingly the prosecutors who filter cases out of the criminal justice system, and under certain circumstances they may do so without the judges' consent. In addition, even in those cases in which the judge has to approve of the prosecutorial decision to drop proceedings, refusal on part of the judiciary is restricted to a limited number of cases. This is mainly due to the judiciary's heavy workload, since it is precisely those ministries of justice who are responsible for the increasing proportion of prosecutorial decisions who also cut back budgets and have been decreasing continually the number of judges assigned to criminal justice. Finally, the judiciary only rarely views itself as an independent force, charged with reviewing governmental and administrative decisions. Rather, judges tend to see themselves as part of the "criminal justice system", and thus are involved in the corporate networks described above. As a result, the act of adjudication changes its meaning. In their decisions, judges take into account not only the characteristics of the case under consideration; in addition, they respond to the interests of the other groups in the criminal justice system (Tomasic 1987, p. 125). For instance, if the local diversion programme (or the youth welfare office) provides mainly community services, most offenders will receive a community service order. If, in contrast, there is a preference for "social competence training courses", many offenders will be referred to such courses, whether they actually have social competence deficits or not (Frehsee 1995; Ludwig-Mayerhofer, 1998). Of course, there are many individual instances in which this picture is not quite true; but as a general tendency, it may very well be the case that, as Abel (1980) predicted, we are now observing a shift from "adjudication" to "administration". Thus, in contrast to observers who have claimed that diversionary policies in the FRG (and elsewhere) reflect a shift towards a "substantivisation" of law and therefore increased state intervention (Savelsberg 1989), we rather see the development of a more and more bureaucratic system that increasingly acts without any legitimation by democratic procedures and at the same time lacks judicial review.4 These state bureaucracies certainly do have powers to intervene; but they may equally be inert, feeble organisations with no other aim than preserving their smooth functioning remote from any public control. And this actually is the most dominant trend in the FRG. Among the prosecutorial decisions, by far the highest growth rate since the mid-1980s has been observed with respect to "diversion to nothing", that is, dropping proceedings (for defendants 4 As two recent reports that emphasise similar developments in other countries, I would like to mention Duff's (1993) analysis of the prosecutor fine in Scotland and Levy's (1993) description of tendencies in France to undermine continually the role of the judge and to concentrate power in the hands of the prosecutors and the police.

112 After the Welfare State: Whither Informal Law? assumed guilty) without any further measures. Ministerial decrees continually extend the range of offences suitable for diversion, and as a result, in some federal states decisions by the prosecutors regarding "diversion to nothing" already exceed in number the decisions to put defendants on trial.5 How does informal law fare under these conditions? As has been noted above, diversion policies and practices profited from extant informal norms. Thus, while informal law/informal justice may contribute to more state intervention, they may equally have the quite opposite effect of concealing, for instance, the inactivity of state bureaucracies or their ineffectiveness. In other words, they correspond quite well to the structure of a corporatist state. If on the part of the state the administrations are the central actors, precise norms concerning their behaviour are as cumbersome as are procedures of judicial supervision.6 Likewise, informal law is much more adaptable to the needs of the corporatist networks, since it provides enough flexibility for the various groups and organisations to negotiate without the restrictions of overly formal rules. But this does not necessarily have to result in more control of society by the state; maybe the main outcome is to shield the state and the corporate networks from control by society.

POSSIBLE WAYS OUT

Many observers have maintained that the present state of law is unsatisfactory, albeit for different reasons. Two proposals for remedy, in my opinion, deserve discussion. 1. The first one is termed "reflexive law", sometimes also termed "relational" or "procedural law". 7 This approach starts from the observation of a "polycentric society" (Willke 1985; 1992; Teubner and Willke 1984)—a society of differentiated subsystems in which no single subsystem can claim superiority. Hence, societal regulation—or guidance, which is the term preferred by Teubner and Willke—through law has to change accordingly. "Conditional" (=formal) and "purposive" (=substantial) programmes of law both are inadequate because they fail to take into account the complexity of the societal subsystems. Therefore, "reflexive law" or "relational programmes of guidance" are advo5 Still, I do not subscribe to the success stories some observers have told about the decline of prison sentences in Germany (Pfeiffer 1989 and, partly based on his analyses, Graham 1990). While it is true that there has been such a decline during the second half of the 1980s, this looks much less dramatic if viewed in a somewhat larger historical context; around 1990, prison sentences were at a level they had reached already in 1970! In addition, the last few years have seen again a rise in the rate of imprisonment. Pfeiffer's and Graham's error has aptly been described by Galvin and Polk (1982): choose that year of reference that confirms your preconceived ideas, and neglect others. 6 Parenthetically, this is another problematic issue with Weber's analyses, for the view he had of modern bureaucracies as rigid and formal organisations with precise structures and strict procedures is quite misleading—as anybody knows who ever had to deal with such bureaucracies. 7 See Teubner (1983; 1985); Teubner and Willke (1984); Willke (1985; 1992).

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cated which enhance processes of societal self-regulation, while establishing systems of discourse in which overall societal needs may be articulated—not by the state, which only acts as some kind of "supervisor", but rather by "representatives of centrally affected interests" (Willke 1985, p. 290). Attractive and promising as it is in some respects, I think this approach suffers from several flaws. First, it is unclear in most of the writings of Teuber and Willke whether reflexive law is supposed to be sort of an "utopian" idea, or rather meant as an analytic description of actual developments. More recently, Willke (1992, p. 180) has pointed to some instances where relational programmes (or something very close to that) have already been put into practice. My short remarks have shown that such claims clearly are not warranted as far as criminal justice is concerned. But probably this would not be considered as a counter-example by Teuber or Willke, since according to the latter, "existing legal programs . . . are still adequate for the vast area of everyday conflicts" (Willke 1985, p. 294). Possibly this is nothing more than just another way of saying that powerful actors will get the best type of law available, while other, less influential actors or interests will have to be content with inferior types of law. This points to another weakness of the concept. It might well be true that "reflexive law" has some merits in fields where individual interests are represented by large organisations (or corporations). In fact, Willke on some occasions makes explicit reference to corporatist structures, and his definition of reflexive law I have briefly presented above likewise implies that individual interests are somehow represented by organisations. However, at least at present, we have to recognise that not all societal interests are equally represented, and we probably are not altogether wrong in hypothesising that those interests that are organised best also are the most powerful ones. I do not see that this fact has been accounted for in theories of reflexive law, and the tendency exhibited in Teubner's and Willke's writings to talk about "societal (sub)systems" rather underlines my point. For if the functioning of "the economy", "the educational system" and so on are at the core of societal guidance, there is not much hope that the interests of individuals have a great chance to be considered equally. That is, one of the major weaknesses of present bureaucratic-administrative informal law is not amended in reflexive law. 2. It is no wonder, therefore, that increasingly proposals for a re-formalisation of law are brought forward, that is, for a return to a more formal system of law (Backes 1995; Hassemer 1990; VoS 1995—to mention again only some German authors). I do not want to deal here with the question whether such a reformalisation of law is possible at all, although I think that claims that overall societal forces preclude this (Savelsberg 1989; 1992) are at least partially unwarranted since they somewhat underestimate the capacity of the legal system for autonomous development. But in my opinion a re-formalisation of law also would be undesirable. This is not meant to imply that procedural safeguards to protect the rights of individuals are unnecessary, quite to the contrary. But at the same time we have to bear in mind that formal law may equally serve

114 After the Welfare State: Whither Informal Law? the purposes of the legal system itself and therefore may lead to an even greater alienation of law from the needs of individuals. Formalisation cannot be a value in itself; as the American "Three strikes and you are out" legislation demonstrates, formal rules likewise may be "mean and oppressive" (Cranston 1986, p. 19). But above all, to believe that a re-formalisation of law would amend the problems of informal law/informal justice I have outlined above would mean to locate problems that actually are those of the system of state-organisationscitizen relationships on the level of law. Therefore, re-formalisation of law would at best be a one-sided strategy that has to be supplemented by strategies that are aimed at enhancing possibilities of articulating interests; in other words, that are located at the level of politics. 3. If my analysis is correct, the ultimate aim, then, should be not a reformalisation of law, but a re-politicisation or re-democratisation of the state— or rather of the corporatist structures of state-organisation relationships which inhibit participation of those citizens whose interests are not represented in or by these structures. For since "they typically institute decisions about all matters in the absence of open discussion and control from below, bureaucratic organisations are antithetical to democratic, public life" (Keane 1983, p. 26). Therefore, what is needed foremost is to give the individuals concerned more opportunity to express their concerns, to develop procedures through which more egalitarian policies may be found by democratic discussion. The main problem, then, will be to break the dominance of the bureaucratic administrations, to find ways of actually implementing the policies that have been developed in such democratic procedures. For the true power of the state lies not in its regulatory capacities; rather, it is rooted in its immunisation from legitimate societal demands.

REFERENCES

Abel, Richard, 1980, "Theories of Litigation in Society" in Alternative Rechtsformen und Alternativen zum Recht (Erhard Blankenburg, Ekkehard Klausa, and Hubert Rottleuthner (eds), (Jahrbuch fur Rechtssoziologie und Rechtstheorie, Band 6) Opladen: Westdeutscher Verlag). Alber, Jens, 1988, "Is there a Crisis of the Welfare State? Cross-National Evidence from Europe, North America and Japan" 4 European Sociological Review 181-207. Backes, Otto, 1995, "Diversion and Constitutional Crime Policy" in Diversion and Informal Social Control (Giinter Albrecht and Wolfgang Ludwig-Mayerhofer (eds), Berlin/New York: de Gruyter). Balbus, Isaac, 1977, "Commodity Form and Legal Form: An Essay on the 'Relative Autonomy' of the Law" 11 Law & Society Review 571-588. Cawson, Alan, 1986, Corporatism and Political Theory (Oxford: Blackwell). Christie, Nils, 1993, Crime Control as Industry (London/New York: Routledge). Cohen, Stanley, 1985, Visions of Social Control (Cambridge: Polity Press).

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Cranston, Ross, 1986, "Rights in Practice" in Law, Rights and the Welfare State (J.G Sampford and D J . Galligan (eds), London: Croom Helm). Crawford, Alan, 1994, "The Partnership Approach to Community Crime Prevention: Corporatism at the Local Level?" 3 Social & Legal Studies 497—519. Curran, Daniel J., 1988, "Destructuring, Privatization, and the Promise of Juvenile Diversion: Compromising Community-Based Corrections" 34 Crime and Delinquency 363-378. Duff, Peter, 1993, "The Prosecutor Fine and Social Control. The Introduction of the Fiscal Fine to Scotland" 33 British Journal of Criminology 481-503. Frehsee, Detlev, 1995, "The Incompatibility of Treatment and Punishment" in Diversion and Informal Social Control (Giinter Albrecht and Wolfgang Ludwig-Mayerhofer (eds), Berlin/New York: de Gruyter). Galvin, Jim and Kenneth Polk, 1982, "Any Truth you Want: The Use and Abuse of Crime and Criminal Justice Statistics" 19 journal of Research in Crime and Delinquency 135-165. Garland, David, 1996, "The Limits of the Sovereign State. Strategies of Crime Control in Contemporary Society" 36 British Journal of Criminology 445—471. Gorelick, Jamie S., 1975, "Pretrial Diversion: The Threat of Expanding Social Control" 10 Harvard Civil Rights—Civil Liberties Law Review 180-214. Graham, John, 1990, "Decarceration in the Federal Republic of Germany: How Practitioners Are Succeeding Where Policy-Makers Have Failed" 30 The British Journal of Criminology 150-170. Habermas, Jiirgen, 1992, Faktizita't und Geltung (Frankfurt a.M.: Suhrkamp). Hassemer, Winfried, 1990, "Grundlinien eines rechtsstaatlichen Strafverfahrens" 5 Kritische Vierteljahresschrift fur Gesetzgebung und Rechtswissenschaft 260-278. Hofrichter, Richard, 1987, Neighborhood Justice in Capitalist Society. The Expansion of the Informal State (New York: Greenwood Press). Humphries, Drew and David F. Greenberg, 1981, "The Dialectics of Crime Control" in Crime and Capitalism: Readings in Marxist Criminology (David F. Greenberg (ed.), Palo Alto, Cal.: Mayfield). Kamenka, Eugene and Alice Erh-Soon Tay, 1975, "Beyond Bourgeois Individualism: the Contemporary Crisis in Law and Legal Ideology" in Feudalism, Capitalism and Beyond (Eugene Kamenka and R. S. Neale (eds), London: Edward Arnold). Keane, John, 1983, Public Life and Late Capitalism. Toward a Socialist Theory of Democracy (Cambridge: Cambridge University Press). Kittrie, Nicholas N., 1971, The Right to Be Different (Baltimore, London: John Hopkins). Lacombe, Dany, 1996, "Reforming Foucault: A Critique of the Social Control Thesis" 47 British Journal of Sociology 332-352. Levy, Rene, 1993, "Police and the Judiciary in France since the Nineteenth Century" 3 3 British Journal of Criminology 167—186. Ludwig-Mayerhofer, Wolfgang, 1996, "The Public and Private Sectors in Germany: Rethinking Developments in German Penal Control" 24 International Journal of the Sociology of Law 273-290. , 1998, Das Strafrecht und seine administrative Rationalisierung. Kritik der informalen Justiz (Frankfurt/New York: Campus). Luhmann, Niklas, 1981, Politische Theorie im Wohlfahrtsstaat (Miinchen/Wien: Olzog).

116 After the Welfare State: Whither Informal Law? Matthews, Roger, 1995, "The Diversion of Juveniles From Custody—The Experience of England and Wales 1980-1990" in Diversion and Informal Social Control (Giinter Albrecht and Wolfgang Ludwig-Mayerhofer (eds), Berlin/New York: de Gruyter). Pfeiffer, Christian, 1989, "Diversion—Alternativen zum Freiheitsentzug, Entwicklungstrends und regionale Unterschiede" in Jugendstrafrechtsreform durch die Praxis (Der Bundesminister der Justiz (ed.), Bonn: Bundesministerium der Justiz). Pratt, John, 1989, "Corporatism: The Third Model of Juvenile Justice" 29 The British Journal of Criminology 236—254. Rosanvallon, Pierre, 1981, La crise de L'Etat providence (Paris: Seuil). Roth, Guenther and Claus Wittich (eds), 1978, Max Weber. Economy and Society (Berkeley, Los Angeles, London: University of California Press). SachSe, Christoph, 1986, "Verrechtlichung und Sozialisation: Uber Grenzen des Wohlfahrtsstaates" 14 Leviathan 528—545. Sack, Fritz, Voft, Michael, Frehsee, Detlev, Funk, Albrecht, and Reinke, Herbert (eds), 1995, Privatisierung staatlicher Kontrolle: Befunde, Konzepte, Tendenzen (BadenBaden: Nomos). Santos, Boaventura de Sousa, 1982, "Law and Community: The Changing Nature of State Power in Late Capitalism" in The Politics of Informal Justice, Volume 1: The American Experience (Richard L. Abel (ed.), New York: Academic Press). Savelsberg, Joachim J., 1989, "Materialisierung des Strafrechts: Funktionen, Folgeprobleme und Perspektiven" 10 Zeitschrift fiir Rechtssoziologie 1-27. , 1992, "Law That Does Not Fit Society: Sentencing Guidelines as a Neoclassical Reaction to the Dilemmas of Substantivized Law" 97 American Journal of Sociology 1346-1381. Teubner, Gunther, 1983, "Substantive and Reflexive Elements in Modern Law" 17 Law & Society Review 239-285. , 1985, "After Legal Instrumentalism? Strategic Models of Post-regulatory Law" in Dilemmas of Law in the Welfare State (Gunther Teubner (ed.), Berlin/New York: de Gruyter), pp. 299-325. Teubner, Gunther and Helmut Willke, 1984, "Kontext und Autonomie: Gesellschaftliche Selbststeuerung durch reflexives Recht" 6 Zeitschrift fiir Rechtssoziologie 4-35. Tomasic, Roman, 1987, "Judging and Governance in the Modern State: Ideology and Reality" Revue Internationale de Sociologiel International Review of Sociology 119-141. Unger, Roberto Mangabeira, 1976, Law in Modern Society (New York: The Free Press). Vof?, Michael, 1995, "Efficiency Interests and the Rule of Law in Informal Proceedings" in Diversion and Informal Social Control (Giinter Albrecht and Wolfgang LudwigMayerhofer (eds), Berlin/New York: de Gruyter). Weber, Max, 1980, Wirtschaft und Gesellschaft (5. Auflage [Studienausgabe]) (Tubingen: J.C.B. Mohr (Paul Siebeck)). Willke, Helmut, 1985, "Three Types of Legal Structure: The Conditional, the Purposive and the Relational Program" in Dilemmas of Law in the Welfare State (Gunther Teubner (ed.), Berlin/New York: de Gruyter). , 1992, Ironie des Staates (Frankfurt a.M.: Suhrkamp). Young, Peter, 1980, "Punishment and Social Organization" in Essays in Law and Society (Zenon Bankowski and Geoff Mungham (eds), London: Routledge & Kegan Paul).

8

Shaming and the Regulation of Fraud and Business "Misconduct": Some Preliminary Explorations MICHAEL LEVI

INTRODUCTION

(1989) and, in a different way, Elias (1982) have re-focused academic and political attention to the shaming process, both (a) as an explanation for variations in crime rates, and (b) as a normative approach to crime control, to replace at least some imprisonment and other severe formal sanctions. Both authors—like control theorists—tend to take for granted that people are motivated to offend, and have to be pressurised socially not to do so (though earlier formulations of anomie and differential association theory emphasised the variability of cultural and subcultural pressures to offend). But although the restorative justice movement has grown in popularity in a variety of areas of theft and violent crime, the applicability of the model to white-collar crime in general and financial fraud in particular remains questionable. First, I must stress that "fraud" is not a homogeneous set of behaviours, and the sorts of people who engage in frauds are similarly heterogeneous. The global financial marketplace—itself a collective noun that conceals highly varied levels of trading and culture—is not occupied by impersonal strangers to the extent that outsiders might expect, for personal and corporate international networks are important to deal-making: "the financial City" remains a place rather than a virtual or neural network. But mutual dependency and informal self-regulation are under strain from competition for market share and even from corporate survival, let alone individual self-interest by traders and their managers who are focused more on this year's than on next year's performance-related bonus, and whose geographical and occupational mobility may mean that they will not be around to face the consequences of the risks and even frauds that they generate. My aim here is to explore the issues of stigma and re-integration within the context of contemporary debates about the control of white-collar crime and the policing of the "risk society", and I stress that (even more than is

B

RAITHWAITE

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"Misconduct"

philosophically necessary) conclusions can only be tentative, given the current state of knowledge. One factor that is often left out of the "shame effectiveness" debate is the issue of subcultural variation. The variety of "family conference" experiments testifies to the hope that this might work even for the (normally) socially excluded, but it is uncertain whether such "family conferences" might be convened for those Mafioso who engage in fraud or for the fraudulent parvenu aristocracy such as Lords Brocket and Kagan or their equivalents outside the United Kingdom: the power and social prestige differentials may be too great to function in the same way. Ex hypothesi, whether regulatory sanctions (or formal monitoring) really deter fraudsters depends on what "sort of people" they are. (A statement, admittedly, that risks being tautological unless one can specify the elements independently.) Fraudsters can range from juvenile "hackers", through credit card fraudsters (see Levi 1998) and embezzling bank managers, local lawyers and accountants, to social elites. The sort of factors discussed by "control theorists" apply to fraudsters, in terms of: (1) what their personal values are (though it is astonishing how readily ethical values can be reconciled with financial self-interest, via rationalisations— see Friedrichs 1996 for a contemporary summary); (2) how attached they are to the social networks of respectability (which degree of attachment regulators and judges may misinterpret or be misled about); and (3) what their expectations of being sanctioned—prosecuted, convicted and punished—are, both in formal terms (as discussed in previous paragraphs) and in informal terms (being snubbed by friends, losing business contacts through imputed disreputability, etc.). My interviews with them, their lawyers and the media indicate that even the most hard-nosed tycoons accused of white-collar crime dislike bad publicity, for they generally want others to think well of them and public scandal is bad for business. Part of the "techniques of delinquency" of those who do offend are beliefs—prevalent among offenders generally—that their acts cause no real harm to anyone: hence the importance of the imagery of seriousness in the media and among those whose opinions they may value, though the ingenious (a sub-set of potential offenders) can always differentiate their contemplated or past acts as belonging to the lower range of harmful or even harmless actions. But the symbolic and practical messages that are sent out to white-collar offenders may have an impact on deterrence as well as retribution and shaming: hence the controversy over the Queen Mother shaking hands at a Covent Garden fund-raising party with Guinness convict Gerald Ronson while he was on parole, and the tendency of the media to treat fraud as a glamour issue rather than emphasising harm to victims (Levi and Pithouse, forthcoming).

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What is one to make of the apparent friendliness of the Queen and some other members of the Royal Family towards Mohammed Al-Fayed during 1997, to the extent, inter alia, of inviting him to sit next to her at the Royal Windsor Horse Show (that, admittedly, Harrods had long sponsored even before he took the company over) ? In the subtle symbolism of British elite life, this represents serious acceptability.1 (Though the company in charge of the event took pains to observe that Aspreys had simply offered greater sponsorship, some might see implications of Royal concern about the association in the replacement of Harrods by Aspreys the jewellers—owned by the Sultan of Brunei's brother—as sponsors in 1998.) And yet Mohammed had been denied British citizenship by the Conservative Government; had been excoriated in a Department of Trade and Industry (DTI) report for his persistent alleged lying to company inspectors about his background;2 and apparently had been directly or indirectly refused permission by the Bank of England to be a director of Harrods Bank on the grounds that he was not a "fit and proper person" to be a bank director. Does high social acceptance imply that the Queen's advisers had further information which led them to modify or reject the DTI Inspectors' criticisms, or that such issues are no longer so important as to constitute a "master status" in the context of Fayed's charm and carefully chosen sponsorships? In the absence of criminal convictions or intelligence warnings, does contemporary stigma require evidence of current "serious" business misconduct even in one of the last remaining bastions of ascribed status, the Monarchy? (The Director of Public Prosecutions declined to prosecute Al-Fayed for allegedly breaking into customers' boxes at Harrods' safe deposit vaults, though he paid substantial civil damages to the plaintiffs. In 1997, he anticipated receiving a British passport shortly.) In countries such as Japan, the resignation of senior executives who "accept responsibility" for acts such as unsecured "lending" of hundreds of thousands of pounds to Sokaiya—organised criminals—in return for not disrupting or asking awkward questions at Annual General Meetings typically leads to the executives being retained as consultants to the corporation afterwards. They lose some prestige and direct power, and arguably this constitutes reintegrative shaming: but there is no evidence that it has any effect on corporate behaviour. Thus, when the Chairmen of Nomura Securities and other "blue-chip" Japanese 1 "Allowing" Fayed's son Dodi to have what the media were confident was a sexual relationship with Diana, Princess of Wales, from the summer until her death in August 1997 was a separate issue. What could the Royal Family have done about it? Even coolness towards the Fayeds might have been manipulated into a discrediting of the Royal Family's "attempt to prevent Diana's happiness". 2 The British satirical magazine Private Eye (22 August 1997) reminded readers both of the criticisms of Fayed for sexual harassment in the September 1995 issue of Vanity Fair, in respect of which Fayed's libel suit was later dropped, and of the wording of some of the comments of the Inspectors' (a then senior barrister and a top accountant) in the following terms: "As month after month of our investigation went by we uncovered more and more cases where the Fayeds were plainly telling us lies . . . Time after time the truth of the Fayeds' account was exploded by reliable contemporary documents . . . After watching and hearing them give evidence for two days we considered that Mohamed and AH Fayed were witnesses on whose word it would be unsafe to rely to any issue of any importance".

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financial institutions step aside and are re-engaged "in an advisory capacity", just as when Japanese Prime Ministers do so (or even, like current Prime Minister Hashimoto, become Prime Ministers years after resigning as Finance Minister following a criminal political funding scandal), what messages does this send out to those who commit unlawful acts "for the corporation" or "for the party"? In 1997, after the scandal in which all major securities firms in Japan were exposed as having made illegal payments to a corporate racketeer, 60 top executives resigned from their roles to enable the new management to have a fresh start (though many returned as advisers soon after): had there been no public shaming, would they have done so or, indeed, would they have changed—did they change?—their corporation's behaviour? Several suicides also ensued, including the head of the Bank of Japan's investigative group in 1998, who presumably found the social process of dealing with his colleagues in such an adversarial way too much to bear. These are good illustrations, as is the Guinness case, of executives and civil servants being caught out by changes in the political and legal environment which criminalise de facto behaviour which allegedly was fairly commonplace. But they also—as does the reaction to the pensions "mis-selling" scandal in Britain, currently generating an estimated £11 billion in compensation payments—illustrate the difficulties of shaming when particular forms of criminality or discreditable behaviour are widespread. These observations apply not just to shame and criminal offences but also to shame and "misconduct". Misconduct is a soft, loose behavioural label, but if we take two circumstances—business violation of social norms regarding the relationship between risk and reward, and business violation of requirements of truth-telling—we can see how problematic the impact of stigma is. Media condemnation of "fat cats" (highly paid executives of former socialised utilities) was heavy in the mid and late 1990s (though no "crime" was alleged, except in the libel case in which Virgin's Richard Branson was unsuccessfully sued for libel by the American chief executive of G-Tech, a major partner in the successful bid to run the United Kingdom National Lottery): but this media and political shaming does not appear to have had much or any inhibiting effect on directors' salaries. Nor do the recommendations on directors' contract terms by the "corporate governance" committees of the 1990s appear to generate much social or commercial stigma for the many companies that do not comply. Nonetheless, though it may be impossible to determine until after the fact whether shaming is going to be reintegrative or
CONDITIONS OF SHAMING IN CONTEMPORARY SOCIETIES

Levi and Suddle (1989) examined the (non)control and absence of shaming for tax evasion in Pakistan. Braithwaite responded (personal communication)

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rightly that he never wrote or even implied that white-collar criminals were in fact regularly shamed or formally sanctioned along the lines of his model: rather that he did not want to omit this category from his analysis, and there was some evidence from a few case studies that corporations mis-behaved less after publicity. But taking as an agreed principle the focus on remedial effectiveness rather than simple retribution, it might be fruitful to return to this theme in both a national and an international context. First, let us examine what are the conditions of successful degradation ceremonies? (Successful, that is, in the restorative Braithwaite rather than in the mortification/humiliation Garfinkel/Goffman sense.) These appear to me to be: (1) shaming (or, using a different lexicon, stigma) must be applied against a person or an institution; (2) shaming must be interpreted as such by audiences, especially among the offender's reference groups; (3) shaming must result in behavioural change by the offender (and may lead to less crime by those motivated to do so); (4) the shamed must be re-integrated back into "society", putting past misdeeds behind him or her.

Stigma must be applied and applied to relevant audiences One of the early problems here—and a cultural and time-related variable—is whether anyone will find out or do anything about the behaviour: even within the category of fraud, let alone compared with other crimes for gain, different acts have different conditional probabilities of being censured or prosecuted. Here the role of the investigative authorities and the media are crucial. The more stringent the libel laws and the more that the media are controlled by "bigbusiness" and/or politicians, the less the impetus on the authorities to act against those frauds and corporate crimes that implicate elites as suspects, though this does not affect those frauds that do not do so and ironically, in the United Kingdom, one can use the word "sleaze" with relative impunity. Levi and Pithouse (forthcoming) have shown how dependent most of the media are upon official actions of one sort or another—not necessarily criminal but at least administrative, such as disciplinary tribunals, liquidations or director disqualifications—to give journalists a sufficient peg on which to hang the investigation so that they do not look "punitive" or excessively risky in the eyes of their cautious editors and programme producers. This varies by culture and legal system, but given the general economic pressure on the media in many parts of the world, and active censorship and quiescence in others, only a conscious decision by editors and proprietors is going to give journalists the time and the paper/programme space for any extended proactive or even reactive

122 Shaming and Business "Misconduct" investigative work. Globalisation has a special influence here, because although, on the one hand, arguably it extends reputational risk to geographical areas over which the company may have little control, on the other, as Union Carbide's experience after the explosion of toxic gas at Bhopal showed, shaming and media publicity in one country may not reach other countries and may not persist if they do, especially if the country is relatively ethnocentric, as is the USA. Hence, the necessity of "pressing the right buttons" if stigma is to be applied: examples of success from the 1990s include the Greenpeace pressure on Shell not to dump the Brent Spar oil platform and machinery at sea (though ironically, Greenpeace later admitted that its estimation of the relative harm done by dumping was false and that Shell were almost right); and pressure on Adidas, Nike and Other sports goods manufacturers not to use Third World child labour at "exploitative" prices. (Allegations by the television documentary World in Action that Marks &C Spencers knowingly or recklessly deceived consumers into believing that shirts made abroad were "made in England" led to a successful libel action and huge damages for reputational loss.) But except in the sense that these stigmatised corporate actions were originally aimed at increasing profitability, these are not financial crimes and relate only dimly to fraud. The level of stigma applied is related to the "nature" of the victims, but not in any obvious or ideological way: the greater the perceived harm, usually, the greater the negative publicity. Shaming may take place in the media, or in the social or occupational reference groups to which the offender lives. The breadth of those reference groups varies enormously: if one is a politician, the group may be quite large, though ethnic constituencies may generate particular issues, especially if one can represent oneself as the victim of an establishment conspiracy qua member of that ethnic group, as BCCI directors did in Pakistan and as former Polly Peck Chief Executive Asil Nadir has done in the Turkish Republic of North Cyprus: to paraphrase Nelken and Levi (1996), it is not just Italians who usually take it for granted that prosecution is simply the surface manifestation of personal or political persecution. If one is a highly specialised derivatives trader, the reference group may be quite small unless what one does has such huge consequences that—as in the Leeson affair with Barings Bank—it receives global publicity. Frauds against the revenue or large corporations, or that involve quasi-victimless crimes such as insider trading, may be quite tolerated, though as noted earlier, except among professional criminals, they are unlikely to be viewed positively (see Levi and Sherwin 1995). On the other hand, the embezzlement of small sums from a charity collection—like the theft of a teddy bear or flowers from the "memorial pile" to Diana, Princess of Wales—may generate national obloquy, even internationally, as visitors to London from Spain and Slovakia discovered when observed by the public and prosecuted for such thefts after Diana's funeral in 1997. So the relationship between size of fraud and social obloquy is not consistent. The cases that the media pick up to "tickle the public" (Engel 1996) usually contain:

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• obviously traumatised victims (who may on occasions be whole countries or states, e.g., Pyramid Building Society in Victoria, Australia, or large legitimate companies, Ferranti and Barings in the United Kingdom); or • related to but not wholly dependent on the damage caused, evil offenders (which, given the demonology of "organised crime" (see van Duyne 1996) can include anything Russian or Colombian or Islamic or Chinese or Japanese, or anyone allegedly connected with a Mafia); or • people who are famous either because they are major public figures (e.g., novelist and Conservative party supporter Lord Jeffrey Archer) or because of the position they hold (e.g., the Japanese banking inspectors arrested on suspicion of corruption in January 1998). Where none of these apply, the conditions of general public stigma may not be met, though this does not mean that there will be no public shaming among the professional or social group: just that the offender's children are unlikely to be humiliated at their private school because their father (or much more rarely in practice, their mother) has appeared as a scoundrel on the TV News or that his or her partner is humiliated by being snubbed in the local Post Office. In fact, appearance in a trade paper can be devastating professionally: the difference is that it does not cover all the facets of daily routines. Stigma can also have unintended secondary consequences, when not all of those shamed are appropriate targets: everyone working with an anathematised institution gets "tarred with the same brush". We are used to this in the literature and mythology of policing, where such consequences are often used as techniques of neutralisation to "justify" cover-ups (Punch 1985). But it is true also of corporations like BCCI, as acknowledged by the English courts where exemployees have successfully sued the company administrators for the economic losses they have suffered from the company's failure to exercise its duty of care towards its employees (Malik and Mahtnud v BCCI, House of Lords, 12 June 1997). It can even apply to citizens of a whole country, such as Nigerians who are widely assumed by the banking community in the West to be fraudsters unless demonstrated otherwise: unsuccessful (to date) Nigerian attempts to redress this stigma include the placing of advertisements in United Kingdom and American newspapers telling the public not to invest in "advance fee frauds" in which they are encouraged to part with their funds to people claiming to have millions defrauded from the Nigerian government, plus other practical measures (Levi and Pithouse, forthcoming). It does not matter what people in general think unless this impinges upon the offender and people with whom the offender identifies (such as partner and children, perhaps). It is consequently important to examine what reference group members' attitudes are likely to be to any public (or semi-public) knowledge of or beliefs about offending by someone in their milieu. In the real world, we react differently to people who are charming, people who are exciting, and people from whom we expect to profit, whatever we think of the morality of their past

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behaviour. Nevertheless, in response to an anonymous general questionnaire about their reactions to a series of fraud issues, a very large proportion of United Kingdom executives of Times 1,000 largest companies—88 per cent in 1994— stated in surveys conducted with Ernst & Young (Levi and Sherwin 1995) that they would react vigorously in terms of refusing to do business with people convicted of fraud (though they were more tolerant of those convicted of tax fraud). A substantial majority state consistently in successive surveys that they would also avoid socially those convicted of fraud against other people and investors: indeed, over a third stated that they would avoid them even if suspected of such frauds. But the effects of this depend on how much intending or more vaguely potential fraudsters care about such reactions. The issue of time also has to be taken into account: stigma may be intense for a few weeks but except for longterm United Kingdom media targets such as Roger Levitt or the Maxwell family, if they tough it out, the media will soon lose interest. Moreover, if the stigmatised is charming and/or is useful to others in business or politics, then s/he may re-emerge out of realpolitik. American economists Karpoff and Lott (1993) observe (pp. 758-759) that "the reputational cost of corporate fraud is large and constitutes most of the cost incurred by firms accused or convicted of fraud". Despite their very unsophisticated model of organisational functioning, the sound points remain that: (1) there are indeed reputational effects partly independent of formal sanctions (though publicity is partly a function of the sort of sentence imposed or expected to be imposed); and (2) we should be wary about the imposition of more punishment than is needed to regulate the activity "sensibly" (unless one is a retributivist). However, the authors and the other economists they cite take no note of the symbolic values of (i) fairness vis-a-vis penalties in non-white collar crime cases and (ii) maintaining or generating general confidence in investment among the "little people" who, whatever their importance as a proportion of stock owners, may own only a small proportion of the total securities, and whose discontent that "white-collar crooks are getting away with it" may not show up in share prices but may show up in politicians' minds. This is also a problematic issue for the practicability of re-integrative shaming, insofar as it might be applied to elite offenders but less so in other social milieux. Though there are several examples in recent years where shares plummeted after negative publicity in the media, it is hard to disentangle the pure reputational effects from those connected with expected financial and legal losses (as well as the diversion of executives' time) from sanctions imposed by regulators or in the courts. Thus, hypothetically, if it were not for internationalisation of share markets, one might expect smaller price falls in high-regulatory penalty countries like the USA than in low-penalty ones such as the United Kingdom used to be. But the implications may depend on the type of firm also: after the head of research was suspended for "alleged misconduct" (principally, his role in telling

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some major institutional investors that the firm's drugs were less effective than had been previously claimed), hi-tech drugs company British Biotech's share prices lost most of their value. However, the extent to which this reflected the suspicion of mis-representation or merely the fact that the underlying value of the drugs being tested was low remains uncertain. Both for retributive reasons and in relation to re-integrative shaming, it is important to appreciate that cross-culturally, in smaller-scale societies where informal sanctions are widely communicated and are likely to be effective both in harming people's social standing and in incapacitating them from future misconduct, informal punishment may have more (and formal punishment correspondingly less) marginal effect than it does in more anonymous societies: one might think of differences between the impact of admonition for securities violations in Sri Lanka, Tokyo, London and New York respectively. Nevertheless, Japanese traders who have lost money may be no more able than any other nationality to resist the temptation to try to "win it back" by further trading, despite the increased risk for their firm (e.g. Daiwa and Sumitomo): to have failed at all may be shaming, and the risk of increased shame for the trader, if detected, may not save the company from devastation, nor will shame act as a deterrent in circumstances where the trader is confident that he will be able to repay the losses without detection, as many reckless traders convince themselves they can. The morally neutralising effect of money anyway gives many persons who might still be stigmatised by traditional elites the capacity to elude such stigma while living in some luxury. The ease and anonymity of international travel makes social exile to more tolerant social circles abroad less isolating than it would have been in former times, while modern technology such as airconditioning and chilled transportation of fresh food makes the reproduction of physical comfort an easy matter wherever in the globe one lives. The longing for "home" may be more a problem for working class professional criminals and their families "on the run" from Interpol warrants than for business-people, but such longings may be variable culturally: one might hypothesise that overall, Japanese might be more disturbed than, say, Americans at being forced to live overseas. However, the spread of most nationalities and ethnicities throughout the globe has made it more possible than in earlier times to move without losing contact with one's indigenous culture and/or gastronomy. Avoiding cultural imperialism, the conceptualisation of what shaming might be expected to achieve nonetheless remains obscure. Is it primarily social pressure to impact on social prestige (in which case, this has to be affected or cared about, the latter implying some psychodynamic effect analogous to guilt but injected situationally from the outside rather than from the internalised super ego)? Or is it some commercial incapacitation that operates through social mechanisms? Whatever the case, part of the effect of shaming depends on how much the particular business wants to continue operating. Ex hypothesi, the following tentative propositions may be made:

126 Shaming and Business "Misconduct" (1) Most pre-planned fraudsters are probably unaffected, unless the publicity somehow incapacitates them—after all, they have already successfully neutralised their crimes, and though confrontation by the views of others may shake those neutralisations, they may regard this still as unrealistic or hypocritical. (2) Those who turn to fraud when their businesses are about to go bust may not care anyway, for they are focused narrowly on "staying alive" or "saving a few pennies for my wife and children" (though there are likely to be personality and cognitive dimensions in reaction to failing business conditions here). (3) The main people who care about shaming are (a) those respectables whose social lives are embedded and who are sufficiently distanced from their business situation to appreciate the impact that exposure for fraud might have upon their standing (though the proper comparator would be the standing that they would have if they did not defraud, which might be lower than their present standing); and (b) those who fear that they may be excluded economically from markets. This, for example, is doubtless what is propelling activity by the United Kingdom pensions industry, who fear corporate exclusion from lucrative new markets. The capacity to boost shame in contemporary societies is limited not just by the partial reactions of business and political elites, but also by the ability of the socio-pathic to enjoy themselves in isolation from the censurers. In this sense, issues such as the move from ascribed to achieved status are important, as are the motivations of the fraudsters in the first place: the interesting thing about Guinness and the current Japanese cases is that "offenders" were genuinely (in my opinion) shocked to discover that what they were doing was regarded as seriously wrong and liable to criminal sanctions. But what counts as stigma? I want to refine Braithwaite's categories by noting explicitly that "shaming" is a subjective emotional mode of considerable complexity. There is a sense in which without social hypocrisy, the possibility of shaming is much reduced, so "greed is good" societies have less possibility of shaming than Japan or Catholic societies such as Italy. Moreover, over the long term, one may hypothesise diminishing marginal returns to shaming: as in the Italian mani pulite corruption investigations, if everyone is and/or is believed to be guilty, no one can readily be shamed. Although the heterogeneous construct "society" is one audience for punishment, the range of offenders and the social milieux of offenders constitute other audiences which may take a different view of sanction severity. To know this, one must know what they value and about whom, if anyone, they care. Do they, for example, take media descriptions of themselves as "fat cats" as stigma or, by analogy with juvenile gangs, do they take it as a "badge of merit"?

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The offenders' behaviour must change in response Here we have a considerable problem. The Braithwaite formula—which borrows from Fisse and Braithwaite (1983) on the impact of publicity—takes it for granted that the aim of the corporation is to continue trading. But in the case of many frauds—those committed by individuals (with or without the use of a company as a tool for fraud) against corporations and government—this is not the case. One needs a more complex typology both of the victim-offender relationships and of the situational elements of fraud. Given that fraudsters can change their identities without undue difficulty, can use "front persons" to act for them, etc., our knowledge of the social and economic consequences of shaming is limited. The media keep a look out for the reappearance of collapsed stars and arguably, the fact that they are required to use "front people'' is evidence of impact: but it is not evidence of business behavioural change, only of avoidance of exposure. And bad publicity may lead to loss of credibility. But there is a further issue in relation to which the "shaming effect" has limited reference: what is the condition of the firm when the naughty acts are contemplated? In The Phantom Capitalists (Levi 1981), I defined modes of intentionality in fraud as follows. First, pre-planned fraud which will entail the death of the company (which is only a sub-set of pre-planned frauds): is contemplated shaming going to deter this? Unless it currently is expected not to lead to any formal action, for example by being identified only as a "business failure", offenders (including company directors) may anticipate some level of stigma, if only in terms of future negative ratings from credit reference agencies. Likewise, "slippery-slopers"—those who carry on trading long past the point at which they reasonably can expect to be able to repay their debts—get into trouble not just because of greed but because they are fixated on continuing the business and cannot imagine starting a different life: expected shame or guilt at harming others presumably deters some, but it is unclear what will be the marginal returns to escalated shame. My point is that we have to construe the issue as it is to potential offenders at the time of the potential offence if we are to think in terms of general prevention or deterrence.

Reintegration into society How can we tell whether the commercial leopard has changed his spots? When should people be given another chance, and should their chance—for example, the chance to be a director of a pensions company or a bank—be unrestricted once they have been shamed and have (apparently) accepted that they have done wrong? What counts as sufficient evidence of reformation? This is a special case of the general dangerousness debate. We might base our decision partly on the

128 Shaming and Business "Misconduct" level of harm that might arise if our generosity turned out to be misplaced: if banks wish to lend large sums of money to someone such as the late Robert Maxwell (very publicly condemned in a Department of Trade and Industry report of 1970 as someone "unfit to be a director of a public company") then that is a matter for them and for their shareholders. But to allow such a person control over company pensions when he would almost certainly not have been licensed to deal in financial services is a different arena of risk. Reintegration into society is one thing: reintegration into the trusted elite economy is another. Having sketched out some formulation of my problematic in conventional terms, let us turn to the issue of globalisation. Economic crime does offer more realistic prospects of globalised crime than do most other "garden-variety" crimes, and it also offers particular difficulties for shaming, one of which is that that for any given "act that could be defined as fraud" (and, for that matter, "corporate crimes" generally), the probability of media publicity and regulatory/criminal action varies greatly in different parts of the globe. In part this is an empirical issue: is there in fact, and is it plausible in practice that there might be, local shaming for persons involved in harming people elsewhere? It depends what they have done, and whether the locals feel the same way about it as the "foreigners" do (an issue about global identity as "one human race"!) And secondly, what are the implications of geographical mobility for shaming? Can one export oneself—to the colonies Australian-style, or to Singapore, Leeson-style (with devastating results for Barings, after being refused a licence to work for them in the United Kingdom financial services sector)—to places where even if one is known in some abstract sense, one will be able to find a cultural enclave in which one will be tolerated or even positively welcomed? This was not a situation readily envisaged in the original Braithwaite formulation. The answer to this question lies in the extent of the internationalisation process of securities and company regulation.

SOME ILLUSTRATIONS OF SHAMING IN PRACTICE

Let us now consider some cases. One device for expressing denunciation of conduct as well as incapacitation is disqualification as a company director under the Company Directors Disqualification Act 1996.1 will set aside the fact that all the person has to do is to transform himself into a partnership, and he evades the ban on being a director, including a shadow director, since the entity is not a company. Thus, boxing promoter Frank Warren, disqualified from company directorship for six years, was able to continue to trade as Sports Network Europe, and is apparently doing very well as the manager of world boxing champion Naseem "Prince" Hamed. My point about shaming is that "everyone knows" that he has been disqualified because his previous company could not pay large debts, so if they want to do business with him "on notice" that is a matter for them, and it seems almost acceptable in the boxing industry that this

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is not stigma. (Don King, the top promoter, has served a long prison term for violence and has been accused of fraud, but continues his career, and is currently suing Warren for his share of Hamed's fight money.) Roger Levitt, defrauder of the rich of perhaps £37 million, who became a negative (Jewish) icon when photographed with a glass of champagne and a large cigar after getting 180 hours community service following a guilty plea for deceiving the regulators (Levi and Pithouse, forthcoming), likewise carried on business, albeit in the USA, despite his lifetime ban from the securities markets and ban on acting as a company director. It is plausible that at least some of those who did business with him knew of these background facts. In short, legal ingenuity in relation to the legal form thus far has defeated some key features of personal incapacitation and has enabled limited reintegration to take place. The impact of stigma, then, depends where and whether the crimes were committed for or against the corporation in their motivation. In Japan, it plainly still has some effect, because the top executives still take responsibility, even though they may be re-employed as senior consultants soon afterwards. They lose face, but then, if the Sokaiya had not been paid off, they would also have lost face at the shareholder meetings. The resignation of Japanese bankers in late 1997 made way for a new, younger generation (and, through loss of custom, improving the competitive position of the major American merchant banks in the prelude to deregulation). The Japanese Prime Minister Hashimoto (who himself had to resign six years previously after a Nomura-connected scandal) has promised further tough action, which has been forced upon him by the crisis of the Japanese banking system in mid-1998. In the United Kingdom, however, except for sex scandals, contemporary politicians and executives very seldom resign for "mistakes", and there are few sanctions for misconduct. A classic case is audit and management consultancy firm's Arthur Anderson's auditing of De Lorean cars. Their refusal to compensate the North Ireland Development Agency—who poured millions of pounds into the firm partly on the basis of audits that failed to detect huge defalcations—led the Treasury to impose a ban on all government work: but after pressure on the Heath Government in the early 1970s, this was relaxed to a ban only on auditing work, preserving in practice the legal form that Anderson Consulting is different from the audit partnership. According to my sources, this generated some £50-100 million in fees from HMG for non-audit work, reducing the pressure on Andersons to settle: the Government eventually settled for a modest sum without a court hearing at the end of 1997. In the late 1990s, we have seen resignations of Conservative Treasury Minister Jonathan Aitken and of Labour Ministers Peter Mandelson and Geoffrey Robinson over allegations of financial impropriety. Another arena is the (at best reckless) "mis-selling" of unsuitable private pension schemes by United Kingdom insurers, which is now estimated to cost up to £11 billion if and when compensation is paid to those in company pensions who were persuaded to move out of them and into private ones. Up to 21 October

130 Shaming and Business "Misconduct" 1997, out of 597,000 cases identified as priorities for compensation consideration, 183,000 had actually been reviewed, compared with only 53,000 in March 1997. (By January 1998, all of the large firms had either met them or been treated as having made sufficient efforts to avoid public humiliation.) Altogether, by June 1998, 51 fines had been imposed by the Personal Investment Authority totalling £4 million, which—discounting any economic and social effects of the publicity surrounding the sanctions—was a tiny amount in relation to the profits improperly made and to the number of persons affected. Nevertheless, the fear of bad publicity and exclusion from future insurance products led to the conclusion of the vast majority of reviews of "priority cases"—minus some 600 firms, mostly independent financial advisers—by March 1998, by which time offers of redress totalling £931 million had already been accepted by customers. By September 1998, all but nine firms resolved at least 75 per cent of their cases, and all had resolved over half of their priority cases: whether this counts as success or failure is a matter of interpretation. Nevertheless, even as early as October 1997, 18,000 people had died or retired while waiting for compensation, of whom 8,000 were clients of one company, the Prudential, which on 21 October 1997 was reprimanded by the lead regulator "for failure to exercise the due skill, care and diligence required by us in its pensions review". A spokesperson for "the Pru" showed his low estimation of commercial and reputational risk when commenting: "It is not our share of the problem. It is our share of a statistic" {Daily Telegraph, 22 October 1997). However, by the end of the year, this complacency had changed, as the political and economic pressure was stepped up. The strong condemnation of the Prudential by the newly formed Financial Services Authority for its "deep-seated and long-standing failure of management [and] failure to address and remedy defects previously identified" was the lead (half page or more) item in the business sections of all the broadsheets (such as the Daily Telegraph—"Pru is roasted by City Watchdog" and "How the Pru was hit for six") and in the influential (for middle-class/lower middle-class investors who might well purchase "Pru" products) tabloid papers such as the Daily Mail—"Regulator runs out of patience with the Pru", and The Express—"Watchdog mauls men from Pru" (all 17 December 1997), though no other tabloid reported it in their core "infotainment" sections. The Chief Executive took personal charge of the reforms, signifying its altered salience within the corporate culture, but until this public humiliation, he felt able to continue with his "trust me personally" television adverts to save with the Prudential, despite about 60,000 urgent cases not being dealt with. On 2 July 1998, the Prudential was heavily criticised by the Treasury select committee of Parliament for its complacent attitude and for misleading the committee. Initially, the Treasury Minister was sparing in her shaming, singling out for a public condemnation only two out of the 28 firms who were privately told to get their house in order, accompanied by press releases suggesting some as yet unspecified action, and deliberately refusing to deny (or confirm) media suggestions of dire exclusions from future lucrative developments in the pensions

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industry, which is seen in the United Kingdom (and, up to a point, elsewhere in Europe) as a key strategic plank for reducing future government management problems of financing old age. But a tentative inference from my interviews is that the principal effect appears to have been the fear of exclusion from lucrative new markets rather than any social effects or even concern about loss of existing business. The arrears of the "urgent" cases were reduced from 98 per cent in May 1997 to two-thirds in October 1997, falling dramatically by the end of 1997, though Independent Financial Advisers remain laggard. Insufficient data are available from the private sector to test this hypothesis rigorously, but why does economic stigma in public (restrained) "naming and shaming" by the Minister appear to have had little effect to date on sales? Perhaps because the public do not appear to appreciate that this is negative publicity. Nor does social "clubability" have effects either, though it may do more under Labour (since the Conservatives were reckoned not to care when determining honours). It is the prospect of lost income, also applied to Nomura who, after the Sokaiya payments scandal, were excluded from their lead role in Telstra, a huge pending Australian flotation, and routinely by the USA post-Savings & Loan scandals, that has the impact. Does publicity affect executives via shareholders' meetings? Turning away from fraud to corporate crime—an important difference—it makes victims feel less powerless, but it is hard to discern much effect unless it happens in the home nation of the company. Rio-Tinto Zinc, Peabody Coal, and Tate & Lyle were eventually embarrassed into some action, by continual domestic pressure. But Bhopal? India was a long way away for Union Carbide shareholders (after all, one might hypothesise, the victims were not white, nor was India a bulwark against communism) and the disingenuous corporate "spin" worked well enough for the American media. The threat of exclusion from new business arenas—in pensions mis-selling nationally but there is no reason why this cannot apply internationally—may be effective on shareholders as well as directors.

CONCLUDING REMARKS

In short, the application of stigma is difficult and highly differentiated in its targets and its effects. Shaming arguably is an early modern construct which relies upon people being "centred" and embedded deeply in a network of social relations: the individuals most susceptible to shame may be the salaried managerial classes who are likely to have less geographical or social mobility and more belief in ritualistic virtues of conformity than do the super-rich, professional confidence tricksters, and/or sociopaths. In terms of firms that wish to continue doing business—as contrasted with intentional "scams" and businesses that are defrauding or cutting corners on regulatory compliance in order to stay afloat— the threat of stopping firms from doing new business seems to be more effective

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than shaming as a technique of control, and might be extended to apply also to ingenious new legal forms rather than now slightly antiquated directorship bans. These comments do not mean that Braithwaite's normative model is wrong and that shaming should be abandoned: they emphasise the difficulties of getting to what communitarians and others might regard as the socially dependent ideal within a relatively pathogenic and individuated, mobile global culture in which, very largely, pecunia non olet: money has no smell.

REFERENCES

Braithwaite, John, 1989, Crime, Shame, and Reintegration (Cambridge: Cambridge University Press). Cressey, Don, 1953, Other People's Money (New York: Free Press). Van Duyne, Petrus, 1996, "The Phantom and Threat of Organised Crime" 24 Crime, Law and Social Change 341-377. Elias, Norbert, 1982, State, Formation and Civilization: the Civilizing Process (Oxford: Black well). Engel, Matthew, 1996, Tickling the Public: 100 Years of Popular Press (London: Gollancz). Fisse, Brent and John Braithwaite, 1983, The Impact of Publicity on Corporate Offenders (Albany, New York: State University of New York Press). Friedrichs, David, 1996, Trusted Criminals (Belmont, CA: Wadsworth). Karpoff, John and John Lott, 1993, "The Reputational Penalty Firms Bear from Committing Criminal Fraud" 36 Journal of Law and Economics 757-802. Levi, Michael, 1981, The Phantom Capitalists: the Organisation and Control of LongFirm Fraud (Aldershot: Gower). 1998, "Organising Plastic Fraud: Enterprise Criminals and the Side-stepping of Fraud Prevention" 37(4) The Howard Journal of Criminal Justice 423—438. Levi, Michael and Andrew Pithouse, forthcoming, White-Collar Crime and its Victims: the Media and Social Construction of Business Fraud (Oxford: Clarendon Press). Levi, Michael and David Sherwin, 1995, Fraud: the Unmanaged Risk (London: Ernst & Young). Levi, Michael and Mohammed Shoaib Suddle, 1989, "White-Collar Crime, Shamelessness, and Disintegration: the Control of Tax Evasion in Pakistan" 16(4) Journal of Law and Society 489-505. Nelken, David and Michael Levi, 1996, 'Introduction" in The Corruption of Politics and the Politics of Corruption (M. Levi and D. Nelken (eds), Oxford: Blackwells). (Also a Special Issue of the Journal of Law and Society.) Punch, Maurice, 1985, Conduct Unbecoming (London: Macmillan). Sykes, Gresham and David Matza, 1957, "Techniques of neutralization: A theory of delinquency" 2 American Sociological Review 664-670.

Multinational Firms as Agents of Civic Virtues ERHARD BLANKENBURG

A RESPONSE to the Brent Spar incident and other threats of public scandal, International Shell Company announced a deliberate policy to . face the political and environmentalist damage for which the world's biggest multinational is challenged. Risk analysis taught them to fear public image risks more than legal liability claims. Even though the announcement of a social reponsibility drive contains a high "public relations stunt" factor, the publicity can be expected to intensify sensibility resulting in increased internal control devices. In a media environment which produces scandals as a means of surviving increased competition, public shaming is an effective threat. Big companies anticipate public regulation by internal control, thus privately acting as agents of civic virtues.

A

THE UNFORESEEN SCANDAL AROUND DISMANTLING A NORTH SEA PLATFORM

In 1996 the Shell Company started to dismantle an offshore oil platform at Brent Spar which it had operated together with Mobile Oil with the intention of dumping the relics into the North Sea. The environmental watchdog organisation Greenpeace got to know about the operation, immediately started an evaluation of its environmental effects and decided to mobilise consumers to protest against what they considered to be a test case for the many installations which were going to be dismantled in the near future. The boycott which followed took both, Greenpeace as well as Shell, by surprise. From the operator's engineering point of view there seemed to be nothing wrong with the action: the construction parts of oil platforms would be corroding in the deep sea, chemical and oil waste were considered to be negligible. Greenpeace, however, estimated the waste potentials to be much higher—an evaluation which it later had to correct.1 Furthermore, the dumping activity was formally legal. All necessary permits had been given, procedures had been 1 Compare Greenpeace, "No grants for dumping", Amsterdam, March 1995, with press conferences following 17 June 1995.

134 Multinational Firms as Agents of Civic Virtues negotiated with the inspectors. Greenpeace, however, achieved a major success with its campaign alluding to everyday psychology that one does not simply throw away one's rubbish. Especially German and Dutch consumers followed a pledge to boycott all Shell products, which went so far that even in its home country Dutch government chauffeurs were instructed not to take petrol at Shell stations. There is no triumph in hindsight knowledge that the Greenpeace campaign partly rested on false assumptions. Environmental watchdogs can be wrong just like industrial actors sometimes are. The campaign saved Greenpeace from some problems of organisational malaise: at the time before the campaign their support had suffered from a general fatigue, membership was declining, donors had been reducing their commitment, and internal controversies weakened the organisation. Thus, the entrepreneurship of the voluntary organisation badly needed some campaign success. Among the many activities which a watchdog multinational like Greenpeace is pursuing routinely, this was a case with potential for media and mass-psychology: in public opinion, oil multinationals are by definition suspected of being "bad guys". Shell in particular was at the same time involved with political and environmental protests in Nigeria and other parts of the world, so that a campaign could recruit sympathisers (and informers) even among the workforce of the company itself. The vulnerability of Shell at the time might have contributed to targetting them rather than Exxon Oil which was also involved in operating the Brent Spar platform. Nevertheless, the success of the consumer boycott which was proclaimed by Greenpeace was unforeseen. The oil company and the environmentalists were both surprised by the public outrage, and both reacted according to their organisational interests. Also—as is typical for many areas of environmental regulation2—the inspecting authorities which had negotiated the scope of the operation and had given the permit for it, had to secure a retreat line in order not to be caught by the scandal as it escalated. Without knowing it, the parties were steering towards a bigger collision than usual. Non-governmental organisations are used to staging protests, but few of them result in immediate success. Oil corporations are used to taking risks: the entire chain of prospecting, production, distribution and consumption is pollution-prone: whether in populated areas or in the open sea, oilfields are endangering ecological habitats; transport by huge tankers can create havoc and pipelines may leak or be sabotaged; potential polluting effects all installations down to the petrol station and consumers. The traditional reaction to risks is a combination of technological prevention and insurance: safety measures can minimise the risk but not exclude the possibility of accidents; the worldwide insurance net can cover some of the financial risks, but not a major catastrophe. A serious tanker collision near the tropical riffs of Australia would satisfy Beck's (1986) definition of a society which puts itself at risk. 2

See Hawkins (1984).

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Of course there are attempts to control such risks by law, but its role remains limited. How futile legal concepts are can be seen with everyday accidents. Nobody would assume that traffic laws are sufficient to prevent accidents, being aimed at breaches of rules, not the accidental consequences of behaviour; nor can civil liability do more than cover financially the loss of health or life of accident victims. Feeble attempts to widen accountability by such concepts as "strict liability" (usually for car drivers as opposed to children, pedestrians or bicycle riders) only show that classical rules for the attribution of accountability no longer satisfy our sense of social responsibility for risks.3 As far as the instrumental legitimacy of penal responsibilities and civil liabilities is concerned, we might better understand them as instruments influencing prevention structures, rather than controlling behaviour. The same holds true for bigger industrial risks. Legal restrictions and inspections serve as benchmarks within which corporations can operate. By routinely assessing potential damage, including the capacity of control agencies, they can anticipate whether it is better for them to avoid or to run a risk. In such a calculation, public reactions are as important as is regulative law. The bigger a company and the more visible its operations, the more it will be subject to the risk of public scandal. Watchdog organisations can mobilise scandals because of breaches of law, but they can go beyond this by incriminating the risk-taking itself. "Scandalising" follows a moralistic rather than a legalistic logic. Even though scandal needs a particular incident to erupt around, the success of blaming does not depend on a single act of regulatory offence, but on a balance sheet of overall operations. Shaming dwells on polarised imagery: while the corporations present risk-taking as an entrepreneural activity, the scandalisers portray them as amoral calculators. While the watchdog organisations act as police, the media fill the role of prosecutors.4 The psychology of the media is the reverse of that of a court procedure: once a scandal starts to escalate, defence makes the risk-taking corporation look more suspect. The combined forces of watchdog organisations and media can best be understand as an industry in itself. As moral entrepreneurs, the actors of this industry have to calculate their own risks: watchdogs have to recruit membership and satisfy donors, media on the other hand, working under the pressure of increased competition, have to stay ahead of each other, build up staff for investigative journalism and keep scandals alive once they have managed to incite them.

3 Also called "absolute liability", independent of fault or negligence. American courts have in particular enlarged this concept of liability, European courts are following them with some hesitation. 4 Corresponding to one of the images of "corporate criminals" cf. Kagan and Scholz (1980).

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STRATEGIES OF COPING WITH IMAGE RISKS

It has taken some time for big corporations to take the potential of scandal into the calculation of their risk management. More than a decade ago big corporations held the first seminars on business ethics, started to formulate codes of conduct and to talk about corporate governance.5 But it took the Brent Spar scandal for them to go aggressively public with such concepts. Herkstroter, the president of International Shell took the lead by pledging a code of social conduct as a policy drive addressed to the company's own staff,6 to shareholders, to business partners and to customers. In 1998 the company presented a "social responsibility report" together with the yearly company results to its shareholders,7 claiming to apply the strictest internal ethics controls of all multinationals in the oil sector. The Report gives evidence that the oil industry sees its image risks coming from different sides.8 • "Upstream" prospectors and oil field operators are alleged to lower environmental standards in development countries: currently this is acute in tropical habitats where regimes are accused of allowing Shell to operate without adequate environmental controls. Shell denies such charges and points additionally at compensating investments in forest plantations and in alternative energies. • Oil prospecting is a very long-term operation. Oil companies therefore take care in not getting involved in political support of any repressive regimes: such a "we-stay-out-of- politics" defence was partly successful when Nigerian human rights activists accused Shell of collusion with the repressive regime. But in spite of a-political intentions, they cannot avoid international boycotts and allegations of closing their eyes to subcontractors clandestinely breaking them: such allegations are currently made regarding negotiating with Iran, formerly for trading with South Africa. • Furthermore, the operation of refineries is often contracted with state-owned companies, sometimes after having been ex-propriated. Ownership and contract forms consequently vary with political conditions. The average length of contracting time is 15 years, but as prices and contract conditions (especially with respect to gas transportation) vary constantly, intermediate re-negotiating is the rule. Factually, contracts have to be seen as a flexible framework for longstanding relations—collusion of local Shell companies with economic and political regimes therefore needs "reasonable" forms of control. 5

cf. among the flood of management literature Buchholz (1982) or Wheelen and Hunger (1984). See the widely publicised Shell Report on health and environment (1997). Shell Report on social responsibility (1998). 8 The following information steins from an interview given to me in 1996 by Mr Schraven, head of the legal division of International Shell; it has been checked in subsequent interviews with lawyers, journalists and competitors, all of them active in the oil industry. 6 7

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• As oil-producing makes some countries extremely rich which otherwise do not have much industrial or trade income, political risks are paramount. Consequently, approaches as well as allegations of political corruption form part of the terms of trade: the Shell Report attempts the age-old recipe of general deterrence by detailing the dismissal of 23 of its agents in one year because they were caught on corruption charges. • Other image risks are related to "downstream" activities: as all forms of transport are accident-prone, shifting the risk to subcontractors can be a wise policy. In an attempt to avoid scandals being connected with its name, Shell has replaced its own tankers largely by charter shipping. Nevertheless, this does not leave the company entirely free from accountability: with more countries applying strict liability rules, the cargo-owner can be held liable, if the charter company fails to perform. Shell takes its precautions by excluding small oneship companies which would be unable to insure greater risks, and contracting instead with major charter companies which give some guarantee of security. Of course any such risks can be insured, as long as they are predictable. Up to a ceiling of (currently) $150 million damage, Shell has no problems with insuring risks. Bigger tonnage tankers and recent American court rulings, however, caused risks to go beyond that ceiling. Especially in the USA, liability risks have been increasing enormously. In the light of lawyer entrepreneurs (particularly in Texas), Shell advises its multilateral transport deals to avoid any contracts involving American jurisprudence.9 A possible risk-avoiding strategy might even be to leave transport to and from the USA to others. Other areas of concern are nearer to consumers. When a few years ago cashier robbery at petrol stations and especially night hold-ups increased dramatically, Shell switched to cash-free stations at night. While the measure might in the first place have been centered around the safety of isolated night-attendants, there was also concern about not being associated with crime-prone service stations. Such "extended social responsibility" might rightly be considered as just another elaboration of the idea of strict liability. It is true that the social responsibility drive of Mr Herkstroter has in the first place produced rhetoric—the public relations campaign used the same glossy reports as most self-presentations of big companies and their yearly stockholder reports. At the same time, it is a concession to the increasing vulnerability of these corporations. For companies with high visibility, public image risks can be more damaging than legal liability. Therefore the campaign can be seen as being internally directed to sensitise, motivate and possibly control employees, as much as to improve image-forming for external observers. Like all moralising, it combines a great deal of rhetoric with a few control devices. 9 In Europe 75 per cent of Shell's legal costs are covered by in-house lawyers, and 25 per cent go to consulting law firms and litigation costs. In the USA, the relationship is reversed: 25 per cent internal costs, 75 per cent external. The high legal risks in the USA lead Shell to treat American jurisdiction as a separate risk outside the global law system.

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Nevertheless, there is no denying the change of identity in economic entrepreneurs changin into moral agents. Two trends have contributed to the new mentality: • Multinationals are economically more potent than many national states: Shell policy in general is setting its own standards higher than United Nations recommendations, European Community rules or single country regulations. Operational control should remain under its own regime. Courts take into consideration what kind of internal regime a company implements. • Globalisation of watchdogs brings about globalisation of shame: as long as national regulations were the main preventive factor, Shell handled different implementation rules according to differential control regimes. In Western Europe and the USA standards were applied more strictly, while the Middle East and Central and South American countries would allow for more leeway, not to speak about the chaos in Russia and its southern border countries. But as environmental scandals tend to spread worldwide, Shell attempts to adhere to uniform standards. A single scandal anywhere can cause an escalation of new regulations, which are not always as acceptable to Shell as its own prevention would be. Shell thinks of legislative rule-making as a risk factor. They would prefer to have stricter control of implementation, especially of international regulation. With the industry networking with regulating agencies as well as with competitors, risk sensibility is shared industry-wide: the entire oil industry is sharing in the big risks. Production agreements, revenue contracts and joint ventures are increasingly multilateral. Competitors, on a world scale, are business partners in specific projects. In many countries also, state agencies are among the contract partners.

THE SPIRAL OF PUBLIC SHAMING AND CORPORATE GOVERNANCE AS AGENTS OF MORALITY

Reading corporate literature on the risks of being subject to public shaming is a fulfilment of a criminologist's dream. Evidently, with so much sensitivity to public shame, the strategy of threat referred to by Fisse and Braithwaite (1993) is effective. It works where criminal law ends: • it compensates for the selectivity of criminal justice which punishes those who have nothing to loose, as it stigmatises only actors who have stakes in avoiding the shame; • it transcends the principle of individual accountability, as it renders organisations responsible for internal controls; and • it transcends the principle that sanctions should not depend on the effects of action, but rather on the legality of the action itself, as it penalises a general performance rather than individual breaches of rules.

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However, the fulfilment of the criminologist's dream is at the same the nightmare of any due process lawyer. Moral entrepreneurs and their mass media care little about the rights of defence—public allegation is already the punishment. Preventive moralising with its rhetoric is an appropriate answer. The game has therefore moved into the next round: the watchdogs now are monitoring how far the goodwill propaganda is followed up by effective measures. The overall effect can be measured in quantitative terms: with the increase of risks (and their immoralities) there comes an increase of public morality.

REFERENCES

Beck, Ulrich, 1986, Risikogesellschaft (Frankfurt: Suhrkamp). Buchholz, Rogene, 1982, Business Environment and Public Policy (Engelewood Cliffs: Prentice Hall). Fisse, Brent and John Braithwaite, 1993, Corporations, Crime and Accountability (Cambridge University Press). Greenpeace, 1995, No Grants for Dumping (Amsterdam). Hawkins, Keith, 1984, Environment and Enforcement: Regulation and the Social Delinition of Pollution (Oxford University Press). Kagan, Robert and John Scholz, 1980, "The 'Criminology of the Corporation' and Regulatory Enforcement Strategies" in 7 Jahrbuch fur Rechtssozioloige und Rechtstheorie (Opladen: Westdeutscher Verlag), pp. 352-377. Shell International, 1997, Health, Safety and Environment Report (London/ Rotterdam). Shell Report, 1998, Profits and Principles—Does There Have to be a Choice? (London/ Rotterdam). Wheelen, Thomas and David Hunger, 1984, Strategic Management (Reading: Addison Wesley).

Part III

Cultural Dynamics: Contexts of Crime and Control

10 Translating Social Control: Reflections on the Comparison of Italian and North-American Cultures Concerning Social Control, with a Few Consequences for a "Critical" Criminology D A R I O MELOSSI

HAT FOLLOWS IN these reflections is based at least as much on "sociology" as on my personal experience. I lived for many years in two different societies, and cultures, Italy and the USA, and I have drawn from such experience the conclusion that translation, strictly speaking, is impossible. I think that conversation between different cultures is possible, but not translation from one to another. I would therefore like to follow the thrust of the words by philosopher Bikhu Parekh:

W

"Since human beings share much in common, an intercultural dialogue is possible; since they differ in significant respects, the dialogue is both necessary and desirable. When confronted with other cultures, the correct assumption is not that they are 'basically' like us as the concept of human nature encourages us to make, nor that they are 'basically' unlike us and largely unintelligible as the concept of radical cultural pluralism requires us to make, but rather that they are neither wholly like us nor wholly different, that they are neither totally transparent nor totally opaque. We cannot therefore assimilate them to our ways of thought and life and deny their particularity or individuality, nor put them in a world of their own and deny the universality they share with us. In acknowledging their particularity we incur an obligation both to understand them in their own terms and to respect them for what they are; in acknowledging their universality we both incur an obligation to recognise them as bearers of claims and acquire a right to expect that they conform to certain universal norms" (Parekh 1996, p. 12). There is probably in Parekh's position a good amount of wishful thinking. I believe however that his position represents a good practical recommendation, a position that we can try to follow until proof to the contrary.

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My claim is that generally speaking any term, even the simplest, is embedded within a cultural context, or milieu, that gives it its meaning. Even such a simple term as "chair" is not really a sedia or a silla. It is not, first of all, from the perspective of the experience that those terms are connected to, from the standpoint from which one's memory is triggered. Of course this is true even in a very individual sense—even if one does not want to reach the consequences of Proust's famous madeleine in his Recherche (1913). The point is, however, that a given cultural and linguistic environment has a very special function in shaping the experience of a word, of a concept. Let us try to explain this better: "chair" evokes the action of sitting down in the midst of a series of practices that pace the times of ordinary life. The chair on which when we were children we drew and played, the chair of the dining table, the chair of one's office desk, important chairs, ceremonial chairs, chairs from which one judges and is judged, votes, speaks in public, and so on. Each one of these acceptations of "chair" calls upon practices within which the term is embedded and which are quite different across cultures (one could think of the Japanese house, for instance, where the act of sitting and the Western concept of chair are not at all synonyms). The term "chair" therefore suggests a set of those practices which is marginally different for each one of us. In spite of these individual variations, however, the culture we come from and where we live offers us many elements which are common for those who share it with us and different for those who instead come from another culture. It is only at the time when we try to establish a relationship with a different culture that we are faced by the issue of translatability. Only those who have a direct interest in translatability take it for granted: those who produce dictionaries, language textbooks, computer software; those who deal in the international trade of goods; those who work in diplomatic or "intelligence" missions, and so on. The individual, however, who has lived for a long time in a different culture is very well aware both of the fact that such experience is a condition without which it is not possible to appreciate what the meaning of "translation" is, and of the fact that the enterprise of translation is always somehow imperfect, always somewhat Utopian. All of this does not mean of course that, especially in today's world, translation is not an everyday practice that allows for mediation and contact between different cultures, from the annoying dubbing of "foreign" films in countries like Italy (particularly annoying because so well done!) to the tens of thousands of people working on translatability in the offices of the European Union in Brussels or Strasbourg (about one fifth of the EU workforce!). The more translations are "good translations" in the destination language, as Walter Benjamin observed, the less are they truthful to the sending language and the less are they able to innovate on and "crack open", so to speak, the destination language. This is why Benjamin, in his "The Task of the Translator", following the teaching of Rudolf Pannwitz, recommended literal translations, because they are better able to "force" the contents of the sending language onto the destination

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language (Benjamin 1923, pp. 80-81). However, in so doing, one risks untranslatability and not being understood, exactly for the reasons mentioned above. The risk of literal translation is in fact that of not carrying a "clear" (that is, recognisable) meaning for the readers (besides that of being labelled "ugly", "unpleasant", etc.). It is at the same time obvious that not every aspect of experience and intellectual activity is connected with the problem of translatability in the same way. It is clear that there are areas of social life that, for their standardised character, or because they are more often the object of an import-export activity, are considered to be more easily translatable. What comes to mind are software programmes, the mass culture linked to youth culture (especially music), so much of the instrumental literature characteristic of the industrial and commercial world. It is no accident that in all the mentioned areas there has been the decisive influence of a specific sending culture, the English language culture of North America, which has literally "exported" lifestyles together with the language (translated or not) that can be used in order to describe, or better use, those lifestyles, all over the world. And yet, even in such cases, the difficulties of translation appear in the vaguely distasteful reception, for instance, with which users "welcome" the translations of software programmes—translations which are often very literal—or, in the case of youth culture, the deep and not so random "misunderstandings" which may be produced by importing specific lifestyles from one culture to another (one can see for instance the case of Italian skinheads, /' naziskin, in Antonio Roversi's research (1995)). If culture and even thought are inextricably linked with natural languages, as Sapir and Whorf suggested (Sapir 1933), however neither language nor culture are hermetic entities. On the contrary, to get hold of a linguistic toolbox is absolutely crucial to the possibility of "entering" within another culture. However, this is exactly what I am trying to point out: that the immigrant who slowly (very slowly usually if he or she is not very young) learns a different language until such language becomes a second mother-tongue, has to learn at the same time to impersonate, when he or she uses it, the person who is a member of the culture where that language is used. Such a process may arrive to the point of developing a sort of "split personality"—with the attendant problems wellknown to all migrants (Stonequist 1937; Ben Jalloun 1977; Grinberg and Grinberg 1982). However, it represents a condition without which a successful linguistic learning is really not possible. It is usually quite apparent, in fact, in those who experience difficulties in fully learning the language of the culture within which they have landed, that they are also those who resist assuming the perspective and standpoint, the Weltanschauung, the mannerisms, even the gesturing and body language, of the "natural" members of that culture. All of the above becomes even more complex, I believe, when we tackle concepts deeply embedded in a culture, such as "crime", "punishment", and generally speaking those concepts which are used in order to express the social relationships that are characteristic of a culture. In social science, I do not think

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anybody has expressed the problem better than Alfred Schutz in his famous essay on "The Stranger": "The discovery that things in his new surroundings look quite different from what he expected them to be at home is frequently the first shock to the stranger's confidence in the validity of his habitual 'thinking as usual'. Not only the picture which the stranger has brought along of the cultural pattern of the approached group but the whole hitherto unquestioned scheme of interpretation current within the home group becomes invalidated. It cannot be used as a scheme of orientation within the new social surroundings. For the members of the approached group their cultural pattern fulfils the functions of such a scheme. But the approaching stranger can neither use it simply as it is nor establish a general formula of transformation between both cultural patterns permitting him, so to speak, to convert all the coordinates within one scheme of orientation into those valid within the other" (Schutz 1944, pp. 503-504).

Sociologists are notorious for their tendency to invent such "general transformation formulas" with which Schutz's stranger in the flesh would probably not succeed even in drinking a glass of water. Schutz's essay represents in fact a true radical critique of social scientists' imperialism vis-a-vis the rights of the standpoint of society's ordinary members. It is clear at the same time that such general formulas of transformation can produce important effects of cultural colonisation when they are accompanied by the simultaneous export of social models. As Schutz himself maintains in the pages that follow the above quote, this is particularly true linguistically. The meaning of an object represents in fact the outcome of the communicative exchange in which that object is involved. Because such communicative exchange takes place in the midst of a complex set of communicative exchanges—what we call a "culture", a network which is historically and spatially located in a given system of action and behaviour (Mills 1940)—it is only within such a complex network that the object's meaning may be determined. One of the most interesting efforts at defining social control in the broadest sense sociologically is in fact offered by those who have defined it as the ability by given actors within a complex social system, of influencing the determination of the meanings which are typical of that system (Mead 1925). Indeed, the determination of meaning is not separable from the act which is oriented toward the object so defined and named. The Central American child who sits in the patio out of his home, on his silla painted with bright colours, appreciates the warmth and the comfort of the silla. For children, it is very difficult to distance the name from the practical, indeed moral, qualities of the named object. If the straw of the chair needles him while he is sitting, the chair is bad. If the chair welcomes him in the warmth of the shining sun, the chair is good. Ethnomethodologists have shown that such moral characterisation of the stable characteristics of the ordinary world does not disappear at all when we become adults and easily emerges when such stable characteristics are somehow questioned by the appearance of unexpected, or even "deviant" occurrences (Garfinkel 1967). One can notice en passant that such standpoint, which I would

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trace back to Dewey's and Mead's Pragmatism, has inferred a severe blow to that dualism of systems of action and meaning that is still present in Marx's not very perspicuous distinction of structure and superstructure, in spite of those pages, in the section on Feuerbach of The German Ideology (Marx and Engels 1845-1846, pp. 39—95) where Marx seemed at times to anticipate Pragmatist positions. As far as the specific questions of punishment and crime are concerned, what I have expounded until now may be related to a standpoint introduced in the past by Edwin Sutherland, who probably had been inspired in turn by Georg Rusche's manuscript (that was to become Rusche and Kirchheimer 1939) of which he was one of the first North-American readers. According to Sutherland, there is a consistency between the fundamental cultural values of a given society and its punitive system (Sutherland and Cressey 1978, pp. 348—351). I would also add—as this is implicit in Sutherland's differential association theory—between cultural values (and therefore the transmission of these values) and the prevailing types of crime. This means that the structural types of explanation of punishment (those in other words which link analysis of the variations in punishment to structural variables of the kind that sociologists tend to postulate in every society or at least in every "developed" society, such as economic development, social stratification, type of political system, the relationship between the fiscal system and "the State", etc.) can be used only to explain (in part) variations which are internal to each society (conceived of as a cultural unit) but they will be largely powerless to explain cross-cultural variations because the latter are characterised by unique features of a certain society in a given historical period, i.e. those characteristics that Weber expressed in the concept of the "historical individual" (Weber 1904, pp. 78-81). A genealogy of punishment cannot be therefore a genealogy of punishment in general, even if it is certainly the case that blueprints for punitive engineering are and have been exported from society to society. More in detail, it may be interesting to compare cultural traditions of punishment as they have been developing within Protestant societies and especially in the USA—the privileged locale for Weber's analysis—and within Catholic societies, in Southern Europe or Latin America. In what follows I will select the USA and Italy as two case studies, starting from the obvious recognition of the very high rates of incarceration in the USA vis-a-vis those in Italy (Melossi and Lettiere 1998; Melossi 1995)—a difference that is even more surprising if one keeps in mind that the results of international victimisation surveys show that crime rates in the USA are not much higher than the European or Italian general crime rates, except of course for crimes of violence and especially homicides (that, however, contribute to a small percentage of imprisonment) (van Dijk and Mayhew 1993). I claim that such differences are not understandable without making recourse to different modes of conceiving punishment rooted in the different historical backgrounds of the two cultures. I will also discuss the consequences of such analysis for

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critical theories in criminology, i.e. theories that have known a high level of transportation across borders in the last 20 years or so.

DEMOCRACY AND PUNISHMENT1

One of the many claims to fame of the newly independent USA was the creation of penitentiary systems such as the Walnut Street Jail, where the principle of solitary confinement was for the first time introduced (Takagi 1975; Sellin 1953). Like other famous European institutions, Gent's Maison de Force, or Jeremy Bentham's project of a Panopticon (1787), it was built around the precept of the separation of the offender from his fellows. The underlying idea was one shaped after monastic life, as the latter had developed in the medieval monasteries of Europe for a specialised caste of sinners (Treiber and Steinert 1980). According to the ideals of the Protestant Reformation, however, the method had to be extended to all creatures. In the same way in which the Protestant believer could not find indulgence in a complacent Church (Weber 1904—1905), so the North American inmate could not escape the rigours of punishment in the new institutions. It might appear somewhat paradoxical, however, that the first Republic of the earth discovered and perfected prisons as one of its central social institutions. Prisons in fact are not usually identified with ideas of liberty, progress and democracy.2 However, a number of authors, from Tocqueville (1835-1840) to Durkheim (1897), from Foucault (1975) to Dumm (1987), from Marx (1844) to Horkheimer and Adorno (1947), have told us the story of how this was possible (for a reconstruction, cf. Melossi 1990; Melossi 1997; Melossi and Lettiere 1998). The paradox pointed out by Foucault and, in his footsteps, by Thomas Dumm, is probably one of the most typical among the many paradoxes of Enlightenment (Horkheimer and Adorno 1947, p. 228). As already Tocqueville and Marx (1844, pp. 52—53) had noted, the central concept was self-government. Self-government, however, involves, indeed requires, the government of the self. This was a complex problem, to the social reformers and philanthropists of the new era. According to Benjamin Rush, for instance, penitentiaries were supposed to produce men as "Republican machines", workers and citizens, that is, able to engage in a democratic, or, at least, proto-democratic conversation with their fellows. Penitentiaries were therefore conceived in a sense as true, monumental gateways to the social contract. They were not seen as exclusive but rather as inclusive.. If they seemed to exclude, exclusion was only temporary, and actually pursued a real end of inclusion. To be admitted to such gateways was therefore in a sense a privilege. Not everybody was so lucky. North American respect for multiculturalism already 1

On the subject-matter of this section , cf. Melossi and Lettiere (1998, pp. 22—28). About this point, cf. Thomas Dumm's reading of Beaumont and Tocqueville's work (Dumm 1987; Beaumont and Tocqueville 1833). 2

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started in the nineteenth-century, vis-a-vis the "Indians". As Mexican writer Octavio Paz has observed (Paz 1978, pp. 363-364), a "natural" consequence of such inclusive attitude was the de facto extermination of those who were unable, or unwilling, or uninterested, in entering into the Republican compact. The native people of North America, redefined as "foreign" nationals (Fitzpatrick 1995), were the victims of "the ability of white society to deprive [them] of their rights and exterminate them 'with singular felicity, tranquilly, legally, philanthropically . . . It is impossible to destroy men with more respect for the laws of humanity'" as Tocqueville observed (Tocqueville 1835, pp. 352-353, 364, cited in Takaki 1979, p. 81). The other "race", however, of which Tocqueville wrote, "the coloured", after its "liberation" was generously exposed to the philanthropy of the new penitentiary institutions. Whereas, still in 1850, Blacks were largely concentrated in the South, as slaves (Sellin 1976, pp. 133—144), and their incarceration rate was less than half that of whites, after the civil war many of the "freed" blacks were again reduced into servitude, this time penal servitude, through the convict lease system that flourished in the Southern states (Sellin 1976, p. 409). Already in 1870 in the South, the Black incarceration rate was triple that of whites (120.35 versus 42.56) and almost 15 times what it had been 20 years before (Sabol 1989, p. 408). Because the prison system represented the gateway to democracy, migrants were and are the system's candidates of choice: domestic migrants as in the case of Blacks during this century, foreign immigrants as with Europeans until the 1920s, later on also Spanish-speaking immigrants from Central and South America. Such original propensity to punish, deeply rooted in the premises of "American" beliefs, has not abated today. American imprisonment rates kept at a substantial high level and after 1970 they started rising at a very fast rate until they reached unexpected peaks, the highest in the history of the USA and of the world (Christie 1993; Melossi 1993; Melossi and Lettiere 1998).

THE BELPAESE FROM THE

SCANDAL OF INDULGENCES

TO "GUARANTEEISM

In Italy, on the other end, the imprisonment rates since the end of the last war have oscillated between 50 and 100 per 100,000 inhabitants, with almost insignificant numbers for minors and those sentenced to penal alternatives to imprisonment. Massimo Pavarini commented: "[t]he Italian criminal justice system is characterised by unusually severe sanctions. This reflects both the authoritarian legal system of the thirties, which is still in force, and subsequent democratic legislation (offering ad hoc solutions to numerous emergencies), which has further raised the threshold of punishment. However, the adoption of a particularly severe criminal policy at the level of primary criminalisation has always been contradicted—even, in part, during the Fascist era—by particularly

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lenient, if not openly indulgent, judicial and administrative strategies" (Pavarini 1994, p. 50). This was accomplished—Pavarini continues—through a very mild and generous application of criminal law at the individual level, and a regular recourse to clemency acts at the collective level. The attempts at launching "law and order" campaigns in Italy generally speaking have not produced great results for those "moral entrepreneurs" who were their proponents—with only the exceptions of the more politically motivated campaigns, like those against terrorism, organised crime and corruption. In other words, the softly authoritarian paternalism which has traditionally been the style of choice of the powerful in Italy, has not known a rhetoric of strong penal repression at the same time that it has not known a rhetoric of self-government. The contrary instead has been happening in North America. One could claim that, in Italian history, a history strongly defined, especially politically, by the presence of the Papacy, there has been a tendency to frame religion within a rigid dualism of shepherds and sheep, a sacerdotal caste separated from the rest of the believers. This tendency, typical of Catholicism, has been strengthened in Italy by the Papacy's temporal power, which struggled during the centuries against the emergence of a modern Italian national state and therefore also against modernisation. At the moral and legal level, one of the results of this Italian-style Catholicism has been the tendency to be very tolerant, de facto if not de jure, on moral or social issues, but very rigorous instead against any open challenge to religious and political hierarchies (and therefore also against any open challenge to the Church's teaching on moral issues; the deviant practices that are not openly advocated may instead be tolerated, and the sinner absolved). In this we may also find a remote cause for the fact that the only law and order campaigns that have had some following in Italy, have been those carrying a somewhat political profile, like the ones mentioned above. Especially since the democratic Constitution of Republican Italy, in 1948, the general cultural "Weltanschauung so described shifted from the church to the political nomenclature, lay but belonging in a Catholic party. This seems to be a special case of the more general one identified by Paz, that is the homology between political systems that are fundamentally authoritarian and corrupt and an organisational and conceptual political structure based on vertical relationships. It is no accident that among the sources of Weber's well-known essay on the relationships between Protestant ethic and capitalism is often cited the earlier work by Georg Jellinek, the famous jurist who was Weber's mentor and friend, who established a connection not so much between Protestantism and the emergence of capitalism but between Protestantism and the discourse on human rights in the very first North American Constitutions (Jellinek 1895). In the long series of affairs that have punctuated Italian public life since 1989 and that can be brought back essentially to two main phenomena of interlacing

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of crime and politics, between the political system and corruption in the North, and the political system and organised crime in the South (Mafia), one could notice a remarkable attitude to downplay the seriousness of those events. Giulio Andreotti, for instance, the Christian Democrat leader who was at the time the most powerful man in Italy and who is currently facing a trial for charges of conspiracy with organised crime leading figures, asked to "not amplify the cases of violence" (Melossi 1994, pp. 212-214). It is true that, given the subsequent charges that have been brought against him, one could legitimately suspect the good faith of that invitation to the media and the Italian public in general, but the point is that Andreotti was appealing to a culture of indulgence that is often presented in Italy as a manifestation of tolerance. It seems to me however that tolerance is tolerance of ideas or actions of a minority of the population by a majority. "Tolerance" instead in Italy often seems to mean a resigned acceptance, by large sections of its population, of the arrogance of power, the good Mafioso's very trademark. This is a situation that in the past could be described as a sort of unsaid pact between government and the populace, a pact that English-language commentators would define as "corrupt" without realising that there is nothing to corrupt, because it is a pact the roots of which go deep in Italian history, especially in the history of the Southern part of Italy (see for instance Robert D. Putnam's research on the relationship between the development of Italian regions and their economic, social and cultural history (1993)). Gramsci for instance wrote that, "[p]opular 'subversivism' correlates with 'subversivism' at the top, i.e. with the fact of there never having existed a 'rule of law', but only a politics characterised by absolute power and by cliques around individuals or groups" (1929-1935, p. 275). According to analyses by Southern Question writers (meridionalisti), at least since Italian unification in 1861, Roman central governments have been following a very ambiguous behaviour toward organised crime in the South. The presence in the South, in fact, of a network of power of which organised crime has been an integral part, was functional to the reproduction of conditions of backwardness and political control in those regions that have balanced the more advanced, and less easily controllable, demographic composition in the North. These authors pointed, in other words, to a very good example of what more recently Foucault has suggested in a very interesting, yet often forgotten, section of Discipline and Punish, where the "failure" of the prison is "explained" in terms of its functional role in transforming potentially dangerous illegalities into a much more (politically) useful delinquency (1975, pp. 257—292). In sum, there is, in the Italian cultural tradition, a sort of "soft" authoritarianism linked to low levels of penal repression, which is the opposite of a democratic rhetoric in North America which goes together with very high levels of penal repression. In both cases, however, the final result is wholly functional to the interests of those who hold the main concentrations of power. This is because the effects of successful social control should not be understood—as the criminological tradition would want it—as the absence of crime. On the

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contrary, successful social control results in the reproduction of the social and political relationships which are typical of a given social, economic and cultural formation. At the same time, from the perspective of those who strive to reach social change (within which one should include also successful abatement of crime, or of specific forms of crime), successful social control consists in being successful in reaching changes in those social and political relationships. Such relationships carry a type and volume of crime which is reproduced (or changed) within the very process of reproduction (or change) of those relationships. Crime "comes with the territory", as the saying goes. What should be observed furthermore is that the type of crime which is intimately connected to the structure of a given society (such as, for instance, Mafia and corruption in Italy, violence in the USA (Melossi 1994), or cocaine trafficking in Colombia) not only fits within the hegemonic social relationships which are characteristic of a given social and historical situation, but are also useful in order to reproduce those relationships. To a certain extent, therefore, and allowing for all kinds of conflicts within the ruling elites and between elites and non-hegemonic social sectors, these are types of crime that elites sometimes do not really fight against, and sometimes do even actively promote, because they represent the "lesser evil" in order to reproduce the kind of social control that allows for their own survival as elites. Correspondingly, it is only within a process of crisis in such sets of hegemonic relationships that it becomes possible to pursue also a crisis in the development of those criminal formations. The success, however relative, of Italian post-1989 campaigns against corruption in the North and organised crime in the South, was due to the political turmoil triggered by the end of the Cold War and the accelerated process of European unification at least as much as to the investigative activity of courageous Italian magistrates (this does not imply any type of determinism: indeed the activities of the police and the courts may be the starting point of a process of political renewal, as in part happened in the Italian case). It is quite clear that investigations that 10 years earlier would have ended with being shelved or with the elimination, bureaucratic or otherwise, of the occasional honest judge, under changed political conditions ended up instead with criminal charges being brought against a sizeable number of members of the power elite in the North and of Mafia leaders in the South.

COMPARATIVE CRIMINOLOGY AND CRITICAL CRIMINOLOGY

I believe therefore that those criminologists from non-English speaking cultures, who have somehow contributed to introducing the discourse of "critical" criminology into continental Europe and Latin America, being expert of critical discourses, should apply their skills to their own discourse and revive the lost art of self-criticism (I personally tried a few years ago (Melossi 1985)). We, in fact, have contributed to introducing a discourse that was especially

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critical of a Puritan obsession, American and marginally English, with a strictly binary and rigid concept of law and order, of good and evil (as that criticised in works such as Becker (1963), Erickson (1966), Matza (1969), Gusfield (1981), etc.). Such translation work fed into a general cultural climate centred around a simplistic and very ideological Vulgate based on the Marx-Freud couple, according to which the fundamental social conflict is anchored in the concepts of "repression" and "liberation", in a pre-post-modern pastiche where Marcuse and Guevara, Basaglia and Ho Chi Minh, Laing and Fanon went hand-in-hand. I would like to call this ideology an ideology of liberationism in the same spirit in which Michel Foucault in the conclusive lines of his "Introduction" to The History of Sexuality, in criticising the psycho-analytic "deployment", wrote, "[t]he irony of this deployment is in having us believe that our 'liberation' is in the balance" (Foucault 1976, p. 159). On the contrary, it goes to Foucault's credit to have shown how every discourse, when it sets itself up as a new apparatus, a new intellectual construction, a new hegemony—in ways which are inseparable from the coming into being of an institutional setting within which that discourse dwells and that it helps rationalise—becomes a new intellectual prison-house. Promises of liberation become then their very opposite. This has been particularly true in the Italian case, a country whose official Pharisaic culture pays all due homage to the letter of the law while at the same time caring very little about its substance, where therefore the liberationist ideology of the 1960s and 1970s linked directly with the sort of underlying anarchism which characterises the country and which is quite functional to promoting the arrogance of those whose power is based in situations of privilege and not on consent—a mix of anarchism and soft, traditionalist authoritarianism which is deeply loved by the powerful, as well as by a kind of chic radicalism that ends up protecting the traditional balances of power. It is therefore no accident that recently in Italy the flag of so-called "guaranteeism" (as Italians call a philosophical/legal/political position unerringly emphasising the rights of defendants in criminal trials) has been picked up by shady political characters whose political collocation is more and more in favour of the conservation of existing relations of power. Such "guaranteeism" is certainly not a philosophic-legal theory that finds in the defence of human and civil rights its fundamental premise, but is instead a mediatic object offered to public opinion lately, when bright, smartly dressed, and well-paid lawyers have gone on Italian TV to express their indignation about the fact that their well-todo clients had been charged with theft and corruption and had been even (very rarely) committed to prison. At the same time, nobody would happen to raise any cry of indignation for the much harsher destiny of thousands and thousands of poor drug addicts and immigrants who have been filling Italian jails without the least chance of buying on the legal market even the crumbs of so-called legal "guarantees" (Pavarini 1994, p. 59 and Cottino 1996).

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I believe we should realise that, in Italy at least (I wonder whether such analysis could be applied for instance also to some Latin American countries) critical criminologists have contributed to such ambiguous developments, when they have worked to produce translations a la page of foreign texts, but have often forgotten that any so-called "structural" element has to be read against that cultural background without which the term "structure" is void of any meaning.

REFERENCES

Beaumont, Gustave and Alexis Tocqueville, 1833, On the Penitentiary System of the United States and Its Application in France (Philadelphia: Carey, Lea and Blanchard). Becker, Howard, 1963, Outsiders: Studies in the Sociology of Deviance (New York: The Free Press). Ben Jalloun, Tar, 1988, L'estrema solitudine (Torino: Milvia). (Original edition, 1977.) Benjamin, Walter, 1985, "The Task of the Translator" in Illuminations (New York: Schocken), pp. 69-82. (Original edition, 1923). Bentham, Jeremy, 1971, "Panopticon" in The Works of Jeremy Bentham (New York: Russell and Russell), pp. 37-66. (Original edition, 1787.) Christie, Nils, 1993, Crime Control as Industry (London: Routledge). Cottino, Amedeo, 1996, Inequality Before the Law: Crime and Extra-European Immigration in Italy, paper at Conference on "Crime and Social Order in Europe", Manchester, September 1996. Dumm, Thomas L., 1987, Democracy and Punishment: Disciplinary Origins of the United States (Madison: The University of Wisconsin Press). Durkheim, Emile, 1951, Suicide (Glencoe: Free Press). (Original edition, 1897.) Erikson, Kai, 1966, Wayward Puritans (New York: John Wiley). Fitzpatrick, Peter, 1995, "The Constitution of the Excluded—Indians and Others" in A Special Relationship? American Influences on Public Law in the United Kingdom (I. Loveland (ed.), Oxford: Clarendon Press), pp. 191-212. Foucault, Michel, 1977, Discipline and Punish (New York: Pantheon). (Original edition, 1975.) , 1978, The History of Sexuality. Volume I: An Introduction (New York: Random House). (Original edition, 1976.) Garfinkel, Harold, 1967, Studies in Ethnomethodology (Englewood Cliffs (NJ): PrenticeHall). Gramsci, Antonio, 1971, Selections from the Prison Notebooks (New York: International Publishers). (Original writing, 1929-1935.) Grinberg, Leon and Rebeca Grinberg, 1982, Psicoanalisi dell'emigrazione e dell'esilio (Milano: Angeli). Gusfield, Joseph, 1981, The Culture of Public Problems. Drinking-Driving and the Symbolic Order (Chicago: University of Chicago Press). Horkheimer, Max and Theodor W. Adorno, 1972, Reprint, Dialectic of Enlightenment (New York: Herder & Herder). (Original edition, 1947.) Jellinek, Georg, 1901, The Declaration of the Rights of Men and Citizens (New York: Holt). (Original edition, 1895.)

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Marx, Karl, 1964, "Contribution to the Critique of Hegel's Philosophy of Right, Introduction" in Early Writings (New York: McGraw-Hill), pp. 41-60. (Original edition, 1844.) Marx, Karl and Friedrich Engels, 1989, The German Ideology (New York: International Publishers). (Original edition, 1845-1846.) Matza, David, 1969, Becoming Deviant (Englewood Cliffs (NJ): Prentice-Hall). Mead, George Herbert, 1964, "The Genesis of the Self and Social Control" in Selected Writings (Indianapolis: Bobbs-Merrill), pp. 267-293. (Original edition, 1925.) Melossi, Dario, 1985, "Overcoming the Crisis in Critical Criminology: Toward a Grounded Labelling Theory" 23 Criminology 193—208. , 1990, The State of Social Control: A Sociological Study of Concepts of State and Social Control in the Making of Democracy (Cambridge (UK): Polity Press). , 1993, "Gazette of Morality and Social Whip: Punishment, Hegemony, and the Case of the USA, 1970-92" 2 Social and Legal Studies 259-279. , 1994, "The 'Economy' of Illegalities: Normal Crimes, Elites, and Social Control in Comparative Analysis" in The Futures of Criminology (D. Nelken (ed.), London, Sage), pp. 202-219. , 1995. "The Effect of Economic Circumstances on the Criminal Justice System" in Crime and Economy (Strasbourg: Council of Europe Publishing), pp. 73—96. , 1997, "State and Social Control a la fin de siecle: from the New World t o the Constitution of the New Europe" in Social Control and Political Order: European Perspectives at the end of the Century (R.Bergalli and C.Sumner (eds), London: Sage), pp. 52-74. - and Mark Lettiere, 1998, "Punishment in the American Democracy" in Comparing Prison Systems: Toward an International and Comparative Penology (N. South and R.P. Weiss (eds), Newark (NJ): Gordon & Breach), pp. 21-53. Mills, C. Wright, 1963, Reprint, " Situated Actions and Vocabularies of Motive" in Power, Politics and People (New York:Oxford University Press), pp. 439—452. (Original edition, 1940.) Nelken, David (ed.), 1994, The Futures of Criminology (London: Sage). Parekh, Bikhu, 1996, "Non-ethnocentric Universalism: A Preliminary Sketch", paper at Conference of the European Forum on "Multiculturalism, Minorities and Citizenship", European University Institute, 18-23 April. Pavarini, Massimo, 1994, "The New Penology and Politics in Crisis: The Italian Case" 34 British Journal of Criminology (special issue), pp. 49-61. Paz, Octavio, 1978, "Mexico and the United States" in The Labyrinth of Solitude (O. Paz (ed.), London: Penguin Books), pp. 355-376. Proust, Marcel, 1963, Alia ricerca del tempo perduto. La strada di Swann (Torino: Einaudi). (Original edition, 1913.) Putnam, Robert D., 1993, Making Democracy Work (Princeton: Princeton University Press). Roversi, Antonio, 1995, "I naziskin italiani. Studio di un caso" 9 Polis 425—446. Rusche, Georg and Otto Kirchheimer, 1968, Reprint, Punishment and Social Structure (New York: Russell &C Russell). (Original edition, 1939.) Sabol, William J., 1989, "Racially Disproportionate Prison Population in the United States" 13 Contemporary Crises 405-432. Sapir, Edward, 1933, 'Language" in Encyclopaedia of the Social Sciences. Volume 9 (New York: Macmillan), pp. 155-168.

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Schutz, Alfred, 1944, "The Stranger: An Essay in Social Psychology" American journal of Sociology 499-507. Sellin, J. Thorsten, 1953, "Philadelphia Prisons of the Eighteenth Century" Transactions of the American Philosophical Society, New Series 43, Part I, 326-330. , 1976, Slavery and the Penal System (New York: Elsevier). Stonequist, E. V., 1937, The Marginal Man (New York: Russell & Russell). Sutherland, Edwin H. and Donald R. Cressey, 1978, Criminology (Philadelphia: Lippincott). Takagi, Paul, 1975, "The Walnut Street Jail: A Penal Reform to Centralise the Powers of the State" Federal Probation (December). Takaki, Ronald, 1979, Iron Cages: Race and Culture in 19th-century America (New York: Knopf). Tocqueville, Alexis De, 1961, Democracy in America. Two volumes (New York: Schocken). (Original edition, 1835-1840.) Treiber, Heinz and Heinz Steinert, 1980, Die Fabrikation des zuverldssigen Menschen (Munich: Moos). Van Dijk, Jan J.M. and Patricia Mayhew, 1993, "Criminal Victimisation in the Industrialised World: Key Findings of the 1989 and 1992 International Crime Surveys" in Understanding Crime: Experiences of Crime and Crime Control (Anna Alvazzi del Frate, Ugljesa Zvekic and Jan J.M. van Dijk (eds), Rome: UNICRI), pp. 1-49. Weber, Max, 1949, "'Objectivity' in Social Sciences and Social Policy" in The Methodology of the Social Sciences (New York: The Free Press), pp. 49-112. (Original edition, 1904.) , 1958, The Protestant Ethic and the Spirit of Capitalism (New York: Scribner's). (Original edition, 1904-1905.)

11 'Community" and Governance: A Cultural Comparison NICOLA LACEY and LUCIA ZEDNER HIS CHAPTER EXPLORES the place of "community" as both institutional and ideological framework for the development of criminal justice policies. Taking up this volume's theme of the attenuation of resources for regulatory order in increasingly individualistic societies, we examine the rather different ways in which individualism realises itself in two late modern societies: Britain and Germany. Our analysis is shaped by our comparative research into the development of locally-based criminal justice initiatives in these two countries and the political discourse in terms of which they have been framed. Our research suggests that, notwithstanding a degree of congruence prompted by the internationalisation of modern economies, the distinctive institutional and political cultures of modern societies continue to shape their regulatory resources in decisive ways.

T

BACKGROUND

Our research was prompted by curiosity about the strength of appeals to the idea of community in British criminal justice discourse from the late 1970s to the present. These developments have been prompted by a number of factors, most obviously economic considerations (Lacey and Zedner 1995). But the political attractions of emphasising community-based penalties and "community" involvement in crime prevention are equally if not more important than its (in fact uncertain) economic advantages. The "community" acquired a central role in preventing crime, not only through Neighbourhood Watch schemes, but also through personal strategies of risk-reduction, cooperation with the police and the enforcement of "private" responsibilities such as parental control of delinquent children (Garland 1996). Dealing with the consequences of crime was also promoted as a community responsibility, for example, mediation between victims and offenders, volunteer involvement in community service and in victim support. All these initiatives sought to get away from the idea that crime is always the government's problem, to be dealt with away from the community's

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gaze. Again, notwithstanding the turn towards a more punitive approach to criminal justice in the early 1990s, many of these developments remain more or less intact, with further initiatives such as "family group conferences" dealing with young offenders adding to the array of community-based developments. This is arguably because the imperatives which prompted them are still more or less in place. However, the institutional framework within which these "community-based" practices are realised has changed over the last 20 years, and these changes mark some significant developments in the structure of British governance. A great deal has been written about the blurring of the boundaries between criminal and non-criminal modes of social control. It has been suggested that the involvement of communities in punishment and crime prevention has led to a widening of social control networks and the diffusion of surveillance throughout society (Cohen 1985), though this claim has never, as far as we know, been subject to systematic comparative examination. The hypothesis which we have been considering is a somewhat different one. It is that of whether the political force of appeals to "community" in the construction of British penal policy flow from anxieties about the social disintegration of the very "communities" whose rhetorical force is exploited. Thus successive governments whose policies have taken away power and resources from local communities have encountered a particular need to appeal to the existence of "community" in the face of the increasingly unmanageable consequences of social policies which celebrate the individual and denigrate the social. This is an important question, given that the reintegrative aura (Braithwaite 1989) which the rhetoric of community lends to these initiatives may be misleading: it may disguise the way in which divisions are being drawn between responsible and non-responsible, law-abiding and lawless communities, and do so largely on the basis of those communities' economic resources and capacity to organise (Hope and Foster 1992). In other words, they may set "communities" against themselves, because the social basis on which genuinely reintegrative penal practices might be founded is missing. Reforms which appear to express Damaska's ideal of coordinate authority (Damaska 1986)—the negotiated realisation of policy by means of lay involvement and cooperation—transmutes into an exercise of hierarchical authority, and one whose repressive dangers are all the greater because they are disguised in non-hierarchical discourse. We set out to explore what assumptions and aspirations underlie these appeals, their ideological force, and their relationship to the actual involvement of communities in institutional practices. We chose to compare developments in Britain with those in Germany, a country which is similarly placed as an advanced European economy but which has a very different history and political, social and economic framework and (at least until recently) markedly higher levels of social and economic stability. Furthermore, we were intrigued by the fact that preliminary research suggested that German criminal justice

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policy was not informed by anything directly analogous to the appeal to community in British criminal justice discourse. By adopting a comparative focus we sought to shed light on some central questions in contemporary criminal justice. How do different societies conceive social order and what shapes their conceptions of security? How do they construct problems of disorder and what are deemed to be the primary threats to order? Are fears of social disintegration the primary determinant of the salience of crime as a political issue or need other political explanations be found? Within the context of these macro-questions, we focused specifically on three more concrete questions: first, what is the ideological force of appeals to community and why does their potency vary so dramatically between societies? Secondly, what is the relationship between discourses of community and institutional practice? Thirdly, how far can the reintegrative promise of "community" be realised in practice, and to what extent does this depend upon the broader institutional framework of different societies (Braithwaite 1989) ?

METHODOLOGY

Our work was based on the assumption that the full significance of criminal justice—an adequate interpretation of criminalisation practices—can only be generated by locating them within the context of questions about history and social structure. The period on which our research focused has been marked by significant changes in criminal law and procedure, attitudes to crime and criminal justice practice: these contexts, obviously, were central to our research. There is, however, another context which is less frequently incorporated into comparative criminology yet which was crucial to our analysis. This is the fact that the period since 1970 is also one in which some extraordinary changes in the structure of industrial countries have taken place—changes which it would be odd not to see reflected to some degree in a major social institution such as criminal justice. The internationalisation of the world economy and developments in technology which took place during the 1970s posed stark policy choices for industrial nations. To compete effectively in world markets, governments had to either ensure a highly skilled workforce which could keep pace with technological developments and command high wages and job security, or move towards a low-skills, low-cost economy which secured flexibility, but denied job security to unskilled and semi-skilled workers. Britain, in contrast to some other European countries (notably West Germany), took the second route (Katzenstein 1989). This could be regarded as a socially "disintegrative" route, given its effects in creating a significant proportion of the workforce for whom job security (or even employment) is a thing of the past. The impact of this disintegrative route was magnified for younger workers in countries like Britain where, again in contrast to West Germany, the connection between education and stable employment was weakened.

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The political, economic and historical factors which determined different countries' responses to the external pressures of the 1970s have been the subject of a wealth of social science research. It therefore seemed to us to be time to draw out the insights of this research about "external conditions" for coercive methods of social ordering such as criminal justice, and to trace the implications of these national differences for criminal justice policy. While comparative criminal justice scholarship generally takes account of national differences in criminal and constitutional law, criminal justice institutions and cultural assumptions, we felt that these differences could usefully be more centrally located within broad questions of political and economic structure. It was, in fact, largely the insight generated by this broader comparative context which prompted us to focus our analysis on Western Germany. Britain and Western Germany offer a potentially fruitful combination for comparison. To paint with some broad brush strokes, German social structure is characterised by an emphasis on long-term relationships, relatively low income differentials, a relatively high degree of social solidarity, and an emphasis on consensus and corporatism in the development and implementation of policy (Goldthorpe (ed.) 1984). In its substantial economic restructuring in response to the external conditions in the 1970s, the West German Government was able to use its close relationship with business and workers' organisations and to draw on commercial, industrial and other networks to effect the necessary changes in business practice, labour organisation and workforce training (Streeck and Schmitter 1985). This capacity to draw on less coercive ordering strategies might render criminal justice relatively unimportant in generating social order, with the corollary that criminal infractions preoccupy news media less than in Britain. The extensiveness and vitality of local government in Germany, and its close articulation with a number of non-state associations, also provided an interesting point of comparison with the United Kingdom, calling into question the validity of Damaska's characterisation of the German system as espousing a hierarchial ideal of state authority (Damaska 1986). Some commentators have suggested that Germany is a less "modern" or perhaps "post-modern" society than Britain or the USA (Lash and Urry 1994), though it is probably more accurate to think in terms of different forms of modern social order. Yet it is also worth noting that over the last 30 years German social theory has generated some of the most apocalyptic or perhaps dramatic analyses of the significance of social changes in late modernity, the most obvious being Beck's analysis of "risk society" (Beck 1992) and Habermas's vision of the colonisation of the lifeworld by the instrumental logic of systems (Habermas 1987). Albeit in very different ways, each of these "grand theories" exhibits a preoccupation with uncertainty (in the case of Beck) and the disintegration of certain normative resources (in the case of Habermas). The social conflict to which Germany's recent unification has given rise also provided an occasion for interesting diachronic comparisons within the country, and the accelerated pace of developments towards locally-based criminal

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justice initiatives in Germany in the last few years raised interesting questions about the relationship between these developments and the unsettling economic and cultural effects of unification. In political science, there rages a debate about whether the stability of the "German model" is at an end, and about whether current rates of unemployment and low growth signify merely a more difficult than expected process of post-unification adjustment or a more fundamental set of problems. As we shall see, this broader context is of direct relevance to an understanding of contemporary criminal justice culture in that country. The theoretical basis of our research therefore had several complementary elements. The approach adopted was interdisciplinary, drawing on comparative political science research, comparative socio-legal research, and the insights of social theory. Each of these disciplinary frameworks suggested a particular focus, substantive areas of scrutiny, and a set of tools with which to approach the larger questions outlined above. Political science techniques proved particularly suitable for examining questions about social order, the role of the state in maintaining order, and the relationship between state, communal, and private strategies for controlling crime. Socio-legal studies, together with some insights drawn from social anthropology (Geertz 1983), supplied a framework for undertaking comparative research and, in particular, for ensuring the comparability of apparently similar terms, concepts, practices, and institutions. Finally, from social theory we drew especially on the insights of discourse analysis to scrutinise the work done by the term community when used in respect of criminal justice policy and to examine the relationships between the political rhetoric of community and institutional practices (Lacey 1995). Discourse analysis also provided some explanations for the very strength of the appeal to community in contemporary Britain (see Lacey and Zedner 1995) and its relative absence in Germany (see Lacey and Zedner 1998).

COMMUNITY

AND CRIMINAL JUSTICE

We set out, then, to explore the appeal to "community" in criminal justice policy and practice in the light of a particular hypothesis about discourses of community in Britain. On the face of it, appeals to "community" in British criminal justice in the 1980s were paradoxical in that they gained a particular intensity at the very moment at which government was engaged in withdrawing support from the local infrastructure which might be thought to provide the necessary institutional base for the realisation of "community-based" policies (Hope and Shaw 1988). At this moment—equally a period marked by deep concern about what we might call "disorderly communities"—the strategy of looking to "community" or "communities" as a resource for shaping and sustaining social order looks somewhat contradictory (Nelken 1985). Our initial hypothesis was that the appeal to community draws its strength from anxieties about the loss, instability or fragmentation of the very institutional structures and forms of social

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relation which it purports to promote and on which its realisation might be thought to depend (see Lacey and Zedner 1995). The attractions of the premodern idea of "community", then, are a feature of the "post-modern" condition: in an unstable and fragmented world, the holistic and nostalgic appeal to community is at its most powerful (see Lacey 1995). If this thesis is correct then one would expect to find appeals to community strongest where communal infrastructures are most in peril. Similarly, appeals to community are likely to be correspondingly weak where such infrastructures are relatively secure. This aspect of our hypothesis raised the possibility that it is the very stability of social relations in Germany, or more particularly, the institutional strength of community, which deprives this term of rhetorical appeal. Our substantive research examined the genesis, institutional forms and rhetorical framework of contemporary "community-based" criminal justice initiatives in the two countries. It focused on three broad areas: community-based crime prevention; diversion from the formal criminal process via mediation; and community-based penalties. It explored both the political rhetoric and the underlying philosophy of these developments in each country and related these to developments in policy and institutional practice, with particular attention to the understandings of project-workers within locally-based initiatives. In considering the reintegrative possibilities of community-based policies, we were concerned to establish whether these were stronger in the more closely coordinated German system; we were also interested in whether, to the extent that any such greater possibilities existed, they implied the exclusion of certain groups from the relatively integrated social order. The empirical phase of our research, which was qualitative in method, consisted primarily of interviews with criminal justice professionals, civil servants, local politicians, and academics in both Britain and Germany. We began, in 1994—1995, with the German tranche of our fieldwork. Our decision to begin with the German research was prompted by the need to familiarise ourselves more closely with German developments so as to be able to refine our hypothesis about developments in Britain before conducting our British research. We interviewed academics, criminal justice practitioners, project workers and politicians across Germany in Berlin, Hannover, Bielefeld, Cologne, Freiburg, Deggendorf, Liibeck, Henstedt-Ulzburg, and Villingen-Schwenningen. Interviews, which were conducted on the basis of a semi-structured schedule, generally lasted between two and three hours and were often accompanied by tours of the project's facilities, visits to local sites of activity, or tours of the locality. These served to provide graphic illustration of the work of the projects, the kinds of problems with which they were attempting to deal, their practical attempts to resolve these, and their understanding of the "community-based" or other orientation of their work. It was also commonly the case that we met and talked informally with a range of project workers, partners in other organisations, and in a few cases their clientele. During our research trips we also collected substantial documentation concerning both the individual projects

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visited and broader criminal justice developments in the relevant localities. This phase of our research suggested that the closest analogues between German developments and British discourses of community lay in the crime prevention field, and for this reason we began to focus our research on emerging practices of kommunale Kriminalprdvention (Baier and Feltes 1994; Heiland 1992). In 1995-1996 we followed up our German fieldwork with interviews in Britain with managers and project workers in local crime prevention and mediation schemes. Since many of these schemes have developed under the umbrella of "community safety" policy, we also interviewed representatives of the National Association for the Care and Resettlement of Offenders (NACRO) and Crime Concern, which have been centrally involved in the development and implementation of community safety initiatives, and local government officials with specific responsibility for community safety. Interviews, conducted on a similar basis to those in Germany, were held in London, Oxford, Thame, Liverpool, and Leatherhead. Our research in Britain generated detailed information about the extent and structure of volunteer involvement in locally-based criminal justice projects and focused in particular on European, national and local policy initiatives and funding through institutional structures such as regional partnerships.

ANALYSING THE RESEARCH

The most important findings to emerge from our research relate to the significant differences between apparently similar locally-based institutional developments in Britain and Germany. Important differences exist in terms of the infrastructural base, cultural context and local specificity of criminal justice developments, as well as in the rhetorical framework in which they occur.

Local infrastructure and the changing structure of local governance The German infrastructure within which locally-based criminal justice developments are emerging is more closely articulated with local government than is the case in Britain. In turn German local government is closely involved with a wide range of clubs, associations and other institutions variously dedicated to the problems of maintaining social order. The specific shape of the federal system in Germany generates a local governmental infrastructure which reaches deep into local communities and which engenders a very different understanding of the public-private divide than that which obtains in Britain. For example, the incorporation of the private sector in German local crime prevention is managed through local government in a process which owes much to the history of German corporatism and consensus-based policy development. This is in stark contrast to the neo-liberal inspiration of British privatisation. Furthermore, no

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analogue exists in Germany to the emerging British infrastructures such as City Challenge or Safer City Partnerships, which rearticulate the local and national formation and implementation of policy. In Britain, our research showed that the emergence of such local partnerships signifies an important reorientation of the public-private relationship in the delivery of crime prevention and other criminal justice services, and generated important information about the structure, operation and implications of these emerging institutions. In particular, the diffusion of responsibility in the field of crime prevention to specially created non-governmental agencies and charitable bodies raises important questions about the nature of state responsibility for crime control (Crawford 1997).

The audit culture Closely related to the development of the "partnership approach" is the marked growth in Britain of practices of auditing. These depend upon the identification of "objective performance indicators" and raise fundamental questions about the nature of public power and accountability for it (Power 1997). We found, notwithstanding purported transfers of policy-making power to the local level, strong evidence of central government's attempts to increase acountability and to direct local initiatives from the centre through the institution of auditing practices (cf. Jones 1993). Furthermore, we found that this was leading to the modification of local practice while also generating significant audit-avoidance strategies on the part of local actors. A striking example was the practice which we encountered in several localities of putting resources into highly visible and easily auditable yet inexpensive policies (such as car and house stickers and property marking) so as to "make space" for the conduct of less easily auditable practices (such as social crime prevention) which often commanded greater support among project workers. In Germany, by contrast, the practice of auditing is only now beginning to emerge in the public sector, and appears as yet to be of little significance in criminal justice. Our research suggests that the relative absence of auditing relates—much like the absence of "community"—to higher levels of trust within the context of stable long-term relationships. Yet it also indicates that current socio-political changes and economic pressures in Germany may be prompting the development of auditing practices somewhat similar to those in Britain.

Local variation The federal system in Germany promotes an extraordinary level of local variety. Such variety characterises even kommunale Kriminalprauention—arguably the closest analogue to community-based developments in Britain, and the only

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such development which is the subject of sustained debate at the national level. These variations between the different Lander in Germany posed the specific methodological issue of how to keep hold of the national picture in the light of local specificities, but also generated fascinating insight into the way in which the German system sustains a delicate balance between the constitutional principles of the Rechtsstaat and of local autonomy. As the line between state and non-state activity in the field of crime prevention begins to blur, preventive policies are being drawn further into the sphere of local autonomy: yet both popular and official attitudes remain resistant to any substantial detachment of crime prevention, as one aspect of criminal justice, from the universal precepts of the Rechtsstaat (see the next section below). Furthermore, despite unification, the former Eastern Germany remains, in many respects, another country. Since our initial research hypothesis was predicated on the particular historical development of the Federal Republic, we decided to concentrate our focus on the West German Lander. This said, we continued to examine closely both the implications of unification and the opening of borders in Eastern Europe for criminal justice developments in former West Germany. A major finding of our research is that the economic and social problems of adjustment to unification in Germany are producing significant tensions in the social order, tensions which are beginning both to put in question Germany's capacity to sustain the "integrative route" in criminal justice and to make yet more evident the patterns of social exclusion which are arguably the cost of a relatively highly integrated social system.

The culture of professionalism and state responsibility German criminal justice practice is informed by a strong ideology of professionalism: this manifests itself among politicians and professionals within the system as resistance to volunteer involvement. Thus, though crime prevention policies are becoming increasingly localised, they are nonetheless heavily professionalised: moreover, they are generally regarded as the unambiguous responsibility of the state. Conversely there is strong sense of local responsibility among commercial as well as state institutions for the financial support of projects which are run by criminal justice professionals. This is in marked contrast to Britain, where reliance on voluntary work in the community safety field is actively encouraged. This difference between the two countries also realises itself in a far greater incorporation of what might reasonably be described (at least in origin) as "grass-roots" initiatives in Britain, with local developments in Germany being overwhelmingly state-led. Indeed, in so far as our research found evidence of citizen activism in Germany, this was principally in resisting the development of community crime prevention (as in the mobilisation of Burgerverein in Freiburg in the early 1990s to block a local scheme which was seen as both stigmatising to the locality and an undue displacement of state

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responsibility for crime control: see Lacey and Zedner 1998). Significantly, the only schemes which we encountered with origins in citizen activism independent of either the state or professional groupings were located in the former East Berlin, and appeared to have developed to fill a gap prompted by the lack in the former DDR of a cadre of social work professionals. The disparity between popular and official views about the desirability of voluntary and locally-based initiatives in Germany probably explains another of our research findings: a striking gap between the vitality and extent of "community crime prevention" in published literature and policy statements (from which one would assume it to be a very significant phenomenon) and in practice (in which its existence is, to say the least, patchy).

Images of crime and "community" In Germany, as in Britain, fear of crime is an increasingly salient issue. The shape of the perceived crime problem is, however, very different. Whereas in Britain, street crime, violence and burglary continue to dominate popular images of criminality, in Germany, organised crime and drugs offences are a far more predominant concern (Zedner 1995a, 1995b, 1997). In particular, we found that fear of crime was projected with extraordinary intensity onto the figure of the Auslander. As we have argued (Lacey and Zedner 1998), this denotes a significant difference which helps to explain the apparent absence of discourses of community in Germany. Whereas in Britain, concerns about social disintegration are mapped onto fears of crime which may plausibly be tackled at the local level, in Germany these fears relate rather to issues about the changing character of German national identity. This entails that the most troubling aspects of "community" in Germany exist at the national rather than the local level, with the debate about foreigners acting as something approaching a negative discourse of community analogous to local constructions of community in Britain.

Discursive framework and "appeals to community" In practically none of our German interviews did project workers respond positively to the suggestion that their work was community-oriented or the product of grass-roots citizen initiatives. However, having denied the relevance of this sort of appeal, many interviewees went on in the next breath to describe an orientation and ideology which, in Britain, would almost certainly have led to assent to the label "community-orientation": drawing on local understanding of the genesis of crime problems; drawing young offenders back into social networks; generating awareness of broader social responsibility for crime. We also found that, in part, resistance to the idea of "community-orientation" was fed by historical experience of local justice under the National Socialist regime of

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the 1930s and in Eastern Germany during the socialist era. Our evidence of the continuing power of appeals to community in Britain contrasted starkly with our findings in Germany. This was particularly apparent in the development of "community safety" as a discrete object of local government policy and as a major concern of the emerging third tier of governance represented by the British partnership approach (Crawford 1997). Our interviews in both countries thus provided support for our starting hypothesis; i.e., that in a society in which local infrastructure, cooperation and social integration are stronger, appeals to a discourse of "community" are less necessary. While the vitality of German local government, the relative stability of German social relations, and the tradition of corporatist policy-making provide a strong basis for the local development of policy, the development of locally-based British practices is marked by tensions between a variety of conflicting impulses: the desire to save money and to control the development of policy at the national level, whilst also exploiting the image of local empowerment and the opportunity which the partnership approach affords for diffusing social responsibilty for crime problems. However, this finding should not be taken as a normative judgment on the status of German arrangements. The figure of the Ausldnder as the excluded "other" of German society underlines the importance of scrutinising either explicit or implicit appeals to community, and the relative absence of involvement with foreigners in the schemes we visited raises questions similar to those debated in Britain about just whose "community" is being asserted and defended in the practice of locally-based initiatives (Lacey and Zedner 1998). Furthermore, our assessment of the German situation is a provisional one, for our research found evidence of significant changes in the structure of criminal justice provision driven by the more difficult than expected social and economic transition to unification.

IN CONCLUSION

In Britain, community crime prevention and crime control has been largely superseded by the yet more amorphous language of "community safety" (Hope 1995). As the responsibility for community safety is increasingly ascribed to local authorities and regional partnerships rather than simply to criminal justice agencies, the moment for critical scrutiny of its multiple meanings, and the means by which it might be secured, is ripe. In Germany, the virtual absence of appeals to community is rapidly being filled both by a growing interest in community crime prevention and a preoccupation with the issue of national communal identity. In this context, the idea of "community" as a rhetorical resource in policy development looks set to become increasingly important. It is too early to judge, however, whether the incipient development of appeals to "community" in German criminal justice practice is part of a post-unification adjustment or rather of a more decisive shift in German patterns of governance.

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Our research serves to show how two modern societies have responded to some relatively similar problems in distinctive ways. Both German and British governments are confronted by significant popular anxiety about crime (albeit that the shape of both crime problems and anxieties about crime in the two countries is somewhat different): furthermore, both have experienced increasing pressure on the economic resources devoted to criminal justice at both national and local levels. And responses to these problems have been shaped in the context of an increasingly globalised—and, in particular, Europe-wide— exchange of policy ideas and research results. Yet, notwithstanding these conditions for convergence, the two countries' responses to crime problems may be seen to be strongly influenced by the dynamics of long-established institutional structures which themselves shape popular and professional expectations. Only by tracing the relationship between criminal justice discourse and institutional practice, and by setting these relationships in comparative perspective, are we likely to attain a proper appreciation of the significance of such contemporary developments, and hence of their place in the governance of modern societies. And without such an appreciation, the potential for genuine cross-cultural learning about the nature of social problems and the development of effective policies will remain untapped.

REFERENCES

Baier, R. and Th. Feltes, 1994, "Kommunale Kriminalpravention" 11 Kriminalistik 693-696. Beck, Ulrich, 1992, Risk Society—Towards a New Modernity (London: Sage). Braithwaite, John, 1989, Crime, Shame and Keintegration (Cambridge: University Press). Cohen, Stanley, 1985, Visions of Social Control (Oxford: Polity Press). Crawford, Adam, 1997, The Local Governance of Crime (Oxford: Clarendon Press). Damaska Mirjan, 1986, The Faces of Justice and State Authority (New Haven: Yale University Press). Garland, David, 1996, "The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Societies" 36 British Journal of Criminology 446. Geertz, Clifford, 1983, Local Knowledge: Futher Essays in Interpretive Anthropology (New York: Basic Books). Goldthorpe, John H. (ed.), 1984, Order and Conflict in Contemporary Capitalism (Oxford: Clarendon Press). Habermas, Jiirgen, 1987, The Theory of Communicative Action Volume II: Lifeworld and System: A Critique of Functionalist Reason (T. McCarthy (ed.), Oxford: Polity Press). Heiland, H-G., 1992, "Modern Patterns of Crime and Control in the Federal Republic of Germany" in Crime and Control in Comparative Perspective (Heiland et al. (eds), Berlin: De Gruyter), p. 46. Hope, Tim, 1995, "Community Crime Prevention" in Building a Safer Society: Strategic Approaches to Crime Prevention Crime and Justice: a Review of Research Vol. 19 (Michal Tonry and David Farrington (eds), University of Chicago Press), pp. 21-89.

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and Margaret Shaw (ed.), 1988, Communities and Crime Reduction (London: HMSO). - and Janet Foster, 1992, "Conflicting Forces: Changing the Dynamics of Crime and Community on a 'Problem' Estate" 32 British Journal of Criminology 488-504. Jones, Carol, 1993, "Auditing Criminal Justice" 33 British Journal of Criminology 187-202. Katzenstein, Peter (ed.), 1989, Industry and Politics in West Germany (Ithaca: Cornell University Press). Lacey, Nicola, 1995, "Community in Legal Theory: Idea, Ideal or Ideology?" 15 Studies in Law, Politics and Society. and Lucia Zedner, 1995, "Discourses of Community" (1995) 22 Journal of Law and Society no. 3. -and , 1998, "Community in German Criminal Justice: A Significant Absence?" 7 Social and Legal Studies no. 1, 7. Lash, Scott and John Urry, 1994, Economies of Signs and Space (London: Sage). Nellcen, David, 1985, "Community Involvement in Crime Control" Current Legal Problems 239. Power, Michael, 1997, The Audit Society: Rituals of Verification (Oxford: Clarendon Press). Streeck, Wolfgang and Philippe Schmitter (ed.), 1985, Private Interest Government: Beyond Market and State (London: Sage). Zedner, Lucia, 1995a, "In Pursuit of the Vernacular: Comparing Law and Order Discourse in Britain and Germany" 4 Social and Legal Studies 517. ——, 1995b, "Comparative Research in Criminal Justice" in Contemporary Issues in Criminology (L. Noaks, M. Levi, and M. Maguire (eds), Cardiff: University of Wales Press). , 1997, "German Criminal Justice Culture" in Changing Legal Cultures (J. Feest and E. Blankenburg (eds), Onati: International Institute for the Sociology of Law).

12

The Gang Myth1 JACK KATZ

VERYBODY IN LOS Angeles knows that gangs are a big problem. In the spring of 1992, the District Attorney of Los Angeles opened an extensive report on gangs with the declaration:

E

"As the 20th century draws to a close, Los Angeles is generally acknowledged to have the worst street gang problem in the United States, if not the world" (Reiner 1992, p.l).

That street gangs are responsible for a significant amount of violent crime is no less obvious to journalists and academics than it is to the police. In news coverage, the role of youth gangs in causing crime emerged as a huge story in LA in the 1980s, and the idea has remained a staple in the local news diet ever since. Because so many people take for granted that gangs cause crime, the news media have an ongoing motivation to document this obvious truth in the details of daily news stories. A marvelous logic underwrites gang journalism: stories about gangs are always newsworthy because they never convey anything surprising. In turn, the recurrent publication of stories on gangs sustains the persistent strength of the gang-crime relationship as a firm piece of local common sense. Yet it is not difficult to raise questions about the data that are used to measure the contribution of youth gangs to the crime rate. Youth gangs are organised to report publicly on their activities, but only in sensational forms, such as by depositing graffiti onto readily visible streetscapes. The only standardised, routinely produced data bearing on the relationship of gangs to crime are generated by police departments. Police departments differ in the inclination to presume that gangs cause crimes. A key difference is in the protocol that is used before the correlation of gang symbolism with criminal conduct is taken to indicate a causal relationship. In Chicago, for example, the police, before coding an incident as a gang crime, have taken a relatively cautious approach. They require evidence that gang 1 Acknowlegments: Brian Colker, Zachary Katz, and Lakshmi Srinivas assisted in the research. For helpful comments, I would like to thank Nils Christie and Hedda Giertsen at the University of Oslo; the participants at the Fall 1997 Onati conference; Mark Kleiman and several other critics who responded to a presentation at the UCLA School of Public Policy; and members of the audience at a lecture that I gave in the "Fortunoff" series at NYU law school in Fall 1998.

172 The Gang Myth affiliation was instrumental to the crime. In Los Angeles, the police have commonly treated the crimes of gang members as gang crimes, even when gang membership had no apparent practical relationship to the incident. In both places, if there was evidence that the offence was committed at the instruction of a gang leader, or evidence that the victim was selected after declaring his gang colours or because of his residence in another gang's turf, the mugging would be treated as a gang crime. But in Chicago as opposed to LA, a mugging (often known as a "jacking" in LA) would not be considered a gang crime just because the offender was sporting gang insignia or was known to the police as a gang member (Maxson and Klein 1990). Such jurisdictional differences invite a prudent skepticism about statistical data purporting to describe the percentage of crime that can be attributed to gangs. Skepticism is enhanced when one sees the picture changing much too quickly within a given jurisdiction. At some historical moments, the belief that gangs cause crimes reaches a tipping point, leading to dramatic jumps in counting. In the late 1980s in California, for example, the state Bureau of Criminal Statistics showed a huge increase in gang crimes, due largely to a change in the state's handling of crime reports from local police departments. From about 1988 to 1992, "LAPD's Gang Tracking System (GTS) [grew] . . . over 50% per year, from 12,000 records to 65,000 in only four years" (Reiner 1992, p. xxvii).2 Once we begin to question the data underlying the presumed relationship between gangs and crime, it becomes difficult to put doubts to rest. The police, after all, do not work systematically from a coding book in order to justify their attribution of gang membership to individuals. The attribution of gang membership is based on an in situ reading of inanimate and animated symbols and on imputations that the police elicit from witnesses and from youths whom they stop and arrest. These imputations may be motivated by desires other than that of creating a reliable record for documenting the relationship of gangs to crime. Indeed, where a local culture massively portrays the belief, victims, witnesses and suspects can take for granted that by asserting gang conflict they will be taken to have provided a compelling explanation of why a violent attack occurred. And as a practical matter, when a computerised database composed of such gang identification information is available, police can readily label a crime as "gang" related without personally acquiring any new information about the individuals involved, all of whom may no longer be gang members, if they ever were. 2 California's Attorney General's office found almost a doubling of gang-related homicides in the period 1978-1987. The proportion of homicides in which the contributing circumstance was gangrelated increased from 6.0 per cent in 1978 to 11.4 per cent in 1987 (Bureau of Criminal Statistics and Special Services 1987). No standardised, administratively enforced process was used within the state's many local police agencies in order to control the labelling of crimes as gang-related during this period. The state had no basis to distinguish real increases from increases that reflected, (1) local police responsiveness to the increase of news coverage of gang criminality in the 1980s (see below), and/or (2), a computerisation of police information on gang affiliation, which made it progressively easier for police to link suspects to gangs as the database grew. The development of the database is described in Reiner (1992).

The Gang Myth 173 But even if we assume the reliability of police attributions of both gang membership and of gang-related motives for offences, we are still left with the problem of establishing that the relationship is causal. It is striking that the headaches that burden social researchers whenever they take on the task of inferring causation from correlational data are nowhere in evidence in the public discussion about gangs; and they rarely surface even in the academic literature.3 Generally, everyone finds it easy to assume that, but for gangs, crime in gang-plagued cities would be significantly lower. The heart of debate occurs between those who, to understand the appeal of gangs to kids, invoke a range of problems (poverty, minority ethnic identity, family stress, class inequalities, immigration dislocations, etc. (see, e.g., Vigil 1988); and those who offer the narrower view that gang members are no different in their perspectives than materialistic Americans who have greater opportunities (see, e.g., Jankowski 1991). The former is often regarded as "liberal", the latter as "radical". All implicitly agree that a causal relationship between gangs and violent crime should be taken for granted, both as a premise for policy-making and for the significance of their research. And yet, the belief that gangs cause crime is not equally compelling across the various popular metropolitan cultures in the USA. In Los Angeles, as in most other large metropolitan areas, crime rates began to soar in the mid-1960s, but the rise in criminal violence was not immediately attributed to gangs. A trend in LA newspaper reports associating gangs with crime began in the early 1970s, then accelerated rapidly in the late 1980s and into the 1990s. In New York, on the other hand, youth street gangs were heavily associated with gangs in news reporting in the 1950s, but gang news fell off in the 1970s, and then, even as New York's crime rates soared in the late 1980s, the attribution of criminal violence to gangs virtually disappeared.4 Within the last two years, even as its crime rates have plummeted, New York has rediscovered its gang problem, although not at the frenetic level that has often characterised coverage in LA. Does this variation in news coverage mean that, over the last 30 years, gangs became more important as causes of criminal violence in LA and less important in New York, and that New York now is shaping a future along the pattern that 3 It is striking that in the academic literature on gangs, the issue of determining whether correlation is causal is rarely reached, even though the justification for studying gangs is almost always that, but for the existence of gangs, youth crime would be lower. In part because they often find that gang members, however defined, are usually not committing crimes, researchers routinely stumble at the prior issue of defining what a gang is. The definitional issue is either handled by fiat, with the researcher issuing indicators that will guide a research project but that are not offered as describing the definitions that either youths or the police use; or, after confronting the multiple ambiguities of the gang label, the author drops the issue and proceeds to use the term without ever settling the problems. Rhetorically, what the authors commonly do is bring out the ambiguities of various definitions to a point where they seem to assume that the readers will get as tired of the problem as they are, and then they issue a definition by fiat and move on. See, for example, Klein 1995. The lack of comparative research on the varying contributions that gangs make to crime rates in different cities is an indicator of how completely the problem has been finessed. 4 These jurisdictional and comparative statements are based on counts of gang stories as indicated by the New York Times Index and the Los Angeles Times Index from 1970 to date.

174 The Gang Myth is now familiar in LA, complete with New York versions of LA's famous, colour-coded gangs, the Crips and Bloods? Or does it make more sense to think that metropolitan cultures differ more systematically in their interpretation of criminal violence? If so, the overriding challenge may be to understand, not how gangs rise and fall, but how metropolitan cultures evolve. These are not simple questions but they are worth pursuing in part because the questions are not simply academic. The belief in a gang-crime causal connection can be very consequential. A popular culture that attributes crime to gangs can be used to direct police power against vast numbers of ethnic minority urban youths about whom the police have no evidence of criminality other than the putative stain of presumed gang affiliation. The immediate background of the anarchy that broke out in LA in the spring of 1992, after an all-white Simi Valley jury5 acquitted all-white police defendants of charges of criminally attacking a young black man, Rodney King, was a series of mass arrests of young black men in South Central LA. These arrests were carried out as part of local political and law enforcement campaigns to suppress gangs and gang activity, and they had near-universal popular support. The argument that gangs do not cause crime is so big an interpretive pill to swallow that it should help to offer a minimised version of the claim. This chapter argues that, as a general rule, in LA and elsewhere, youth street gangs are not responsible for significant levels of criminal violence in American cities. The correlation of youth gangs with criminal violence is strong but generally spurious. Although street gangs do not raise the level of overall criminal violence in an urban area, where street gangs exist, violent youths will want to join them. But even if street gangs do significantly raise the level of criminal violence beyond what otherwise would obtain, the belief that youth street gangs cause violent crime is on very shaky foundations, and for that reason the belief should be recognised to operate as one of contemporary society's compelling myths. The characterisation of belief as myth is an empirical assertion, not a moralistic judgement, although the proposition does have moral or at least policy implications. Three features are salient in assessing whether a belief is a myth. First, myths are not necessarily false beliefs; they are ideas about matters that, under current states of evidence and by use of the logic of empirical research, cannot be established as true or false. Secondly, myths are not just guesses about the unknown; they are beliefs that resonate deeply because they address immediate, existential concerns which they resolve with presumptions.6 And, finally, 5 The Simi Valley lies in Ventura County just beyond the western border of Los Angeles County. It was the venue for the trial of the Los Angeles police department (LAPD) officers who were shown beating Rodney King on the infamous videotape. The area is locally famous for its small black population and as a favoured residence of LAPD officers. 6 We are most familiar with myths as described by classicists and by anthropologists. In those contexts, myths explain troublesome events and patterns in a people's contemporary life by reference to cosmological and primordial causes. But we should also recognise that science itself is a myth system, at least on its theoretical side. Theory does not simply summarise empirical findings, it also, and more importantly, explains how the current state of knowledge became what it is and shapes

The Gang Myth 175 myths are not just idle fantasies about central matters; they are profoundly consequential for the distribution of power in society. Whether or not one concludes that the belief that gangs cause crime is false, if we see that belief as a myth we have new grounds for remaining wary of the social policies that are based upon it.

HOMICIDE RATES AND JUVENILE MURDER ARRESTS IN NEW YORK AND IN LOS ANGELES Table 12.1 indicates that, from 1984 to 1990, juvenile males were arrested for murder at a much higher rate in Los Angeles than was the case in New York. 7 In 1984, the Los Angeles police arrested juveniles for murder at three times the rate at which the police were making similar arrests in New York. In the late 1980s, arrest rates for juveniles for murder jumped up more quickly in New York than in LA. But still, in 1990, when the arrest rate of juveniles for murder Table 12.1: Arrests of juveniles for murder, per 100,000 males ages 14-17*

LA City NY City LA/NY Ratio

1984

1990

1994

1996

169 [nl36] 55 [n96] 3.1

281 [n251] 140 [n249] 2

116 [nll4] 115 [n205] 1

92 [90] 71 [nl26] 1.3

* Sources:California Department of Justice, Criminal Justice Statistics Center; New York Department of Justice, Bureau of Criminal Statistics; U.S. Bureau of the Census, 1990 Census of Population, General Population Characteristics; California Department of Finance, California Statistical Abstract, 1997.

the path of inquiry by grounding the bets that are inevitable in research. This chapter is not a general brief against myths. Indeed, elsewhere I have argued that we should exploit religious myth as a source for social psychological theory (Katz 1996). Troublesome problems arise with myths only when they cannot be acknowledged as the basis of social policies. 7 Murder, as opposed to homicide, excludes manslaughter. Population data describing males aged 14—17 were used as the denominator. Based on inter-decennial population figures produced by state agencies, New York's 1990 population was used for the 1994 and 1996 figures and reduced by 2 per cent for the 1984 figure; and the 1990 population in Los Angeles population was reduced by 10 per cent for 1984 and raised by 10 per cent to obtain the denominator for the rates for 1994 and 1996. The numerator describes all arrests of juveniles, including females and suspects 10-14; the arrest count for males 14—17 could not be separated out in the available information. Because over 90 per cent of juvenile arrests for homicide are of males age 14—17, the counting of only 14—17-year-old males in the denominator produces a more meaningful and less misleading rate than would one that covers females and young males as well. The validity of this way of calculating the rate is also recommended by the loss of between 5 and 20 per cent of police homicide arrests from the statistical records, as unfounded or otherwise not actual, by the time that individual states report the local city figures. The objective here is to measure police definitions of 14-17-year-old males as homicide offenders. In effect, the inclusion of less than 5 per cent of female and under—14 charged suspects is more than offset by the exclusion of charges against males 14—17 that the police initially make and later withdraw.

176 The Gang Myth in both cities was at its height in this 12-year period, the LA police were arresting twice as many juveniles, in proportion to population differences, as were the police in New York. If gangs contribute significantly to homicides, such dramatic differences in juvenile murder arrests might be expected to relate closely to differences in homicide rates. Indeed, as we will review below, the news media in Los Angeles trumpeted the role of gangs in criminal violence in an increasingly blaring way in the 1980s, while the New York media detected no significant contribution of youth gangs within the local metropolitan horizons. But oddly enough, New York and Los Angeles suffered rather similar homicide rates over the 10-year period, 1984-1994 (see Table 12.2). Table 12.2: Homicide victims per 100,000 residents*

LA City NY City

1984

1990

1994

2996

22 [n757] 20 [nl446]

28 [n983] 31 [n2245]

23 [n845] 21 [nl561]

20 [n709] 13 [n983]

* Sources: California Department of Justice, Criminal Justice Statistics Center, Los Angeles Police Department, Statistical Digest, 1989 (for 1984); New York Department of Justice, Bureau of Criminal Statistics; U.S. Bureau of the Census, 1990 Census of Population, General Population Characteristics; California Department of Finance, California Statistical Abstract, 1997.

The homicide rate in Los Angeles was slightly higher than the rate in New York in 1984, but then became slightly lower than New York's rate in 1990, even as both jurisdictions experienced significant increases in homicide. Looking at the juvenile arrest rates and the (juvenile and adult, composite) homicide rates in 1990, we find that the Los Angeles police were arresting juveniles for murder at twice the rate in New York, even when the homicide rate in New York was slightly higher than was the homicide rate in Los Angeles. When applied to these data, the idea that gangs contribute significantly to criminal violence in LA raises a host of difficult questions. Given that the homicide rates in the two cities were close throughout the period under review, if juvenile gangs had contributed to the homicide rate so much more significantly in LA than they had in NY during these 10 years, what pacified juvenile gangs between 1990 and 1994? No one actually suggests that gangs suddenly disappeared in these years. On the contrary, the news in LA in the mid-1990s was that the 18th Street gang had emerged as the largest street gang in history! But if gangs remained strong social units in LA and suddenly became dramatically less homicidal, how can "gangs" be a satisfactory explanation of crime? Gangs aside, if we take arrest rates as reflecting crime patterns, what could account for the consistently more homicidal nature of the juvenile population in the west coast city? Demographics cannot: 14—17 year old males comprise the same 5 per cent of the populations in the two cities. And in any case, the arrest

The Gang Myth 177 rates reported in Table 12.1 are based on population figures that have been standardised for the changing size of the youth population of each city over the 12year period. Dramatic changes in juvenile arrest rates, up and down, occurred independently of demographic changes.8 "Gangs" is an attractive explanation of changes in juvenile criminality when arrest practices point the finger of responsibility at juveniles even as demographic changes do not fit changes in crime rates. But if we believe that gangs have disproportionately contributed to homicides in LA, even while the New York and Los Angeles homicide rates have been similar, and if we believe that the gang contribution to homicide in LA has fluctuated dramatically, as the arrest patterns might be taken to indicate, then we must bear the weight of several other heavy beliefs. If we are to attribute a larger explanatory role to gangs in understanding LA's homicides as compared to New York's, we must also believe that, conversely, other causes of homicide must have been more prominent in New York than in LA. Thus to accept the gang myth, it would seem that couples are more peaceful under the balmy west coast sky and that they are more testy in NY; and that LA's bar life is less explosive, LAs robbers more gentle, Southern California drug markets more consensual, etc. And since, in the period 1984 to 1990, homicides and juvenile arrests for murder shot up in New York even faster than they did in LA, if the police were arresting the right people and gangs were insignificant in New York, criminogenic forces were quite effectively working murderous influences on the New York juvenile population without the assistance of gangs. Whatever is moving homicide rates, the thrust of causal forces runs in similar directions in the two coastal cities. LA's rates were higher in the early 1980s, but by 1990 the levels in the east and west coast cities had crossed; since then, homicides have declined significantly in both jurisdictions. Any interpretation that would attribute radically different criminogenic forces to the two cities is suspect. Yet the news media in the two cities massively offered radically different interpretations of the nature and causes of criminal violence as homicides rose rapidly in the first half of these 12 years.

8 The idea that the decline in violent crime in the 1990s, after the rise in the late 1980s, can be explained by changes in the proportion of crime-prone youth in the age structure of the population, does not work well. In fact the demographic trends run opposite to the crime trends. In California as a whole, in the late 1980s as crime and juvenile arrest rates rose, the older part of the adolescent population was actually declining; and in the early 1990s, as crime and juvenile arrest rates fell, the male adolescent population rose. The 14-17-year-old population in California was 1.6 million in 1980, 1.5 million in 1990, and 1.7 million in 1995 (CCSCE 1995). In LA, the arrival of hundreds of thousands of immigrant families in the 1970s and 1980s, combined with the out-migration of the elderly, middle and upper class whites, has led in the 1990s to a substantial increase in the youth segment of the population, as represented in increasingly overcrowded schools at all youth levels, even as crime rates have fallen dramatically.

178 The Gang Myth

METROPOLITAN CRIME CULTURES IN NEW YORK AND LOS ANGELES

Police organisations do not operate independently of the popular cultures in their jurisdictions. Where public law enforcement organisations, through the implications of their arrest activities, construct sharply different pictures of the realities of the criminal activity that they address, the popular cultures in their locales are likely to be sharply different as well. The coverage of crime in major metropolitan newspapers provides a quick and relevant indicator of differences in urban popular cultures. If we look at the Los Angeles Times and the New York Times in 1990 and 1991, we find that in Los Angeles, there were 144 articles on gangs in 1990 and 98 articles on gangs in 1991, while in New York there were about a dozen articles on gangs in each year.9 A look at the content of the stories is especially revealing. In Los Angeles, news stories that link gangs to crime do not usually document the linkage with evidence that gang members have committed criminal violence. The mass of news coverage of gangs consists of stories about: • representations by youths that imply the existence of but do not directly describe an underlying culture of violence, such as graffiti, hand signals of group affiliation, and truce negotiations among gangs; • fights within gangs (between and within units of Crips or members of Asian gangs), a pattern that should give pause to the belief that it is gang organisation, or at least inter-gang rivalries, that cause criminal violence; • social programmes to discourage involvement in gangs, such as night-basketball leagues; • demographically rare sub-types of gang organisations (e.g., Cambodians, Vietnamese) which, in the curiosity they stir, should indicate that they cannot explain much of the criminal violence problem; • representations of gang life in commercial entertainment, such as highly publicised movies that bring gang youths to theatres in neighbourhoods not accustomed to such audiences; • police actions against gangs, such as mass arrests of youths thought to be gang members and the installation of barricades to through-traffic on streets that are thought to be ripe for drive-by shootings; • politicians' statements, such as then-Mayor Bradley's reassurance to businessmen in Tokyo that gang violence is confined to specific areas of the city and is not a threat to foreign visitors. 9 These counts were taken from the Indexes of the two newspapers. The counting job is easier for the Los Angeles Times, which has long had a distinct category for gang crime. The following additional categories were also searched for references to gangs: Assaults, Crime and Criminals; Children and Youth; Drugs/Drug Trafficking; Murder; Shootings; Teen-Agers; Juveniles; Robberies.

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179

None of these stories provides the public with any facts which, upon reflection, would firmly undergird beliefs that gangs cause criminal violence. Most do not even support the idea that gang members are criminally violent, much less that gang affiliation or the malevolent spirit of gang organisation is discretely responsible for violence. When news stories focus on specific crimes and describe them as gang-related, they typically cite police sources or bystanders and neighbours for the characterisation. Often, when the police label given crimes as gang-related, members of the families of victims or of offenders respond by denying that their child was a gang member.10 If violent crime in New York is not similarly attributed to gangs, how does popular culture in the New York City area understand the causation of criminal violence? Significantly, youths also loom large in New York's crime news coverage. But if the hermeneutic lenses for perceiving youth crime in Los Angeles come in a variety of gang colours, in New York the prevailing interpretive posture at the end of the twentieth century has been a caricature of existential philosophy. News coverage in New York stresses the randomness, wildness, and senselessness of crime. Images of chaos prevail. When gangs are mentioned, the crimes involved are not the street crimes that bulk up the overall statistical picture, but either Mafia murders or youth street gangs that, more often than not, are located in or associated with Los Angeles (e.g., reports of Bloods and Crips in midwest cities). One of the most famous street crimes in the nation in the early 1990s was the rape and near-fatal violent assault of a young, female, Wall Street professional who was jogging in Central Park. This attack was characterised as a "wilding", a term introduced into popular culture by this application. In early 1990 (19 January), the New York Times found it advisable to provide a definition of wilding as a phenomenon in which brasen urban youths rampage through streets. In this case the attack had been a group effort; the attackers had been youths; many of the assailants had prior involvements with criminal law enforcement; and the attackers had associated with each other in their neighbourhood before the event. Yet no effort was made to characterise the offenders as members of a gang. In another story from 1990, the New York Times reported that loosely organised groups of young people who rob, rape or kill for money or fun are on the rise in New York City (11 December, B, 3). Just when the facts would seem to invite a gang label, the interpretation turns sharply away, leaving an overall impression not of social organisation but of youth running in, around, and over superficial symbols of order. In story after story, the New York public reads that violent crimes, such as stabbings in Central Park, are the work of a random, deranged killer (23 June, I, 1 1990), that there is a wave of brutal, random crime in New York City (9 August, B,l 1990), and that the increase in the murder rate in 1990 was caused by drug-related random violence (23 April, A,l and 6 September, B,l). Even 10

See, for example, the story appearing in the Los Angeles Times, 2 December 1990, B, 1.

180

The Gang Myth

when there is a perception that the criminality occurring in New York should be understood in a way that is culturally continuous with the western part of the country, there is no suggestion of a common criminogenic theme in the fabric of social life in New York and LA. Instead, headlines announce "New York City like Wild West" (6 August, B, 1 1990). With dogged persistence, New York will not buy into the west coast's current myths; for their crime mythology, Manhattan writers favour the symbolic world of the frontier, of humanity forced by the accumulated, incomprehensible forces of history to live on a territory which, while old, has evolved beyond the reach of civilisation. In the two coastal mega-cities, the different interpretations of roughly the same criminal violence problem reflects difference in the dynamics of metropolitan culture. Crime news generally is less about crime, in the sense of providing a reasonable, evidence-tuned understanding of the patterns and causes of criminality, than it is about matters of personal and collective identity that preoccupy metropolitan readers by tapping existential concerns in readers' everyday lives, concerns that persist quite apart from fears of criminal victimisation itself (see Katz 1987). Thus news coverage of crime in New York presents features of the iconography of New York as an urban setting, stressing, e.g., Central Park and subways, just as the coverage of crime in Los Angeles draws attention to features of the mythology of Los Angeles, such as the honouring of car culture in drive-by shootings. The urban myths in question are the collective images of each metropolitan area as a putatively distinctive entity. A robbery or assault at Disneyland, no matter how unrepresentative of robberies or assaults in Southern California, is likely to be news, just as is a crime occurring in circumstances that conjure up the mythology of New York City, such as when out-oftown tourists encounter Minotaur-like aggression in the labyrinths of the city's subways. The unique fascination with gangs as criminogenic in Los Angeles says less about why crime occurs then it does about what is critical in the definition of collective identity at this time in the history of the Los Angeles area. The current preoccupation with gangs for understanding urban deviance in Los Angeles has a precedent in New York's culture of the mid-1950s, when news on gangs and crime shot up in local coverage. References to gangs in the New York Times Index jumped from 12 stories in 1948 to 50 stories in 1955. In the 1980s, references to gangs in the New York Times appeared at single digit levels. In the Los Angeles Times, references to gangs were frequently at single digit levels in the 1970s (e.g., nine in 1975, eight in 1976), then they jumped to double and triple digit levels in the 1980s (e.g., 67 in 1987, 283 in 1988, 173 in 1989). It is not the task of this chapter to test explanations of the rise and fall of gangs as an explanatory category in metropolitan popular cultures, but one hypothesis cries out for special attention. Gangs, as an interpretive lens for understanding deviance in the American city, appears to rise and fall in relationship to anxieties focused on waves of foreign immigration. The immigration of Puerto

The Gang Myth

181

Ricans to New York after the end of the Second World War, combined with the movement north of blacks from the south, created an impact on local culture that was reflected in such mass cultural vehicles as the play and then movie, "West Side Story" (c. 1957). u The burst of attention to gangs in the local crime news of Southern California in the 1980s has been part of a wave of anxiety about foreign immigration that has been variously expressed, most notably in state-wide ballot initiatives to block immigrants' access to public services and to compel school children to learn English. Recently, as news about gangs has shot up in New York, ethnic peoples such as immigrants from Haiti, the Dominican Republic, and Belize are often featured. The image of the street gang projects a structured understanding on to masses of urban residents who are not yet represented in the city's political-institutional structure. The Los Angeles population was transformed in the period 1970 to 1990, from 90 per cent white at the start, to a current "majority of minorities" composed of blacks and immigrants from Latin America (including a new population from Central America), Asia and the Middle East (Waldinger and Bozorgmehr 1996). Minority adolescents constitute the most institutionally invisible and undisciplined segment of the urban population. By suggesting internal organisation among minority youths, the gang image offers a conceptual handle and a sense of cognitive, if not practical control, to a threatened urban population. Foreign and domestic minority group in-immigration brings a wealth of new symbols to the city, and it brings an adolescent population that is particularly keen on parading its cultural inventiveness, through gang and other forms of symbolic expression. There is no one-to-one relationship between rises in the foreign-origin population and media coverage of crime in the city, but there is a long history of turning points at which popular urban culture responds to a growing disquiet about a large, unenfranchised or politically unmobilised segment of the population by producing images of malevolent organisation underlying deviance. (For the classic case of the invention of a Mexican gang in the aftermath of the Zoot Suit riots, see Verge 1993). The multi-ethnic, multi-religious populations of American cities struggle to forge an agreement as to which ethnic groups should be honoured with symbolic leadership in the collective striving for wealth and status. Meanwhile and much more easily, they recurrently reach pan-ethnic, cross-class consensus on the causes of what is bad by projecting an orchestrated, behind-the-scenes commitment to deviance onto the youth segments of minority populations. In a sense, the greater contemporary appeal of gangs as an explanatory device in Los Angeles, as opposed to New York, indicates a greater and perhaps a more naive collective faith in the west coast city. Judging from the media coverage of violent crime, New Yorkers have appeared much more ready to see themselves struck down out of the blue, with little warning and for no coherent reason at all. In major cities across the country, violent crime rates soared in the late 1960s 11 The gang problem gave rise to a wave of criminological research and theorising that was centred in New York in the 1950s. See, for example, Bloch and Niederhoffer, 1958.

182 The Gang Myth and early 1970s, declined significantly in the mid-1970s, soared again in the late 1970s and early 1980s, declined significantly again in the mid-1980s, rose dramatically in the late 1980s, and have been in significant decline since the early 1990s. Neither immigration patterns nor reports of levels of gang organisation fit well with these trends. A regional population that believes that by thinking about gangs one will, to some significant degree, comprehend local variations in criminal violence, expresses a powerfully wilful community of moral understanding.

WHERE VIOLENT YOUTHS BELONG: THE SOCIAL REALITIES OF GANGS

Gangs are systematically related to youth violence but not in the manner that is commonly assumed. Gangs do not cause crime; crime rates fluctuate independently of any reliable measure of gang organisation. Yet where gangs exist, it will be easy to associate them with criminal violence. Several of the most consistent patterns in youth violence are identical to several of the most characteristic patterns that define violent youth street gangs. 1. The peak age for violent crime has long been in the early 20s, which means that, when spreading the population over the age structure, crimes of violence will be disproportionately committed by adolescents. And in the late 1980s, the peak age of violent crime in the USA went down, into adolescence. For 16-yearolds, whose murder rate before 1985 was consistently about half that of the 18-to-24 peak rate, the increase between 1985 and 1992 was 138 per cent. By contrast, for ages older than 24, there has been no growth, and even a decline for ages 30 and above (Blumstein 1995). This occurred as a national pattern in the USA. On city streets where gang symbolism was prominent, it was easy to credit gangs with what was everywhere a newly strengthened correlation of youth with violence. 2. Adolescents are generally fascinated with sporting outrageous culture in public. At conventions on "branding", for example, specialists employed by multi-national corporations discuss the different appeals of product styles to youth and adult audiences. While adults tend to like consistency, young consumers are understood to want change. Marketing agencies face a special, paradoxical challenge for winning consumer loyalty in the youth market, as they must constantly devise style changes in order to secure consumer loyalties.12 Youth gangs are on the whole better understood as cultural phenomena than as social organisations, if by social organisation one means a unit with regularised authority relations, distinctive values, and the disciplined pursuit of consistent goals. The ethnographic literature on street gangs shows that, while there are cliques or walking buddies that share gang symbolism, there is little 12 This from an interview with an executive who works in a major Hollywood movie studio that I am currently conducting.

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if any organisation among all the cliques or friendship units that share the same symbols. See, for example, Decker and Van Winkle (1996). Violent youths are likely to find gang symbolism attractive in cities where such symbolism flourishes, but so will masses of youths who have no distinctive orientation to violence. As cultural phenomena, gangs are media-ready forms of social life. Indeed, as the review above noted, many news stories on gangs are about symbolism (graffiti and hand signals; sartorial, tonsorial, and cruising patterns) which take their gravity, both for the youths and for the news-reader, from a presumed relationship to criminal violence. Where gangs do not exist, violent youths may be equally fascinated with symbols that conjure up dread, but such materials are unlikely to be newsworthy unless and until an idiosyncratically-styled youth is linked to a particular violent crime. 3. Adolescents typically do crimes with others (Zimring 1981). As an offender's age increases after adolescence, if he commits an act of violence he is more likely to do it alone. When an adolescent is identified as responsible for a violent crime, it is likely that he will have acted with a friend, and if they share gang symbolism, it will be easy to attribute the crime to gang life, even when it is the robbery of an adult stranger. Perhaps, one can often readily suggest, the motivation was a proof of loyalty to the group, or the acquisition of resources to be used for group ends, or just an irresponsible act sponsored by the provocative culture of gang life. When the victim is the member of a rival gang, the attribution of gang motivation will be irresistible. 4. Adolescent crime generally is "senseless" from a standpoint of material gain. Vandalism and auto theft are commonly symbolic and sensual crimes. Even shoplifting, which would seem to be a materially-oriented young person's crime, is typically done more from a fascination about getting away with it than with a desire for the it that one gets away with (Katz 1988, pp. 52-79). Violence by young people follows this more general pattern of the pursuit of non-conventional, sensually dramatic, seemingly irrational interests. In committing crimes as in driving cars, adolescents are distinctively reckless. The growth in youth homicide in the 1980s stimulated a national fear of uncontrollable, irrational violence. In cities where gangs were vividly present, the news media could readily respond to the collective anxiety with tropes that suggested a logic (gang rivalry) to the violence. 5. Violent crime generally is about "respect". Whether the setting is a domestic quarrel, a bar-room fight, or even a robbery committed by a career criminal, violence emerges as a means to claim self-worth, save face, or sustain a bold reputation. Even in the case of "stick-up" men, who use a practical, common sense vocabulary to explain their crimes as the quickest way to get money, a fully developed appreciation of the personal backgrounds to their crimes commonly shows a way of life that makes little practical sense but that remains inspiring as a way of staying glamorously bad and daringly in the action (Katz 1988, pp. 195-236).

184 The Gang Myth Youths are less likely to have spouses to attack. They are more likely to hang around street-corners than bar-rooms. And if they rob a convenience store, they are less likely than adults to have children, be living on their own, pay rent, buy their own food, and otherwise be situated practically in a manner that makes it convincing to claim a need of money for conventional everyday expenses. Adolescent violent crime is not more centrally about "respect" than is adult violence, it is just less sophisticated in hiding its motivation. In contemporary lingo, adolescents may explain an attack by saying the victim "dissed" (disrespected) me. The cultural channels of gang life provide rich opportunities to denigrate rival groups, through graffiti, body posture, cruising practices, etc. In such settings, whatever the furies that are inspiring violence, a coherent motivational story is readily available in histories of group rivalry. 6. It is at least as reasonable to believe that gangs limit violence as it is to believe that they increase violence. In the late 1980s, youth homicides increased dramatically across the country. The increase has often been attributed to the development of crack cocaine markets in inner cities. There are indications that youth street gangs in Southern California shaped drug markets within the territorial boundaries that they had drawn through their inter-gang rivalies.13 The crack cocaine market reputedly developed with a powerfully chaotic momentum, and it may have increased youth violence more where there was no preexisting local social organisation, such as gangs, to shape its development. Tables 12.2 and 12.1 above, indicate that, while homicides increased significantly in New York and LA in the late 1980s, the rate of increase in New York in juvenile arrests for murder was much greater than the rate of increase in LA: between 1984 and 1990, police arrests of juveniles for murder increased 260 per cent in New York as compared to 185 per cent in LA. A cynic might suggest that the attack on gangs in LA in the late 1980s was an effort to weaken the only local social structure capable of providing any moderating influence on the rising wave of criminal violence that came in the wake of crack cocaine. 7. Violent youths belong in gangs. When gang violence takes the classic form of "drive-bys" and "gangbangs" (gangbangs are defined as multi-party conflicts that grow out of mass events such as parties and baptisms), the motivation to violence is often widespread and does not depend on a prior commitment to violent forms of conduct (Sanders 1994). In such circumstances, the cultural life of the gang is so prominent in how violence develops that it is easy to assume that the gang is essential to the "why" of violence. But character contests, and the pursuit of action from which they often emerge, are common in adolescent life in general. Indeed, according to national statistics in the early 1980s, adolescent auto accidents, in which such scenarios loom large, led white youths to a higher 13 For an example from San Diego, see Sanders 1994, p. 59: The Crips and Pirus were committing violent acts in the early 1980s when they were not involved in crack cocaine sales. When they became involved in crack cocaine distribution, they did it in the same bounded territories they had maintained since their inception. Indeed, they did change, but the change was primarily in adopting crack cocaine, not in giving up everything else the gang was doing.

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overall (i.e., all causes) mortality rate than was experienced by black youths, despite common beliefs to the contrary.14 The best ethnographic evidence on gang life has produced two recurrent findings. On the one hand, for many members most of the time, the meaning of the gang is thin, affiliation with gang fellows is boring, and the motivation for violence rarely springs from an organised decision (Klein 1971). On the other hand, for some of the most violent gang members, the motivation to violence preceded gang affiliation. For example, from a recent gang study: "We just grew up like that. We grew up fightin, if, I dont know, we just grew up fightin and everybody hangin around so they decided to call they self somethin [i.e., a gang] since we hung around like that went out doin things and stuff" (Decker and Winkle 1996, p. 174).

For an adolescent who is fascinated with violence and already engaged in it, a gang provides a suitable context. Asked "why you call it a gang basically", Money Love, a 20-year-old Insane Gangster Disciple, explains: "Because I beat up on folks and shoot them. The last person I shot, I was in jail for five years" (Decker and Winkle 1996, p. 64). In this city, St. Louis, gangs are plentiful and in high profile; hence Money Love can readily understand that people who do those sorts of thing are gang people. Some male adolescents in gangs grew up in family and economic circumstances that were chaotic long before they reached an age when they could begin reflectively to address the persistent emotional conflicts and abrupt changes in household composition around them. A commitment to violence offers the hope that one may master mysterious, usually invisible forces which, at any moment, might suddenly emerge; violence offers the promise of disciplining terrifying situations into a cold order. If young men can indicate convincingly to their peers that they are earnestly violence-prone, they may insulate the idiosyncracies of their personal and family backgrounds from comment. And where culturally powerful gangs exist, they can find a place where violence is elaborated into a vivid culture, a place where they can seem naturally to belong. Nietzsche had this kind of social-psychological career in mind when he wrote of murderers who do not kill to rob, as conventional opinion would like to have it, but who rob to kill. Afraid of their madness, unable to comprehend the satisfaction that violence brings, they present themselves as materialistically motivated. Everyone in capitalist society can understand money as an explanation for crime. Robbery, for solo adults, and gangs, for adolescents, construct a socially visible understanding for a desire for violence that is superficially coherent but as mysterious to self as it is shocking to others. Indeed, gangs are so compellingly sensible an explanation for violence that the news media, the general 14 Vital Statistics of the United States, 1981, vol. 2, "Mortality" (Hyatsville, Md.: National Center for Health Statistics, 1986), table 108, "Death Rates for 72 Selected Causes by 5-year Age Groups, Race and Sex: United States", 1981, p. 32.

186 The Gang Myth public, social researchers and the police all easily form a consensus that attributes urban violence to youth street gangs.

METROPOLITAN CRIME CULTURES AND METROPOLITAN CRIME POLICIES

Patterns of criminal violence in American cities show much less variation than do patterns of difference in metropolitan cultures of crime. "Gangs", as a dominant metaphor for understanding urban crime, appear in American history when waves of immigration bring masses of poor people to cities, where they reside for at least a generation before they are incorporated into the political and other more publicly visible sides of local institutional life. The "gang" metaphor has become a traditional first cognitive step for comprehending the new "others" and including them in popular urban culture, if only at its lower and most disdained end. Metropolitan cultures of crime matter in the USA, perhaps much more so than anywhere else in the West, because crime control policies are primarily shaped at the local level in the USA. But urban crime policies do not emerge simply and directly from the local understanding of crime. They are shaped through an interaction between local popular culture and the distinctive features of a city's law enforcement system. In some cities—and here Los Angeles is the leading example—the gang mythology is especially dangerous because of the relative lack of constraints that the local legal community can place on the police department. New York and Los Angeles represent opposite positions in the relationship of the police department to prosecution offices. New York City has a single police department for its five boroughs. The NYPD operates across the boundaries of five separate borough prosecution offices at the local, elected level, as well within the reach of two federal prosecution offices. Each of these prosecution offices may snap at and, occasionally, chew at length on corrupt and violent edges of the NYPD. In Los Angeles, the pattern is inverted. The LAPD is only one of a score of city police departments that is overseen by a single local (county) prosecution office and a single federal prosecution office. Historically, the prosecutors in the LA area, while occasionally aggressive in attacking the smaller police departments within their jurisdiction, have been quiescent with respect to the LAPD. In New York, competition among prosecutors for public attention, and for opportunities to develop the personal careers of chief prosecutors, regularly stimulates inter-office rivalries and charges of corruption and mediocre professionalism, charges against which successful police prosecutions are publicly effective responses. LA has no similar tradition. It is not by coincidence that the relationship of political and law enforcement careers are inversely related in the two cities. In New York, prosecutors but not police chiefs have developed high profile and successful political careers, becoming mayor and governor, while in

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Los Angeles, it is the police department that has been the stepping stone into metropolitan and state-level political careers. If we ask the question "So What?" about the gang myth, the answer is as richly varied as are the fabrics of urban cultures and politic-legal structures in the USA. Sometimes the gang myth is only a problem for pedantic professors. But sometimes, as happened in LA in the years leading up to the "Rodney King" riots of Spring 1992, it becomes the basis for a near-universally supported local police effort at repression. Hundreds of young men can be arrested without concern for any evidence of criminal culpability other than what is inferred through hasty imputations of gang affiliation. And then, before long, the gang myth can explode with significance.

REFERENCES

Bloch, Herbert A. and Arthur Niederhoffer, 1958, The Gang (New York: Philosophical Library). Blumstein, Alfred, 1995, Violence by Young People: Why the Deadly Nexus? (Washington, D.C.: National Institute for Justice). CCSCE, 1995, Population Characteristics (Palo Alto: Center for Continuing Study of the California Economy). Decker, Scott H., and Barrick Van Winkle, 1996, Life in the Gang : Family, Friends and Violence (Cambridge, England: Cambridge University Press). Jankowski, Martin Sanchez, 1991, Islands in the Street: Gangs and American Urban Society (Berkeley: University of California Press). Katz, Jack, 1987, "What Makes Crime 'News'?" 9 Media, Culture and Society 47-75. , 1988, Seductions of Crime: Moral and Sensual Attractions in Doing Evil (New York: Basic Books). -, 1996, "The Social Psychology of Adam and Eve" 25 Theory and Society 545-582. Klein, Malcolm W., 1971, Street Gangs and Street Workers (Englewood Cliffs, N.J.: Prentice-Hall). , 1995, The American Street Gang: Its Nature, Prevalence, and Control (New York: Oxford University Press). Maxson, Cheryl, and Malcolm W. Klein, 1990, "Street Gang Violence: Twice as Great, or Half as Great?" in Gangs in America (C. Ronald Huff (ed.), Newbury Park, CA: Sage), pp. 71-100. Reiner, Ira, 1992, Gangs, Crime and Violence in Los Angeles (Los Angeles: Office of the District Attorney, County of Los Angeles). Sanders, William B., 1994, Gangbangs and Drive-Bys (New York: Aldine de Gruyter). Verge, Arthur C , 1993, Paradise Transformed: Los Angeles During the Second World War (Dubuque, Iowa: Kendall/Hunt). Vigil, James Diego, 1988, Barrio Gangs: Street life and Identity in Southern California (Austin: University of Texas Press). Waldinger, Roger, and Mehdi Bozorgmehr, 1996, Ethnic Los Angeles (New York: Russell Sage Foundation). Zimring, Franklin E., 1981, "Kids, Groups and Crime: Some Implications of a WellKnown Secret" 72 Journal of Criminal Law and Criminology 867-885.

13

Explaining the Absence of Violence: A Comparative Approach WILLEM DE HAAN

F ANY COUNTRY belongs to what Freda Adler has called "Nations not obsessed with crime" (Adler 1983), it is the Netherlands. The Netherlands has a long-standing reputation of having a mild penal climate. 1 However, in the last decade or so, the capacity of Dutch prisons and jails has almost quintupled.2 The reasons for this expansion are manifold and cannot simply be reduced to rising crime rates. After a rapid increase during the 1970s and 1980s, the number of crimes recorded by the police has stabilised in the 1990s and is currently showing an annual decrease. Victimisation surveys show an increase in the early 1980s, a stabilisation in the late 1980s, and a decrease in the 1990s for both property crimes and violent crimes against the person (i.e. threats and assaults). Nevertheless, crime and, more specifically, violence are central issues in public debates about crime and punishment. Whereas the causes for concern are obviously complex, the immediate public concern is due to a small number of serious incidents which took place in the last few years. It is the task of criminologists to help understand these developments and suggest policies to prevent them. I consider this a litmus test for criminology as a socially and politically relevant discipline. Like "criminality", the phenomenon of "violence" is, of course, socially constructed.3 Notions about violence are strongly influenced by the media which tend to focus on extraordinary or violent crimes (Felson 1993). A few extreme cases of stranger violence, i.e. assaults with a fatal outcome in recreational areas in central cities, triggered a nationwide discussion of "senseless violence". However, the increase, scope and seriousness of violent crime in the public domain tend to be overestimated by the general public. In contrast, violence in

I

1 This image was based primarily on its remarkably low incarceration rate of about 20 prisoners per 100,000 inhabitants in 1975 which at the time was one of the lowest incarceration rates in the world (De Haan 1990). 2 From 3,000 in 1975 to about 16,000 before the end of the twentieth century. 3 Violence can be tentatively defined as the unwanted physical interference by individuals and/or groups with the bodies of others, which are consequently made to suffer a series of effects (ranging from shock, bruises, scratches, swelling or headaches to broken bones, heart attacks, loss of limbs or even death) (Keane 1996, pp. 66-67).

190 Explaining the Absence of Violence the private sphere tends to be underestimated. Results of a recent victimisation survey of domestic violence (Van Dijk 1997) showed unbelievably high prevalence and incidence figures for threats and violence by relatives. Nevertheless, violence in the private sphere seems to be perceived as more controllable than violence in the public sphere where the ostensibly arbitrary character of the violence is experienced as extremely threatening and nearly uncontrollable. Increasing media attention and changing practices in crime recording by the police result in an amplification of violent crime. It has, for example, been demonstrated that the increase in the 1980s in the number of cases of robbery which have come to the attention of the police, is partly due to a shift in the labelling of purse-snatching. What was regarded in the 1970s as simple theft, was registered in the 1980s as robbery. Such labelling decisions are influenced by shifts in social attitudes and have exaggerated the seriousness and scope of violent crime. A further issue concerns changes in the way data are processed by the police. There are indications that assaults which were previously recorded as less serious are now recorded as aggravated assaults, while heavy aggravated assaults are increasingly qualified as attempted manslaughter or murder (Zimring 1998). In order to achieve a realistic picture of violent crime in the Netherlands, we will compare both the history and the current state of affairs concerning violence with those of other countries. Historical research shows that since the seventeenth century the Netherlands has distinguished itself from other countries in its low level of violence (Spierenburg 1996; Franke 1994). Until today the Netherlands is one of the least violent countries in the Western world in terms of murder and manslaughter (Van den Eshof and Weimar 1991; Hoogenboezem 1995). Criminal justice data also show a fairly strong decrease in minor violent crimes like threat and assault. This has led to the conclusion that historically the use of physical violence in the social interactions of ordinary people continues to decrease. More recently, however, national crime statistics do show an increase in recorded violent crimes such as assault, robbery and, on a smaller scale, (attempted) homicide. There is also an increase in the number of recorded killings and injuries involving guns. As a result, the Netherlands has an average position among European countries in terms of their number of recorded violent crimes per 100,000 inhabitants. On the other hand, self-report data (CBS 1980—1995) show no significant increase in violence; that is, threats and assaults at home or on the street. And on the basis of the International Crime Victimization Survey (1995-1996) the Netherlands show a significantly lower victimisation rate for violent crimes (sexual assaults and robberies) than almost any other European country.4 4 The remarkable difference between recorded and self-reported violent crime rates may be explained by a number of developments, including an increase in seriousness of offences and, therefore, a growing willingness of the public to report violent crimes to the police and an increasing capacity of the police to file them. As a matter of fact, the most serious forms of violent crime are not measured in a self-report survey.

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According to a recent reanalysis of serious crimes of violence which also included police data on recorded homicides and rapes the Netherlands stands out as one of countries with the lowest scores on "strain-related" violence (Van Dijkl998, p. 49). If, as Zimring and Hawkins (1997) argue, crime in the USA is not the problem, but rather violence, then one could say that in the Netherlands violence is not the problem, but rather property crime. In spite of all the evidence, a strong fear remains that violent crime is on the rise. This fear can be explained by the fact that, in the Netherlands, there is a particular "oversensitivity" to violence.5 Paradoxically, fear of violence seems to increase when the number of violent crimes decreases. Therefore, the apparent rise in violent crime rates may reflect a higher sensitivity and a lower tolerance towards violence in everyday life, resulting in higher reporting and recording rates, rather than higher true incidence rates of assaults (Haen Marshall 1996, p. 31; Junger-Tas 1996; Franke 1994). It might, therefore, be more productive to raise the question why the level of violence in the Netherlands has reached a relatively low level rather than fixing our attention on the faulty assumption that the level of violence in society is high and dramatically increasing. By reversing the question, we might get a better view of social structures and processes which are apparently effective in preventing violent crime as if they were protective factors at the level of society at large. Rather than presenting a fully fledged analysis or explanation of why the level of violence in the Netherlands is relatively low, I can only raise a few points for further discussion. In this sense the title might be considered somewhat misleading. Moreover, explaining a negative occurrence, i.e. the (relative) absence of violence, might seem problematic. However, theories developed to explain the presence of violence (i.e. its rate of occurrence), should, at least ideally, also be able to explain its absence (i.e. a low or zero rate of occurrence). If theoretical criminology cannot provide plausible explanations of the absence of violence, it will be open to significant criticism on the grounds that its causal variables are ill-suited in explaining the full range of variation with respect to the rate of violence (Moss 1997, p. 178). Given that accounting for differences in serious violence among the world's countries ought to be at the top of criminology's agenda (Currie 1997, p. 149), it seems important to, at least, speculate on what social structures and processes might keep the level of violence down.

5

Even though the Dutch victimisation rate for contact crimes is already one of the lowest, Beirne and Messerschmidt "believe that it is very likely that, when compared with the U.S. rate, the Dutch victimisation rate is greatly exaggerated because the population is more sensitive to violence and far more likely to report it" (1996, p. 574). (See Franke 1994).

192 Explaining the Absence of Violence

COMPARATIVE CRIMINOLOGY

In the field of comparative criminology, there is a small body of literature dealing with the question of how to explain low rather than high crime rates. Questions are asked like: Why do some countries consistently have low crime rates? What, if anything, do these countries have in common? What can we learn from their experience? (Beirne and Messerschmidt 1993, p. 588). As simple as these questions sound, answering them is far from easy. Some 20 years ago, a group of Dutch colleagues from Leyden (Bloembergen et al. 1976) made an attempt to find significant relations between macro-social variables and criminality, using official statistical data as a source of information. In a number of countries over several years, they considered the following variables as reflecting the macro-social structure: economic variables (like energy consumption), demographic variables (like population density, population under the age of 15 or over 65), variables indicative of social welfare (like government expenditure on education, public health and other social services) and variables indicative for mental health (like divorces and alcohol consumption). In order to assess the relative importance of the predictor variables, a stepby-step multiple repression analysis was applied. Factor analysis and canonical discriminant analysis were performed to aid further explanation. Factor analysis makes it possible to find out whether an underlying pattern of relations exists, whereby the data can be regrouped into a smaller set of components called factors. The purpose of canonical discriminant analysis is to find significant dimensions that reveal a maximum of differences between groups—in this case, 21 countries. These authors drew two conclusions: namely, that the countries are too diverse to justify statements valid for more than one country, and that general claims concerning the relation between these variables can be made only for very limited time periods (1976, p. 236). Another attempt to identify common features among countries with low crime rates is Adler's Nations Not Obsessed With Crime (1983).6 She selected two countries from each of the five regions of the world with the lowest, or among the lowest, crime rates in their region. She then calculated statistical correlations between their arrest rates per 100,000 population (as a reasonable index of crime rates) and 47 socio-economic variables, finding that these 10 countries had no significant socio-economic or cultural factors in common. According to Adler, "these countries represent a broad spectrum of socioeconomic and politico-cultural systems" (p. 130). They have a variety of state structures. Some have urbanised slowly, others quickly. Some contain homogeneous populations, while others were heterogeneous. She concluded "that the available hard data produced little in the way of meaningful information on the 6 Beirne and Messerschmidt argue even that "hers is the only study to date that addresses the immensely important question of what distinguishes countries with, respectively, high and low crime rates" (ibid., p. 594).

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relationship between socio-economic and cultural indicators and crime rates (. . .)• It became clear, then, that the search for explanations of low crime rates had to be conducted by different methods and on the basis of different data" (p.ll). Alternatively, she took a qualitative approach in which she analysed the formal and informal mechanisms of social control once again, finding a great variety in systems of criminal law/criminal justice. However, she also found common aspects among countries with low crime rates: namely, strong elements of informal social control outside the criminal justice system. According to Adler, these elements "transmit and maintain values by providing for a sharing of norms and by ensuring cohesiveness" (ibid., p. 130). This refers, first and foremost, to the power of the family, although the retention of traditional family values is itself reinforced by religious, moral, or secular values [ibid., p. 132). In the final chapter of her book, Adler describes a progressive development toward a state of anomie whereby societal goals are unattainable by segments of the population, alternative values emerge, conventional systems are eroded, and individuals begin to lose personal and social controls and are drawn into deviant life-styles. If this interpretation is useful for exploring increasing crime rates, Adler argues, "then it must also be possible to describe a society with an optimum of norm cohesion and conformity resulting in low crime rates" (p. 137). It is this latter strategy of explanation which I will take in the remainder of this chapter. However, before I start I should briefly mention three more recent theoretical developments that are relevant to the issue at hand.

SWITZERLAND, SWEDEN AND THE USA

One of the countries with a low crime rate which has been studied by criminologists is Switzerland. As a highly affluent, urbanised, and industrialised country Switzerland appears to be an exception to the general rule that a high level of affluence, industrialisation and urbanisation goes hand-in-hand with a relatively high rate of crime. Clinard (1978) has presented a comparative analysis of crime rates in Switzerland and Sweden. Both countries are democracies with similar demographic profiles, large foreign/migrant-worker populations and strong economies. Moreover, both countries have avoided war for more than 150 years. Yet crime, especially violent crime, tends to be regarded as a far more serious social problem in Sweden than in Switzerland. (In fact, both the recorded violent crime rate and the victimisation rate for violent crime of Switzerland is much lower than in Sweden). This raises the question why the Swiss (violent) crime rate is so much lower than the Swedish crime rate. Clinard explains the difference by pointing to the decentralisation of the Swiss political system and its encouragement of private enterprise, the centralisation of

194 Explaining the Absence of Violence Swedish political and economic life, and the extensive social welfare programmes which diminish individual responsibility (1978, pp. 152-155). Indirectly, Clinard seems to blame the extensive social welfare programmes in Sweden for the high rate of violent crime! In his book The Snow-White Image, Balvig (1988) argues that "it is not surprising that an American such as Clinard, whose native country has experienced high rates of violent crime . . . should perceive Switzerland as a country with relatively low crime rates" (1978, p. 18). "Clinard has failed to notice that Swiss police are already keeping crime figures down to an unusual degree by failing to record many crime reports or by not counting them in compilations of crime figures" (1978, pp. 46-57). Although Balvig argues "that Clinards account of the low Swiss crime rate needs serious revision", his overall depiction of Switzerland remains that of a country with much lower rates of violent crime than Sweden or the USA. It is Balvig's explanation, however, which differs from the previous one given by Clinard. According to Balvig: "A country should not be judged on the basis of its level of crime alone, but also on its manner of controlling crime" (1978, p. 58). "In Switzerland, control of the small underclass population seems to have been perfected to a fine art. The punitive and non-punitive sides of Swiss crime control have been combined into a highly effective system that coordinates control of the bottom echelons of Swiss society with the control of the family, education, and the labor market"(1978, pp. 58—71). In their book Crime and the American Dream, Messner and Rosenfeld stress the unique and unprecedented problem of criminal violence in the USA which, as they argue, cannot be explained by the extraordinary availability of handguns nor by the racial differences in violent crime. Ultimately, "it appears that the conditions contributing to the higher levels of these crimes in American society are related to enduring patterns of social organisation that distinguish our [American] society from other advanced industrial societies" (1994, p. 28). Like Adler they mention "general anomic cultural orientation" resulting in a willingness to pursue goals by any means necessary. And they see a process of relative devaluation of non-economic institutions that are responsible for socialisation and for the more external type of social control associated with the social structure. As a result there is "widespread detachment from these institutions and weak institutional control" (1994, p. 86). In the same vein Currie (1997) stresses the political and economical dimension of this process of anomia. According to Currie, market society is a particularly fertile breeding ground for serious violent crime. Economic globalisation, loss of employment, and the restructuring of the industrial centres have radically altered the economic structure as well as the socio-spatial map of big cities in the Western world. Relocating opportunities for more qualified employment to business parks in the suburbs or outside the city has led to the departure of higher educated and well-to-do families who often had important social functions in the local community. For those who stayed behind new employment

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opportunities in part-time and flexible jobs offered insufficient income for supporting a family. Families were also forced to move in order to make room for new housing for the municipal infra-structure or for "gentrification" of attractively located housing areas by project developers. Given simultaneous heavy cutbacks in welfare and various social services, a massive concentration of poverty and the attendant social problems have emerged. In particular, ethnic minorities become vulnerable as many traditional black communities have undergone extensive disruption (Massey 1990) and developed into what have been called "extremely disadvantaged neighborhoods" (Peterson and Kirvo 1993; Shihadeh and Flynn 1996) in which social networks have dissolved and residents are increasingly unable to count on mutual support, trust, surveillance and care. What we see is a process of progressive destruction of livelihood, growth of extremes in economic inequality and material deprivation, withdrawal of public services and supports, especially for families and children, erosion of informal networks of mutual support, supervision and care, the spread of a materialistic, neglectful, and "hard" culture, and, at least in the USA, an unregulated marketing of the technology of violence. Last, but not least, there is a weakening of social and political alternatives (Currie 1997) which may explain why we see an epidemic increase in individual violent crime in almost any of these areas while we observe collective violent disorders only occasionally in a few of them. Understanding violence in any given society requires integrating a range of other factors, of which the historical trajectories of race and gender relations are surely at the top of the list. Yet it is impossible to detach any of those factors from the surrounding context of economic and social development {ibid., p. 153). Only by looking at those factors holistically will we be able to understand why, for example, poverty (or unemployment) may be much more salient as a cause of crime in some kinds of societies at some points in their development than in others.

ENDEMIC VIOLENCE

In order to analyse which structural and cultural features of Dutch society favourably effect the prevention of violent crime, I initially decided to make a comparison with the USA, not only because it has traditionally had a high level of violent crime, but especially because violent crime in the past decades has taken on epidemic proportions. Of all the affluent countries in the world, there is no country which surpasses the USA in fatal violence. Lynch (1995) has shown that the risk of lethally violent crime is much higher in the USA than in most other nations. And although the risk of minor violence is not greater than it is in other common law countries such as England and Wales, Australia and Canada, this risk is also greater in the

196 Explaining the Absence of Violence USA than in less similar countries such as France, Germany and the Netherlands (1995, p. 21). Apparently processes of modernisation and civilisation do not always go together and a high level of modernisation can accompany a low level of control over violence (Heiland, Shelley and Katoh 1992). From the perspective of civilisation theory, there should be a temporary backlash in the process of civilisation. One might speak of decivilisation when the individual capacity for self-control is weakened and non-violence has to be increasingly enforced by external control. Other features of processes of decivilisation are changes in the degree of mutual identification between groups and individuals in a society, and shifts in behavioural and affective norms, thereby causing a less even, stable and differentiated pattern of self-control (Fletcher 1995). There are a number of historical, cultural, political and economical explanations for this discrepancy (see Haen Marshall 1996). While such explanations may seem plausible, a closer look shows that they are not specific enough. Violence has become endemic—that is, increasingly integral to social life, taking on social functions (Jankowski, Hagan and Peterson 1995), which themselves generate more violence (Massey 1994). More than in any other Western country, serious criminal violence now occurs in all the major cities in the USA (Massey 1990). We see a polarisation in society whereby, on the one hand, "gated communities" for the rich emerge and, on the other hand, "urban war zones" arise which resemble the poverty ghettos in third world cities (Shelley, Heiland and Katoh 1991).7 In order to explain the violent crime epidemic, more insight is needed into urban processes of change—something which requires an ecological perspective. Especially the highly heterogenous composition of the population and the high mobility among residents of particular parts of the city can be viewed as causes for the lack of social cohesion and, indirectly, for the type and scope of criminality. In such situations of multiple deprivation, there is, for example, an especially high level of murder and manslaughter, not only in the public domain (Land, McCall and Cohen 1990) but also in the private domain (Goetting 1995; Capelleri, Eckenrode and Powers 1993).8 Where ethnic segregation and concentration of poverty go hand-in-hand with an increase in violence, violent crime can further increase through the establishment of illegal markets and organised crime, the sharpening of ethnic conflicts and resentments, and the cultural adaptation of behaviour to a threatening environment. In urban areas where illegal markets play an important role in the local economy, violence is likely to increase. Violence around drug traffic not only causes fatalities among those directly involved, but indirectly disrupts the 7 Leaving aside the differential effects of criminal justice policies such as the far-reaching implications of a "war against crime". 8 In families of the lowest income category, the risk of registered child abuse appeared, for example, to be seven times higher on the average than for other income categories. In part, this effect of poverty on violence is passed on to the next generation (Widom 1992; Maxfield and Widom 1996).

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local community (Reiss and Roth 1993). A high level of violence can be the result of a weakening in the social cohesion, but violence itself can also be a reason for further disruption of the local community whereby increasing violence causes shops and companies to shut down and residents to move. In their attempts to adapt to a violent environment, people develop individual and collective strategies for protecting themselves which may unintentionally cause violence to increase, especially in areas where the presence of the police is missing and where people are responsible for their own safety or left to fend for themselves. In such situations, the public domain may be taken over by youth who develop and maintain their own "street code" (Anderson 1997).

VIOLENCE IN THE NETHERLANDS

Obviously, the situation in Europe and, more specifically, the Netherlands is different from the USA. Violent crime in the USA increased at a faster pace for several decades in order to decrease in the 1990s. Whereas violence in several European countries (in particular in Eastern and Central Europe) has definitely increased, the overall level of violence in the USA remains exceptional, mainly due to the significantly higher percentage of gun-related cases of homicide, robbery and serious assault (Haen Marshall 1996; Cheatwood 1994; 1995). However, there are also social and cultural differences which are relevant for understanding how a relatively low level of violence can be maintained. European countries have different histories and traditions and cities are less ethnically segmented (Body-Gendrot 1995, p. 535). It may be proper to speak of "pockets of poverty" or "ethnic concentrations" in European countries such as the Netherlands, France or even England, but it is seriously misleading—or at the very least premature—to announce the formation of ghettos in the sense that this term takes by reference to the situation of blacks in the American city (Wiles 1993; Wacquant 1995). According to Wacquant, the American inner city is a different urban form altogether, specific to the USA, differing not only in scale, intensity, and depth of deprivation, but also in institutional machineries and closure mechanisms that manage and allocate the costs of the ongoing economic restructuring within each of these societies (Wacquant 1995, p. 561). In his comparative study of two urban areas, i.e., La Courneuve in Paris and Woodlawn in Chicago, he observed significant differences not only in scale, i.e., in size, ecological location and levels of hardship (unemployment, homelessness), but also structural differences "that point to the different institutional logics and closure mechanisms that command urban decline and recomposition" (1995, p. 557). To begin with, the French cite and the American ghetto differ sharply in the frequency, degree of social embeddedness, and the nature of violence prevalent in them, as well as in the impact that violent crimes have on the organisation and flow of daily life. Furthermore, there is a striking difference in the presence of

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state and organisational ecology. While Woodlawn suffers from state retrenchment, withdrawal and breakdown of public institutions, La Courneuve appears to suffer from an overpenetration of state agencies and public organisations which, paradoxically, helps to create conditions for discontent and disorder. In order to better understand urban disorders, we should take into account "the diversity of identities in "sensitive" neighborhoods, their transformations and their resources" (Body-Gendrot 1995, p. 528). In "sensitive" neighbourhoods such as La Courneuve, violence seems to a considerable extent related to the poor quality of public services and the performance of the police (Body-Gendrot 1995, p. 532). In the Netherlands, globalisation of the economy has also generated social destabilisation and accelerated the erosion of integrative institutions (schools, families, churches, working-class communities, welfare institutions, political parties, etc.). And criminal violence also tends to become concentrated in the poorer parts of the major cities showing a relatively high prevalence among specific ethnic groups. As yet, however, no single ethnic minority shows a degree of segregation similar to African-Americans. Only in a few neighbourhoods do concentrations of more than 50 per cent exist, and then only when all the ethnic minorities are added together. These concentration areas are relatively new and still developing. It is, therefore, premature to conclude that Turkish, Moroccan, Surinamese and Caribbean (Antillian) groups are structurally marginalised or that their socio-economic disadvantaged position is being inter-generationally reproduced (Veenman 1997). The Netherlands is not only a wealthy country which, traditionally, has had a relatively "flat" income distribution, but it also has a rich system of social welfare and probably a unique social housing policy. Thanks to intensive urban renewal, processes of segregation, concentration and problem cumulation in the Netherlands have been nowhere near as dramatic as those in major cities in the USA. Overall, the effects of the seven closely intertwined mechanisms operating in "market society" which were suggested by Currie as profoundly criminogenic—i.e. the progressive destruction of livelihood, the growth of extremes of economic inequality and material deprivation, the withdrawal of public services and supports, especially for families and children, the erosion of informal and commercial networks of mutual support, supervision and care, the spread of a materialistic, neglectful, and "hard" culture, the unregulated marketing of the technology of violence, and the weakening of social and political alternatives— seem to have been cushioned by these socio-economic policies. Urban and social renewal and Safer Cities policies seem to prevent or, at least, slow down the disintegrating effects operating in a "market society". Although there are signs in the Netherlands of some increase in recorded violent crime since the 1970s, the country as a whole does not seem to have become much more violent. However, this does not exclude the possibility that in certain areas and among certain categories of people violent crime has increased and, indeed, become more serious. For example, there are indications that violent crime tends to be more concen-

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trated in certain recreational areas as well as in disadvantaged neighbourhoods in larger cities (Engbersen et al. 1998) ? In my own research on street robbery in Amsterdam I discovered, for example, that the risk of being a victim of street robbery in one's own neighbourhood was on the average six to seven times higher for residents of the South-East than for citizens in the rest of Amsterdam. As an unintended consequence of the local public safety policy (i.e. protecting tourists in the city centre), a large degree of social inequality in safety has emerged. In the light of the official goal of creating a safe city for everyone, such a large difference in safety is clearly unacceptable. However, as yet, violent crime has not caught on to the extent that the quality of life in entire neighbourhoods has become irrevocably impaired. If only for this reason, any comparison with American ghettos seems totally inadequate. In order to understand fully the social processes and mechanisms that apparently tend to keep the level of violence relatively low, more systematic research would be necessary on the social and local distribution of victims of violent crime and on political mechanisms which underlie the social distribution of care for public safety. In the Netherlands, little is known about the distribution and concentration of criminality in disadvantaged neighbourhoods and there is insufficient insight into the connection between features of violence and processes of change which occur as a result of violent crime (De Haan 1997). It is also unclear to what degree the government itself has unintentionally contributed to the problem of violence through its own policies. The present Safer Cities policy plan begs for research on urban processes of change and the effects of change on social and spatial distribution of violent crime. Research in urban processes of change is essential for the improvement of the quality of life and insurance of public safety.

CONCLUSION

Although it is certainly interesting to compare and explain violence at the general level of societies, these analyses tend to be too undifferentiated in terms of types of violent crime. Often such analyses are also too general, therefore inviting stereotypical cultural explanations. They bypass the social distribution of violence and do not sufficiently take into account the complex processes of change in cities which result in extremely uneven and, one may add, unjust social distributions of violent crime. It is, therefore, essential that comparisons of violent crime and public safety policies are situated in their specific social, economic, cultural and political context (Vagg 1993). In order to better understand how individual risk factors interact and cumulate into violent criminal 9 However, little more is known about the area distribution of specific forms of violence and the relations between violent crimes and processes of urban change.

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behaviour we would also need more comparative ethnographic work in specific urban areas. More generally, violence is a socio-cultural and historical phenomenon which manifests itself in relation to the quality of society and the arrangements of the welfare state. Public safety is a matter of distributive justice: safety is distributed according to location, environment and vulnerability of the person and this raises fundamental questions as to who is responsible for what aspects of public safety. Who benefits and who suffers most? (De Haan 1998). According to Wiles, crime prevention strategies which attempt to provide protection against crime by designating space as private, or controlling access to it by effectively segregating a sub-group, and a part of the city, undermine the nature of civic society by reducing the domain of the public realm (Wiles 1993, p. 69). In troubled neighbourhoods this creates conditions for public disorder in the form of "delinquency of exclusion" (Body Gendrot 1998) or "slow riots" of crime, incivilities and vandalism (Young 1998, p. 85). The more violence is concentrated in poverty-stricken areas, the more the well-to-do majority seems to benefit. Violence is directed implosively rather than explosively at the destruction of the local community and in terms of targets it is invariably contained.

REFERENCES

Adler, Freda, 1983, Nations Not Obsessed With Crime (Littleton Co., F.B. Rothman). Anderson, E., 1997, "Violence and the Inner City Street Code" in Violence and Childhood in the Inner City (Joan McCord (ed.), New York: Cambridge University Press). Balvig, Flemming, 1988, The Snow-White Image: The Hidden Reality of Crime in Switzerland (Oxford University Press). Beirne, Piers and James Messerschmidt, 1995, Criminology, 2nd edn. (Harcourt Brace Jovanovich). Bloembergen, H.H., C.W.G. Hauber, L.G. Jasperse, and H.M. Willemse, (1976), "Criminality and Macro-Social Characteristics: A Report of Trial and Error" in Criminology Between the Rule of Law and the Outlaws, Volume in Honour ofWillem H. Nagel (Deventer, Kluwer) at 217-238. Body-Gendrot, S., 1995, "Urban Violence: A Quest for Meaning" 21,4 New Community 525-536. , 1998, "Urban Violence in France: the Quest for New Policies", paper prepared for the Conference Public Safety in Europe (IPIT, University of Twente). Capelleri, Joseph, John Eckenrode, and J.L. Powers, 1993, "The Epidemiology of Child Abuse" 83, 11 American Journal of Public Health 1622-1624. Cheatwood, D., 1994, "Changes in Homicide Patterns in the 'New' Europe: Implications from the American Experience" 2, 3 European Journal of Crime, Criminal Law and Criminal Justice 239-251. , 1995, "Drug Policy as a Cause of Violence: The Drug War in America and Implications for Europe" 3,1 European Journal of Crime, Criminal Law and Criminal Justice 54-67.

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Clinard, Marshall B., 1978, Cities with Little Crime. The Case of Switzerland (London, Cambridge University Press). Currie, Elliot, 1997, "Market, Crime and Community. Toward a Mid-Range Theory of Post-Industrial Violence" 1, 2 Theoretical Criminology 147-172. De Haan, Willem, 1990, The Politics of Redress. Crime Punishment and Penal Abolition (London: Unwin Hyman). , 1997, 't Kon minder. Geweldscriminaliteit, leefbaarheid en kwaliteit van veiligheidszorg (Arnhem: Gouda Quint). -, 1998, Fysiek geweld in het publieke domein. Een strategische verkenning (Den Haag, Strategiegroep Veiligheidsbeleid M, Ministerie van Binnenlandse Zaken). Dijk, Ton van et al., 1997, Huiselijk geweld, Sociaal Wetenschappelijk Onderzoeksbureau Intomart in opdracht van de dienst Preventie, Jeugdbescherming en Reclassering van het Ministerie van Justitie (Den Haag). Engbersen, G. et al., 1998, "Onveilige buurten. Een verkennende studie naar de samenhang tussen criminaliteit en sociale ongelijkheid", Projectgroep Stad en Staat Universiteit Utrecht. Eshof, Paul, van den, and Elisabeth C.J. Weimar, 1991, "Moord en doodslag in Nederland. Nederlandse gegevens in internationaal perspectief" 17, 1 Justitiele Verkenningen 8—34, 31. Felson, Marcus, 1993, Crime and Everyday-Life: Insights and Implications (Newbury Park, CA: Pine Forge Press), pp. 2-14. Fletcher, Jonathan, 1995, "Towards a Theory of Decivilizing Processes" 22, 2 Amsterdams Sociologisch Tijdschrift, 283-296, 289. Franke, Herman, 1994, "Violent Crime in the Netherlands. A Historical-Sociological Analysis" 21 Crime, Law and Social Change 73-100. Goetting, Anne, 1995, Homicide in Families and Other Special Populations (New York: Springer). Haen Marshall, Ineke, 1996a, "How exceptional is the United States? Crime Trends in Europe and the US" 4, 2 European journal on Criminal Policy and Research 7-35. , 1996b, "Some Critical Reflections on the Concept of 'Culture' in Comparative Research on Youth Violence. Or, Don't be Careless with a Delicate Concept", paper presented at the Annual Meeting of the American Society of Criminology, Chicago. Heiland, Hans-Giinter, and Louise I. Shelly, 1992, "Civilization, Modernization and the Development of Crime and Control" in Crime and Control in Comparative Perspectives (H-G. Heiland, L.I. Shelley and Hisao Katoh (eds), New York: Walter de Gruyter), pp. 1-19. Hoogenboezem, Jan, 1995, "Mortaliteit. Moord en doodslag in Nederland" 14, 7 Maandbericht Gezondheid Statistiek 4-10. Jankowski, Martin S., 1995, "Ethnography, Inequality, and Crime in the Low Income Community" in Crime and Inequality (J. Hagan and R. Peterson (eds), Stanford: Stanford University Press), pp. 80-94, 88-91. Junger-Tas, Josine, 1996, "Youth and Violence in Europe—a Quantitative Review" 5, 1 Studies on Crime and Crime Prevention 31-58. Keane, John, 1996, Reflection on Violence (London: Verso). Land, Kenneth C , P.L. McCall, and L.E. Cohen, 1990, "Structural Covariates of Homicide Rates: Are There Any Invariances Across Time and Social Space?" 95, 4 American Journal of Sociology 922-923.

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Lynch, James, 1995, "Crime in International Perspective" in Crime (James Q. Wilson and Joan Peterselia (eds), San Francisco: ICS Press), pp. 11-38. Massey, Douglas, 1990, "American Apartheid: Segregation and the Making of the Underclass" 96, 2 American Journal of Sociology 329-357. , 1994, "Getting Away with Murder: Segregation and Violent Crime in Urban America" University of Pennsylvania Law Review 1203-1232. Maxfield, Michael G. and Cathy S. Widom, 1996, "The Cycle of Violence. Revisited 6 Years Later" 150, 4 Archives of Pediatrics and Adolescent Medicine 390-395. Mayhew, Pat and Jan J.M. van Dijk, 1997, Criminal Victimisation in Eleven Industrialized Countries. Key findings for the 1996 International Crime Victims Survey (The Hague: Ministry of Justice). Messner, Steven F. and Richard Rosenfeld, 1994, Crime and the American Dream (Belmont, Calif., Wadsworth). Moss, Geoffrey, 1997, "Explaining the Absence of Violent Crime among the Semai of Malaysia: Is Criminological Theory up to the Task?" 25,3 Journal of Criminal justice 177-194. Peterson Ruth D. and Laura J. Krivo, 1993, "Racial Segregation and Black Urban Homicide" 71, 4 Social Forces 1001-1026. and , 1996, "Extremely Disadvantaged Neighborhoods and Urban Crime" 75, 2 Social Forces 619-650. Pfeiffer, Ch., 1997, Trends in Juvenile Crime and Violence in European Countries (Ms. Hannover). Reiss, Albert J. and J.A. Roth (eds), 1993, Understanding and Preventing Violence (Washington D.C.: National Academy Press). Shelley, Louise I., 1991, "The Development of American Crime: A Comparative Perspective" in Crime and Control in Comparative Perspectives (H-G. Heiland, L.I. Shelley and H. Katoh (eds), New York: Walter de Gruyter), pp. 83-105, 89. Shihadeh, Edward S., and Nicoll Flynn, 1996, "Segregation and Crime: The Effect of Black Isolation on the Rates of Urban Violence" 74, 4 Social Forces 1325-1352. Spierenburg, Pieter, 1996, "Long-Term Trends in Homicide: Theroetical Reflections and Dutch Evidence, Fifteenth to Twentieth Centuries" in The Civilization of Crime. Violence in Town and Country since the Middle Ages (E.A. Johnson and E.H. Monkonen (eds), Urbana and Chicago: University of Illinois Press), pp. 63—108. Vagg, J., 1993, "Context and Linkage: Reflections on Comparative Research and 'Internationalism' in Criminology" 33, 4 British Journal of Criminology 541-554. Veenman, J., 1997, "De sociaal-economische dimensie van de integratie" 23, 6 Justitiele

Verkenningen 49-60. Wacquant, L., 1995, "The Comparative Structure and Experience of Urban Exclusion: 'Race,' Class, and Space in Chicago and Paris" in Poverty, Inequality and the Future of Social Policy. Western States in the New World Order (K. McFate, R. Lawson, and W.J. Wilson (eds), New York: Russell Sage Foundation), pp. 543-570. Widom, Cathy S., 1992, The Cycle of Violence (Washington D.C.: National Institute of Justice). Wiles, P., 1993, "Ghettoization in Europe?" 1 European Journal on Criminal Policy and Research 52-69. Young, J., 1998, "From Inclusive to Exclusive Society. Nightmares in the European Dream" in The New European Criminology. Crime and Social Order in Europe (V. Ruggiero, N. South, and I. Taylor (eds), London: Routledge), pp. 64—91.

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Zimring, F.E. and Gordon Hawkins, 1997, Crime is Not the Problem: Lethal Violence in America (New York: Oxford University Press). , 1998, Youth Violence (New York: Oxford University Press).

Part IV

The Individual in a Dynamic Society: Challenges and Chances

14 Resistance from Crime: Life History, Turning Points and Implications for Theory Construction in Criminology ELMAR G . M . W E I T E K A M P , H A N S - J U R G E N KERNER, W O L F G A N G STELLY and J U R G E N T H O M A S

RIMINAL BEHAVIOUR HAS been a major subject of investigation in the social and behavioural sciences, but rarely has it been examined at different phases of the life course. Because it is generally assumed that criminal behaviour occurs more frequently during late adolescence and early adulthood (Cline 1980), we find most studies focusing on theses age periods. In general, only a few studies provide data that cover the whole development of subjects from childhood to late adulthood. Modern societies do normally not attribute "criminality" to children in a formal sense. Nevertheless there exist numerous studies on early childhood problems or misbehaviour leading to later deviance and criminality. Only very few studies extend to the life span after age 30. Among them are the studies of Robins (1966), McCord (1978), Farrington (1994), Sampson and Laub (1993), and Kerner et al. (1997). Promising new studies, which are more sophisticated and will eventually cover all life spans but in which the sample members are still in the early adult phase include the Rochester, Denver, and Pittsburgh studies in the USA and the Dunedin study in New Zealand. That leaves the fact that there is at present still little known about criminal behaviour during the middle or older years despite the growing concern about corporate or organisational crime (Wolfgang et al. 1985). We know about professional criminals only from biographies, case histories, and anecdotes. Little is known about those who commit white-collar crimes in the middle years and the proportion of that group which was earlier adjudicated delinquent or, for that matter, what happens to the majority of adolescents who become offenders early in life and never again appear in official crime statistics. In a review of criminal career research, Petersilia (1980, p. 325) came to the following conclusion: "Little is known about how and when criminal career begins, or how long it is likely to last, why criminal careers persist, and why some persons abandon criminal careers early, others continue into adult crime,

C

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and still others begin crime careers late in life . . . Little is known about the extent and types of crime committed at different stages of criminal careers". Statements such as these suggest an area in criminology in which there is a gap. As we will show, we have some knowledge about those transitions and criminal careers. However, desistance from a criminal career is one of the least systematically researched phenomena in criminology. As Reckless (1972, p. 211) pointed out in this context, "it is much easier to explain why an offender continues with his career rather than to understand why he stops the career". Laub and Sampson argued two decades later (1995, p. 2) that "although desistance is a major component of the criminal career model it is the least studied process compared with research on onset, persistance, and escalation of offending". Studies on penal sanctions and their consequences tend to focus on recidivism of convicted and sentenced offenders. Rather high rates of repeat offenders are usually found in such studies. Those results seem to underscore opinions like "nothing works" or even "failure is the norm". The dominant perspective may contribute to a somewhat distorted picture. Recidivism research concentrates quite often on groups of offenders with sociobiographical problems. Or it selects subjects eventually sentenced to some form of imprisonment after a couple of less severe sentences during earlier stages of their criminal career. In particular, young prison inmates around the age of 20 represent a suitable group. Follow-up studies of released convicts show, within the usual test period of three to five years after (conditional) release, reconviction rates of 80 per cent and more. But such results do not necessarily imply that the subjects will have exactly the same risk of failure in the next step, i.e. after commencement of the sanction they were given for the new crime committed after release. Depending on the length of their sentence they will have reached than an age of 27 to 30. At that age, for many of them biopsychological and/or sociopsychological life conditions can be quite different from what they were at the age of 20. Not only the factual conditions may have changed, but also, if not even more so, the subjective "meaning" of them for the subjects. This could imply a lower recidivism rate than before. So the chronological age of offenders could be taken as an indicator for different levels of "criminality" on the one hand, and of "intensity of recidivism" on the other hand in different life periods. From this point of view the typical skewed "age-crime-curve", as it is depicted in official (police) crime statistics, fits perfectly into the concept. The aggregate rates of offenders in modern states, defined for instance as arrested or suspected persons per 100,000 of the population of the same age group, rise sharply after 12, reach a peak somewhere between 16 and 21 depending in detail on things like the kinds of offences included or the criminal law system, then drop remarkably down until the age of around 25; thereafter the graph declines in a more continuous manner. The basic argument goes like this: the age-crime curve is indicative of the fact that (a) most offenders do not committ more than one to three officially registered

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offences, and (b) even the major part of those who are detected more often than three times stop repeating offences rather soon, since otherwise the aggregate crime curve should rise further after the age-point of 21, or it should at least not decline in that sharp way as it does usually in every system of law enforcement and criminal justice providing relevant statistical data. Whether this typical pattern of increase and then decrease of rates on the aggregate level with regard to incidence and prevalence rates can actually be explained by the concept of changes in criminal behaviour of individuals over time, was discussed heavily in the so-called age-crime debate (see for details Mischkowitz 1993). The opponents claimed that the typical shape of the agecrime curve was rather due to age-dependent differential mixtures of persons with different levels of criminal propensity. We will come back to this later on. Cross-sectional studies on the consequences of the imposition of diverse sanctions on convicted offenders are normally not stressing desistance. But the empirical evidence they are providing can nevertheless be interpreted in the direction that desistance from crime is not an exceptional occurrence. In cases of non-serious interventions, most offenders do not continue to offend anyway. In cases of serious interventions, the termination of offending becomes the norm in the long run. Young offenders in particular who committ their first crimes during their juvenile or adolescent years tend to show longer periods of involvement than their counterparts who start later; but even they tend to desist at the latest in the middle of their life from officially recorded crime. Taking the empirical evidence as a whole, it therefore appears that desistance from criminal behaviour and the turn toward conforming behaviour become the norm, rather than persistance in a criminal career. The same impression can be derived from longitudinal studies on the individual level. One interesting example is the 1958 Philadelphia birth cohort study by Wolfgang et al. in which the adult years of the cohort memebers were analysed by Tracy and KempfLeonhard (1996). They considered the development of the cohort members up to the age of 27. According to official police data the prevalence rate of offending among them was 33 per cent until the age of 18. Almost one-third (30 per cent) of the young offenders stopped after the first offence. Among those cohort members that became offenders between 18 and 26 years of age even more committed not more than one offence, namely 58 per cent. But what about the so-called "chronic offenders", i.e. those with five or more police contacts due to the commission of crimes in this time-frame? According to Tracy and Kempf-Leonhard, 7.5 per cent of the study subjects became chronics during the juvenile period, and they were responsible for 63 per cent of all crimes that the police recorded for the whole birth cohort up to age 18. However, 37 per cent of those juvenile chronics had no further registered offence between 18 and 26, 40 per cent re-offended a few times (up to four new police contacts) , but only 23 per cent developed to adult chronics. When the authors considered separately the whole sub-group of 485 young adult chronics and looked at their former offence history, they could show that 22 per cent of

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them had no police contact at all during their juvenile period, and an additional 11 per cent were only registered once during that time frame. Self-report studies which took into account the "black" figures of offending come, generally speaking, to the conclusion that deviant and criminal behaviour reduces or even disappears with increasing age of those questioned. It is, so to speak, a more or less spontaneous desistance which seems to occur, independent of interventions by state authorities. The traditional, offender-oriented criminology was usually concentrating on officially known offenders. It tried to classify those offenders along phenomenological categories like: one time conflict offenders, occasional offenders, recidivists, and professional or habitual offenders. By doing so it recognised, at least basically, the fact that all offenders do not enter into a criminal career. With regard to those subjects, however, that were considered to be career criminals, traditional criminologists tended to search for "negative influencing factors" with the aim to detect diagnostic criteria for the distinction of types of offenders or to detect valid predictors for further recidivism. Besides the theoretical problem that a couple of studies were trapped in the so-called "evil causes evil fallacy" this preoccupation with negative factors induced a generalised pessimistic view about the chances of resocialisation for serious offenders. Prison inmates were typically considered to be the most problematic offenders, who were in danger of entering a long and always intensifying criminal career after release from prison. Kerner and Janssen (1996) could show, however, that this opinion was probably caused by the usual scholarly approach. On the one hand, researchers preferred to analyse in a retrospective approach cross-sectional data of those convicts sitting in prison at a given point of time. Almost always they found that if the inmates were older or were incarcerated in a correctional institution with stricter security status, they had accumulated more convictions before serving their actual sentence. On the other hand, researchers selected groups of inmates at a given point of time according to the number of convictions they had accumulated so far. When comparing the further development of the different subgroups in a cross-sectional prospective design, the researchers invariably came out with the result that the rate of reconviction during the follow-up period was dependent on the number of earlier convictions. To put it shortly: the higher the number of earlier convictions, the higher the number of new convictions in the future. Finally, researchers were interested in the accumulation of new convictions among e.g. cohorts of releasees over time. In checking the prevalence rate they typically found, even with a longitudinal design, that the bulk of reconvictions happend during the first one or two years after release from prison, but that even after five years follow-up time some of the former inmates committed new crimes. So, overall, prevalence rates may increase to a considerable extent if long intervals are taken into account. Kerner and Janssen (1996) analysed the criminal careers of a cohort of roughly 500 subjects who had been sentenced to youth imprisonment in

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Northrhine-Westfalia (the largest state of the Federal Republic of Germany) and were released during the year 1960 with an average age of 20. For 452 of the releasees the conviction records were completely available over a follow-up period of 20 years. On the one hand, the authors could easily reproduce the common "negative" picture with regard to the prevalence of reconvictions. In the long run, more than 80 per cent of the group assembled new convictions and sentences. Seen from this perspective, the continuation of a criminal career seems to be the norm for most serious offenders. On the other hand, the authors decided to look at the data from a true diachronic perspective. In a step-by-step procedure they checked the transition probabilities from one to the next conviction, in each step taking into account only those releasees that remained hitherto in the career. Time at risk was controlled for. As Table 14.1 shows one can conclude that desistance from crime happens after every single conviction. Seen from this perspective, desistance may not be the norm in the short run and on an equal level for every offender, but it eventually emerges as the standard result of a graded life course development. From conviction to conviction the number of persons continuing their criminal career becomes smaller and smaller, and the percentage of desisters, although uneven, increases. Table 14.1: Percentage of desistance after convictions: youth prison releasees during a 20-year follow-up period* Starting point

Number of persons

Percentage of desisters

452 380 329 260 207 158 123 96 66 42 30 15 7

16% 13% 21% 20% 24% 22% 22% 31% 36% 29% 50% 53% 86%

Release from Prison 1. Reconviction 2. Reconviction 3. Reconviction 4. Reconviction 5. Reconviction 6. Reconviction 7. Reconviction 8. Reconviction 9. Reconviction 10. Reconviction 11. Reconviction 12. Reconviction * Source: Kerner and Janssen 1996, p. 184.

WHAT DO CLASSICAL THEORIES OF CRIME CAUSATION HAVE TO SAY ABOUT DESISTANCE?

Even though these theoretical approaches focus primarily on the onset and continuation of delinquent behaviour, one can nevertheless derive factors that,

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along those theories, influence the desisting process of a criminal career. However, these factors cannot explain desistance itself. • Control theories postulate that desistance from a criminal career occurs after a change in the instance of social control. But this does not and cannot explain why an increase or decrease of control mechanisms takes place. According to Hirschi (1983), a strengthening or the development of social control for criminal adolescents or adults is more or less impossible since the internalisation of control has to take place in early childhood. • The necessity to drop out of delinquent peer relationships and their substitution with non-delinquent relationships is a logical step according to the differential association and subcultural theories, but how and why this is true for the majority of juvenile offenders cannot be explained by them. • Strain theory cannot explain why strain disappears in general and what are the eventual circumstances of the disappearence of the strain at different stages of the life course, and • the labelling approach leaves it open why the label is handled differently in the later course of life. All these theoretical approaches can therefore describe desistance and related changes on a phenomenological level, but the detailed processes and their underlying causal conditions remain a "black hole".

NEWER DEVELOPMENTS IN THEORISING ABOUT DESISTANCE

There exist three different variations as to how in the literature empirical evidence about desistance and theoretical difficulties are handled: (1) The first way is to allow the numerous pieces of empirical evidence and the respective explanations t o coexist, and not to try to find a theoretical integration. (2) The second approach is t o combine existing theoretical approaches with the aim of finding an integrated model. (3) The third way is based upon the assumption that the phenomenon desistance cannot be explained by existing criminological theories. Examples of the first type are the studies by Mischkowitz (1993) and Matt (1995). Mischkowitz was able to identify four components of changes in the lifestyle of former inmates that led to desistance from criminal behaviour. His analysis was based upon the data of the Tuebingen Criminal Behaviour Development Study. The components were: (a) bonding-related reintegration (wife, religion); (b) agreement-related reintegration leading to a change in the cost-benefit calculation;

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(c) involvement-related reintegration (involvement in work, fulfilling leisure time activities); (d) value-related reintegration (development of a moral consciousness). Matt studied the life-style and the transition from school to the workforce of a group of 60 former students of a Hauptschule ("main school") in Northern Germany. Among the subjects from mainly lower class background he was able to identify three factors which led to conformity: (a) changes in relations and their leisure time behaviour, abandonment of delinquent peers, starting of a relationship; (b) changes in the cost-benefit approach through contacts with institutions of social control: fear of offical sanctions and their consequences for their lives; (c) connected with changes of the life situation (abandonment of peers, starting a relationship, integration in workforce): a change of self-judgement in which conformity represents distance from youth and acceptance of adulthood. Mischkowitz and Matt show in their studies that the empirical phenomenon of desistance far exceeds the explanatory power of the classical criminological theories. However, they do not attempt to combine their explanatory attempts in a theoretical model.

INTEGRATED THEORETICAL MODELS

Greenberg (1979) attempted to explain the typical age-crime curve and the related processes of desistance by combining strain theory and control theory, and by adding some rational choice elements. He argued that the strain on juveniles caused by the discrepancy between financial sources available and the consumption goals propagated is responsible for a sharp increase of juvenile delinquency. This can explain mainly property offences, but does not exclude that the discrepancy between sources and goals exists beyond the material dimension as well. Autonomy is being refused to the juveniles, and therefore they develop a counterculture in which status can be obtained by their own rules and regulations. Greenberg explains the decrease of the crime curve in young adult years with control theory: with increasing age, the costs of social control increase since adult penal law is applied; the loss of social status is more feared, as well as the loss of a partner or a job. He explains therefore desistance through a changed cost-benefit analysis. Shover and Thomson (1992) developed a model in which age is only one factor related to desistance and does not play a central role as for instance in the Glueck's concept of "age-produced maturation". They combined social learning theory with rational choice components. On this account, the differential

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expectations of the expected success of conventional or criminal activity and the risk assesment of the individual are important for the process of continuing or desisting from criminal behaviour. Desistance comes accordingly as a consequence of a cost-benefit analysis in the process of getting older, and it depends on prior life experience. Moffitt (1994) and Patterson, Reid and Dishion (1992) and Patterson and Yoerger (1993) focus their developmental theories on a dual structure to explain delinquency and crime. They focus their analysis on two different groups of delinquents and two different sets of explainations for this criminal behaviour. The small numbered group of "early starters" (according to Patterson et al.) or "life course persistent offenders" (according to Moffitt) start their delinquent career very early in their life and do not change this behaviour during their life course. Ineffective socialisation, behaviour problems, aggressivenes, and hyperactivity on the part of the child combined with an inappropriate educational style of the parents are the cause for the career of this group of early starters or life course persistent offenders. On the other hand, there exists the huge group of "late starters" or "adolescent limited offenders", who are only during a relatively short period of time involved in delinquent and criminal behaviour. Problematic with these explanations is the continuity hypothesis for the early starters or life course persisters. One cannot deny that there exists a group of individuals who commit crimes throughout their lives. However, how large this group is and how we can theoretically differentiate them from other groups during their life course, is still an open question. The theoretical assumptions of Moffitt and Patterson are based upon longitudinal data which do not yet cover the full adult life of the subjects. How diverse the life courses can be, is shown by the above-mentionned results of the Philadelphia 1958 birth cohort study, in which 37 per cent of the chronic juvenile offenders never committed a crime in their young adult years, and in which a substantial number of adult (up to 26) chronics had never committed a delinquent act as a juvenile. Contrary to the models of Moffitt and Patterson et al., Sampson and Laub (1993) argue in their "age-graded informal social control theory" that in all life courses, including those of early starters, there exists the possibility of desisting from continuing deviant and criminal behaviour. Their concept of the life course as a trajectory in the sense of role descriptions and role transitions is based upon ideas of Elder (1975) and Caspi and Bern (1990) about an "agegraded-theory". Sampson and Laub follow as well a "developmental criminology" as developed for instance by Loeber and LeBlanc (1990), Patterson and Yoerger (1993), and Thornberry (1996). The basic assumption is the control theoretical contention that deviant behaviour is more likely to occur if a person's bonds to society are weak or broken down. Sampson and Laub (1995) specify this in the way that the quality of the social bonds to the central societal institutions of informal social control is the key to support or prohibit deviant behaviour. In this context, for each life

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phase other institutions become important: childhood = family; youth = school and peers; adulthood = work, spouse, children. This life course perspective on crime implies the analysis of different trajectories in a longitudinal perspective which combines early childhood experiences with experiences the subjects made as adults. This continuity aspect is enhanced through a perspective which includes changes of the life course based upon specific life events and turning points in formerly existing life trajectories. This developmental model follows the interrelated theory model of Thornberry (1987), who sees the key for the explanation of delinquent behaviour in the interaction between the individuum and his or her environment. In order to explain the continuity of deviant behaviour, Sampson and Laub (1997) refer to the concept of "cumulative continuity": deviance in childhood and youth leads to weak social bonds in adulthood which then lead to increased risk of deviant behaviour. The causes of deviant behaviour in childhood and youth are factors such as informal social control in family and school. The individual differences in childhood such as low self-control are not considered to be the direct cause for deviance during the later course of life. They have, instead, an indirect influence on acute bonds who on the other hand are not determined by them. Certain life events and experiences in adulthood such as a new job, new friends or marriage can influence the further course of life and lead to turning points. The causes for the change in criminal behaviour are not the life events themselves, but the resulting stronger bonds and the related increase of the informal social control. Why this is the case is, according to Sampson and Laub, often not predictable, since it is the result of luck and chance in the individual life or on the societal macro-level such as: changes in industrialisation, wars, changes in the social welfare system, workforce, etc. The central point of Sampson and Laub's theory is: that the strict deterministric logic of early deviant behaviour and socialisation deficits is much weaker than usually assumed, and that the actual life situation has much more explanatory power. Sampson and Laub gained important empirical evidence to support their theoretical model by re-analysing the Gluecks' data. They came to the following conclusion, after analysing various subgroups of subjects with different kinds of methods: "Consistent with a sociological theory of adult development and informal social control, however, we found that job stability and marital attachment in adulthood were significantly related to changes in adult crime— the stronger the adult ties to work and family, the less crime and deviance occurred among both delinquents and controls" (1993, p. 248). The necessity to research the actual ties and bonds of an individual into his or her particular social contexts is challenged completely by Gottfredson's and Hirschi's (1990) theory. Gottfredson and Hirschi developed the concept of "low self-control", and they claim that it is a basis for a general theory of crime. Contrary to Sampson and Laub, their concept assumes that the cause for all criminal behaviour is low self-control, which can be observed in early childhood and does not change basically during the later life course. The central argument

216 Desistance from Crime is that individuals with low self-control exhibit certain behavioural dispositions, which can also be found in most criminal acts, namely: they are impulsive, insensitive, very body-oriented, very risk-taking, shortsighted and spontaneous. According to Gottfredson and Hirschi (1990, p. 97) self-control is shaped by educational experiences: "The major cause of low self-control thus appears to be ineffective child-rearing. Put in positve terms, several conditions appear necessary to produce a socialised child". They emphasise heavily the central importance of familial socialisation, which can also be found in many other studies. If the primary process of socialisation fails, becomes a later socialisation success for instance through school highly unlikely. So how do Gottfredson and Hirschi explain then the sharp decrease of criminal behaviour starting usually in the late adolescent or early young adult phase of the life course? They assume that the age-crime curve is invariant across social and cultural conditions. None of the existing criminological factors or a combination of them is able to explain this specific distribution. The assumption of an individual change of criminal activity, caused according to Sampson and Laub through specific, actual social interactions has according to Gottfredson and Hirschi to be rejected. However, they do not reject the concept of a general change during the life course: for them this general change is, so to speak, an independent reality regardless of the behaviour competency of an individual. It means that most individuals, including those who have serious juvenile criminal records even under continuing bad conditions, desist according to officially recorded statistics from their criminal activities. In other words: the decline will occur in any event. The discrepancy and contradiction between the stability of low self-control and a decline of officially registered delinquency is solved by Gottfredson and Hirschi by differentiating between "crime" and "criminality". Crime is characterised by contingent constellations such as activation to criminal behaviour or the opportunity to commit a crime, etc. Criminality as a result of low selfcontrol is in contrast less dependent on conditional factors and forms therefore a relatively stable difference between individuals. Low self-control is a necessary, but not sufficient condition for criminal behaviour, or in other words: criminal behaviour is only one of many manifestations of a low self-control. "The distinction between crime and self-control thus provides a device for solving one of the major empirical dilemmas of criminology: the fact that crime declines with age while differences in crime tendency across individuals remain stable over the life-course" (1995, p. 144). This assumption leads to the consequence that the frequency of individual offending can vary during the life course considerably, whereas the underlying low self-control does not have to change at all.

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THE NEW DEBATE IN THE CONTEXT OF THE TUEBINGEN CRIMINAL BEHAVIOUR DEVELOPMENT STUDY

We attempted to shed some light on this debate by analysing the data collected by Goppinger and his collaborators in the first phase, and by Kerner and his collaborators in the follow-up phase, of the Tuebingen Criminal Behaviour Development Study (TCBDS), a longitudinal study of 200 inmates of the State prison in Rottenburg which were matched by 200 males from the standard population of the region. The inmates were serving single or consecutive sentences of not less than five months and not more than five years and had to have, in any case, a remaining prison term of six months to be included in the study. The study started in 1965 when the subjects were between 20 and 30 years' old. The mean age for the prison group was 24.9 and for the control group 26.0 years. The prison sample reflects in substance the overall standard prison population in Germany in the mid-1960s. The inmates were sent to Rottenburg by the District Courts and the related Lower Courts of the counties of Hechingen, Rottweil, Stuttgart and Tuebingen. Excluded from the inmate sample were minor offenders, meaning mostly those doing time for public order offences such as petty theft, etc. and, on the other side, those who had committed very severe or even capital offences such as rape with severe wounding, aggravated robbery with weapons, aggravated assaults with deadly consequences, and attempted or completed homicide. The subjects of the control group were taken from the same counties as indicated above and were drawn from the population register in a two-stage, systematically randomised sampling procedure, representing in the first stage the structure of the 869 municipalities concerned, and in the second the 240,924 men between 20 and 30 years of age living in the four Baden-Wurttemberg jurisdictions. On the basis of the sampling procedure, the control group is representative of the corresponding age-group of the total male population of the selected south-west German area. The individual casefilesof the study subjects cover the whole life-span from birth to 55 years of age on the average. With regard to the quantitative data, however, new data protection laws and other impediments led to some gaps in our database. Official criminal history files for one or two of the subjects are not fully accessible for their life-span after their mid-40s. Therefore we decided to set a fixed age limit for our first analyses in order to retain a maximum number of the two original samples' members in the calculations. According to German conviction statistics, and according to several research studies, there exists a certain saturation of criminal careers at the age of around 35. Some offenders still continue to offend, of course, but it seems as if they just follow their usual line with a slower pace than before. We took this as additional legitimation for the decision to set our preliminary cutting-off point in the examination of the follow-up results exactly there. We therefore analysed various sub-sets of these data sets up to the age of 36 with regard t o

218 Desistance from Crime criminality and alcohol abuse, continuity and discontinuity of deviance during the life course, and family factors and their relation to criminality (Kerner et al. 1995; Kerner et al. 1997; Stelly et al. 1998; Thomas et al. 1998; Kerner 1998). In a first bivariate attempt we examined if at all and how in the event family conditions and the behaviour of the subjects before the age of 14 (when juveniles can be held legally responsible for their crimes) correlated with an intervention through official institutions such as the department for youth welfare and the police. We found that socio-economic and social exclusion problems in the period of age one to six led to school problems between ages six and 14. Officially recorded delinquency, on the other hand, correlated with a negative educational style of the parents. School problems, delinquency, generalised asocial behaviour, and unstructured leisure-time behaviour led to a negative attribution through the parents, meaning being sensitive towards the behaviour of their children, emotional stress, defence mechanisms and even rejection of the children. This circumstance and the behaviour of the children outside the family were responsible for offical interventions of different kinds. They could be motivated as helping and understanding. But sometimes they could also be rather repressive, e.g. leading, as the most severe consequence, to the removal of the child from the family. In a further step we created five groups, depending on their criminal career up to age 36. In the first group we have those subjects of the comparison sample without any officially recorded offence. The second group encompasses subjects from the same sample with recorded crimes but usually not more than three convictions. The prison sample was subdivided into three groups, i.e. subjects with two convictions, with three or four, and five and more convictions. Not surprisingly, the subgroup of our chronic offenders with five and more convictions exhibited the highest amount of problem behaviour. More interesting in this context is that we could demonstrate a continuous increase with regard to problem behaviour from the group of no convictions, via a few convictions to the most serious offenders. This problem behaviour encompassed diverse difficulties in school, delinquent peers up to age 14 and then to 18, problematic and unstructured leisure-time activities, delinquency outside the family before age 14, not serious and/or medium offences between 14 and 18, and an unstable work situation up to the age of 25. Other differences between the prison and the standard population sample can also be found around the time when the subjects were 25-years-old: unstructured leisure-time activity, contacts to typical urban milieus, and alcoholism. All prisoner subgroups as compared to the standard population subgroups contained more subjects stemming out of incomplete families and families with difficult housing conditions caused by financial constraints. The subjects of the prison subgroups with three or more convictions had a higher rate of a disturbed relationship between parents and child, of an inconsistent educational style of the parents, and a disturbed relationship to work before the age of 18 compared to the other three subgroups. This can be interpreted as showing that these forms of living and kinds of behav-

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iour, which led to official delinquency, are not characteristics a person has or does not have, but different positions in complex processes of problem constellations (Kerner 1998). When we examined the so-called problem spectrum of the whole sample of prisoners, we took those former inmates with one to three convictions as reference, and compared these persons with consecutively drawn sub-samples of those who had 4+, 6+, 8+, 10+, 13+, and 16+ convictions. We found that they reflect the reactions of offical institutions, the juvenile and adult courts, quite well. We analysed a problem spectrum of 25 different substantive constellations relating to personal characteristics and to biographical events. We found that the subjects with four and five convictions differed from the reference group in seven significant problem areas. The number of significant problem areas increased with a higher number of convictions, and those subjects who had 16 and more convictions scored in all 25 problem constellations. Seven problem areas could be identified for all six conviction categories: (1) family strain, (2) deviant behaviour under the age of 18, (3) minor offences under the age of 18, (4) deliberate unemployment at the age of 25, (5) work habits at the age of 25, (6) reactions of the criminal justice system between 14 and 18, and (7) criminal justice reactions between 18 and 21. These results can be interpreted as showing that the career criminals experience in their early childhood family strain; in the early juvenile years a deviant life-style is added in combination with minor criminal offences which lead to intervention through the criminal justice system; around the age of 25 deliberate unemployment and unstable work habits are added in combination with more severe sanctions and convictions. These results support the notion of a cumulative continuity as developed by Sampson and Laub (1997), or the notion of interactional continuity of anti-social behaviour as formulated by Caspi et al. (1987). This continuity paradigm and process of social marginalisation looks at a first glance quite convincing, but if one examines which problem constellation can be found in all conviction categories one finds that only one of the 25 problem areas, namely family strain, is significant in the six conviction categories. In the years six to 14 of the subjects we can identify in three categories school problems and offences outside the home, in two categories negative attribution at home and unstructured leisure-time activities, and in one category status offences, delinquent peers, and official interventions. This points out that for many career criminals in the process of growing up, elements of the current lifespan become more important than elements from the past. The thesis that an uncoupling of the later criminal career from early life conditions takes place has according to Kerner (1998) some theoretical and practical implications: (1) even very severe early social disadvantages do not necessarily lead to delinquency; (2) if early deviant behaviour goes hand-in-hand with social disadvantages this does not lead necessarily to repeat criminal behaviour; (3) in cases of criminal careers, later life events, constellations and behaviour patterns become more important; (4) therefore criminal careers can

220 Desistance from Crime develop without early social disadvantages, and it makes sense for further developments to take the actual life situation into account. This implies that with regard to desistance from crime, good chances exist to help offenders with measures which are specifically related to the change of their actual life situation. In a reanalysis of the data-set from the Philadelphia birth cohort of 1945 we examined four categories of the 1945 subjects and looked at their social disadvantages. Table 14.2 shows clearly that the social disadvantages become stronger with an increasing number of police contacts up to age 18. Around 91 per cent of the subjects with 11 or more police contacts had strong social disadvantages such as: low socio-economic status, high number of residential moves, being non-white, low grade attained in school, deviant behaviour, truancy, disciplinary placements, high number of school moves, mentally retarded, remedialdisciplinary placements, and low IQ.

Table 14.2: Social disadvantage index according to the prevalence of crimes*

Number of police contacts 0 1 1-A

5-10 11-39

Percentage of subgroups with social disadvantages not or slightly

moderately

fairly

strongly

36.3 23.9 12.7 3.5 —

25.3 23.1 15.3 5.4 1.4

23.1 29.5 29.9 20.3

15.3 23.6 42.0 70.8 91.1

7.5

Kendalls Tau b: 0.30. Missing values: 63 (0.6%). Source: Kerner 1993, p . 42.

However, if one would have taken the strong social disadvantages as a predictor for delinquency and crime, in order to interfere with the subjects' life or behaviour, one would have made a terrible mistake. Table 14.3 exchanges the independent and the dependent variables as used for Table 14.2. Now we start with the social disadvantages, and we look at how many persons of each subgroup become how often involved with the police. As we can see: of the persons who had no or slight social disadvantages, 80.8 per cent had no police contacts at all, and only 0.6 per cent of the well-integrated group accumulated five to ten police contacts. This result is entirely compatible with what we usually would expect from studies of well-integrated middle or upper class youngsters. The more provocative result, however, is to be found in the last line of Table 14.3: nearly 42 per cent of the strongly socially disadvantaged group had no police contact at all up to their 18th birthday, and an additional 16 per cent had only one police contact. That means that nearly 60 per cent of these very margin-

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alised youngsters did manage to stay out of any greater involvement with law enforcement and criminal justice authorities. On the other hand, around 20 per cent of the group (14.4 + 5.7) reached the status of a chronic offender as defined by Wolfgang et al., i.e. accumulating at least five police contacts due to the commission of offences. This is, of course, a relatively high percentage. But by the same token it means that, all in all, 80 per cent of the most disadvanteged young males of this Philadelphia birth cohort did not become chronics. If one would have based an intervention and therapy programme upon the social disadvantage index as a "predictor" of crime, one would have treated 42 per cent wrongly since they never showed any delinquent behaviour up to the age of 18; in an additional 38 per cent of the cases, the programme would have been rather superfluous since the subjects desisted early from a criminal career Table 14.3: Prevalence according to social disadvantage index* Social disadvantage groups not or slightly moderate fairly strongly

Percentage of persons with number of police contacts 0

1

2-4

5-30

11-39

80.8 73.4 61.1 41.8

13.3 16.8 19.4 16.1

5.4 8.5 15.0 21.9

0.6 1.2 4.0 14.4

0.1 0.5 5.7

' Kendall Tau b: 0.30. Missing values: 63 (0.6%). Source: Kerner 1993, p. 44.

One can conclude from these results that persons even with strong social disadvantages, which correlate with repeat and chronic offending in the juvenile years and criminal behaviour in the early adult life span, can desist from a criminal career. We tested, with the data-set of the Tuebingen Criminal Behaviour Development Study (TCBDS), a basic assumption of Sampson and Laub's age-graded informal social control theory according to which deficits in the family process substantially increase the probabilities of deviant behaviour in childhood and youth (Thomas et al. 1998). In accordance with Sampson and Laub, we found that social background factors of the family such as inadequate living conditions or broken home etc., influence the development of crime only if they effect the interaction process between the parents and the child. The predictive validity of such a family model is, however, limited to serious or repeated criminal behaviour. Family factors cannot explain minor or one-time delinquency. Notwithstanding this limitation, the "age-graded social control theory" allows the analysis of different developments of delinquent and criminal behaviour in the later life stages. These analyses show that different pathways in adulthood cannot be explained by the early life histories of individuals. Again, decisive for

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the desistance from the continuity of delinquent and criminal behaviour are the individuals' actual life situations. In the TCBDS we analysed the importance of family conditions for delinquency up to the age of 18 further, and found that for one-time and non-serious repeat offenders all characteristic distinctions disappeared; they did not even discriminate on the bivariate level. Subjects with or without social disadvantages committed an equal amount of delinquent acts before they became adults. In contrast to this, most family-related variables showed significant correlations with delinquency and crime on the bivariate level. Not all correlations hold, however, when we administered multivariate procedures. We could confirm strong relationships between serious crimes, chronic offending, and disturbed familial interactions. However, Table 14.4 reveals that structural social disadvantages of the family of origin such as poor living conditions and structural incompleteness have no direct influence. There is an mediated correlation, if and as far as they influence the interaction process between the parents and the child. In order to examine whether true changes during the life course occurred we analysed, in another step of examining the TCBDS data, only subjects of the prison sample who committed up to age 25 serious crimes and had similar criminal careers. We analysed if these 109 subjects continued their criminal career beween their 26th and 35th year, desisted from crime or committed only minor offences. The results show in percentage terms some differences in the characteristics of the subjects' family of origin. But these differences are not significant Table 14.4: Logistic regressions: family and serious juvenile delinquency—subjects of the Tuebingen Criminal Behaviour Development Study (N = 308)*** Variables in the regression

size of family mother working strucurally incomplete family change of living environment socio-economic status living conditions deviant parents emotional family bonds educational style supervision P2

Complete family model (structural background and interaction in family) .00 .00 .00 .00 .00 .01

.070 .10* .17** .26** .37

Only variables of the structural family background model .00 .00 .00 0.09* .10* .11* .19** — — — .18

* = p < .10; (*) = p < . 0 5 ; " = p < .001 *** Source: Jiirgen Thomas, Wolfgang Stelly, Hans-Jiirgen Kerner, Elmar G.M. Weitekamp 1998, p. 318.

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with regard to continuing a criminal career or to desisting from crime. It becomes clear that between the 25th and 35th year in the life of subjects important changes occur. In the middle of their fourth decade, desisters according to Thomas et al. (1998) show decreasing alcohol problems, break contacts to the milieu, find steady work and form stable relationships. We were also able to show that repeat and chronic offending between the age of 19 and 25 was started without social disadvantages in early childhood and without serious juvenile delinquency, and after the 26th year regardless of prior disadvantages, desistance occurred (Stelly et al. 1998). This means that later persisters and desisters can in early adulthood exhibit the same problems and that in the group of desisters in the next 10 years great changes in their life-style appear. We found as well (Kerner et al. 1997) that neither early experiences of socialisation nor imprisonment experiences were sufficient causal conditions for a heavy alcohol consumption. This non-causal linkage becomes even more distinct if one controls for the criminal history. The best theoretical approach to explain the relationship between alcohol and crime seems to be a milieu approach, meaning that a deviant life-style increases the probability of heavy alcohol consumption drastically. Especially for subjects with multiple problems (alcohol + crime + delinquency) we could identify deeper involvement in a deviant life-style pattern. This group had a distinctly higher rate of convictions, and were more marginalised with regard to work and social life compared to those groups which had only one problem. However, the members of the group of serious life course criminals are already marginalised in such a way through (the consequences of) their criminal history. Alcohol as an additional factor is not of great importance. On the other hand we found that alcohol hampers the process of desistance from delinquency and crime. Desistance from crime makes it necessary that one changes a specific life-style, and by doing so, one has to desist from heavy alcohol consumption as well. With regard to early problem behaviours or whether current and actual bonds or ties influence the life course and lead to turning points in the development of criminal careers, we found in the various analyses of the TCBDS data: (1) that according to a life history analysis ruptures and changes in the deviant behaviour of people are undeniable; (2) that persons can have a similar criminal career as adults even though they experienced different conditions of their socialisation in childhood and during their juvenile years; and (3) that desistance out of an officially recorded criminal career goes hand-inhand with start of a conforming life-style. Decisive for desistance or continuity of deviant and criminal behaviour are the current bonds and ties. The analyses reveal not only the limited scope of explanations which are based only upon the early history of persons, but also support the theoretical explanations which take into account in addition the current life circumstances and life-styles of people.

224 Desistance from Crime

OUTLOOK

How important it is to look at the life histories of individuals over a long period of time is shown in the recent debate started by Warr (1998). He argues that Sampson and Laub's (1993) linkeage of criminal behaviour to life-course transitions such as marriage, employment, and entry into the military, and their interpretation of the results with regard to desistance by control theory, is wrong. He argues that marriage leads to a dramatic decline in the time spent with friends and, even more important, the time spent with delinquent friends, thus favouring a differential association/social learning theory. Sampson and Laub (1993) contend that the institution of marriage per se does not increase social control but that strong attachement to a spouse combined with emotional ties between the two should lead to a reduction of criminal behaviour. Warr, on the other hand, argues that marriage appears to lead to desistance of crime by severing or weakening former criminal associations. Warr's argument seems to be shortsighted since the subjects in his analyses are in their early 20s and the married subjects are married only for a very short period of time. Contrary to his findings, Sampson and Laub (1993), Farrington and West (1995), Wittmann (1980), and Thomas et al. (1998) found that not marriage itself but the quality of the marriage is of importance with regard to desistance, and one aspect of quality in this context may be the fact of how long the couple is together. Warr might be right that shortly after marriage this fact leads to a reduction in contacts to friends and even delinquent friends, but in the long run the control explanation offered by Sampson and Laub seems to be more plausible. This example illustrates quite clearly that at different stages during the life course different things seem to be important. Overall, the evidence points in the direction that the sociogenetic explanations by Sampson and Laub (1993), Cohen and Vila (1996), Kerner et al. (1997), Matsueda and Heimer (1997), Stelly et al. (1998), Thomas et al. (1998), and Simons et al. (1998), that criminal behaviour is largely affected by life course events like marriage, employment, education, etc., are the better ones, and that the position of the proponents of the ontogenetic explanation like Gottfredson and Hirschi (1990) is wrong.

REFERENCES

Caspi, Avshalom and Daniel Bern, 1990, "Personality Continuity and Change Across the Life Course" in Handbook of Personality: Theory and Research (Leonard A. Pervin (ed.), New York: Guilford Press). Caspi, Avshalom, Glenn Elder, and Daniel Bern, 1987, "Moving Against the World; LifeCourse Patterns of Explosive Children" 23 Developmental Psychology 308-313. Cline, Howard F., 1980, "Criminal Behaviour over the Life Span" in Constancy and

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Change in Human Development (Oliver Brim and John Kagan (eds), Cambridge: Harvard University Press). Cohen, Lawrence E. and Bryan J. Vila, 1996, "Self-Control and Social Control: An Exposition of the Gottfredson-Hirschi/Sampson-Laub Debate" 5 Studies on Crime & Crime Prevention 125-150. Elder, Glenn H., 1975, "Age Differentiation and the Life Course" 1 Annual Review of Sociology 165-190. Farrington, David P., 1994, "Human Development and Criminal Careers" in The Oxford Handbook of Criminology (Mike Maguire, Rod Morgan, and Robert Reiner (eds), Oxford: Clarendon Press). Farrington, David P. and Donald J. West, 1995, "Effects of Marriage, Separation, and Children on Offending by Adult Males" in Current Perspectives on Aging and the Life Cycle, Volume 4 (Zena Smith Blau and John Hagan (eds), Greenwich: JAI Press Inc). Gottfredson, Michael and Travis Hirschi, 1990, A General Theory of Crime (Stanford: Stanford University Press). Greenberg, David F., 1979, "Delinquency and the Age Structure in Society" in Criminology Review Yearbook (Stephen L. Messiner and Edward Bittner (eds), Beverley Hills: Sage). Hirschi, Travis, 1969, Causes of Delinquency (Berkeley: University of California Press). , 1983, "Crime and Family Policy" 6 Journal of Contemporary Studies 13-37. and Michael Gottfredson, 1983, "Age and the Explanation of Crime" 89 American Journal of Sociology ; 552-584. - and , 1995, "Control Theory and the Life-Course-Perspective" 4 Studies on Crime & Crime Prevention 131-142. Kerner, Hans-Jiirgen, 1993, "Jugendkriminalitat zwischen Massenerscheinung und krimineller Karriere" in Sozialarbeit und Kriminalpolitik (Werner Nikolai and Richard Reindl (eds), Freiburg: Lambertus). , 1996, "Erfolgsbeurteilung nach Strafvollzug . Ein Teil des umfassenden Problems vergleichender Sanktionsforschung" in Jugendstrafvollzug und Bewdhrung (HansJiirgen Kerner, Gabriele Dolde und Hans-Georg Mey (eds), Bonn: Forum Verlag Godesberg). , 1998, "Vom Ende des Riickfalls: Probleme und Befunde zum Ausstieg von Wiederholungstatern aus der sogenannten kriminellen Karriere" in H.-J. Albrecht F. Diinkel, H.-J. Kerner, J. Kiirzinger, H. Schoch, K. Sessar, B. Villmow (Hrsg.): Kriminologie und Strafrecht. Festschrift fur Giinther Kaiser zum 70. Geburtstag. Berlin Dunker & Humblot 1998, S. 141-176. and Helmut Janssen, 1996, "Riickfall nach VerbiiBung einer Jugendstrafe— Langfristverlauf im Zusammenspiel von soziobiographischer Belastung und krimineller Karriere" in Jugendstrafvollzug und Bewdhrung (Hans-Jiirgen Kerner, Gabriele Dolde und Hans-Georg Mey (eds), Bonn: Forum Verlag Godesberg). , Elmar G.M. Weitekamp, and Wolfgang Stelly, 1995, "From Child Delinquency to Adult Criminality: First Results of the Follow-Up of the Tubingen Criminal Behavior Development Study" 8-9 EuroCriminology 127-162. and Jiirgen Thomas, 1997, "Patterns of Criminality and Alcohol Abuse: Results from the Tuebingen Criminal Behaviour Study" 7 Criminal Behavior and Mental Health 401^*20. Laub, John H. and Robert J. Sampson, 1995, "Crime, Conformity, and Death in Later

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Life: A 60 year perspective" paper presented at the Annual Meeting of the American Sociological Association, Washington DC. Loeber, Rolf and Marc LeBlanc, 1990, "Toward a Developmental Criminlogy" in Crime and Justice: A Review of Research (Michael Tonry and Norval Morris (eds), Chicago: University of Chicago Press). Matsueda, Ross and Karen Heimer, 1997, "A Symbolic Interactionist Theory of RoleTransitions, Role-Commitments and Delinquency" in Developmental Theories of Crime and Delinquency: Advances in Criminological Theory, Volume 7 (Brunswick: Transaction Publishers). Matt, Eduard, 1995, "Episode und 'Doppel-Leben': Zur Delinquenz Jugendlicher" 78 Monatsschrift fur Kriminologie und Strafrechtsreform 153-181. McCord, Joan, 1978, "A Thirty-Year Follow-Up of Treatment Effects" 37 Journal of Personality and Social Psychology 284-289. Mischkowitz, Robert, 1993, Kriminelle Karrieren und ihr Ahbruch. Empirische Ergebnisse einer kriminologischen Langzeituntersuchung als Beitrag zur "Age-CrimeDabate" (Bonn: Forum VerlagGodesberg). Moffitt, Terrie E., 1994, "Natural Histories of Delinquency" in Cross-National Longitudinal Research on Human Development and Criminal Behavior (Elmar G.M. Weitekamp and Hans-Jiirgen Kerner (eds), Dordrecht: Kluwer Academic Publishers). Patterson, Gerald R., 1982, Coercive Family Process. A Social Learning Approach (Eugene: Castalia Publishing Company). , John B. Reid, and Thomas J. Dishon, 1992, Antisocial Boys (Eugene: Castalia Publishing Company). -, and Kevin Yoerger, 1993, "Developmental Models for Delinquent Behavior" in Mental Disorder and Crime (Sheilag Hodgins (ed.), Beverley Hills: Sage). Petersilia, Joan, 1980, "Criminal Career Research" in Crime and Justice: An Annual Review of Research (Norval Morris and Michael Tonry (eds), Chicago: University of Chicago Press). Reckless, Walter C , 1972, The Prevention of Juvenile Delinquency (Columbus: Ohio State University Press). Robins, Lee, 1966, Deviant Children Grown up: A Sociologigical and Psychiatric Study of Sociopathic Personality (Baltimore: Willams & Wilkins). Sampson, Robert J. and John H. Laub, 1993, Crime in the Making (Cambridge: Harvard University Press). and , 1995, "Understanding Variability in Lives Through Time: Contributions of Life-Course Criminology" 4 Studies on Crime & Crime Prevention 143-159. - and J , 1997, "A Life-Course Theory of Cumulative Disadvantage and the Stability of Delinquncy" in Developmental Theories of Crime and Delinquency (Terrence P. Thornberry (ed.), New Brunswick: Transaction Publishers). Shover, Neal and Carol Y. Thompson, 1992, "Age, Differential Expectations, and Crime Desistance" 30 Criminology 89-104. Simons, Ronald L., Christine Johnson, Rand D. Conger, and Glen Elder Jr., 1998, "A Test of Latent Versus Life-Course Perspectives on the Stability of Adolescent Antisocial Behavior" 36 Criminlogy 217-244. Stelly, Wolfgang, Jiirgen Thomas, Hans-Jiirgen Kerner, and Elmar G.M. Weitekamp, 1998, "Kontinuitat und Diskontinuitat sozialer Auffalligkeiten im Lebenslauf" 81 Monatschrift fur Kriminologie und Strafrechtsreform 104-122.

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Thomas, Jiirgen, Wolfgang Stelly, Hans-Jurgen Kerner, and Elmar G.M. Weitekamp, 1998, "Familie und Delinquenz" 50 Kolner Zeitschrift fur Soziologie und Sozialpsychologie 310-326. Thornberry, Terrence P., 1987, "Toward an Interactional Theory of Delinquency" 25 Criminology 863-891. Thornberry, Terrence P., 1996, "Empirical Support for Interactional Theory: A Review of the Literature" in Delinquency and Crime: Current Theories (David Hawkins (ed.), Cambridge: Cambridge University Press). Tracy, Paul E. and Kimberly Kempf-Leonhard, 1996, Continuity and Discontinuity in Criminal Careers (New York and London: Plenum Press). Warr, Mark, 1998, "Life-Course Transitions and Desistance from Crime" 36 Criminology 183-216. Wittmann, Hanns-Joachim, 1980, "Zur Bedeutung der Ehe fur die Bewahrung von Straffalligen" 29 Zeitschrift fur Strafvollzug und Straffdlligenhilfe 204-208. Wolfgang, Marvin E., Robert M. Figlio, Paul E. Tracy, and Simon I. Singer, 1985, The National Survey of Crime Severity (Washington, D.C.: The Government Printing Office).

15

A Theory of Motivation and the Life Course JOAN McCORD

ALF A CENTURY ago, Talcott Parsons and Edward Shils gathered their colleagues—psychologists, sociologists, and anthropologists—for weekly meetings to discuss theoretical foundations of the social sciences. The resulting book, Toward a General Theory of Action, addressed their central task for the analysis of criminal behaviour: understanding motivation. Unless we have an adequate theory of voluntary action in general, we cannot have an adequate theory of voluntary criminal behaviour. Fifty years ago, Parsons, Shils, and their colleagues outlined a theory of action based on drives, needs, and cathexis. The authors explained that drives refer to innate tendencies to act whereas needs "refer to these same tendencies when they are not innate but acquired through the process of action itself" (Parsons and Shils, 1951, p. 111). Working in a long tradition traceable back to Aristotle, Parsons and Shils believed that drives and needs provide necessary forces for action. That unexamined assumption has produced a rash of theories purporting to explain criminal behaviour in terms of aggression, self-interest, and failures of control. In contrast, the theory developed here, the Construct Theory of Motivation, regards drives and needs (at least when conceived to be motivating forces) as fictions, obfuscating fictions at that. That is not to say that people do not get hungry, want sex, and require water—but rather, that links between hunger and eating, between sexual desire and copulation, between thirst and its quenching are contingent and that particular acts of eating, copulation, and drinking are not adequately explained by reference to putative drives or needs. Putting the point somewhat differently, to say that eating is caused by, motivated by, hunger is akin to explaining why Martina Hingis won Wimbledon by saying she had the higher score. R.S. Peters referred to such explanations as "redescriptive rather than explanatory" (1958, p. 19). Historically, two primary positions have been taken regarding voluntary actions. On the one hand, there are those who believe that an action is voluntary only if the agent might have done otherwise than he did. If actions are caused by desires or by character, then it becomes difficult to see how the actions

H

230 A Theory of Motivation and the Life Course could have been other than they were. On the other hand, there are those who believe that an action is voluntary so long as the agent has been unconstrained by external forces. In this vein, the controversy over responsibility has seemed to focus on what it means possibly to have done otherwise. The Logical Positivists were comfortable taking a position that a responsible agent could have done otherwise, had the agent wanted to (e.g., Schlick 1939). Critics, however, note that what an agent wants is not a matter of choice. Indeed, Aristotle had pointed to the issue when he said: "It makes no small difference, then, whether we form habits of one kind or of another from our very youth; it makes a very great difference, or rather all the difference" (1941,1103b 23—25, emphasis in the original). Both those taking the "free will" and the "deterministic" positions of this controversy assume that a claim that an agent has done an action voluntarily is descriptive and subject to the rules of evidence. To sidestep the problems each side encountered, a third position has been entertained. This third position amounts to rejection of the view that holding a person responsible for a crime is primarily descriptive. For example, H.L.A. Hart wrote: "Sentences of the form 'He did it' have been traditionally regarded as primarily descriptive whereas their principal function is. . .to ascribe responsibility for actions much as the principal function of sentences of the form 'This is his' is to ascribe rights in property" (1951, p. 145). The problem with taking an ascriptive view is that it leaves the attribution of responsibility for actions outside the realm of science. Some theorists, following the lead of Immanuel Kant (1873), have argued specifically against a view that there can be a science of human behaviour. According to this view, actions, qua actions, cannot be caused because they are free (Melden 1961). Peter Winch, for example, took direct aim at the possibility of a social science. He wrote: "I am not denying that it is sometimes possible to predict decisions; only that the evidence on which such predictions are based must be different in kind from that on which scientific predictions are based" (1958, p. 93). Nigel Walker, formerly director of the Institute of Criminology at Cambridge University in England, took a somewhat weaker position against the use of science for understanding behaviour. He asserted: "the assumption that the ideal explanation is scientific in form is out of date . . . (scientific explanations) are concerned with occurrences of high probability, they are less often appropriate to instances of misbehaviour than t o instances of behaviour" (1977, pp. 140—141). An extension of Walker's view, however, would lead to the untenable position that uncommon particles or unusual diseases could not be objects of scientific explanation. Not all voluntary actions are intentional. Most types of criminal behaviour (excepting, for example, statutory rape and driving under the influence of alcohol), however, belong to that sub-set of voluntary actions that are intentional. The Construct Theory of Motivation explains intentional actions as actions done for reasons of the agent, reasons that are a part of "the commons of the mind" (Baier

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1997). These need not be reasons that an agent would give, though they must be reasons that represent how that agent sees the options at the time of action. The Construct Theory of Motivation lays claim to being a scientific theory. It has been designed to meet three criteria: (1) it must give an account of how socialisation practices influence action; (2) it must account for why valid descriptions of motives make a difference in terms of predictions and expectations about the behaviour of a motivated individual; (3) it must give a plausible account of criminal behaviour as voluntary action. The theory rests heavily on post-empiricist philosophy, that is, on work influenced by Wittgenstein's Philosophical Investigations (1953). In repudiating his own prior commitment to philosophical empiricism (see Wittgenstein 1922/1960), Wittgenstein broke down barriers between mental processes and their expression (Part I, para. 330), between linguistic meanings and the use of words (Part II, p. viii), and between the way the world is and how we conceive it (Part II, p. xi). Others followed, showing the way toward a theory of language that integrates what had previously been considered private, mental, and inaccessible meanings with their use for public communication (Tarski 1944/1949; Davidson 1967). The integration led the way to showing how communication is possible and how language can be learned. I have used that integration to give an account of why child-rearing influences voluntary action (McCord 1997a). The central insight, first announced by Tarski, is that the meanings of words depend on public criteria for appropriate use. The Construct Theory of Motivation rests on the idea that language is fundamentally evaluative and public. This position avoids the pervasive problems accruing both to theories of action that insist on a chasm between descriptions and evaluations and to theories of language that place meanings in a private realm of sense data or images in the mind. Children learn what to do and what to believe in the process of learning how to use language. Language provides a link between individuals and their societies because concepts are organised by the language in which they can be described. In learning a language, an individual's ideas are constructed in a form that permits their linguistic representation. The Construct Theory sees motives as members of a special class of descriptions, as potentiating reasons for action. Understanding why criminals commit particular types of crimes requires understanding why their reasons for action move them to act in anti-social ways. The theory requires two assumptions: an assumption that people are born with the capacity to reason and to respond to their environments, and an assumption that language, values, and actions are learned in conjunction with one another. As long ago as 1872, Charles Darwin had recorded evidence to suggest that an infant's complex patterns of emotional response to the environment were partially innate and could be understood in terms of evolution. Contemporary

232 A Theory of Motivation and the Life Course theorists in cognitive development concur (e.g., Camras, Malatesta, and Izard 1991; Gopnik and Meltzoff 1997; Nelson 1996). Neonates show a preference for their mothers' voices, seemingly as a result of prenatal experiences (DeCasper and Fifer 1980; Spence and DeCasper 1987). Within days of birth, infants will cry in response to the cry of another human being (Sagi and Hoffman 1976; Simner 1971). During the first few weeks of life, neonates begin to display emotions, with facial expressions akin to those found in adults. For example, by the third week they sometimes smile with open eyes and contraction of the muscles circling the eyes. When children are about a month old, pleasant sounds and soft touches produce such smiles (Camras, Malatesta, and Izard 1991). These early developments indicate that infants are selecting and recognising significant cues from their environments. When children learn a language, they are learning to follow (linguistic) rules, rules that require complex classifications. Children learn a language that involves constructing categories organised by the structure of the language in their culture. Sounds acquire meaning in virtue of the rules that permit recognition of repetitions, that enable identification and re-identification of objects and events (Keil 1994; Nelson 1996). By nine months, children are able to identify and retrieve objects despite their disappearance behind barriers (Gopnik and Meltzoff 1997). During the first year, infants have learned to organise their social worlds in relation to routine activities such as eating a meal or taking a bath, showing appropriate anticipatory behaviour (Nelson 1996). They are also able to behave in ways that involve consideration of the feelings of others, even without adult direction (Hoffman 1984). Perhaps more importantly, children can be taught to be considerate and careful by being shown the consequences of their actions (Hoffman 1977).1 Children learn not only what to count as cats and dogs, cars and trains, but also what to count as painful or pleasant, undesirable or desirable, and worth avoiding or pursuing. In learning labels, in learning how to name and to reidentify objects and activities, children construct classifications. The classification systems they develop influence what they notice (Keil 1994; Markman 1994). The Construct Theory adds that the classification system formed through learning language affects how children act as well as what they understand and say. Learning a language includes learning what J. L. Austin (1962) called "performatives". These are utterances like requesting, apologising, promising, warning, and advising. In learning language, children learn these usages as well as (and possibly prior to) learning how to describe what they see and hear.2 1 Hoffman interprets his data in relation to his theory of empathy. That theory assumes that a neonate cannot distinguish between himself and others; furthermore, Hoffman's interpretation of the consequences of induction involve guilt, for which there is no evidence in his studies. The Construct Theory of Motivation allows for learning "good behaviour" in the absence of self-punishment or guilt. 2 My grandson said "allgone", meaning that he had had enough as well as that there was no more, before he identified the lights and trucks that shortly fascinated him. Apparently, such usage is not atypical (Bloom 1973).

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At very young ages, children recognise requests and often do as they are asked. Early in their development, they know that some types of language are grounds for action. In one naturalistic study, the observers found that almost half the toddlers (12 to 15 months in age) complied with their mother's first request to change the course of their actions (Power and Chapieski 1986). The Construct Theory builds on recognition of the way children learn language and how what their care-givers do affects what they learn. It claims that there are categories of descriptions that form potentiating reasons for an agent to behave in specified ways. Such categories might be labelled, as in a filing system, "to be done" or "to be avoided". Both natural and artificial contingencies inform the child about the world and how to act within it. The studies of babies learning language indicate that very young children are able to use subtle cues to form their views of the world and how to act within it. Even neonates can be taught to cry more frequently if their natural cries bring ready response (Hubbard and van Ijzendoorn 1990; Thoman, Korner, and Benson-Williams 1977). Studies have shown that by the age of 15 months, infants employ logic in learning language. Markman (1994) discovered that monolingual babies show a preference for having exactly one name for an object. He reported a study in which babies were presented with a novel label while holding an object whose name they already knew. The babies looked inside a bucket to find a hidden alternative object to which to attach the name in preference to applying a second name to an already labelled object. Markman noted that the infants required the ability to use disjunctives to come to the conclusion that they reached. In a related study, Baldwin (1991) wondered how babies distinguish between the learning of a label and idle use of sounds. In his experiment, he used babies who were 16 months old. These babies would learn a label when the speaker was looking at the same target as the baby. But if the speaker's attention was directed away from the object that attracted the baby's attention, the baby did not assign the label to the object. Construct Theory explains the fact that different people consider similar events to have different affective characteristics, e.g., as undesirable and desirable, by recognising that individuals construct different classifications of the events. In infancy and early childhood, care-givers provide the contingencies from which a child learns the category system of his social environment. In teaching children how to act, parents display a variety of cues that indicate the values they themselves place on various grounds for action. Some parents show a child the consequences of misbehaviour in terms of injuries to others or to objects. These "inductive" measures appear to be particularly effective in reducing the likelihood of future misbehaviour (Hoffman 1977). Some parents use the word "no", but allow a child to do the act supposedly forbidden—perhaps following with a punishment. They are teaching the child to use "no" as a sign that something unpleasant might follow. Were they to stop

234 A Theory of Motivation and the Life Course a child's action while saying "no", the child would learn a different meaning for the word. Dienstbier (1984) describes a study of young, same-sex twins used in a matched pairs design to evaluate what he and his colleagues considered to be emotion-attribution differences. Each child was placed in a toy room, alone, and asked to watch a toy slotcar in order to prevent an accident that might destroy the valuable old toy. When the child stopped watching the slotcar for a criterion period of time, the car was made to fall (by a hidden observer) and the experimenter returned to the room. One twin in each pair was told that (s)he probably felt unhappy because of what (s)he had done and that those who do the right thing feel good even if no one knows; the other was told that (s)he probably felt unhappy because the experimenter knew what (s)he had done and that those who can show others that they do the right thing feel good. Both were subsequently given new slotcars to watch and allowed to lock their doors so that (they believed) no one would know whether or not they followed instructions to monitor the cars. Out of 12 minutes, the first group failed to watch for 177 seconds whereas the second group failed to watch for 322 seconds, a difference that was highly significant. Although the experimenters inferred emotion as mediating the obtained differences, it should be noted that the information conveyed about what cues to consider salient fits well a picture in which the children in the first (internal attribution) condition were instructed to do the right thing regardless of who might know and the second (external attribution) were informed that what the experimenter might know was the relevant consideration. The experiment did not demonstrate that emotions were involved in the effects; that conclusion depended on the unevaluated assumption that emotions direct behaviour. When a child is credibly threatened with punishment, the information conveyed extends beyond the intended message that the child ought not do something. A punishment is designed to be unpleasant. Unless the chosen event is thought by the punisher to be unpleasant, it would not be selected as a means for controlling the child's behaviour. What is selected as a punishment, then, shows what is to be considered undesirable. In addition, the use of punishment and threats of punishment indicate what types of behaviour the punisher considers desirable. Punishments are not necessary to stop people from doing what they would not or could not choose to do. Therefore, punishments tend to have the "contrarian" effect of enhancing the value of what has been forbidden. In a classic study, Aronson and Carlsmith (1963) had demonstrated the enhancing value of "forbidden fruit". An experimenter, after individually playing with 44 pre-school aged children, asked the child to compare five toys until stable transitive preferences were achieved. Explaining that he had to leave the room for a few minutes, the experimenter placed the toy a child ranked second favourite on a table and told the child to play with the others. Children were assigned, randomly, to one of two conditions. In the "mild threat" condition, the experimenter said he would be

A Theory of Motivation and the Life Course 235 annoyed if the child played with the forbidden toy. In the "severe threat" condition, the experimenter said that if the child played with the forbidden toy, the experimenter would be very angry and would take all the toys and never come back. The experimenter left the child for 10 minutes. Approximately 45 days later, the children again ranked the five toys. Eight of those who were merely told that the experimenter would be annoyed, but none of those who had been threatened more severely, had decreased their preference for the forbidden toy. Conversely, four of the children from the mild threat condition ranked the forbidden toy as a favourite whereas 14 of those in the severe threat condition regarded the forbidden toy as the favourite. In sum, severe threats tended to enhance the value of the forbidden. In a near replication, after asking children to rank the toys, Lepper (1973) told two groups not to play with the toy ranked second in preference, with one group told that the experimenter would be a little annoyed if the child played with the toy and the other that the experimenter would be very upset and angry if the child played with the toy. A third group was not forbidden to play with a toy. As revealed in a second rating, degradation in preference for the forbidden toy occurred only among children in the mild-threat condition. Three weeks later, the children played another game and were to report their own scores, which were two points less than required to win a prize. Honesty in reporting their scores was greatest among children without any threats, followed by those given mild threats, and least among children who had been severely threatened. Again punishment increased forbidden behaviour, in this case, dishonesty. The extent to which preferences can be shaped by the use of punishments and rewards has been demonstrated through arbitrarily arranged activities. Lepper, Sagotsky, Dafoe and Greene (1982) used imaginary foods dubbed "hupe" and "hule". Twenty-eight preschool children were told short stories about Johny or Janie, depending on the sex of the child, being given new foods. For half the children, the mother in the story offered first one and then the other (in counterbalanced order) to the child in the story; for the other half, the mother in the story explained to her child that (s)he could have one ("hupe" or "hule" for different children) if (s)he ate the other. In the contingency condition, where it seemed as though hupe (or hule) was a reward for eating the other, the children judged the second preferable and gave as their reason that the second dish tasted better. No such preference appeared in the non-contingent condition. The effect for preferences under contingency options was replicated with another group of 40 children using felt pens and pastels rather than imaginary foods. Identifying something as a reward tends to enhance its value while diminishing that of the rewarded behaviour (Boggiano and Main 1986). Many studies show that rewarding children for performing an activity they already enjoy tends to reduce the children's interest in that activity (e.g., Greene and Lepper 1974; Lepper, Greene and Nisbett 1973; Ross, Karniol, and Rothstein 1976). Outside the laboratory, a study of 72 children between the ages of seven and 11 years showed that those accustomed to receiving rewards were less likely to be

236 A Theory of Motivation and the Life Course helpful without rewards than were children not accustomed to receiving them (Fabes, Fultz, Eisenberg, May-Plumlee, and Christopher 1989). Several longitudinal studies investigating effects of punishment on aggressive behaviour have shown that punishments are more likely to result in defiance than compliance. Power and Chapieski (1986) studied toddlers one month after they had started walking unassisted and again a month later. The sample, drawn from Lamaze classes, was middle class, with mothers at home. Among them: "Infants of physically punishing mothers showed the lowest levels of compliance and were most likely to manipulate breakable objects during the observations" (p. 273). Additionally, six months later, the same infants showed slower development as measured by the Bayley mental test scores. Crockenberg and Litman (1990) studied two-year olds' compliance in the laboratory and interviewed their mothers about discipline and family life. The same mother-child pairs were studied a month later in their homes during meal preparation and mealtime. After controlling other types of maternal behaviour, the observers' ratings indicated that negative control was related to defiance in both settings. Similarly, spanking seems counter-productive for children preparing to enter school. Strassberg and his colleagues (1994) recruited families in three cities as they registered the children for kindergarten. Parents present in the home reported their disciplinary practices over the prior year. The children were subsequently observed in their classrooms. Children spanked by their mothers or fathers displayed more angry, reactive aggression in the kindergarten classrooms than did those who did not receive physical punishments. My own study of corporal punishment was based on bi-weekly observation of 224 parents and their sons over an average period of five-and-one-half years (McCord \997b). In addition to measuring the use of corporal punishment in the home, each parent was rated in terms of warmth expressed toward the child. At the time of these ratings, the sons were between the ages of 10 and 16. Thirty years later, I traced the criminal records of the subjects. Even after statistically controlling for paternal warmth, the father's use of corporal punishment predicted an increased likelihood that the son would subsequently be convicted for a serious crime. After statistically controlling for maternal warmth, the mother's use of corporal punishment predicted an increased likelihood that the son would subsequently be convicted for a serious crime of violence. Some investigators have noted that aggressive and non-aggressive children tend to process information differently. Aggressive children are likely to see situations as hostile when non-aggressive children see them as merely ambiguous (Dodge and Somberg 1987; Fondacaro and Heller 1990). Furthermore, such biased cognitions appear to mediate a link between early harsh discipline and subsequent aggression (Weiss et al. 1992). Perhaps the most salient indication of the importance of cognitive processing for understanding anti-social behaviour comes from an experimental intervention. Hudley and Graham (1993) randomly assigned aggressive, unpopular boys

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in 4th through 6th grades to one of two types of training. In one, the boys were taught to recognise non-hostile intentions of others. In the other, a control group, boys worked on pro-social problem solving. Meetings of both types of groups occurred two times a week for six weeks. Teachers blind to which type of training the boys had received rated the boys on aggression and pro-social behaviour both before and two weeks after treatment. The results indicate that training in cue recognition did not alter the boys' general attitudes toward others or their emotions. It did, however, change the boys' grounds for action. Teachers' ratings showed that those who received the non-hostile cue training had become less aggressive, though they were not more pro-social. Frustrating situations were described to the boys; their responses did not suggest that those who acted less aggressively would be less angry in response to frustration. A second evaluation was carried out one month after treatment ended. Each boy was told he could win a prize by following a map with instructions given by another boy who was seated behind a barrier. Both boys believed they had the same map, but in fact they did not. Thus, success was impossible. Differences in reactions to this frustrating situation were clear. Although boys in the control group insulted their partners, none of the boys trained to recognise non-hostile intentions did so. Furthermore, boys trained to recognise non-hostile intentions were significantly less likely to use hurtful comments. Probably the most efficient interventions for the reduction of subsequent problems of a variety of types, including anti-social behaviour, are those that teach new mothers what to expect of their babies and how to stimulate them. Such studies have had beneficial results in relation to parent-child relations, child compliance and adaptability (Field et al. 1980; Jester and Guinagh 1983; Olds et al. 1986). One explanation for these benefits is that such training improves the cues a mother uses to teach her child how to act. Child abuse and neglect are known risk factors for crime (see Widom and Maxfield 1996, for a review.) Such backgrounds are likely to provide few potentiating reasons for changing courses of action that are based on injuries to themselves or others. This is consistent with knowledge that persistent criminals are relatively unresponsive to physical pains (Farrington 1988; Hare 1978; Mednick 1977; Satterfield 1987; Siddle 1977; Wadsworth 1976). Parental conflict, rejection, poor monitoring, and neighborhood disorganisation, too, increase the probabilities that children reared in their midst will become criminals (Larzelere and Patterson 1990; Laub and Sampson 1988; McCord 1991; Sampson 1992; Sampson and Laub 1993). The Construct Theory of Motivation suggests that the mechanism linking these risk conditions to criminality should be sought through understanding how people reason about the world they see and the types of actions these perceptions justify.

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SUMMARY AND DISCUSSION

The Construct Theory of Motivation claims that intentional action can best be understood as action for which the causes are motives. The theory describes motives as potentiating reasons, that is, as reasons seen by the agent to warrant action. It rejects the view that action requires drives, needs, wants, or any other type of "force". The Construct Theory takes from the Kantian approach to understanding action the view that reasons can be sufficient grounds for action. It rejects the view, however, that reasons lie outside the realm of science. The scientific approach to understanding reasons rests on the types of studies described in this chapter. As scientists, we can learn the effects on reasoning of various types of child-rearing techniques. The Construct Theory of Motivation claims that language can be learned and what other people say can be understood because what words mean is determined by the criteria for their proper use. This claim has several implications. First, it implies that learning a language requires rule-governed behaviour. Secondly, it implies that motives may be understood by someone other than the actor. And thirdly, it implies that change can take place by altering the grounds for action. If the Construct Theory is correct, intervention programmes ought not be aimed at drives or human needs. They ought be aimed at reasoning.

REFERENCES

Aristotle, 1941, "Nicomachean Ethics" (W.D. Ross (trans.)), in The Basic Works of Aristotle (R. McKeon (ed.), New York: Random House). Aronson, E. and J.M. Carlsmith, 1963, "Effect of the severity of threat on the devaluation of forbidden behavior" 66(6) Journal of Abnormal and Social Psychology 584-588. Austin, J.L., 1962, How To Do Things With Words (Oxford: The Clarendon Press). Baier, A.C., 1997, The Commons of the Mind (Chicago: Open Court). Baldwin, D.A., 1991, "Infants' Contribution to the Achievement of Joint Reference" 62 Child Development 875-890. Bloom, L., 1973, One Word at a Time: the Use of Single Word Utterances Before Syntax (The Hague: Mouton). Boggiano, Ann K. and Deborah S. Main, 1986, "Enhancing Children's Interest in Activities Used as Rewards: The Bonus Effect" 31,6 Journal of Personality and Social Psychology 1116-1126. Camras, L.A., C. Malatesta, and C.E. Izard, 1991, "The Development of Facial Expressions in Infancy" in Fundamentals ofNonverbal Behavior (R.S. Feldman and B. Rime (eds), Cambridge University Press), pp. 73-105. Crockenberg, S. and C. Litman, 1990, "Autonomy as Competence in 2-year-olds: Maternal Correlates of Child Defiance, Compliance, and Self-assertion" 26 Developmental Psychology 961—971.

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Darwin, C , 1872, The Expression of the Emotions in Man and Animals (London: John Murray). (Republished by the University of Chicago Press, 1965.) Davidson, D., 1967, "Truth and meaning" 17, 3 Synthese 304-323. DeCasper, A.J. and W.P. Fifer, 1980, "Of Human Bonding: Newborns Prefer Their Mothers' Voices" 208 Science 1174-1176. Dienstbier, R.A., 1984, "The Role of Emotion in Moral Socialization" in Emotions, Cognitions, & Behavior (C.E. Izard, J. Kagan, and R.B. Zajonc (eds), Cambridge University Press), pp. 484—514. Dodge, K.A. and D.R. Somberg, 1987, "Hostile Attributional Biases Among Aggressive Boys are Exacerbated under Conditions of Threats to the Self" 58(1) Child Development 2U-214. Fabes, Richard A., Jim Fultz, Nancy Eisenberg; Traci May-Plumlee, and F. Scott Christopher, 1989, "Effects of Rewards on Children's Prosocial Motivation: A Socialization Study" 25, 4 Developmental Psychology 509—515. Farrington, D.P., 1988, "Social, Psychological and Biological Influences on Juvenile Delinquency and Adult Crime" in Explaining Criminal Behaviour: Interdisciplinary Approaches (W. Buikhuisen and S.A. Mednick (eds), New York: E.J. Brill), pp. 68-89. Field, T.M., S.M. Widmayer, S. Stringer, and E. Ignatoff, 1980, "Teenage, Lower-Class, Black Mothers and their Preterm Infants: An Intervention and Developmental Followup" 51(2) Child Development M6-A3,G. Fondacaro, M.R. and K. Keller, 1990, "Attributional style in aggressive adolescent boys" 18(1) Journal of Abnormal Child Psychology 75-90. Gopnik, A. and A.N. Meltzoff, 1997, Words, Thoughts, and Theories (Cambridge, MA: The MIT Press). Greene, David and Mark R. Lepper, 1974, "Effects of Extrinsic Rewards on Children's Subsequent Intrinsic Interest" 45 Child Development 1141-1145. Hare, R.D., 1978, "Electrodermal and Cardiovascular Correlates of Psychopathy" in Psychopathic Behaviour (R.D. Hare and D. Schalling (eds), Chichester: John Wiley and Sons), pp. 107-143. Hart, H.L.A., 1951, "The Ascription of Responsibility and Rights" in Logic and Language (first series) (A. Flew (ed.), Oxford: Basil Blackwell), pp. 145-156. Hoffman, M., 1977, "Moral Internalization: Current Theory and Research" in Advances in Experimental Social Psychology (L. Berkowitz (ed.), New York: Academic Press). , 1984, "Interaction of Affect and Cognition in Empathy" in Emotions, Cognitions, and Behavior (C.E. Izard, J. Kagan, and R.B. Zajonc (eds), Cambridge University Press), pp. 103-131. Hubbard, F.O.A. and M.H. van Ijzendoorn, 1990, "Responsiveness to Infant Crying: Spoiling or Comforting the Baby? A Descriptive Longitudinal Study in a Normal Dutch sample" in Developmental Psychology Behind the Dikes: An Outline of Developmental Psychological Research in the Netherlands (W. Koops; H.J.G. Soppe, J.L. van der Linden, P.CM. Molenaar, and and J.J.F. Schroots (eds), Delft: Uitgeveriz Eburon). Hudley, C. and S. Graham, 1993, "An Attributional Intervention to Reduce PeerDirected Aggression Among African-American Boys" 64(1) Child Development 124-138. Jester, R.E. and B.J. Guinagh, 1983, "The Gordon Parent Education Infant and Toddler Program" in As the Twig is Bent: Lasting Effects of Preschool Programs (E.H. Grotberg (ed.), Hillsdale NJ: Lawrence Erlbaum), pp. 103-132.

240 A Theory of Motivation and the Life Course Kant, I., 1873, Reprint, Critique of Practical Reason (T.K. Abbott (trans.), London: Longmans, Green Sc Co). (Original edition, 1788.) Keil, F.C., 1994, "Explanation, Association, and the Acquisition of Word Meaning" in The Acquisition of the Lexicon (L. Gleitman and B. Landau (ed.), Cambridge, MA: The MIT Press), pp. 169-196. Larzelere, R.E. and G.R. Patterson, 1990, "Parental Management: Mediator of the Effect of Socioeconomic Status on Early Delinquency" 28, 2 Criminology 301-323. Laub, J.H. and R.J. Sampson, 1988, "Unraveling Families and Delinquency: A Reanalysis of the Gluecks' Data" 26, 3 Criminology 355-380. Lepper, Mark R., 1973, "Dissonance, self-perception and honesty in children" 25, 1 Journal of Personality and Social Psychology 65-74. , David Greene, and Robert E. Nisbett, 1973, "Undermining Children's Intrinsic Interest with Extrinsic Rewards" 28, 1 Journal of Personality and Social Psychology 129-137. •, Gerald Sagotsky, Janet L. Dafoe, and David Greene, 1982, "Consequences of Superfluous Social Constraints: Effects on Young Children's Social Influences and Subsequent Intrinsic Interest" 41, 1 Journal of Personality and Social Psychology 51-65. Markman, E.M., 1994, "Constraints on Word Meaning in Early Language Acquisition" in The Acquisition of the Lexicon (L. Gleitman and B. Landau (eds), Cambridge, MA: The MIT Press), pp. 199-227. McCord, J., 1991, "Family Relationships, Juvenile Delinquency, and Adult Criminality" 29, 3 Criminology 397-417. , (1997a), "He Did It Because He Wanted T o .. " in Motivation and Delinquency Vol 144 of the Nebraska Symposium on Motivation (D.W. Osgood (ed.), Lincoln, NE: University of Nebraska Press) pp. 1-43. -, 19976, "On Discipline" 8(3) Psychological Inquiry 215-217. Mednick, S.A., 1977, "A bio-social theory of the learning of law-abiding behavior" in Biosocial Bases of Criminal Behavior (S.A. Mednick and K.O. Christiansen (eds), New York: Gardner), pp. 1-8. Melden, A.I., 1961, Free Action (London: Routledge &C Kegan Paul). Nelson, K., 1996, Language in Cognitive Development: Emergence of the Mediated Mind (Cambridge, England: Cambridge University Press). Olds, D.L., C.R. Henderson, R. Chamberlain, and R. Tatelbaum, 1986, "Preventing Child Abuse and Neglect: A Randomized Trial of Nurse Home Visitation" 77 Pediatrics 65-78. Parsons, T. and E.A. Shils (eds), 1951, Toward a General Theory of Action (Cambridge: Harvard University Press). Peters, R.S., 1958, The Concept of Motivation (London: Routledge &c Kegan Paul Ltd). Schlick, M., 1939, Problems of Ethics (D. Rynin (trans.), New York: Prentice-Hall). Power, T. and M. Chapieski, 1986, "Childrearing and Impulse Control in Toddlers: A Naturalistic Investigation" 56 Developmental Psychology 884—893. Ross, M., R. Karniol, and M. Rothstein, 1976, "Reward Contingency and Intrinsic Motivation in Children: A Test in the Delay of Gratification Hypothesis" 33 Journal of Personality and Social Psychology 442-447. Sagi, A. and M.L. Hoffman, 1976, "Empathic Distress in the Newborn" 12, 2 Developmental Psychology 175-176. Sampson, R.J., 1992, "Family Management and Child Development: Insights from Social

A Theory of Motivation and the Life Course 241 Disorganization Theory" in Facts, Frameworks, and Forecasts: Advances in Criminological Theory, Vol. 3 (J. McCord (ed.), New Brunswick: Transaction Press), pp. 63-93. Sampson, R.J. and J.H. Laub, 1993, Crime in the Making: Pathways and Turning Points Through Life (Cambridge, MA: Harvard University Press). Satterfield, J.H., 1987, "Childhood Diagnostic and Neurophysiological Predictors of Teenage Arrest Rates: An Eight-Year Prospective Study" in The Causes of Crime: New Biological Approaches (S.A. Mednick, T.E Moffitt, and S.A. Stack (eds), Cambridge: Cambridge University Press), pp. 146-167. Siddle, D.A.T., 1977, "Electrodermal Activity and Psychopathy" in Biosocial Bases of Criminal Behavior (S.A. Mednick and K.O. Christiansen (eds), New York: Gardner), pp. 199-211. Simner, M. L., 1971, "Newborn's Response to the Cry of Another Infant" 5 Developmental Psychology 136-150. Spence, M.J. and A.J. DeCasper, 1987, "Prenatal Experience with Low-Frequency Maternal-Voice Sounds Influences Neonatal Perception of Maternal Voice Samples" 10 Infant Behavior and Development 133-142. Strassberg, Z., K.A. Dodge, G. Pettit, and J.E. Bates, 1994, "Spanking in the Home and Children's Subsequent Aggression Toward Kindergarten Peers" 6(3) Development & Psychopathology 445-461. Tarski, A., 1949, Reprint, "The Semantic Conception of Truth and the Foundations of Semantics" in Readings in Philosophical Analysis H. Feigl and W. Sellars (eds), New York: Appleton-Century-Crafts, Inc.), pp. 52-84. (Original edition, 1944.) Thoman, E.B., A.F. Korner, and L. Benson-Williams, 1977, "Modification of Responsiveness to Maternal Vocalization in the Neonate" 48 Child Development 563-569. Wadsworth, M.E.J., 1976, "Delinquency, Pulse Rates and Early Emotional Deprivation" 16, 3 British Journal of Criminology 245-256. Walker, N., 1977, Behaviour and Misbehaviour (Oxford: Basil Blackwell). Weiss, B., K.A. Dodge, J.E. Bates, and G.S. Pettit, 1992, "Some Consequences of Early Harsh Discipline: Child Aggression and a Maladaptive Social Information Processing Style" 63 Child Development 1321-1335. Widom, C.S. and M.G. Maxfield, 1996, "A Prospective Examination of Risk for Violence among Abused and Neglected Children" in Understanding Aggressive Behavior in Children, Vol. 794 (C. F. Ferris and T. Grisso (eds), Annals of the New York Academy of Sciences, 20 September), pp. 224-237. Winch, P., 1958, The Idea of a Social Science (London: Routledge &C Kegan Paul). Wittgenstein, L., 1960, Reprint, Tractatus Logico-Philosophicus (London: Routledge & Kegan Paul). (Original edition, 1922.) , 1953, Philosophical Investigation (G.E.M. Anscombe (trans.), New York: Macmillan).

16 Variation, Selection and Stabilisation: An Evolutionary Theory of Crime and Control KAI-D. BUSSMANN

THE PROBLEM HIS CHAPTER EXAMINES whether it is at all possible to construct a general theory of crime and what this would have to look like. The problem with criminology is that it continues to possess an uncountable number of attempted theories with a very specific field of application. Criminology develops a very heterogeneous picture of its subject that leads very easily to the impression in external observers that it is a discipline without theories, although a few attempts at integration have been made (e.g., Braithwaite 1989; Hess and Scheerer 1997). One central problem is the continued domination of an offender-centred perspective that explains crime through numerous causality postulates. However, none of these attempts can draw on a satisfactory empirical evidence. Their mistakes or limits are frequently processed with residual categories such as chance. However, causality and chance are merely concepts that cover over their referential problem. The contribution of the labelling approach has therefore been to make the observer issue, and thereby the referential issue, the central concern of theory formulation. However, this does not make it easier, but only even more difficult to produce clear statements on the relation between society and crime. The main problem with the labelling approach is that although it avoids the blind spot of classic crime theory, it does this at a high cost, because it has to solve all crime problems in constructivist terms. It cannot share society's blind spot in its definition of "crime" as a problem, because the theory has to reject crime having any objective existence. Although it can tackle the processes by which norms arise and are implemented, it cannot take crime seriously as a social problem. Therefore, the New Realists were consistent in their response, but they left criminology as a pure scientific discourse. This dilemma leads critical criminology into enormous developmental problems in both a practical and a theory-of-science perspective (see, Nelken 1994). As a consequence, it loses its

T

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link to the societal discourse. The problem therefore shifts to how critical criminology can build a blind spot into its theoretical framework without having to abandon its potential for critical reflection. This means that the theory itself has to contain the paradox that it then can only withstand because it develops it itself. In detail, the following individual deficits in theoretical criminology can be found: (1) There is a lack of a theory that also makes it possible to process the productive achievements of crime. (2) There is a lack of a theory that can also take the unavoidability of crime into account. (3) There is a lack of a theory that removes crime and the offender from their negative connotation without simultaneously slipping into trivialisation and a self-satisfied constructivism. (4) Moreover, there is a lack of a theory that also makes it possible to process the positive aspects of social control of penal law. (5) Finally, what is particularly lacking is a consistent theory that tries to confirm the inseparable link between crime, social structure and the semantics of society. Because of these deficits, I shall try to sketch at least the structure of a general "theory of crime" that can draw its individual elements, its substance, from the existing specialised theories.

VARIATION AS THE BASIC ELEMENT OF SOCIAL DEVELOPMENT

My proposal is to attempt this with a theory of crime that is part of a modern approach to evolutionary theory, and to link this up with recent systems and communication theory as presented in the work of Luhmann (1997). I shall deal with this issue by presenting a sociological interpretation of modern evolutionary theory that consists of three basic elements: variation, selection and stabilisation. Not only can this be used to analyse developments in society and its functional systems (e.g., the penal justice system, politics, the mass media etc.), but, if human beings are also viewed as (psychological) systems involved in the development of society, then their individual development can also be described with these three elements taken from evolutionary theory.1 The central idea is, that modern evolutionary theories posit variety as a necessary precondition of evolution. In the social world, individuals, interaction systems or functional systems vary permanently, just like bacteria or viruses do in the biological world. This is not really surprising, but simply necessary, 1 The assumption of an evolution requires only one system to remain stable both beforehand and afterwards. Something has to develop and not disappear. This applies, on the one hand, in the case of criminal careers. On the other hand, it is particularly criminal behaviour that it is labelled as such in society, frozen for ever in criminal records and statistics, and thus stabilised.

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because a standstill would mean the end of "social life". "Trial and error" is the basic search programme for evolution. This allows crime to be conceived, as already in the work of some classics like Emile Durkheim or Robert K. Merton, as a necessary variation of possibilities from evolutionary perspectives. Explicitly the theory of anomie by Merton puts crime under the category "innovation". From the perspective of Luhmann (1997, p. 451) the idea is, a variation always generates a difference; a deviation from what was previously usual and this difference compels a selection either for or against the "innovation". The environment or its permanently changing social structures play an important role, because they stimulate variations, however they do not guide them. There is no determinism. Naturally, the spectrum of possible variations in the social world depends not only on social but also on the physical structures in the person's environment. "Housing ghettos" permit different potential variations compared with other forms of urbanisation. "Economic ghettos" such as stock exchanges, world banking or the worldwide virtual transfer of money by electronic means open up, in turn, other variations that some persons may well want to suppress, and so forth. The situation "creates" the offender (Sessar 1997, p. 5). What is important here is the potential links that become compatible for fur^ ther variations. Other theories conceive these terminologically as opportunities and mould them into a corresponding theory of delinquency. Other examples are usually explained by theories of learning. In the field of the family education, the circle of violence (Steinmetz 1977; Bussmann 1997) has been denounced for a long time, because parents tend to keep the experienced violent sanctioning style of their former family. Even outside of educational contexts these battered children show a violent disposition (Spatz Widom 1989; Smith, Thornberry 1995). Moreover, since the catharsis thesis is not only untenable in the field of the mass media but also in the field of sport, it is not surprising if fighting sportsmen more easily use violence even outside their sport context than others (Bottger 1998). Furthermore, this should also be valid for the identical reasons for policemen (Bottger 1998). The decisive point here is that behaviours, social events, as well as communications are made possible or restricted by the potential linkages in the social environment. A whole series of other groups of crime theories could be mentioned in this context, which implicitly follow the same idea. Possible theories that move along these lines are for instance (a) opportunity structure theories, (b) subculture theories, (c) theories of differential association (learning theories) and (d) multi-factorial theories. The "offender" only has to be offered potential linkages through personal experience, the present moment or the anticipation of future events. One theory that comes very close to this idea of crime as a variation of possibilities is perhaps the early work of Matza (1964) Delinquency and Drift. The daily play with forms, as a variation in the possibilities of social life, also fundamentally allows crime to exist. One may well drift into it; simply get involved. Furthermore, theories that conceive crime as an adventure, as being seductive (see Katz 1988)

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can also be integrated into such a theoretical framework. Findings on the spontaneousness of juvenile delinquency also fit in here. Moreover, this also provides a good way of explaining why, for example, crime does not relate directly to poverty; that the mere fact of poverty, unemployment, phenomena of inequality and the like do not lead to crime, whereas processes of impoverishment, in other words, changing conditions in the environment, certainly do. They stimulate reactions, attract attention and also suggest illegal action options. The primary "reason for crime" lies principally in a play of variations and in the dynamics or even vitality of society. "Crime" is in any case always part of the basic operation of social development.

SELECTION AND STABILISATION

However, we should keep in mind, that according to the theory proposed here, "crime" does not exist; it is a referential problem. There is no crime, but criminalisation, therefore the only things that exist are communications that make this discrimination. The question, "what is crime?", receives a short answer: Crime is the difference to all other "not as crime" defined observations. As a result, nothing needs to be revoked in the basic statement of the labelling approach. This necessarily shifts the question of the causes of "crime" to another field: to the relation between the structure of a society and the semantics it prefers, which will be discussed later. Hence, what is missing is a theory with which it is possible to address not only phenomena of "criminal" behaviour but also those of social control, while simultaneously always remaining aware of its observer perspective, its roots in constructivism. Therefore, the integrating element has to be a theory of observation. Crime theory can only be conceived as a theory of observation and distinction. For this reason the theory integrates as its second element "selection". The mechanisms of selections have to be combined with systems theoretical assumptions and with a theory of communication. Although, both theoretical approaches cannot be developed in detail here, the main structure will be sketched. The main idea of the element selection is, when variations of behaviour, but also of definitions or terms (communication!) occur, these can either be recognised or rejected by other individuals or institutions through the use of positive or negative selection. This enables the environment to restrict or narrow down the field of possible behaviours (or communications). Negative selections can then be stabilised or re-stabilised through, for example, informal controls or through institutions like the justice system or the police that try, in this way, to shape the direction in which people's behaviour develops. One can even observe a development in individuals: Persons evolve in their social environments, they develop for instance a self-image (see, also, e.g. Gottfredson and Hirschi 1990), a life strategy, and perhaps also a life-style. There is also scope here for patterns of behaviour, in other words, the stabilisa-

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don of variations. In the present context, such phenomena of selection and stabilisation are summarised under the concept of criminal career. When such a consolidation (stabilisation) occurs, a specific (pre)selection becomes a condition for further variations; it has been selected from the perceived variation potential. Social structures are also selected. This is where the theory also allows for intentional, strategic rational activity, which does exist, and this must not be denied. In particular, this approach "democratises" the phenomenon of "crime" and leads away from the typical offender personality (Sack 1994). However, the problem is, that in many cases, it is inappropriate to view activities in this way. Otherwise, an observer would be forced either also to concede irrational activity or to understand everything as being rational in subjective terms (Karstedt and Greve 1996). But then, rational choice theory no longer explains, but simply overburdens the individual (Stichweh 1995). The element "selection" integrates forms of perception and interpretation. For a constructivist approach, it is self-evident that it can only address the perception and interpretation of social structures, the system's internal construction of the world, be they psychological or social systems interpreting their environment. There is no more room for objectivity in the theory. There is no position in society from which it can be described objectively (Rorty 1989; Luhmann 1997). For example social structures are perceived and interpreted. They particularly include the perception of formal and informal agencies of social control. This is where links can be found with familiar structure- or also control-oriented crime theories that can then be viewed as theoretical specifications. This particularly applies to (a) rational choice theories, (b) control theories, (c) anomie theories, (d) conflict theories and (e) labelling theory. Although these theoretical approaches describe conditions of probable ("criminal") variations, they are not able to integrate in their theoretical concept the selection on both sides—of individuals and institutions of social control. They are able not to change the perspective. These theories work either with crime in a objective manner2 being unable to see the corresponding selection of the environment, or they are limited on mechanisms of selection and stabilisation—as the labelling approach—and stick there. Moreover, beyond the general limits of causal explanations (Luhmann 1995) it is always necessary to take account of the self-referentiality of systems. For this reason statements on causality are simply not possible, but what remains is the basic need to recognise self-referentiality, the autopoiesis of psychological or social systems (Luhmann 1997). There are finally only stimulations that may intensify plays on variation, but no causality.3 This explains also, why, for 2 Additionally, in many cases crime theories also conceptualise social structures, the environment as existing objective categories. 3 The concept of coincidence functions only as a residual category, so that unexplained relations can still be classified. A change of reference systems and the adoption of the observer perspective, makes chance disappear and new relations become apparent.

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instance, the link between watching violence on TV and violent behaviour is very weak. Finally, using the terminology of the cognition research of Heinz von Foerster (1984), human beings are not trivial machines but non-trivial machines. Their input is simply not the same as their output. They are essentially far less determined by the environment and its social structures. This is why development is not linear and, above all, hardly predictable. A modern validation of this statement is available in chaos theory that emphasises exactly these concerns: complexity and unpredictability (see, also, Henry and Milovanovic 1996, p. 34). Although an evolutionary theory of crime therefore cannot function without a concept of structure, the basic operation is variation. Social structures thus find now access on all three stages (variation, selection and stabilisation) by restricting or extending potential variation, selection and stabilisation. A further comment is necessary on the adaptation concept in modern Darwinian evolutionary theory. This has left behind any idea that some kind of programme of evolution exists. Evolution recognises no direction; it recognises no optimal stage of development; it simply occurs. It plays permanently with the opportunities offered to it. There is no goal, and, above all, there are no hierarchies. Selection does not follow any superior sense of order or meaning for society in general as functionalists tend to assume (overview in Downes and Rock 1995). Variation for its own sake is the basic element and not adaptation to the environment. The critical concept in modern evolutionary theory has always been the concept of adaptation. But modern research in biology has been able to show that: (1) many organisms have not undergone any major changes over many millions of years or even hundreds of millions of years, although their environment has changed; (2) many organisms have survived because they did not adapt themselves narrowly to their environment but remained unspecialised; and, vice versa, many organisms have become extinct because (retrospectively) they were adapted too narrowly to their environment; (3) organisms with the same origins in the same environment are very capable of developing in completely different ways. It is highly apparent that the environment is not a determining factor in the evolution of organisms that neo-Darwinism claims it to be (Roth 1994, p. 309). The doctrines of current socio-biological approaches have not kept up with advances in the state of knowledge on the mechanisms of biological evolution. The environment defines only minimal conditions, it sets a bottom line, but it generally does not select the "one that has adapted best" (Roth 1994, p. 310). Frequently, when there is a drastic change in the environment, several variants meet the minimal demands; in other words, "alternative compromises" are offered in response to the need to survive. In particular, adaptation problems can be resolved through the formation of niches.

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THE IMPACT OF PENAL LAW AS A MEDIUM OF COMMUNICATION

Up to now, there has been a tendency to view crime from the perspective of the individuals involved. Persons vary, and they react to their environment, to mechanisms of social control and to social structures, but they do it as "nontrivial machines" (!). They define the social context, perceive their opportunities for variation and so forth. Their environment reacts to them. At this point, it becomes necessary to focus more strongly on the various social domains and functional systems such as penal law, but also commerce, politics and the mass media, which form a specific spectrum of options for variations. However, the central thesis here is that in the context of "crime", penal law has the social position of a "master system"; although from the perspective of systems theory, in agreement with all criminological research, the impact of penal law is initially only very modest. The decisive point is, events such as "crime" are of necessity drawn into a functional system in society, and they become relevant there because they have been selected accordingly. This already applies for penal law, because it provides the selection criteria, and produces, for this very reason, the distinction of "crime". Without doubt, as an operatively closed system, it cannot control the behaviour of other systems, in this case, individuals, but only the communications and reality constructions of the individuals in them (Bussmann 1997). Nonetheless, its importance is completely underestimated, because it limits the probable spectrum of variations. Whereas the impact of law can certainly be increased through coupling it with other media (power, money) and discourses (education), it should not be reduced to this. The basic idea is that the law provides a semantic, communicative space that influences orientations in its clients at a very early stage (Habermas 1985; Henry and Milovanovic 1994; Luhmann 1975; Milovanovic 1986). Legal concepts take over our everyday language. They guide our perceptions, our interpretations of reality and our judgements. One of the particular ways in which they do this is by introducing special distinctions. If individuals refer to law, they have to use its distinctions. One cannot avoid making distinctions, because it is impossible to communicate without discriminating, as systems theory assumes with reference to the work on the theory of distinctions of George Spencer Brown4 or the information concept of Gregory Bateson.5 Naturally, one does not have to refer to the distinctions of law. However, penal law is for many reasons a catching basic concept (see Sperber 1985; Sperber and Wilson 1986). Consequently, if one refer to terms and categories of criminal law, one commits oneself to the specific legal way of constructing reality and the normative distinctions of law. Two examples may illustrate this: the discovery of techniques of neutralisation and justification in case of young 4

Spencer Brown (1969, p. 1) "draw a distinction"; see also, Derrida's (1988) "difference". According to Bateson (1973), information is some kind of distinction that makes a difference to a later event. 5

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offenders by Sykes and Matza indicates the existing threshold, which has to be taken for every offender. Another example is the frequent criticism of white-collar and environmental penal law (Lange 1996), because successful convictions are so infrequent. However, if one shifts to a communication theory of law, the penal proceedings during the preliminary stage of the prosecution process also become a focus of attention: All activities pertaining to a violation of one of the norms of whitecollar or environmental penal law cause these legal discriminations to enter the circle of societal communication. Scandalisation due to moral reproach of the offence expands this circulation through the participation of the mass media. The less satisfactory outcomes of penal sanctions basically do not change anything with respect to the impact of white-collar and environmental penal law here (see Blankenburg (Chapter 9) and Levi (Chapter 8) in this volume). As a consequence, penal law "sucks up" more and more communications, behaviours and discourses into its world; while, on the other hand, it personally diagnoses more and more deviations for the same reason. However, it is precisely this that is not a contradiction, but its "trick" (see also G.H. Mead). Penal law integrates specifically through exclusion, because it rejects behaviours, marks injustice, but includes communication and reality construction. The issue of alternatives to penal law therefore also has to be considered within this field of the development of a society. The issue of more or less penal law finally has nothing to do with its preventive impact, because it "impacts" more strongly than one might imagine. From the perspective of social policy it tends to take the form of an upward spiral when one takes only its construction of reality into account. Its subtle impact can also be conceived as a risk to further social development (Miiller-Tuckfeld 1998), precisely because it performs a negative selection and promotes stabilisation by stigmatisation. It is particularly penal law that emphasises a common world: a world of consensus, which this theory in opposite to Durkheim strictly denies. The conclusion is, the relevance of penal law as a medium of communication frequently tends to be reduced when its function is limited to a repressive, punitive role, whereas, on the other hand, its communicative impact on informal social control is overlooked. Therefore a communication-oriented theory of law makes it possible to consider the basic impact of law as a symbolic law that sets binding action constraints. Penal law restricts the potential of variations from the perspective of individuals in a very subtle way. This is why Luhmann describes law as society's immune system.

PARADOXES

A theoretical approach, which uses neutral terms like variation, leads to questions on criteria for connotation: in concrete, how functional is it for a society to impose a negative selection on certain variations and even to suppress them through penal

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discriminations that are frequently associated with high social costs for individuals and also for society as a whole? A critical reply since Sutherlands approach on "white collar crime" points to the existing disparities in social dominance (Hagan 1994; Smaus 1999). However, these offer only a partial explanation, because social control also has its productive sides (Cohen 1994; Scheerer 1995). From our perspective the explanation can be that certain behaviour is not compatible with other social domains—or, to use systems terminology—other psychological or social systems. Their "harmfulness" cannot be defined in absolute terms, but only in the sense of an "environmental compatibility" of certain systems. Thus, moralising is out of place here. Evolutionary theory would reply that certain behaviours have proved to be incapable of providing links for the further evolution of a system. They lead into dead-ends, and are therefore subject to negative selection. Although, there is naturally also room for the symbolic crusades of politics, using violence to tackle the problem of economic competition is not functional for the development of a market economy. On the other hand, it is functional for the development of a market economy to exploit human beings or the environment. Hence, the limits to variation often have to be formulated by other sub-systems or in other discourses with all the frictions that disparities in power in societies bring with them. From our perspective the decisive point is, that in this scenario of social control, penal law is certainly a kind of "master system" towards which all the following social selections tend to orient themselves. If this theoretical framework is applied once more to the phenomena of "crime", one can see, on the one side, the person and his/her behavioural variations as an "effect" of observing the environment and the changes in it. On the other side one can see the development of social systems using the same concept "crime". Variations of individuals that are defined as crime actually develop certain social functional systems that, in turn, vary themselves. This results in a very complex interplay (Pavarini 1994) that is full of paradoxes (similar Melossi 1994) and for this reason the above given explanation—"crime" as dead-ends for evolution of specific social systems—is far too simple. In part, some social systems, even profit from the concept "crime"; which can only be sketched here: • Commerce: insuring against the consequences of crime, insurance to cover legal costs, the security industry; privatisation of prisons, the business of the fear of crime (Chambliss 1998; Beste 1996; Lindenberg and Schmidt-Semisch 1996); or the attractiveness of certain consumer goods and products is increased by a special crime risk; • Politics: scandals, symbolic crusades, distraction, personalisation of social problems, rendering social structures invisible and so forth; • Mass media: crime as a source of information for sensation seeking; fixation on (crime as) news; coded as information; also, the presentation of crime in films and on television; • Science: the disciplines of penal law and criminology.

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The negative selection of crime is already in various social sub-systems a consequence of their self-referential processes and specific internal logic. Crime now has its own intrinsic value and becomes exceptionally socially compatible. Put succinctly, the hypothesis is that nobody seriously wants to abolish crime, it thrives on its insurmountable paradox. Many parts of society live well from it; society grows and prospers. This is an old criticism, which especially functionalism emphasises. The second paradox is that even negative selections (here as "crime") in the functional systems provide the links that turn "crime" into a topical public issue in a way that "crime" functions as a special medium of communication. They post "criminality" as a social topic and therefore increase the crime risk. This effect comes best in our focus, if a "theory on crime" is conceptualised without built-in signs and connotations, for example simply as variation and selection. If one focuses on connections options, then one sees that many offences are in the heads of people. They are associated and in the corresponding contexts individuals must examine them at least as fundamental action options. • The Mass Media. The negative selection in and by penal law can paradoxically become a stimulating motive when it makes it better to continue communication in another system or discourse, which can be for instance the mass media. Criminalisation as such could also be a constitutive feature for subcultures of crime. An example is extreme right-wing violence. The attention gained in the mass media as result of penal stigmatisation can increase its attractiveness for certain groups (Ludemann and Erzberger 1994). Crime turns into sensation and gets an intrinsic—not necessarily a positive—value for continuation. • Commerce. Insurance companies live from a dramatisation of risks. The paradoxical message is: crime can pay; the risk of being caught is apparently too small to act as a deterrent. Moreover, implicit objects of crime are tendered; criminal ideas are mass-marketed. The public talk about protection stabilises the risk of crime because it is repeatedly actualised as such in everybody's minds. The mechanism is very similar to strategies of advertising products, a successful marketing strategy is necessarily not dependent on positive associations (see the former Benetton advertisement). • Politics, the legal system. Tough formal sanctions initiate or stabilise criminal careers (Feeley and Simon 1992; see also Hagan 1994). This ensures the reproduction of the topic of "crime as a social risk". • The individual. Primary deviance stabilises forms of secondary deviance through corresponding self-images—a classical assumption. The decisive thing is, that in the society a great number of connection options for "criminal" variations are set up. The discourse on criminality itself places these connections to a big part, because it opens (also criminal) options while the perceived space for contingency is spread out. Additionally, it is important to note that the total social mechanism of integration between the individual

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and the social systems occurs through this kind of tuning. Crime serves to coordinate the relations between various discourses and systems. This makes it a construct that channels a large part of the communication within society, although, during superficial consideration, penal law, as a communication medium, provides just a kind of constitutional set of basic norms and moral standards for this. However, "crime" itself becomes a kind of communication medium which paradoxically also increases the crime rate.

CONCLUSION

The benefit of this theoretical concept is that it grants existing crime theories a common structure. Although, this could only be sketched here, it integrates common theories on crime. Moreover, it removes the micro/macro distinction, and replaces it by introducing an observer perspective (selection). Particular recognition is given to the normality of crime as part of the necessary breadth of potential variation in society. In contrast, the perspective of penal law makes social structures and different social perspectives (complexity) invisible as a condition of crime. The common talk about causes of crime are a part of the dangerous illusion that society nonetheless seems to need. However this blind spot is dangerous, because the control of crime is itself at risk of overheating. Additionally, penal law also covers over the necessary principle of variation that is part of a common social strategy of survival, which also means a survival of the entire society. "Crime" should be understood primarily as a variant of variation that is simply a part of social development. However, evolution has no intent, it happens. It plays with forms and exploits opportunities and niches. Rational choice theory underestimates such "powers" and overtaxes the person. Furthermore, this approach stresses paradoxes. The fundamentally productive contribution of crime to many areas of society becomes evident. First, the only possibility for the later recognition of a high social compatibility within a functional system can, also in the sense of Durkheim, be viewed as "innovative crime" that may, perhaps, no longer be criminalised in the future. Secondly, "crime" is part of many social systems, especially of the commercial world and politics, but also of a sensation-seeking society. Meanwhile due to an increasing differentiated society, "crime" thrives on its insurmountable paradox. Its negative connotation is the reason for its "success" and attractiveness within many social systems and discourses. From this perspective—keeping the paradox in mind (!)—nobody seriously wants to abolish crime. Thirdly, many social systems refer to the concept of crime. If one uses a communication theory, consequently many social systems provide potential links to crime in people's minds—though not in the sense of causes—that call for major disciplinary efforts by other systems, as the discussion about violence in movies and on television shows. Such "crime talks" stimulate and actualise crime as a

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topic in society, which themselves are a "reason" for crime. It is only necessary to drop the actio-reactio ideas and right-wrong schemes. Put succinctly, one can posit that the best way to fight crime would be, for instance, to ban insurance, forbid crime reporting or films on such topics, and so forth. Crime is not just a problem but also forms the materials for social changes, for evolution. One can now see more clearly how penal law is obliged to develop crime, and that crime has long been an essential part of the evolution of various sub-systems that develop with these types of variation and stabilise crime as a societal phenomenon. Finally, crime is an inseparable part of the social scope of variation. Above all, crime is part of the freedom of society and its dynamics of development, and therefore will always be a (productive) paradox within social evolution. Consequently, with this "crime talk" a further, although very modest, crime-supporting contribution is achieved. Paradoxical?

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Soziologie 395^06.

Index Abe, Kinya, 61 Abel, Richard, 111 Accountability Model, 99 Action: efficiency norms, 17 motivation, 229—38 protest, 74,75 Adaptation, 248 Adidas, 122 Adler, Freda, 189,192,193,194 Adorno, Theodor W., 148 Aitken, Jonathan, 139 Al-Fayed, Mohammed, 119 Alatas, Sidh H., 61 Alber, Jens, 108 Alcohol, criminal career, 223 Alternatives to penal law, 250 American Dream, 48—9 Americanisation of crime, 21 Anderson, E., 197 Andreotti, Giulio, 151 Anomia, violent crime, 194 Anomic amorality: culture of competition, 30—2 Germany, 39 group delinquency, 35-6, 45,47 hierarchic self-interest, 35 market societies, 35 neutralisation, 31, 32 white-collar crime, 30-1 Anomie: institutional, see Institutional anomie theory market societies, 16—17, 20-1 motivation, 117 theoretical specification, 247 Ansell, Christopher K., 72 Appelbaum, Richard P., 54, 55,56, 57, 61 Aristotle, 229, 230 Arlacchi, Pino, 54, 55, 57, 63 Arrest rates, young offenders, 175-7, 184 Arthur Anderson, 129 Asia: China, see China Japan, see Japan patrimonial-feudal pattern, 55-6 Aspreys, 119 Audit culture, 164 Ausldnder (foreigner), 166,167

Austin, J.L., 232 Australia: Solomons Carpets, 98-100 Trade Practices Commission, 98 Backes, Otto, 113 Baier, A.C., 230 Baier, R., 163 Balbus, Isaac, 107

Baldwin, D.A., 233 Balvig, Flemming, 194 Banfield, Edward, 27, 29 Bank of Commerce and Credit International (BCCI), 122, 123 Bank of Japan, 120 Barber, Bernard, 15 Barings Bank, 122, 123,128 Basaglia, 153 Bateson, Gregory, 249 Beck, Ulrich, 8, 134,160 Becker, Howard, 153 Beeker, Carolyn, 69 Beirne, Piers, 192 Bell, Daniel, 4, 27, 48 Bern, Daniel, 224 Ben Jalloun, Tar, 145 Bendix, Reinhard, 32, 33 Benford, Robert D., 74 Benjamin, Walter, 144, 145 Benson-Williams, L., 233 Bentham, Jeremy, 148 Berger, Bennett M., 69 Berkowitz, Stephen D., 69, 70, 71 Beste, Hubert, 251 Biotech, 125 Black, Donald, 99 Blankenburg, Erhard, 6,133-9, 250 Blau, Judith R., 21 Blau, Peter, 69 Bloch, Marc, 58 Block, Fred, 15 Bloembergen, H. H., 192 Blumstein, Alfred, 182 Body-Genrot, S., 197,198, 200 Boehnke, Klaus, 3, 27-49 Boggiano, Ann K., 235 Boorman, Scott A., 70, 71 Borneman, John, 38 Bottger, Andreas, 245 Bozorgmehr, Mehdi, 181

258

Index

Braithwaite, John, 5, 6, 65, 87-104,117,120, 126, 127,128, 134,138,158, 159,243 Branson, Richard, 120 Brciger, Ronald R., 70,71 Brent Spar scandal, 122, 133-4,136 Brown, George Spencer, 249 Brownfield, David, 30 Bureaucratic/legal rationality, 55 Burt, Ronald S., 69, 70,71, 72, 73, 74 Business ethics: corporate governance, 136 social responsibility, 133,136, 137 Bussmann, Kai-D, 1-10, 2 4 3 ^ Campbell, T., 93 Camras, L.A., 232 Capelleri, Joseph, 196 Capitalism: double movement, 2,13,14 evolution, 13 globalisation, 19 patrimonial-feudal pattern, 55, 56 Protestant ethic, 150 see also Market societies Careers, crime, see Criminal career Caspi, Avshalom, 214, 219 Castells, Manuel, 20 Causality, 243, 247 Cawson, Alan, 114 Chambliss, William J., 251 Chandler, David L., 62 Chapieski, M., 233, 236 Cheatwood, D., 197 Chernobyl, 96 Childhood: anti-social behaviour, 236—7 circle of violence, 245 classification systems, 232 corporal punishment, 236 emotion-attribution differences, 234 emotional/cognitive development, 231-2 evolution, 231 "forbidden fruit", 234-5 language, 231-3 later criminality, 207, 236 punishment, 234-6, 245 China: family/kinship relations, 55 key transnational practices, 54 patrimonial-feudal pattern, 61 Triads, 53, 54, 57,63 Christie, Nils, 109,149 Christopher, F. Scott, 236 Chronic offenders, 209, 218 City Challenge, 164 Civilisation, violent crime, 196 Clans, see Family/kinship relations

Classen, Gabriele, 3, 27-49 Clinard, Marshall B., 193,194 Cline, Howard F., 207 Cloward, Richard, 29 Codes of honour: elite crime, 66 neutralisation, 65 patrimonial-feudal pattern, 60,62, 63, 64 transnational crime, 63 Cohen, Abner, 56,62 Cohen, Albert, 27 Cohen, Lawrence E., 196,224 Cohen, Stanley, 108, 158, 251 Coleman, James S., 29, 30,31, 32, 48, 70 Columbia, drug cartels, 53,152 Commerce, 251, 252 Communication: communicative exchange, 146 impact of penal law, 249—51 language, see Language media, see Mass media medium of communication, 249-50,252, 253 theories, 244, 246, 250 Community: appeals to community, 166—7 community-based penalties, 157, 158 crime prevention, 157,162, 165 criminal justice, 161-3 disorderly community, 161 Germany, 159-61, 166-7 governance, 157-68 institutional strength, 162 involvement, 157, 162,165 reintegration, 158, 159 safety, 167 Competition: culture, see Culture of competition prosecutors, 186 self-regulation, 117 Constructionist theory: labelling, 243 motivation, 9, 219-22, 238 social control, 246, 247 social structure, 2, 71—2, 247 see also Structural constructionist theory Control theory: age-graded informal social control theory, 214, 221 desistance, 212,213, 224 fraud, 118 motivation, 117 theoretical specifications, 247 see also Social control Corporal punishment, childhood, 236 Corporate crime: generalised exchange, 65 Japan,65 loyalty, 65

Index reintegrative shaming, 120 restorative justice, 98-99 state responsibility, 165-6 see also White-collar crime Corporate fraud: reputational cost, 124 Corporate governance: business ethics, 136 directors' contracts, 120 shaming, 139-40 see also Fraud Corporatism: crime control, 110 Germany, 167 welfare state, 110 Corruption: Germany, 76, 77, 78, 79, 80 Italy, 151,152 Japan,96 market societies, 4 Cottino, Amedeo, 153 Coulborn, Rushton, 56 Cox, Robert W., 19, 21 Cranston, Ross, 114 Crawford, Adam, 164, 167 Cressey, Donald R., 28,30, 31,147 Crime: "comes with the territory", 152 companies, see Corporate crime economic dominance, 16—18 elites, see Elite crime gangs, see Gang crime global, see Transnational crime hegemonic social relationships, 152 medium of communication, 249—50, 252, 253 organised, see Organised crime paradoxes, 250-5 violence, see Violent crime white-collar, see White-collar crime Crime Concern, 163 Crime control, corporatism, 110 crime reduction, 89, 95-6 cultural dynamics, 7-8 professionalism, 163 republican theory, 87-102 Crime rates: comparative criminology, 192—3 economic dominance, 16 gang crime, 173 homicide, 17,147, 175-7,184 institutional anomie theory, 18 Italy, 147 Netherlands, 190, 191 social change, 1 Sweden, 193,194 Switzerland, 193,194

259

United States, 147,175-7,181-2,184 welfare state, 17 Criminal career: adolescent limited offenders, 214 age-graded informal social control theory, 214, 221 alcohol, 223 chronic offenders, 209, 218 cumulative continuity, 215 desistance, see Desistance early starters, 209, 214 evil causes evil fallacy, 210 life course persistent offenders, 214 offender-oriented criminology, 210 prisons, 210-11,217-23 recidivism, 208 research, 207-8 self-control, 215-16 young offenders, 209, 214 see also Life history Criminological Research Institute of Lower Saxony,74 Critical criminology, 152-4, 243-4 Crockenberg, S., 236 Cullen, Francis T , 95 Cultural dynamics, crime control, 7-8 Culture: individualism, see Individualist culture language, 144-6 punishment, 147 social control, 151—2 social structure, 69,154 Culture of competition: anomie amorality, 30-2 hierarchic self-interest, 32-4, 48 social welfare, 30 subterranean aspects, 30-2 see also Competition Curran, Daniel J., 109 Currie, Elliot, 191, 194, 195,198 Dafoe, Janet L., 235 Daiwa, 125 Dalton, George, 14 Damaska, Mirjan, 158 Darwin, Charles, 231, 248 Davidson, D., 231 de Haan, Willem, 8, 97, 189-200 De Lorean, 129 DeCasper, A.J., 232 Decker, Scott H., 95, 183, 185 Deliberation in communities: interest group pluralism contrasted, 91—2 republican theory, 89, 91-21, 96-7 shaming, 96 social bonds, 96 social movement politics, 96

260

Index

Delinquency: American dream, 48—9 illegality contrasted, 151 subculture, see Subcultural delinquency della Porta, Donatella, 57, 62 Democracy, punishment, 148—9 Desistance: classical theories, 211-13 control theory, 212, 213, 224 cost-benefit analysis, 213, 214 Germany, 210-11, 212-13, 217-23 integrated theories, 213—16 labelling, 212 life history, 207-24 marriage, 224 new theories, 212—13 rates, 209 strain theory, 212 subcultural theory, 212 Deterrence: alternative theories, 87 shaming, 127 Deutsche Telekom, 77 Dewey, John, 147 Diana, Princess of Wales, 119, 122 Diani, Mario, 75 Dienstbier, R.A., 235 Differential association theory, 245 DiMaggio, Paul, 62 Dishon, Thomas J., 214 Diversion: diversion to nothing, 111—12 Germany, 110-12 informal justice, 107—12 United States, 107 Dodge, K.A., 236 Doreian, Patrick, 69 Double movement: capitalism, 2,13, 14 social formation, 21 Downes, David, 248 Drahos, Peter, 91 Drug trafficking: Columbian cartels, 53,152 crack cocaine, 184 Dumm, Thomas L., 148 Durkheim, Emile, 3, 9, 15, 16, 32, 33, 69, 97, 148, 245, 250, 253 Duus, Peter, 55, 58, 61 Eastern Europe, feudalism, 61 Eastwood, Clint, 99 Eckenrode, John, 196 Economic dominance: crime, 16—18 crime rates, 16 market societies, 13—16 Economic globalisation, see Global economy

Economic variables, social change, 1 Eisenberg, Nancy, 236 Eisenstadt, Samuel N., 60 Eisner, Manuel, 2 Eitzen, D. Stanley, 53 Elder, Glenn H., 214 Elias, Norbert, 117 Elite crime: codes of honour, 66 feudal pattern, 65,65-6 reintegrative shaming, 124 transnational crime, 53, 63 Ellingson, Stephen, 72, 75 Emirbayer, Mustafa, 71, 72 EMNID, 76-7 Engbersen, G., 199 Engel, Matthew, 122 Engels, Friedrich, 147 Environment: Brent Spar scandal, 122,133-4,136 crime, 65, 250 evolution, 248 multinational companies, 65 penal law, 250 republican theory, 95, 96 Equality: before the law, 94 opportunities, 32,34, 94 republican theory, 88, 89-90, 93-4 social democracy, 91, 94 see also Inequality Erickson, Kai, 153 Ernst &C Young, 124 Erzberger, Christian, 252 Esping-Anderson, Gosta, 14,15,16, 17 Ethnicity: deprivation, 195 gang membership, 174,180—1 prisons, 149 reference groups, 122 victimisation, 77, 78,79 Ethnography, gang membership, 185 Ethnomethodology, 148 European Union, fraud, 66 Evolution: adaptation, 248 biology, 248 capitalism, 13 childhood, 231 environment, 248 moralising, 251 selection and stabilisation, 246—48 variation, 244—5 Exclusion, social, see Social exclusion Explanatory theory, 89, 251 Extortion, Germany, 76,77, 78,79 Exxon Oil, 134

Index Fabes, Richard A., 236 Family conferences: shaming, 118 young offenders, 158 Family/kinship relations: China, 55 global economy, 54, 62 immigration, 62 Japan,55—6 organised crime, 63 patrimonial substructure, 58 trust, 56, 65 see also Tribes Fanon, 153 Farrington, David P., 207, 224, 237 Fear of crime: Germany, 166 Netherlands, 191 Feeley, Malcolm M., 254 Felson, Marcus, 189 Feltes, Th., 163 Ferracuti, Franco, 29 Ferranti, 123 Festinger, Leon, 33 Feudalism, see Patrimonial-feudal pattern Feuerbach, Ludwig, 147 Fiala, Robert, 17 Field, T.M., 237 Fifer, W.P., 232 Financial Services Authority, 130 Fischer, Claude S., 70 Fisse, Brent, 99,127,138 Fitzpatrick, Kevin M., 69 Flynn, Nicoll, 195 Fondacoro, M.R., 236 Foster, Janet, 158 Foucault, Michel, 109, 148,151,153 Frames: framing approach, 75 mass media, 81 protest action, 74, 75 structural constructionist theory, 72,73, 74, 81 Franke, Herman, 190, 191 Fraud: business failure, 127,128 companies, see Corporate fraud control theory, 118 European Union, 66 front people, 127 heterogeneity, 117 intentionality, 127 mass media, 118 Nigeria, 123 pre-planned, 126,127 shaming, 126 stigma, 124 Freedom Summer, 72

261

Frehsee, Detlev, 111 Freud, Sigmund, 153 Friedrichs, David, 118 Fukuyama, Francis, 62 Fultzjim, 236 Fundamentalist Counter-Transformation, 3, 19, 22-3 G-Tech, 120 Galanter, Marc, 94 Gambetta, Diego, 54, 57 Gamson, William A., 74, 75 Gang crime: Bureau of Criminal Statistics (Ca), 172 Chicago, 171-2 coding, 172-3 crime rates, 173 gang membership, 172 Gang Tracking System (GTS), 172 information technology, 172 Los Angeles, 171-78,180-1, 185,186-88 mass media, 171, 178-9,180-1,183 myths, 171-87 New York, 175-82, 184,186 St Louis, 185 violent crime, 173,174, 176-7, 179,182-6 Gang membership: appeal, 173 crack cocaine, 184 ethnicity, 174,180-1 ethnography, 185 gang crime, 172 graffiti, 183, 184 social realities, 182-6 symbolism, 182—3 Garfinkel, Harold, 121,146 Garland, David, 109,157 Geertz, Clifford, 161 Gender: hierarchic self-interest, 36—7, 45, 47 republican theory, 88, 94 Generalised exchange: corporate crime, 65 organised crime, 65 Gerhards, Jiirgen, 74, 75 Germany: anomic amorality, 39 Auslander (foreigner), 166, 167 community, 159-61, 166-7 corporatism, 167 corruption, 76, 77, 78,79, 80 desistance, 210-11, 212-13, 220-23 diversion, 110-12 east-west differences, 39—42 ethnocentrism, 42 extortion, 76, 77,78,79 fear of crime, 166 hierarchic self-interest, 42-7

262

Index

Germany (cont.): kommunale Kriminalprdvention, 163,164 local variation, 164-5 professionalism, 165 research study, 37—47 reunification, 38, 160, 165 subcultural delinquency, 42 trust in institutional system, 79 trust in political system, 76, 79 victimisation, 76, 77,78, 79, 80, 81 young offenders, 38-49, 110 Ghettos: variation, 245 violent crime, 196—7 Giddens, Anthony, 70, 71, 73, 74 Gill, Stephen, 20, 21 Global economy: family/kinship relations, 54, 62 illegality, 53-4 patrimonial-feudal pattern, 4, 54—62 trading diaspora, 56, 62 tribes, 56 violent crime, 194, 198 see also Transnational crime Globalisation: alternative scenarios, 18-19 capitalism, 19 hierarchic self-interest, 37 market societies, 3, 18—19 Marxist theories, 19 self-regulation, 20-1 shaming, 122, 128, 138 social contracting, 21 subcultural delinquency, 48—9 transnational crime, 4, 20—1 white-collar crime, 1 Glueck,213,215 Goetting, Anne, 196 Goffman, I. W., 121 Goldthorpe, John H., 160 Goodwin, Jeff, 71, 72 Gopnik, A., 232 Goppinger, 217 Gorelick, Jamie S., 108 Gottfredson, Michael, 215, 216, 224, 246 Gould, Roger, 72, 75 Governance: community, 157-68 companies, see Corporate governance contestation, 91 local infrastructure, 163—4 separation of powers, 88, 94, 98-100 Grabosky, Peter, 92 Graffiti, 183,184 Gramsci, Antonio, 151 Granovetter, Mark, 15, 70 Great Retrogression, 3, 19—21 Great Transformation, 3, 13, 16, 19, 21-2

Greenberg, David F., 36, 106,213 Greene, David, 235 Greenpeace: Brent Spar scandal, 122,133-4,136 moral entrepreneurs, 6 Greve, Werner, 247 Grinberg, Leon, 145 Guaranteeism, Italy, 153 Guevara, Ernesto Che, 153 Guinagh, B.J., 237 Guinness case, 118,120, 126 Gusfield, Joseph, 153 Habermas, Jiirgen, 18, 88, 106, 160, 249 Haen Marshall, Ineke, 191,196,197 Hagan, John, 3,4, 27-49,196, 251, 252 Hall, John W., 55,61 Halliday,Jon,55,61 Hamed, Naseem (Prince), 128,129 Hare, H.D., 237 Harrods, 119 Hart, H.L.A., 230 Hashimoto, Ryutaro, 120, 129 Hassemer, Winfried, 115 Hawkins, Gordon, 191 Hedonism, 3 Hefler, Gerd, 3, 27-49 Hegemonic social relationships, crime, 152 Heiland, Hans-Giinther, 163,196 Heimer, Karen, 224 Heller, K., 236 Henry, Stuart, 248, 249 Herkstroter, 136, 137 Hess, Henner, 57, 245 Hierarchic self-interest: anomic amorality, 35 culture of competition, 32—4, 48 equality of opportunity, 32, 34 gender, 36-7, 45, 47 Germany, 42—7 globalisation, 37 idiocentrism/allocentrism, 33 individualism/collectivism, 33 individualist culture, 3, 31 inequality, 34—5 market societies, 32 market transition, 37 material success, 33-4 orienting hypotheses, 34—7 out-groups repudiated, 35, 36,45 social comparison theory, 33 subterranean models, 42—4 Hingis, Martina, 229 Hirschi, Travis, 16,30, 215, 216, 224, 246 Hirschmann, Albert O., 55 Hirst, Paul, 21 Ho Chi Minh, 153 Hobbes, Thomas, 31,70 Hoffman, M.L., 232, 233

Index Hofrichter, Richard, 108 Homicide: crime rates, 17,147,175-7,184 robbery, 185 young offenders, 175-7,184 Hope, Tim, 158,161,167 Horkheimer, Max, 148 Hubbard, F.O.A., 233 Hui, C. Harry, 33, 39 Humphries, Drew, 106 Hyman, H.H.,33 Image risks, risk management, 133,136—38 Immigration, family/kinship relations, 62 Inclusion, prisons, 148 Individualist culture: hierarchic self-interest, 3, 31 social change, 1,3 Industrial revolution, new underclass, 2 Inequality: hierarchic self-interest, 34—5 reduction, 94 see also Equality Informal justice: de-institutionalisation, 107-8 diversionary strategies, 107—12 Marxist theories, 107 re-formulisation, 113-14 reflexive/relational/procedural law, 112—13 republican theory, 92 ways out, 112-14 welfare state, 105-14 Informalisation, welfare state, 106 Inglehart, Ronald, 33, 34,39 Inoue, Mariko, 61, 65 Institutional anomie theory: crime rates, 18 institutional balance, 23-4 market societies, 3,13, 20-1 Intention, fraud, 127 International Monetary Fund (IMF), 74, 101 International Shell Company: Brent Spar scandal, 122,133^t, 136 Nigeria, 134 risk, 133,136-38 Italy: Catholicism, 150 corruption, 151,152 crime rates, 147 guaranteeism, 153 i naziskin, 145 indulgence, 150-1 law and order campaigns, 150 liberationism, 153 Mafia, 53, 54, 57, 63 modernisation, 57 moral entrepreneurs, 150

263

organised crime, 151 Pharisaic culture, 153 prisons, 147,149 Izard, C.E., 232 Jankowski, Martin Sanchez, 173,196 Janssen, Helmut, 210 Japan: corporate crime, 65 family/kinship relations, 55—6 organised crime, 119 patrimonial-feudal pattern, 61 reintegrative shaming, 119 shaming, 119-20,129 Sokaiya, 119,129,131 Yakuza, 53, 54, 57, 63, 96 Jefferson, Thomas, 86 Jellinek, Georg, 150 Jenkins, Anne, 65 Jester, R.E., 237 Jones, Carol A.G., 55, 56,164 Jowitt, Ken, 61 Judicial discretion: prosecutions, 111 "three strikes and you are out", 109,114 Junger-Tas, Josine, 191 Justice: access, 93 continuous improvement, 97,100-8 criminal justice policy, 88-9 informal, 92 non-domination, 92 republican theory, 87-9, 92, 96, 99-100 restorative, see Restorative justice Juvenile offenders, see Young offenders Kaczynska-Nay, Eliza, 96 Kagan, Lord, 118 Kamenka, Eugene, 107 Kant, Immanuel, 230, 238 Karniol, R., 235 Karpoff, John, 124 Karstedt, Susanne, 1-10, 53-66, 247 Katoh, Hisao, 196 Katz, Jack, 2,7, 97,171-87, 245 Katzenstein, Peter, 159 Keane, John, 108,114 Keil, F.C., 232 Kempf-Leonhard, Kimberly, 209 Kennedy, John Fitzgerald, 96 Kerbo, Harold R., 61, 65 Kerner, Hans-Jurgen, 8, 207-24,210, 217, 218, 224 Key transnational practices, China, 54 Keynesian theory, welfare state, 19 King, Don, 129 King, Rodney, 174,187 Kirchheimer, Otto, 147 Kirchhofer, Dieter, 38

264

Index

Kittrie, Nicholas, 107 Klein, Malcolm W., 172 Kommunale Kriminalpravention, 163,164 Korner, A.F., 233 Kornhauser, William, 30 Kotkin, Joel, 54, 55, 56 Labelling: desistance, 212 robbery, 190 theories, 243, 246, 247 Labour, de-commodification, 15—16,17 Lacey, Nicola, 7,157-68 Lacombe, Danny, 108 LaFree, Gary, 17 Laing, R.D., 153 Lampert, Nick, 57, 61 Land, Kenneth C , 196 Lange, Bettina, 250 Language: childhood, 231-3 culture, 144—6 exported lifestyles, 145 learning, 145 legal concepts, 249 Larzelere, R.E., 237 Lash, Scott, 160 Laub, John H., 207, 208, 214, 215, 216,219, 221, 224, 237 Laumann, Edward O., 70 Leach, Edmund, 56 Learning: language, 145 theories, 245 LeBlanc, Marc, 214 Leeson, Nick, 122,128 Lepper, Mark R., 235 Lettiere, Mark, 147,148, 149 Levi, Michael, 6, 66,117-32, 250 Levi-Strauss, Claude, 67 Levitt, Roger, 124, 129 Libel, shaming, 121,122 Liberationism, Italy, 153 Life history: age-crime-curve, 208, 209, 213, 216 age-produced maturation, 213 desistance, 207—24 life course, 207, 214, 216, 224 self-control, 215-16 social change, 1 white-collar crime, 207 see also Criminal career Lindenberg, Michael, 251 Lipset, Seymour M., 32, 33 LISREL model, 31, 42-7 Litman, C , 236 Local community, criminal justice initiatives, 160-1

Locke, John, 31 Loeber, Rolf, 214 Logical positivism, 230 Los, Maria, 57, 61 Lott, John, 124 Loyalty: corporate crime, 65 feudal pattern, 60 organised crime, 57, 63 Liidemann, Christian, 252 Ludwig-Mayerhofer, Wolfgang, 5, 6,105—14 Luhmann, Niklas, 105, 244, 245, 247, 249, 250 Lynch, James, 195 McAdam, Doug, 72, 75 McCall, P.L., 196 McCarthy, Bill, 97 McCarthy, John, 75 McCord, Joan, 9,209, 229-38 Madison, James, 88 Mafia, 53,57, 63 Main, Deborah S., 238 Malatesta, C , 232 Mandelson, Peter, 129 Marcuse, Herbert, 153 Market societies: anomic amorality, 35 anomie, 16-17, 20-1 contracts, 15 corruption, 4 economic dominance, 13—16 globalisation, 3,18-19 hierarchic self-interest, 32 institutional anomie theory, 3, 13, 20—1 market exchange, 14 marketness, 15 reciprocity, 14 redistribution, 14 self-regulation, 1,14, 20 social dynamics, 3-4 violent crime, 198 welfare, see Welfare state see also Capitalism Markman, E.M., 232, 233 Marks & Spencer, 122 Marriage, desistance, 224 Marx, Karl Friedrich, 34,147, 148,153 Marxist theories: globalisation, 19 informal law, 107 welfare state, 18 Mass media: "fat cat" directors, 121,126 frames, 81 fraud, 118 gang crime, 173,178-80,180-1,183 investigative journalism, 121-2 moral entrepreneurs, 135, 139

Index profit from crime, 251 public stigma, 121,122-3, 126 sensation, seeking, 251, 252 violent crime, 189 white-collar crime, 118 Massey, Douglas, 195, 196 Matsueda, Ross, 224 Matt, Eduard, 212, 213 Matza, David, 29,30, 35, 36, 48,153, 245, 250 Maxfield, M.G.,237 Maxson, Cheryl, 172 Maxwell, Robert, 128 May-Plumlee, Traci, 236 Mayer, Karl Ulrich, 32,40 Mayhew, Patricia, 145 Mead, George Herbert, 33,142,143,248 Mediation, victims/offenders, 155, 160 Medium of communication, 247-8, 250, 251 Mednick, S.A., 235 Meier, Arthur, 61 Melden, M.I., 228 Melossi, Dario, 5,7,141-52, 249 Meltzoff, A.N., 230 Merkens, Hans, 3, 27-49 Merton, Robert K., 16,17, 27, 32, 33, 243 Messerschmidt, James, 190 Messner, Steven F., 2-6,13-24, 34-7, 47-9, 94, 192 Metropolitan culture: crime culture, 176-8, 184-5 crime policies, 184-5 United States, 171,172, 176-80,184-5 Micro/macro gap, 73 Miller, Walter, 29 Mills, C. Wright, 144 Milovanovic, Dragan, 246, 247 Minor, Michael J., 70 Mischkowitz, Robert, 209, 212 Misconduct: pension mis-selling, 120,126,129-31 shaming, 120,129 Mittelman, John H., 20, 21 Mobil Oil, 133 Modernisation: Italy, 57 patrimonial-feudal pattern, 54-5,57 violent crime, 196 Moffitt, Terrie E., 214 Mondigliani, Andre, 75 Money, neutralisation, 125, 132 Montesquieu, Charles Louis de Secondat, 89, 94 Moral entrepreneurs: Greenpeace, 6 Italy, 150 mass media, 135,139 scandalising, 135 Moralising:

265

evolution, 251 rhetoric, 137,139 scandalising, 135, 250 Morality, amorality, see Anomic amorality Moss, Geoffrey, 191 Motivation: action, 229-38 anomie, 117 construct theory, 9, 229-32, 238 control theory, 117 Mukherjee, Sidh N., 54 Miiller-Tuckfield, Jens, 250 Multi-factorial theory, 245 Multinational companies: environmental crime, 65 image risks, 133,136-8 Myths: beliefs, 174-5 gang crime, 171—87 moral panics, 2 violent crime, 180 Nadir, Asil, 122 National Association for the Care and Resettlement of Offenders (NACRO), 163 National Lottery, 120 Neighbourhood Watch, 157 Nelken, David, 2, 53,122,161, 243 Nelson, K., 232 Netherlands: crime rates, 190,191 fear of crime, 191 robbery, 190, 199 Safer Cities policies, 198, 199 social welfare, 198 victimisation, 189,190 violent crime, 189-1,195-199 Networks: organised crime, 61 structural analysis, 67-69 trading diaspora, 56 transnational crime, 53 Neutralisation: anomic amorality, 31, 32 codes of honour, 65 money, 125,132 shaming, 123,125 young offenders, 249—51 New Great Transformation, 19, 21—2 New Realists, 243 New underclass, industrial revolution, 2 Nietzsche, Friedrich, 185 Nigeria: advance fee frauds, 123 International Shell Company, 134 organised crime, 53 Nike, 122

266

Index

Nisbett, Robert E., 235 Nomura Securities, 119,129, 131 Non-domination: contestatory democracy, 91-2 justice, 92 poverty, 89-90 republican theory, 87, 88-9, 103-4 Non-trivial machines, 248, 249 Nonini, Donald M., 61 Normative theory, republican theory, 5, 87, 89 Northern Ireland Development Agency, 129 Nuclear power, 96 Nuclear weapons, 95-6 O'Connor, James, 18 Offenders: career, see Criminal career chronic, 209, 218 juvenile, see Young offenders life history, see Life history mediation, 157, 162 offender-centred criminology, 210, 243 Ohlemacher, Thomas, 4, 69-81 Ohlin, Lloyd, 29 Olds, D.L., 237 Olson, Mancur, 70 Omni-market societies, individualist culture, 3 Ong, Aihwa, 61 Opportunity structure theory, 245 Organised crime: demonology, 123 Eastern Europe, 61 family/kinship relations, 63 generalised exchange, 65 Italy, 151 Japan,119 loyalty, 57, 63 Mafia, 53, 54, 57, 63 networks, 63 Nigeria, 53 patron-client relationships, 57, 63,65 perceptions, 75—81 pre-modern structures, 54, 57—8 South Africa, 53 structural constructionist theory, 75—80 Triads, 53, 54, 57,.63 trust, 57 Yakuza, 53, 54, 57, 63, 96 see also Transnational crime Orru, Marco, 35 Padgett, John F.,72 Paine, Tom, 89 Pannwitz, Rudolph, 144 Pappi, Franz, 70 Paradoxes, 250-5 Parekh, Bikhu, 143 Paris Commune, 72

Parker, Christine, 89, 92 Parkin, 35 Parsons, Talcott, 34,69, 70, 229 Pashukanis, Evgeny Bronislavitch, 107 Patrimonial-feudal pattern: Asia, 55-6 capitalism, 55, 56 China, 61 codes of honour, 60, 62, 63, 64 complex, 56, 59, 62, 65 conceptualisation, 58-62 feudal pattern, 59, 60 feudalism, 54, 58 global economy, 4, 54—62 hybrid forms, 54-7, 66 Japan,61 manorial system, 60 modernisation, 54—5, 57 obligations, 60, 62 patriarchism, 58 patron-client, see Patron-client relationships peer relations, 60, 61, 65 personal fealty, 60 trust, 56 types of crime, 64 Patron-client relationships: feudal sub-structure, 58, 59, 60, 61-2 Mafia, 57, 63 organised crime, 57, 63, 65 Patterson, Gerald R., 214, 237 Paulsen, Ronelle, 72 Pavarini, Massimo, 149, 150,153, 251 Paz, Octavio, 149,150 Peabody Coal, 131 Pension mis-selling, 120,126, 129-31 Peters, R.S., 229 Petersilia, Joan, 207 Peterson, Ruth D., 196 Pettit, Philip, 87, 88, 89, 90, 92, 93, 94, 104 Philosophical empiricism, 231 Pithouse, Andrew, 118, 121, 123, 129 Pizzorno, Alessandro, 57, 62 Polanyi, Karl, 3,13,14, 15, 16, 21 Politics, 95, 251, 252 Polly Peck, 122 Poverty: deprivation, 195,196 non-domination, 89-90 processes of impoverishment, 246 Powell, Walter R., 62 Power, Michael, 164 Power, T., 233, 236 Powers, J.L., 196 Pragmatism, 147 Prisons: criminal career, 210-11, 217—23 ethnicity, 149 incarceration rates, 109,147, 149

Index inclusion, 148 Italy, 147,149 monastic life, 148 privatisation, 108-9 United States, 109,147,148-50 see also Punishment Privatisation: prisons, 108-9 welfare state, 105,108-9 Professional groups, shaming, 123 Protest action, frames, 74, 75 Proust, Marcel, 144 Prudential Assurance, 130 Public scandalising, see Scandalising Public shaming, see Shaming Punch, Maurice, 123 Punishment: childhood, 234-6, 245 community-based, see Community-based penalties corporal punishment, 236 culture, 147 democracy, 148-50 parsimony, 90 prisons, see Prisons shaming, see Shaming structural explanation, 147 Putnam, Robert D., 62,151 Pyramid Building Society, 123 Radical structuralism, 72 Reagan, Ronald, 74 Reckless, Walter C , 208 Rees, Joe, 96 Reference groups: ethnicity, 122 shaming, 122,123 Reid, John B., 214 Reiner, Ira, 172 Reintegrative shaming: corporate crime, 120 elite crime, 124 Japan,119 reformation, 127—28 see also Shaming Reiss, Albert J., 197 Republican theory: attractions, 89-90 crime control, 89-104 crime reduction, 96-103 criminal justice policy, 88—9 deliberation in communities, 89, 91-2, 96—7 environment, 95, 96 equality, 88, 91, 94 explanatory theory, 88-89 gender, 94 ideals, 90-1 informal justice, 92

267

justice, see Justice non-domination, 88—90,103—4 normative theory, 5, 87, 89 separation of powers, 88, 94, 98-100 welfare state, 90 Restorative justice: corporate crime, 99 white-collar crime, 117 Retributivism, alternatives, 88 Rio-Tinto Zinc, 131 Risk: image risks, 133,136-38 management, 133,136-38 risk society, 8,117, 160 strict liability, 135 Robbery: homicide, 185 labelling, 190 Netherlands, 190,199 Robins, Lee, 207 Robinson, Geoffrey, 129 Rock, Paul, 248 Roniger, Luis, 60 Ronson, Gerald, 118 Rorty, Richard, 247 Rosanvallon, Pierre, 108 Rosenfeld, Richard, 2, 3, 4, 6,13-24, 34, 35, 36, 37, 47, 48, 49,194 Ross, M., 235 Roth, J.A., 197 Rothstein, M., 235 Roversi, Antonio, 145 Royal Family, symbolism, 118—19 Rucht, Dieter, 74,75 Rusche, Georg, 147 Rush, Benjamin, 148 Russia, Mafia, 53, 54 Sabol, William J., 151 Sachsse, Christoph, 107 Sack, Fritz, 109, 247 Safer City Partnerships, 164 Sagi, A., 232 Sagotsky, Gerald, 235 Sampson, Robert J., 207, 208, 214, 215, 216, 219,221,224,237 Sanders, William B., 184 Santos, Boaventura de Sousa, 108 Sapir, Edward, 145 Satterfield,J.H.,237 Savelsberg, Joachim J., I l l , 113 Scandalising: Brent Spar scandal, 122, 133-^t, 136 moral entrepreneurs, 135 moralising, 135, 250 Scheerer, Sebastian, 243, 251 Schenk,69 Schlick, Moritz, 230

268

Index

Schmidt-Semisch, Michael, 251 Schmitter, Philippe, 160 Schutz, Alfred, 146 Schwartz, J.E., 69 Selection: negative, 250-1,252 stabilisation, 246—48 Self-regulation: competition, 117 globalisation, 20-1 market societies, 1,14, 20 Sellin, J. Thorsten, 28, 29, 148, 149 Semantics, 246 Separation of powers: interdependence, 93 republican theory, 88, 94, 98-100 Sessar, Klaus, 245 Sewell, William H., 69 Shaming: corporate governance, 138—9 deliberation in communities, 96 directors' disqualification, 128 family conferences, 108 fraud, 126 globalisation, 122, 128, 138 illustrations, 118—21 incapacitation, 125, 126 informal punishment, 125 Japan,119-21,129 libel, 121,122 misconduct, 120,129 neutralisation, 123,125 prevention/deterrence, 127 professional groups, 123 reference groups, 122, 123 reintegrative, see Reintegrative shaming smaller-scale societies, 12 stigma, see Stigma subcultural variation, 11820 white-collar crime, 120-1 Shaw, Margaret, 161 Shelley, Louise I., 196 Sherwin, David, 122,124 Shihadeh, Edward S., 195 Shils, Edward, 69, 229 Short, James, 30 Shover, Neal, 227 Siddle, D.A.T., 237 Silent revolution, 33 Simmel, Georg, 69 Simner, MX., 232 Simon, David R., 53 Simon, Jonathan, 252 Simpson, O.J., 99 Simpson, Sally, 37 Skinner, Q., 92 Sklar, Leslie, 54 Smaus, Gerlinda, 251

Smith, Adam, 70 Smith, Carolyn, 245 Snow, David A., 74 Social action, see Action Social change: crime rates, 1 criminological theory, 1—10 economic variables, 1 individualist culture, 1, 3 life course, 1 social exclusion, 2 violent crime, 1, 2 young offenders, 1 Social contract theory, 15 Social control: community-based penalties, 158 constructionist theory, 246, 247 culture, 151—2 meanings, 146 see also Control theory Social democracy: equality, 90 programme, 93-4 Social development, variation, 244-6 Social disadvantage index, 220-1 Social dynamics: legal control, 5-6 markets, 3—4 Social exclusion: feudal pattern, 60 patrimonial substructure, 58 school problems, 218 social change, 2 Social structure: analysis, 69-91 culture, 69,154 Social welfare: culture of competition, 30 Netherlands, 198 Sweden, 194 violent crime, 194 see also Welfare state Sokaiya, 119,129,131 Solomons Carpets, 98-99 Somberg, D.R., 236 Sorokin, Pitirim, 1 South Africa, organised crime, 53 Spatz Widom, Cathy, 237, 245 Spence, M.J., 232 Sperber, Dan, 251 Spierenburg, Pieter, 190 Sports Network Europe, 128 Stabilisation: selection, 246-48 stigma, 250 variation, 246—7 State intervention, 107—8 Steinert, Heinz, 148

Index Steinmetz, Suzanne, 245 Stelly, Wolfgang, 8, 207-24 Stichweh, Rudolf, 247 Stigma: application, 121—8,131 fraud, 124 impact, 126,129 mass media, 121,122-3,126 secondary consequences, 123 stabilisation, 250 see also Shaming Stonequist, E. V., 145 Strain theory: desistance, 212 violent crime, 191 Strassberg, Z., 236 Streeck, Wolfgang, 160 Strict liability, risk, 135 Strodtbeck, Fred, 30 Structural constructionist theory: frames, 72,73,74, 81 micro/macro potentials, 73—4 organised crime, 75-80 studies, 72 see also Constructionist theory Structural-determinism, 72 Subcultural delinquency: conventional norms, 29-30 delinquent subculture theory, 29—30 Germany, 42 globalisation, 48—9 market societies, 4 subterranean sources, 4, 27—49 Subcultural theory: desistance, 212 linkages, 245 market societies, 4 origins, 27-30 Subcultures: core values reflected, 27 variation, 118 white-collar crime, 28 Suddle, Mohammed Shoaib, 120 Sullivan, Mercer, 27 Suls, Jerry, 33 Sumitomo, 125 Sunstein, Cass, 90, 94 Supranational entities, transnational crime, 21-2 Sutherland, Edwin, 28, 29,30, 31, 32,147, 251 Sweden, crime rates, 193,194 Switzerland, crime rates, 193,194 Sykes, Gresham, 29, 30, 35, 36, 48, 250 Symbolism: gang membership, 182—3 Royal Family, 118-19 white-collar crime, 124

269

Systems theory, 251 Tabb, William K., 55, 61 Takagi, Paul, 148 Takaki, Ronald, 149 Tarkowski, Jacek, 61 Tarrow, Sidney, 75 Tarski, A., 231 Tate & Lyle, 131 Tay, Alice Erh-Soon, 107 Teeple, Gary, 19, 20 Teubner, Gunther, 112,113 Thaa, Winifred, 61 Theories: anomie, see Institutional anomie theory civilisation, 196 classical, 211-12,243 communication, 244, 246, 250 constructionism, see Constructionist theory control, see Control theory deficits, 244 differential association, 245 evolution, see Evolution explanatory, 89, 251 Keynesian, 19 labelling, 243, 246, 247 learning, 245 Marxism, 18,19,107 multi-factorial, 245 opportunity structure, 245 rational choice, 247 republican, see Republican theory state intervention, 106—8 strain theory, 191, 212 structural, see Structural constructionist theory subculture, 4, 27-30, 212, 245 Thoman, E.B., 233 Thomas, Jiirgen, 8, 207-24 Thompson, Carol Y., 213 Thompson, Grahame, 21 Thornberry, Terence P., 214, 215, 245 Three Mile Island, 94 Tilly, Charles, 75 Tocqueville, Alexis de, 148,149 Tomasic, Roman, 111 Tracy, Paul E., 209 Trade Practices Commission, 98, 99 Trading diaspora, global economy, 56, 62 Transformation formulas, 146 Transnational crime: codes of honour, 63 elites, 53, 63 globalisation, 4, 20—1 networks, 53 supranational entities, 21—2 types, 53 see also Organised crime

270

Index

Treiber, Heinz, 148 Triads, China, 53, 54, 57,63 Triandis, Harry, 33 Tribes: global economy, 56 urban society, 2 see also Family/kinship relations Trocki, Carl A., 56 Trust: family/kinship relations, 56, 65 organised crime, 57 patrimonial-feudal pattern, 56 Trust in institutional system, Germany, 79 Trust in political system, Germany, 76, 79 Tuebingen Criminal Behaviour Development Study (TCBDS), 212 217-23 Tyler, Tom, 97 Tyranny: explanatory theory, 88 peaceful coexistance, 93 Unger, Roberto Mangabeira, 106 Union Carbide, 122,131 United States: American Dream, 46—7 Civil Rights Campaign, 70 crime culture, 178-82,186-7 crime rates, 147,175-7, 181-2, 184 diversion, 107 hard culture, 195, 198 Mafia, 57 metropolitan culture, 173,174,178-82, 186-7 predatory crime, 21 prisons, 109, 147,148-9 social theory, 27, 28, 37, 48-9 violent crime, 147,152,171-87,194-6 white-collar crime, 28 Urry, John, 160 Vagg,J.,199 van den Eschof, Paul, 190 vanDijk,JanJ.M., 147 van Dijk, Ton, 190,191 van Duyne, Petrus, 123 van Ijzendoorn, M.H., 233 Van Winkle, Barrick, 183,185 Varese, Frederico, 57 Variation: Germany, 164—5 ghettos, 245 social development, 244—6 stabilisation, 246-7 subcultures, 118 Veblen, Thorsten, 27, 29, 32, 33, 36 Veenman.J., 198 Verge, Arthur C , 181

Victimisation: ethnicity, 77, 78, 79 Germany, 76, 77,78, 79, 80, 81 International Crime Victimization Survey, 190 Netherlands, 189,190 Vigil, James Diego, 173 Vila, Bryan J., 224 Villareal, Marcelo J., 33, 39 Violent crime: anomia, 194 civilisation theory, 196 comparative approach, 189—200 deprivation, 196 domestic violence, 190 endemic violence, 195-7 explaining absence, 189-200 gang crime, 173,174,176-7,179,182-6 ghettos, 196-7 global economy, 194,198 market societies, 198 mass media, 189 modernisation, 196 myths, 180 Netherlands, 189-1,195-199 respect, 1 8 3 ^ social change, 1, 2 social welfare, 193 strain theory, 191 street codes, 197 symbolism, 2 United States, 147,152,171-87,194-6 wilding, 179 young offenders, 182-6 Void, George, 28 von Foerster, Heinz, 248 Voss, Michael, 113 Wacquant, L., 197 Wadsworth, M.E.J., 237 Waldinger, Roger, 181 Walker, Nigel, 230 Ward, John, 56 Warr, Mark, 224 Warren, Frank, 128, 129 Waterman, A.S., 33 Waters, Malcolm, 18,19,21, 22 Weatherford, M. Stephen, 76 Weber, Max, 6, 55, 56, 58,106,107, 147,148, 150 Weimar, Elisabeth C.J., 190 Weiss, B., 236 Weitekamp, Elmar G.M., 8, 207-24 Welfare state: after the welfare state, 108—12 corporatism, 110 crime rates, 17 crises, 18,108

Index de-commodification, 15—16,17 decline, 20 informal justice, 105—14 informalisation, 106 Keynesian theory, 19 legitimation, 108 Marxist theories, 18 privatisation, 105,108-9 redistribution, 14 republican theory, 90 state intervention theories, 106-8 types, 15-16 see also Social welfare Wellmann, Barry, 70, 72 West, Donald J., 224 White, Harrison C , 70, 71 White-collar crime: anomic amorality, 30-1 communication theory, 250 globalisation, 1 life history, 207 mass media, 118 respectable crime, 28 restorative justice, 117 shaming, 120-1 subcultures, 28 symbolism, 124 United States, 28 see also Corporate crime Whitely, Richard, 55, 56 Wiles, P., 197, 200 Willke, Helmut, 112,113 Wilson, Deirdre, 249

TJX

Winch, Peter, 230 Wittgenstein, Ludwig, 231 Wittmann, Hanns-Joachim, 224 Wolfgang, Marvin E., 29, 207, 209, 221 Wollstonecraft, Mary, 89, 94 World Association of Nuclear Operators, 96 World Trade Organisation (WTO), 91, 103 Wright, Richard T., 94 Yakuza, 53, 54, 57, 63, 96 Yang, Mayfair Mei-hui, 61 Yinger, J. Milton, 27 Yoerger, Kevin, 214 Young, J., 200 Young, Peter, 106 Young offenders: arrest rates, 175-7, 184 criminal career, 209, 214 family conferences, 158 gangs, see Gang crime Germany, 38^9,110 group delinquency, 36, 45 homicide, 175-7, 184 neutralisation, 249-50 respect, 183—4 social change, 1 spontaneity, 246 violent crime, 182-6 Zald, Mayer N., 75 Zedner, Lucia, 7,157-68 Zimring, Franklin E., 183, 190, 203