Introduction
Theoretical Background: Historical Survey of 'Law and Order' Approaches
     2.1 - Classical Crime Policy
     2.2 - Conservatism
     2.3 - Modern Neo-Classicism  / Mixed Model
     2.4 - New Right & Post-Modernism: Neo-Authoritarianism
Effects of Law and Order Approach on Law
Conclusion & Ramifications
Appendices - Models of Criminal Justice
References

Bibliographical Citation

NEWMAN, C.A.   (2000).  Four law & order approaches disentangled: a comparison between liberal, conservative, neo-classical & new right justice models, with special regard to effects on legal aspects of the criminal justice system.  University of New England, Armidale, N.S.W. [Dept. of Sociology / Criminology, School of Social Science: SOCY-364-8].

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INTRODUCTION

'Law and order' is a commonsense rather than a sociological approach, but does have paradoxical affinities with some mutually inconsistent sociological perspectives, notably rationalism and functionalism at a general level, and more specifically social pathology and social control.  Its current vogue is due to an unusual constellation of competing influences and historical accidents.  These include the radical responsibility ethic of post-modern existentialists to the left;  the ascendancy of econometric perspectives of 'dry' rationalist conservatives to the right;  and the intensification of electronic and print media support for 'new right' policies.  The last, with its predilection for pre-classical vengeance and authoritarian control, arises from frankly neo-fascist populism.  Meanwhile the liberal hedonic calculus which gave birth to the classical 'rule of law' perspective is hidden from the post-modern menu, and the child without its parent not unexpectedly runs an errant course.

Of the four dominant 'law and order' approaches, only liberal or classical criminology argues that the rule of law benefits from a policy of minimal intervention.  Classical intervention is commensurate with the utility principle of 'greatest happiness of the greatest number' (J.S. Mill), served by a highly regulated legal framework in which due process, rules of natural justice and tolerance of mild deviance are hallmarks.  Conservatism on the other hand emphasises social order at the reluctant expense of other values such as justice and freedom, whilst authoritarian and reactionary models actively denigrate these other values.  I will argue that the current climate in Australia is characterised by authoritarian and reactionary criminology values of a totalitarian colour, unhappily augmented by a superstitious radical voluntarism fostered by certain radical feminist and existentialist rhetoricians, and that the resulting hybrid populist law and order model is fatally flawed in major respects.  Rather, we are forced to seek more resilient and self-consistent examples of a 'law and order' approach in liberal, conservative and neo-classical policies, and to examine cogent criticisms of these stronger models from interactionist and dynamic-Marxist perspectives.

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THEORETICAL BACKGROUND
Law and order is a broad policy approach based loosely on several 'commonsense' conservative notions, including those of moral value, individual responsibility, classical retributive justice, the rule of law, and social contract.  As it comes in several different packages, some  liberal and mild, others more clearly conservative, yet others radically authoritarian and reactionary, it can be misleading to judge them together.  They can be separately evaluated in four basic groups, set out below, roughly in order of appearance (See, Tables 1-4 'Law & Order Models', Appendices).
 

(1) Classical crime policy.  Stemming from Beccaria's liberal model, the early modern version of the 'rule of law' has in practice been fused with the later 'principle of utility' of J.S. Mill, the older hedonism of Bentham, and with many legal refinements, particularly those of Romilly (1810, 1819).  It is mainly found in the Courts, in Australia particularly among non-Catholic judges subscribing to traditional legal positivism, a jurisprudence long absorbed into the corpus of common law and putting much of Beccaria's model into continuing practical effect.  Law and order are necessary only to provide sufficient impartial protection for the maximisation of individualistic pursuit of pleasure.  This laissez-faire version of the rule of law ultimately implies a criterion for crime policy of 'hedonistic rationality'.

Despite its liberalism, this approach is still recognisable as a 'law and order' perspective, based on three principles also common to succeeding more conservative types, namely social contract, rule of law and rational deterrence (Beccaria [1764] in Vold & Bernard, 1986: 21).  However, it does so for uniquely hedonist-utilitarian reasons which frame softening operational limits.  Uniquely the legal-liberal perspective demands that severity of punishment should barely exceed the pleasures and goods obtained from crime.

Beyond this is superfluous and for that reason tyrannical… severity of punishment of itself emboldens men to commit the very wrongs it is supposed to prevent; they are driven to commit additional crimes to avoid the punishment for a single one (Beccaria, op.cit.: 21-24).

See >>  Table 1: Classical Hedonism...

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(2) Conservatism proper.  The 'law and order' model is often falsely taken to be virtually synonymous with conservatism.  This is perhaps because in the English-speaking world the philosophical foundations of conservative crime policy were laid by early romantic literary figures who, fired up with German idealism and Christian apologetics, happened also to be brilliant rhetoricians still avidly read and admired.  Of these Coleridge had a profound formative influence, rejecting hedonism outright, and claiming instead the fundamental role of crime policy in nourishing the 'organic unity and permanence of the State or Society' (Coleridge in Bryant, 1954: 401).  Instead of pleasure, human society itself was re-affirmed as the basis of social contract and law, a society regarded as an organic, functional unity.  The unity of the State he perceived as the ideal hierarchical order whose nature must be sustained for the health of individuals (cf. Hobbes, Goethe, Schiller).

Rule utilitarianism (or legalism), authoritarianism and free-will in the context of social-organic functionalism are defining secondary characteristics of conservatism, whose primary character is that order is valued more highly than other virtues such as justice or freedom, conceived as dependant.  The goals of criminal law and punishment are social conservatism, values and justice, in that order, not a pleasure calculus, and the social order to be preserved is specifically unequal.

It is a mockery of our fellow creatures' wrongs to call them equal in rights when, by the bitter compulsion of their wants, we make them inferior to us in all that can soften the heart or dignify the understanding (Coleridge, in Bryant, 1929: 401).

Arnold (1822) specifically addressed the problem of law and order in relation to delinquency, developing the 'English public school' as a part of the solution to the perceived malaise of the new industrial society, cultivating 'manners', 'virtues', 'will', 'talent', and providing 'heroic models' to realise Coleridge's reform of a decadent upper class (Bryant, 1954: 404).  Both men saw luxury and display no less than moral degradation as conditions underlying criminality.  Punishment is still viewed by conservatives as serving not only a correcting or deterrent purpose, but more importantly, socially, as serving the vital function of reinforcement of the ideal value.  This is similar to Durkheim's model of functional crime as elucidating and strengthening 'collective sentiments' (Haralambos, 1980: 412; Vold & Bernard, 1986: 146-150).  Arnold's lasting influence was that delinquency programmes should not merely punish, but also provide avenues for 'redress of wrongs', 'courage', 'truth', 'devotion', 'zeal', 'meekness' and 'fidelity' in fierce opposition to hedonic liberal views of law and order (Bryant, 1954: 403).  Punishment should be painful but sparing.  Moreover only 'rationally perceived pain' is useful, to be joined to a corrections programme characterised by 'constant admonition', 'service' and 'emulation of heroic models' (ibid.).

On what we call the 'wet' side of politics (living in an age in which sensibility is out of fashion), but which was then known as the 'Enlightenment', were other literary law and order stalwarts who nevertheless considerably softened conservative crime policy.  A major influence in the evolution of mainstream English-speaking crime policy, the novelist and conservative moralist Jane Austen (1775-1817) was an articulate opponent of hedonic utilitarianism.  She also successfully advocated gender-based programmes of social correction through 'heroic leadership', with 'moral dilemma' the refining instrument of idealism.    As she related criminality to 'self-assertion'

 which results in everything lawless, coarse, brutal and uncontrolled (Austen, in Bryant, 1929: 404)

 willingness to shoulder the dullest and weariest burdens for those with claims of kindred and association (ibid.);

The 'enlightened' school of conservative order endures in the idealist conception of 'refinement' versus 'coarseness'.  Law and order 'must not stop at comfort', but should rather pursue all private vices of character and behaviour as legitimately falling within the public domain (Austen, op.cit.).  In fact the boundaries between conservatism and either the social pathology or social control models are not clear, except that the latter are more structural and less rationalist (see Appendices).   After Disraeli (d.1881), the conservative approach is de facto 'neo-' classical, for it accepts that rational free choice exists within a constraining psychological and social environment in which maturity needs to be developed or rehabilitated, related to moral education and provision of basic human needs ('social Toryism', cf. Disraeli, in Bryant, op.cit.: 402; 'psycho-physical interactionism' cf. Popper & Eccles,1983: 471-8).  However, conservatives view moral society as consisting in duties not rights.

 Ask not what your country can do for you, but rather what you can do for your country (J.F.Kennedy, 1963 Inaugural Address).

See >>  Table 2:  Conservatism...

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(3) Modern Neo-Classicism / Mixed Model.   Failures in deterrence are regarded as proofs that the Classical law and order model is either basically unsound or inadequate.  Whilst crime can be plausibly explained in 'law and order' terms, with a degree of responsibility left to the rational actor, the model is difficult to square up with persistent offending.

 The existence of a body of persistent offenders… has long cast doubt on the effectiveness of repressive measures (Radzinowicz, 1948: 162-173).

In order to defend themselves from clinical totalitarianism, criminal justice systems had to accommodate the notion of rehabilitation.  This allowed a third popular model of 'law and order' to develop, based on two ideologies, an economic compact between the State and each of its rational citizens implying a two-way obligation to maintain the capitalist industrial economic order providing basic needs (Currie, 1988), and a humanitarian and economic obligation of the State to separate irrational or 'sick' individuals from society for 'treatment' (Vold & Bernard, 1986: 349-52; Braithwaite, 1989: 116; Cunneen & White, 1995: 20, 190).  This ideology was prevalent from the late Victorian period up to the onset of inflationary economic pressures in the early 1970s.  It led to positivist and sociological supremacy in public crime policy for brief periods from the 1920s until disillusionment with rehabilitation programmes in the mid-1970s, combined with demographic changes, gave way to media-led calls for a return to retributive systems (Zdenowski, 1993: 187-8; Walker, 1991: 95ff.).  Before this, the uneasy 'neo-classical' alliance between liberal classicism and scientific positivism nevertheless allowed aspects of both models to operate pragmatically within a general framework, with 'law and order' premised on economic stability or 'cold war' objectives rather than abstract-idealist values.  Pruned, streamlined, and sometimes irrationally bedded down with incompatible rehabilitation objectives, both conservative legalism and classical liberal jurisprudence continued to provide guiding principles in a workable system.

Conflict theorists argue that this is just more of the same, a convenient way of ignoring the basic question of whose interests are being served by the order that is being imposed and sanctioned by the legal and medico-legal violence at the disposal of the State (White & Perrone, 1997: 144-5, 216, 218d; Conrad & Schneider, 1994: 496-500).  The medico-legal 'law and order' model can also be viewed as more totalitarian and socially myopic than that which it replaced (Conrad & Schneider, op.cit.: 487).  However dualists argue that the neo-classic law and order model is neither static nor unsophisticated, that it safeguards against ruthless order at the expense of due process, and that it admits rehabilitation without succumbing to it.

See >>  Table 3:  Neo-Classicism...

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(4) New Right & Post-Modernism: Rationalism Revisited.  With serious economic pressures exacerbated by the political culture of 'economic rationalism', State funding of positivist crime rehabilitation programmes was drastically curtailed by the late-1980s (Currie, 1988).  Similar cutbacks to spending in mental health led to a spate of spectacular but statistically unremarkable displays of public violence by former psychiatric inpatients, whilst control of media editors by proprietorial interests increasingly centred in the New Right led to a great deal of publicity given to crime as a diversion from fundamental questions about political economy.  For these reasons and others there were mass hysterical claims of crime waves and a media-fanned sense of system failure (Walker, 1993: 20).  Rehabilitation, the latest (and most costly) anti-crime strategy was conveniently targeted by politicians always conscious of short-term public financial solutions that could be dressed up to look good with the electorate (Brown, 1988).   Pre-rational retributive models were popularly favoured, and politicians entered into bidding matches with rivals for the most Draconian response (Zdenkowski, 1993: 186).  Sydney radio journalists and politicians discussed with talk-back radio callers the merits of public floggings, pillories, branding, the death penalty, presumption of guilt, abolition of criminal appeals, torture to extract confessions, curfews, detention without trial, and mandatory sentencing including prison terms for trivial offenses.  Some authoritarian judges who were neither classical in orientation nor conservative in the sense of commitment to legal precedent, many of them 'natural lawyers' unwilling to distinguish between law and morality, went along with the hysteria (e.g. Spigelman, CJ, in R. v Bell, 1998, a decision providing immunity to prejudicial reporting).

A more intellectual argument for new right criminology came from an unlikely source.  If rational causes of crime are only hypothetically free, since reasons result from ultimate psychophysical identity with structure, criminality could finally be reduced to opportunity and individualism (Braithwaite, 1989: 31-4, 86, 168-74).  Braithwaite's is a social control model with rational and strain features, and an authoritarian agenda concealed by radical departure from the formal 'law and order' process.

 Shaming explains compliance with the law by the moralising qualities of social control rather than by its repressive qualities (ibid.: 9).

From the left there has been relative silence recently.  This may partly relate to the 'absolute responsibility (autonomy) ethic' of one of post-modernism's intellectual underpinnings, existentialism.   Deviant rationality is obviously highly circumscribed and limited, as both Braithwaite and Derrida, exponents of conservative and existential responsibility ethics respectively, have admitted.  For Braithwaite (1989) the structural variable is control, freedom being the subversive criminogenic property.  For Derrida (1982) conversely autonomy underlies authentic, non-needs based behaviour, whilst pathological behaviour is characterised as dependant on structure, in part due to false consciousness through the rationalisation of positive causes of one's behaviour (cf. also Matza [1964] in Braithwaite, 1989).  Both sides of rationalism would agree that rationality is restricted by structurally determined psychosocial identity.

See >>  Table 4:  Neo-Authoritarianism...

See also >>  Table 9:  'Social Control'... / cf. Table 13:  'Constructionism'...

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EFFECTS OF LAW AND ORDER APPROACH ON LAW

When people refer to the 'law and order' approach today they mostly mean an authoritarian version somewhere between that of the New Right and conservatism.  This can be abbreviated 'the authoritarian approach'.  It rests on principles of the supremacy of order over law, absolute responsibility of individuals for crime, the concept that justice should include painful retribution as a payback to victims and to society for the wrong done, and a legislative programme that makes no distinction between crimes and wrongs.  It is supported by policies such as the reinforcement of hierarchical institutions with greater powers, harsher sentencing and longer prison terms, forcing criminals to accept absolute responsibility for their actions, and a number of policies suggesting that many criminals should continue to be punished throughout their lives without any 'second chance'.  Broad themes include the idea of a state of permanent moral inferiority possessed by large numbers of individuals, and that only continual fear and brutal treatment prevent their permanently criminal propensities from being expressed without respite.

The authoritarian approach has obvious general effects on our system of law.  First, the rule of law is weakened, since order takes precedence over law.  Police forces are increasingly permitted to 'take the law into their own hands', to ignore legal constraints on executive power, with new tools such as arbitrary search, arrest or custody, and now curfews, to assist them.  Judicial commissions are set up with enormous inquisitorial powers that subvert due process and ignore natural justice.  The venerable right to an unprejudiced hearing in N.S.W. was ditched in 1998, when Spieglman, J., decided that 128 counts of sensational pre-trial media publicity over nine years admitted by the court to be 'extremely prejudicial' nevertheless could not prejudice a trial in N.S.W. if the trial judge directed the jury to ignore it (R. v Bell, Oct.1998).  As legislators diminish judicial discretion, sentencing must become increasingly coarse and unresponsive to factual variations.  Authoritarianism has meant that the administration of law in the Courts is subject increasingly to outside pressure from the executive and the media.  Security of judicial tenure is now openly challenged, and the underfunded volume of criminal prosecution puts pressure on the presumption of innocence and even the central right to be heard.

Wide net legislative programmes mean the criminalisation of more and more of the citizens of the State.  What happens when a rule is broken by a large percentage of the population?  Clearly the rule of law is challenged, and generalisation of attitude means both that law-abiding tendencies become less strenuous, and that stretched law-enforcing becomes more particular and arbitrary, also more symbolic and less successful, and vastly less popular.  In general terms, laws that are regularly broken weaken all social rules, levels of social commitment, and any system of rational deterrence.  The great paradox of 'law and order' in its popular authoritarian form is that it diminishes the rule of law, and erodes the social order.  Social order depends not on more legislation, but on effective and inexorable practice of the little that has consensual support.

Offering a dynamic-interactionist critique, White and Perrone maintain that we are essentially bludgeoned by the threat, use or misuse of State violence into accepting certain norms, not only relating to moral behaviour, but also relating to political economy (op.cit.: 218)  and demographic power divides such as male/female, black/white, young/old, rich/poor (op.cit.: 98, 152, 157-8;  cf. also Foucault, 1977; Derrida, 1982).  That is, they argue the law and order perspective is sham theory, a fake theoretical assemblage for mass consumption in order to hide and maintain basic political inequalities upon which the status quo interests of power elites are based.  This 'state ideological apparatus' is viewed as being based on two practical processes - an historically rooted (and therefore historically biased) 'legalism' which sets an agenda of concern for individual responsibilities to the exclusion of human conditions set by structural parameters;  and 'state violence' as the means by which this self-legitimating structure perseveres and strengthens by dealing aggressively with potentially infectious deviance.  The political economy sustains itself by divide and conquer tactics, characterising criminal deviance as individual dissent in order to stifle collective political dissent.  In this programme of social control the master structure's prime symbolic and practical apparatus is the criminal justice system.

White and Perrone compare an alternative rational, informalist and communitarian crime policy favorably against the law and order perspective in terms of either individual or social results.  However they advocate that this should be combined with an underlying dynamic structural programme (op.cit.: 244-6).  They challenge the notion of 'legal pedigree' as inappropriate for a progressive society, and decry the remoteness and dissociation of community from legal process.  They also question the effectiveness of rational deterrence related to sanction, but are descriptive rather than critical of the conservative idea of dramatic example in order to reinforce social values.  In addressing individual acts judges and legislators obviously fail to address the structural causes of crime, although prevention surely cannot be all of crime policy.   Affirming Montesquieu's separation of powers, legalism bars social engineering from the courtroom, and the inability of classical jurists to be creative in setting aside precedent, legal pedigree and the rule of law for natural law outcomes is frustrating for many dynamic theorists.  However, it is more difficult in an age of technologically accelerated executive and capital power to imagine revolutionary improvements in law or society once arbitrariness is established as the new mode of operation.

The sinking of the White and Perrone model in arbitrariness leaves us with the mixed model:  perhaps the neo-classical criminal justice system hand-in-hand with dynamic structural and economic reforms is after all the more appropriate of the 'law and order' responses to crime?

See, Appendices: Law & Order Models...

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CONCLUSIONS

The 'populist' law and order model has little theoretical underpinning.  It is a politically expedient assembly of 'policies on the run'.  Evaluated from classical or neo-classical perspectives it has dealt illogically with the concepts of freewill and rationality.  From the conservative perspective it is clearly reactive and primitive in advocating repressive measures that reflect and promote radical inequality rather than natural inequality in the complete absence of provision of additional welfare or educational programmes.  From a positivist point of view it relies on supernatural concepts such as 'inherent evil' which are in principle unfalsifiable.  To the social scientist they are literal nonsense.  In the course of the century much scholarship has established the limits of deterrence, and that criminal responsibility is inaccurate or at best overplayed.  The dominant contemporary law and order perspective devalues the social conditions of crime, and even functionalist approval of it by Durkheim is admitted to be on the basis of a 'convenient fiction'.

The obvious major strength of a law and order approach is that its rationalism is empirically plausible with some evidence for deterrence.  Idealistically, many liberal social institutions depend on the concept of freedom of choice and responsibility, and a rational approach may avoid proliferation of arbitrary authoritarian institutions.  However, punishment and social control in the law and order perspective are by no means always humane, limited and non-arbitrary.  Draconian models, in vogue at the present time, often pre-Classical and primitive in scope, are inconsistent, arbitrary and self-defeating (Brown & Hogg, 1996), and spread the damage.

Prisons are brutal places and they create brutal people.  Men released from prison go back to wives, mothers, lovers and sisters who are left to cope with the damage.  Women thus become victims of male imprisonment (W.A.P.C. [1990], in White & Perrone, 1997: 174).

The last quarter-century has been marked by global modernisation and acceleration of consumerism.   Cultural modernism, which implies a contractual and libertarian society, has been overtaken by post-modernism, refering to the dominance of mass culture over individual social identity, and the re-construction of a global culture from a collage of aspects evolved by mass media through the communication revolution.  The greatest strain in such a society is between 'consumerism' and weakened 'bourgeois humanism'.   Individuals located at the margins of society are furthest from socialisation influences, and most frequently defined as criminal.  Yet in media articles and court decisions, absolute agency is increasingly assumed for them.  This depositivising effect may depend upon the overriding stigma of their 'marginal status'.  It does not augur well for changing structural conditions which might predispose the behaviour, and the rate of criminal recidivism would seem to bear this out.  Labelling theory, best viewed as a partial theory of deviance (it does not offer an explanation of primary deviance), offers a powerful account of the negative operation of incarceration of deviants (Lemert, 1972).   Few would now argue that secondary deviance in response to the prison system is imaginary.  This implies that preventing introjected deviant role assumption, marginalisation and structural strain, are all necessary to any criminal justice approach.

In evaluating 'law and order', it is necessary to look at the 'neo-classical' rather than frankly outmoded Beccarian system, however brilliant in its day, with its practical and theoretical drawbacks.   The neo-classical approach does have theoretical underpinning, based on evidence of dual intentionality and determinism.   Both neo-classical and control theorists claim that reasons for crime are at least as important as the macro-structural landscape, but are constrained within it.   Whilst Braithwaite from the right (1989) and White and Perrone from the left (1997) argue for basic re-evaluation of classical & neo-classical perspective in terms of agenda, distribution of benefits, diversion from criminological issues, disempowering application, paradoxical effects and criminogenic processes, the new institutions they advocate are in fact arbitrary, lopsidedly order- rather than process- oriented, and, given historical precedents, likely to degenerate into an unconstituted authoritarianism despite opposite intent.  Neo-classical theory, on the other hand, more pragmatic on crime than authoritarianism, is also sophisticated enough to permit, extra-judicially,  much of strain theory whilst offering a wider perspective not ultimately hostile to important dynamic macro-social explanation.  It implies a psychophysical interaction between ultimately separable structural and rational worlds, affirming categorical freedom to invest energy or not in competing goals determined in the social world.

The fact of persistent offending in the face of classical repressive measures clearly shows the need for a mixed model, no less in crime policy than in crime explanation (Radzinowicz, 1948: 162-173).  Conversely, it is also of great relevance that one individual in the same landscape, of the same social milieu, similar character and often similar history of past victimisation, deviates and another does not.  Structural studies are weak on these issues, whereas qualitative explication is sensitive to variations in the meanings, beliefs and conscious focus underlying explicitly uttered reasons for behaviour.  The rational and neo-classical dimension of crime cannot be overlooked, as it is presumably the focus of consciousness within a margin of freedom that finally explains why not all close family members subject to the same social environment and social history deviate.  Balancing this is the fact of recidivism in the face of classical retribution, suggesting higher positivistic content.  Taken together, non-rational recidivism and rational divergence argue strongly for a mixed model where the dynamic structural environment, strain, social control and stigma, more than rational, malicious or negligent consciousness, are the focus of policy.  Re-affirming the doctrine of separation of powers would assist the judicial arm of government to deal with the rational, the executive arm with the structural causes of crime, without destructive crossover.  If a 'law and order' model is to be adopted, it must be sensitive to policy feedback, well-versed in non-arbitrary deterrent principles, concurrently making use of rehabilitation science, and above all supported by major structural changes.

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APPENDICES.
 

  1. Law & Order Model (1) - Classical Hedonism
  2. Law & Order Model (2) - Conservatism
  3. Law & Order Model (3) - Neo-Classical
  4. Law & Order Model (4) - Neo-Authoritarian
  5. Deviance Model - Social Pathology / Organic Functionalism
  6. Deviance Model - Social Disorganisation / Ecology
  7. Anomie (1) - Strain & Opportunity
  8. Anomie (2) - Differential Association
  9. Anomie (3) - Social Control
10. Conflict Model (1) - Values
11. Conflict Model (2) - Dynamic Structuralist / Class
12. Deviance Model - Labelling
13. Deviance Model - Social Constructionist / Post-Modern

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REFERENCES
 
 

Title:  Four law and order approaches disentangled.
Sub-title:  A comparison between liberal, conservative, neo-classical and new right justice models.
Author:   NEWMAN, Campbell Alexander
S/N: 8201391
Posting Date: 5 May 2000

The University of New England
School of Social Science /Criminology
Tutor:  JOBES, Patrick C.
Sociology 364:  Australian Criminal Justice System

1. Criminology - Criminal Justice System.   2. Sociology.  3. Criminal Law.

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