Must there be crime?
Twentieth-century utopian and dystopian narratives sometimes focused centrally on the fantasy of eliminating crime. Those fantasies ran the gamut of modernity’s theories about crime and criminality: crime abolished by an end to scarcity and poverty! crime abolished by new techniques of psychology or technological alteration of the human mind! crime abolished by ubiquitous surveillance and policing! crime abolished by luridly violent oppression! crime solved by the ascent of human reason and brotherhood! crime solved by the reconstruction of families and the end of child abuse!
The responding salvos from anti-utopian views of crime fired off across twentieth-century social science and political economy: violence is evolutionarily hard-wired in human beings! sin is fundamental to the human condition! if it weren’t for the harsh hand of the state and the law, we’d all be cannibals and thieves! life is a zero-sum hard-knuckle struggle to survive and when it makes rational sense to cheat and steal it will happen! inequality is necessary for capitalism to survive and because of it there will always be crime!
I am not sure we learn much even from some attempt to do a global scale comparative history of crime, because that either requires the blithe universalizing that Western social theory has indulged in for the last three centuries or it requires an agonizing process of building workable definitions from the empirical ground up. Is crime just breaking the rules of a community or a society? Do the rules have to be explicit and written? What’s the line between some form of moral transgression or social faux pas and a crime? Do you only have crimes if you have a centralized state with some form of administrative bureaucracy? Are religious prohibitions the same as criminal codes? Those questions are just for starters.
On this side of modernity, we are (or ought to be) weary with the kind of social theory that roots any of our current problems in axiomatic statements about human nature. They’re just-so stories and fables, but often also preludes to some lethally short-sided addition to the practices of existing institutions that could only work as planned if the fable were perfectly and completely true. Whatever human beings were prior to the Neolithic, we aren’t. You don’t undo a complex adaptive system via incremental subtractions in order to yield the starting conditions, and the starting conditions are transformed and redistributed by the emergence of a complex system. The future starts from where we are now, what we are now.
So yes, there will be crime even in a better future. The more important thing for a good enough future is to understand the immediate past of crime over the last two centuries, because it explains how we got to the intolerable present entanglement of crime, policing and incarceration. Equally, in that more specific time frame, we can better understand what is mutable about crime and enforcement by noting how fundamentally different things were in the not-very-distant past.
Sticking now to the United States, what was crime and enforcement in colonial and early revolutionary America and then throughout the 19th Century? Plainly crime, punishment and the power of the state mattered a good deal to the generation that fought against British rule and wrote the Constitution. The prison as a material site had a deep history in Western Europe and the Mediterranean world, but unfree persons, both slaves and servants, were often made or kept that way through forms of sovereign and sometimes specifically judicial authority. Even before the much-discussed use of the 13th Amendment after the Civil War to effectively re-enslave some Black Americans, involuntary labor was a common punishment for Native Americans, Blacks, and European settlers, sometimes for infractions of written legal codes, but also sometimes for transgressions of moral codes or unwritten norms.
In terms of thinking about futures, one of the key things to understand is simply that law and American national identity were intertwined by simultaneous creation. As the legal scholar Steven Robert Wilf observes in Law’s Imagined Republic, “the centrality of legalism in American culture did not begin with the settled jurisprudence of courts” but that by the early 19th Century, “law’s prominent cultural role led to the common designation by the early nineteenth century of America as a country dedicated to the rule of law”. Wilf argues that we mistakenly envision this process as the deliberate work of founders, jurists and Constitution-writers, when it really was the consequence of everyday “law talk” in settler communities, a public dialogue reflecting on traditions of “popular constitutionalism” and “rough justice”.
So to think differently about crime’s American future, we have to remember both that transgression in American history has sometimes been punished not because law defines and formalizes transgression into crime and its consequences. Law comes after rather than before crime often in American history—and punishable or consequential transgression has often been beyond or outside of its formalization. At the same time, much that in 20th Century American history that has been formalized as crime was variously ignored, minimized, or variably enforced at earlier moments. This is the foundation of critical legal studies, the predecessor to critical race theory: that law is not what defines or establishes crime in America, and that the punishment of crime has always been filtered through the maintenance of racial and class hierarchy and frequently used instrumentally to provision unfree labor.
There’s nothing particularly startling about reminding ourselves that what constitutes crime has been and still is arbitrary both within American history and at the larger scales of global modernity, and even more so what constitutes crime that the state at any scale, all the way down to the smallest towns, chooses to see as the target of possible or desirable enforcement. In the early decades of the American labor movement, employers largely had a free hand to deploy exemplary violence against organizers and strikers, no matter how definitionally criminal that violence might have been. Lynching went on for decades in the plain sight of the law despite its avowed lawlessness.
All of this, problematic as it is, also offers hope for thinking about a good enough future for crime. It is possible to drop some kinds of crime to zero overnight at the stroke of a pen, say, by legalizing marijuana. That move only works if in some sense communities have already long since abolished the crime in their own practice and beliefs—and it requires a reckoning with the profound injustice that only some people were ever severely punished for that crime. To know that what we think is a crime is where our deepest and most important vision of criminality comes from is both the wellspring of a better future and a limit on it. So we need, in the next installment, to start with an audit of the present: what do our actual practices show us about what we really think of as crimes? What are we working from?
Somewhere further ahead in this series, there’s another problem looming—and another history to reckon with. Who wants to keep our imagination of criminality fixed within the present system? Who stands in the way of thinking as communities into a better imagination of punishable transgression?
Photo by Dan Meyers on Unsplash