Also Read:
Narcissists, Ethnic or Religious Affiliation, and Terrorists
"Those who have the command of the arms in a country
are masters of the state, and have it in their power to
make what revolutions they please. [Thus,] there is no
end to observations on the difference between the
measures likely to be pursued by a minister backed by a
standing army, and those of a court awed by the fear of
an armed people".
Aristotle (384-322 BC), Greek philosopher
"Murder being the very foundation of our social
institutions, it is consequently the most imperious
necessity of civilised life. If there were no murder,
government of any sort would be inconceivable. For the
admirable fact is that crime in general, and murder in
particular, not simply excuses it but represents its only
reason to exist ... Otherwise we would live in complete
anarchy, something we find unimaginable ..".
Octave Mirbeau (1848-1917), The Torture Garden
The state has a monopoly on behaviour usually deemed
criminal. It murders, kidnaps, and locks up people.
Sovereignty has come to be identified with the unbridled -
and exclusive - exercise of violence. The emergence of
modern international law has narrowed the field of
permissible conduct. A sovereign can no longer commit
genocide or ethnic cleansing with impunity, for instance.
Many acts - such as the waging of aggressive war, the
mistreatment of minorities, the suppression of the freedom
of association - hitherto sovereign privilege, have
thankfully been criminalized. Many politicians, hitherto
immune to international prosecution, are no longer so.
Consider Yugoslavia's Milosevic and Chile's Pinochet.
But, the irony is that a similar trend of criminalization -
within national legal systems - allows governments to
oppress their citizenry to an extent previously unknown.
Hitherto civil torts, permissible acts, and common
behaviour patterns are routinely criminalized by
legislators and regulators. Precious few are
decriminalized.
Consider, for instance, the criminalization in the
Economic Espionage Act (1996) of the misappropriation
of trade secrets and the criminalization of the violation of
copyrights in the Digital Millennium Copyright Act
(2000) - both in the USA. These used to be civil torts.
They still are in many countries. Drug use, common
behaviour in England only 50 years ago - is now criminal.
The list goes on.
Criminal laws pertaining to property have malignantly
proliferated and pervaded every economic and private
interaction. The result is a bewildering multitude of laws,
regulations statutes, and acts.
The average Babylonian could have memorizes and
assimilated the Hammurabic code 37 centuries ago - it
was short, simple, and intuitively just.
English criminal law - partly applicable in many of its
former colonies, such as India, Pakistan, Canada, and
Australia - is a mishmash of overlapping and
contradictory statutes - some of these hundreds of years
old - and court decisions, collectively known as "case
law".
Despite the publishing of a Model Penal Code in 1962 by
the American Law Institute, the criminal provisions of
various states within the USA often conflict. The typical
American can't hope to get acquainted with even a
negligible fraction of his country's fiendishly complex and
hopelessly brobdignagian criminal code. Such inevitable
ignorance breeds criminal behaviour - sometimes
inadvertently - and transforms many upright citizens into
delinquents.
In the land of the free - the USA - close to 2 million adults
are behind bars and another 4.5 million are on probation,
most of them on drug charges. The costs of
criminalization - both financial and social - are mind
boggling. According to "The Economist", America's
prison system cost it $54 billion a year - disregarding the
price tag of law enforcement, the judiciary, lost product,
and rehabilitation.
What constitutes a crime? A clear and consistent
definition has yet to transpire.
There are five types of criminal behaviour: crimes against
oneself, or "victimless crimes" (such as suicide, abortion,
and the consumption of drugs), crimes against others
(such as murder or mugging), crimes among consenting
adults (such as incest, and in certain countries,
homosexuality and euthanasia), crimes against collectives
(such as treason, genocide, or ethnic cleansing), and
crimes against the international community and world
order (such as executing prisoners of war). The last two
categories often overlap.
The Encyclopaedia Britannica provides this definition of a
crime: "The intentional commission of an act usually
deemed socially harmful or dangerous and specifically
defined, prohibited, and punishable under the criminal
law."
But who decides what is socially harmful? What about
acts committed unintentionally (known as "strict liability
offences" in the parlance)? How can we establish
intention - "mens rea", or the "guilty mind" - beyond a
reasonable doubt?
A much tighter definition would be: "The commission of
an act punishable under the criminal law." A crime is
what the law - state law, kinship law, religious law, or any
other widely accepted law - says is a crime. Legal systems
and texts often conflict.
Murderous blood feuds are legitimate according to the
15th century "Qanoon", still applicable in large parts of
Albania. Killing one's infant daughters and old relatives is
socially condoned - though illegal - in India, China,
Alaska, and parts of Africa. Genocide may have been
legally sanctioned in Germany and Rwanda - but is
strictly forbidden under international law.
Laws being the outcomes of compromises and power
plays, there is only a tenuous connection between justice
and morality. Some "crimes" are categorical imperatives.
Helping the Jews in Nazi Germany was a criminal act -
yet a highly moral one.
The ethical nature of some crimes depends on
circumstances, timing, and cultural context. Murder is a
vile deed - but assassinating Saddam Hussein may be
morally commendable. Killing an embryo is a crime in
some countries - but not so killing a fetus. A "status
offence" is not a criminal act if committed by an adult.
Mutilating the body of a live baby is heinous - but this is
the essence of Jewish circumcision. In some societies,
criminal guilt is collective. All Americans are held
blameworthy by the Arab street for the choices and
actions of their leaders. All Jews are accomplices in the
"crimes" of the "Zionists".
In all societies, crime is a growth industry. Millions of
professionals - judges, police officers, criminologists,
psychologists, journalists, publishers, prosecutors,
lawyers, social workers, probation officers, wardens,
sociologists, non-governmental-organizations, weapons
manufacturers, laboratory technicians, graphologists, and
private detectives - derive their livelihood, parasitically,
from crime. They often perpetuate models of punishment
and retribution that lead to recidivism rather than to to the
reintegration of criminals in society and their
rehabilitation.
Organized in vocal interest groups and lobbies, they harp
on the insecurities and phobias of the alienated urbanites.
They consume ever growing budgets and rejoice with
every new behaviour criminalized by exasperated
lawmakers. In the majority of countries, the justice system
is a dismal failure and law enforcement agencies are part
of the problem, not its solution.
The sad truth is that many types of crime are considered
by people to be normative and common behaviours and,
thus, go unreported. Victim surveys and self-report studies
conducted by criminologists reveal that most crimes go
unreported. The protracted fad of criminalization has
rendered criminal many perfectly acceptable and recurring
behaviours and acts. Homosexuality, abortion, gambling,
prostitution, pornography, and suicide have all been
criminal offences at one time or another.
But the quintessential example of over-criminalization is
drug abuse.
There is scant medical evidence that soft drugs such as
cannabis or MDMA ("Ecstasy") - and even cocaine - have
an irreversible effect on brain chemistry or functioning.
Last month an almighty row erupted in Britain when Jon
Cole, an addiction researcher at Liverpool University,
claimed, to quote "The Economist" quoting the
"Psychologist", that:
"Experimental evidence suggesting a link between
Ecstasy use and problems such as nerve damage and brain
impairment is flawed ... using this ill-substantiated cause-
and-effect to tell the 'chemical generation' that they are
brain damaged when they are not creates public health
problems of its own".
Moreover, it is commonly accepted that alcohol abuse and
nicotine abuse can be at least as harmful as the abuse of
marijuana, for instance. Yet, though somewhat curbed,
alcohol consumption and cigarette smoking are legal. In
contrast, users of cocaine - only a century ago
recommended by doctors as tranquilizer - face life in jail
in many countries, death in others. Almost everywhere pot
smokers are confronted with prison terms.
The "war on drugs" - one of the most expensive and
protracted in history - has failed abysmally. Drugs are
more abundant and cheaper than ever. The social costs
have been staggering: the emergence of violent crime
where none existed before, the destabilization of drug-
producing countries, the collusion of drug traffickers with
terrorists, and the death of millions - law enforcement
agents, criminals, and users.
Few doubt that legalizing most drugs would have a
beneficial effect. Crime empires would crumble
overnight, users would be assured of the quality of the
products they consume, and the addicted few would not
be incarcerated or stigmatized - but rather treated and
rehabilitated.
That soft, largely harmless, drugs continue to be illicit is
the outcome of compounded political and economic
pressures by lobby and interest groups of manufacturers
of legal drugs, law enforcement agencies, the judicial
system, and the aforementioned long list of those who
benefit from the status quo.
Only a popular movement can lead to the
decriminalization of the more innocuous drugs. But such a
crusade should be part of a larger campaign to reverse the
overall tide of criminalization. Many "crimes" should
revert to their erstwhile status as civil torts. Others should
be wiped off the statute books altogether. Hundreds of
thousands should be pardoned and allowed to reintegrate
in society, unencumbered by a past of transgressions
against an inane and inflationary penal code.
This, admittedly, will reduce the leverage the state has
today against its citizens and its ability to intrude on their
lives, preferences, privacy, and leisure. Bureaucrats and
politicians may find this abhorrent. Freedom loving
people should rejoice.
APPENDIX - Should Drugs be Legalized?
The decriminalization of drugs is a tangled issue
involving many separate moral/ethical and practical
strands which can, probably, be summarized thus:
(a) Whose body is it anyway? Where do I start and the
government begins? What gives the state the right to
intervene in decisions pertaining only to my self and
contravene them?