Wednesday, 4 January 2012

Crime and Punishment 1: Crime

We could discuss what crime is, and what punishment is, and why we punish, forever and a day. And I don’t have that long. But these are important ideas to remember when we consider the bad things businesses do.
Why are some bad things ‘crimes’ and some bad things not? If Dostoevsky Ltd breached a contractual agreement with Fyodor Plc, then they could be liable in civil law for damages. But the breach isn’t criminal. In day-to-day life, all sorts of naughty stuff is dealt with away from criminal courts. If I accidentally hit your car, I would be liable in tort for damages. I needn’t be made a criminal.
We could say, then, that crime is just whatever criminal law says it is. But this can be unsatisfying, for a number of linked reasons.  The first is that law changes. It’s now nonsense to think of homosexuality as a crime, but in the 1960s, it was. Some countries still legislate against it, giving Sepp Blatter ample opportunity to look like a buffoon. The second is that a whole range of things are ‘criminal’ – from dropping litter to rape. Maybe to have one name for all of these offences is not a good thing – and maybe they shouldn’t all be offences, and maybe other things should be. And sociologists are well aware of the impact of labelling. It’s quite a powerful accusation to call someone a criminal. Does a litterbug deserve that, regardless of what other sanctions befall him? Should we therefore distinguish between levels of crime? Rape is worse than littering, but some other crimes are harder to rank, and divide into camps. Given the content is crime of so shifting and contentious, the study of crime is difficult to be sensibly circumscribed by the happenstance of statute books.
(Crime is sometimes talked of as being ‘socially constructed’ – that is, society determines what it treats as criminal. This is a useful term to remember. It helps explain why what’s criminal changes – society is made up of people who change their minds. And it is also useful in understanding why labelling is an issue – calling an act criminal plays into the mind-set of a society.)
None of this is helped by other surrounding issues. Academics are still not sure what law or a legal system really is, nor what its point is. We’re not sure what ends we’re trying to achieve when we punish. And the examples I gave above could be treated in more than one way. The tort of negligent driving can become the crime of dangerous driving – tort maybe serves some of the same purposes as crime. (and some systems, like New Zealand, have gone without tort). Why not treat some breaches of contract, in essence a broken promise, like a criminal fraud – a misrepresentation causing pecuniary loss?
All this piece is meant to show is that ‘crime’ cannot just be thought of in a narrow, legal sense, hermetically sealed and unchangeable. But I’m not suggesting all naughty things are in play when we think of ‘crime’. This is key when we think about whether, in corporate naughtiness, we want to treat actions as criminal, and treat them as such, or allow other devices to regulate them.

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