Introduction: Crime: Conundrums of a Common-Sense Concept

‘This is criminality, pure and simple, and it has to be confronted and defeated.’

(David Cameron, quoted in Sparrow 2011)

Contrary to these shoot-from-the-hip remarks by the British prime minister, reacting to the 2011 London riots, crime ‘is rarely pure and never simple’ (to borrow Oscar Wilde's characterization of the truth). Crime hardly seems an example of purity, and it is far from simple, either as a concept or as a problem to be ‘confronted and defeated’, as this book will show.

Spectacularly gory crimes are prime water-cooler moments, uniting all healthy consciences in abhorrence and condemnation, just as Durkheim (1973 [1893]: 80) argued more than a century ago. Yet behind the apparent consensus that crime must be fought, there is considerable conflict about what should or should not be treated as criminal. Even the most shocking crimes divide as much as they unite. The massacre in July 2015 of nine black worshippers in a Charleston church caused revulsion around the world. The South Carolina legislature voted against displaying the Confederate flag, and many major retailers stopped stocking it. Yet sales of the Confederate flag are reported to have soared (Guzman 2015). The suspect, Dylann Roof, was treated to a Burger King by the cops driving him to jail (McCormack 2015). There are clearly conflicting perspectives on even the most horrifying slaughters, especially when divisive loyalties − such as those of race, nationality, class or religious belief − come into play.

Crime has long been a central theme in popular culture and prominent in measures of public anxiety (as registered by opinion polls – although it has been slipping down the hierarchy of concern in the last decade). But what crime is has largely been taken for granted (even though how to explain and tackle it generates fierce controversy). Crime can be seen perhaps as an essentially uncontested concept (to turn on its head the influential notion of ‘essentially contested concepts’ introduced by Gallie in 1957) but one that ought to be highly contested. The discipline of criminology is evidently defined around the idea of crime, even though some of its most celebrated theories have sought to deconstruct it. But despite all the problems in defining crime that will be elaborated on in this volume, discussions of this underpinning concept have generally been confined to opening chapters (frequently perfunctory) in criminology textbooks. These usually skip rapidly through some controversies and conundrums, before proceeding with the more substantive matters of measurement, explanation and policy.

The general playing down of the issue is indicated by the absence of a text that focuses on the concept of crime, although there is a valuable volume of articles that collects important classic and contemporary contributions (Henry and Lanier 2001). This book will systematically review the problems posed by the concept of crime, and how these have affected criminological theories as well as public and policy debates. It will confront the paradox that the term ‘crime’ features prominently in public debate and popular culture as if it was straightforward and uncontested, but it is deployed in multiple, frequently contradictory, ways.

The book will also discuss the historical emergence of the concept of crime, and what its broad conditions of existence are. Chapters 1 and 2 trace how crime as a distinct element of law, conceived of as a technical realm of universal and objective rules, emerged out of much more amorphous notions of sin and morality, hand in hand with the development of modern capitalism. The broad political and cultural preconditions of the concept of crime include: strong centralized states; a culture of individualism, with associated notions of personal responsibility; and a degree of social stabilization and pacification.

Crime connotes an intermediate level of threat to norms shared within a fundamentally settled order. ‘Trivial’ nuisances are problematically conceived of as crime, as are massive occurrences of violence and destruction in war at the other end of the scale. Contemporary debates about anti-social behaviour and terrorism indicate these limits, as does the breakdown of order in many parts of the world that are deemed to be failed or threatened states.

Crime: concept and conceptions

Crime is an example of what has been called an ‘essentially contested concept’, ‘concepts the proper use of which inevitably involves endless disputes about their proper uses on the part of their users’ (Gallie 1957: 169). ‘The key to Gallie's idea of essential contestability is a combination of normativity and complexity’: normative concepts with a certain internal complexity are essentially contested (Waldron 2002: 150).

Crime is an essentially contested concept because it is complex but, more fundamentally, because at heart it raises normative rather than technical or factual issues. It is common for people to argue about whether something ought to be a crime or not, whether it really is criminal, how it should be treated, and so on. These exchanges are usually interminable because they invoke differences in moral or political beliefs or involve the conflicting interests, values, experiences and practices of different cultures or social groups. Yet, in the first place, people assume they mean the same thing when talking about crime, and indeed that it is an important matter about which all right-thinking people agree. In short, crime is an essentially contested, conflict-ridden concept that is treated as if it were essentially uncontested and consensual.

This can be illuminated by a distinction, drawn by many philosophers, between an underlying concept and specific conceptions of it (e.g. Rawls 1971, which distinguishes between an underlying concept of justice and contested particular conceptions of what it entails). I suggest that there is a fundamental deep-level agreement on what is meant by crime, the basic concept, but that there are different, essentially contested, conceptions of what this means in terms of specific acts, practices, contexts and meanings.

The deep agreement about the concept of crime is not, in my view, the one generally proposed. The idea of crime as an infraction of criminal law is the definition found in most dictionaries and, in my experience at least, the one most people would offer if asked. Moreover, it is anchored by certain processes − labelled as criminal procedure – which, if followed, result in people accused of breaking criminal laws being punished, i.e. having ‘pain’ inflicted on them. However, there is nothing contradictory about arguing that actions proscribed by criminal law ought not to be, and vice versa. Criminal law has a complex and problematic relationship with different views of morality, as chapter 2 will explore. It is also the case that criminal laws have a tortuous relationship to social practice, and laws are in fact violated by most people, including the apparently respectable, as chapter 3 will show. The criminal law that is applied in action constitutes a tiny proportion of the laws in the books, and it is systematically biased against the poor and powerless, as chapter 5 demonstrates. At the same time, law breaking and serious harms and wrongs committed by the powerful usually escape with impunity, as elaborated in chapter 4.

The picture of crime that most people have is not rooted in their own experience but in highly slanted images derived from the mass media, and it is these that (mis)inform popular and political debate, as chapter 6 illustrates. Finally, chapter 7 explores the ideas of crime, causation and control developed by criminology over the years, and will show that each is problematic as a general theory. Nonetheless, they can be the basis of an eclectic model, synthesizing the core perspectives, which can illuminate trends and patterns over time (although the explanation of the recent fall in crime in western countries presents formidable difficulties). Thus the legal notion of crime is only one of several competing conceptions, even though it is anchored in the power of the state, which confers upon it the threat of official punishment for breaches.

The basic concept of crime that people agree upon (although they differ about what it means in terms of specific practices) is elusive because it is not a cognitive concept, referring to a particular reality outside itself. Rather, it is an expressive concept, embodying an attitude of revulsion, fear, pain or disapproval. In the everyday meaning of the term, it is a censure,¹ an expression of ‘strong criticism or disapproval’ (Cambridge English Dictionary online).

To call something a crime is to register disapproval, fear, disgust or condemnation in the strongest possible terms and to demand urgent remedies – but not necessarily the pain of criminal penalties. A neat way of putting this is the characterization by Egon Bittner of why people call the police. Someone calls the cops, he argued, when she experiences ‘something that ought not to be happening and about which something ought to be done’ (1974: 30). This neatly fits the basic concept of crime, an expression of condemnation and concern, which may be provoked by various specific conceptions of what exactly the problem is. It may be that a criminal law has been broken, and the demand is for the invocation of the criminal process. But more often it will be an expression of moral condemnation, disgust, or a cry for help against some threatening harm that may or may not be subject to criminal law. As the chapters of this book will elaborate, conceptions of crime can be legally based, or they could derive from other moral perspectives. Either way, they can differ substantially from conceptions of crime as deviance, i.e. departures from normal social practice, and from media, political or criminological conceptions of crime.

Constructivism vs realism

Two broadly contrasting perspectives on how to define crime can be found in criminology: ‘constructivist’ and ‘realist’. These are not mutually exclusive, and indeed I would argue that both have a degree of validity. Nonetheless, they have often been presented imperialistically, denying any truth to the opposing viewpoint. The contrast between these approaches runs through most of the debates considered in this book.

The constructivist position claims that ‘crime’ is purely a product of perception and political process, not any intrinsic characteristic of the behaviour so labelled. It is quintessentially encapsulated in an influential assertion by Louk Hulsman, a leading Dutch penal abolitionist: ‘Crime has no ontological reality’ (Hulsman 1986: 71). By this he meant that ‘Crime is not the object but the product of criminal policy’ (ibid.). In Hulsman's analysis, criminalization occurs when a person or organization ‘deems a certain “occurrence” or “situation” as undesirable …attributes that undesirable occurrence to an individual’, and wants this individual punished through law and criminal justice, rather than other styles of conflict resolution, sanctioning or peace keeping. His conclusion is that the concept's lack of ‘ontological reality …makes it necessary to abandon as a tool in the conceptual framework of criminology the notion of “crime” ’ (1986: 71).

At one level, Hulsman is correct by definition. Without the labelling of particular behaviours as criminal, they would not be crimes. Crime could be abolished at a stroke by wholesale decriminalization. But, as the realists argue, many activities that are treated as crime by criminal law are widely regarded as harmful, especially to the most vulnerable people in society, and these should not continue unchecked. Whether the standard modes of criminalization and punishment are justifiable, effective or counterproductive is an urgent debate, but the harm and suffering that are inflicted by crime would not be abolished by removing the label. Indeed, critical criminologists have argued that there are very serious harms, committed with relatively impunity by the powerful and privileged, that should be regarded as at least as serious as mainstream volume crime.

The constructionist position is often presented in abstraction from analysis of the wider structures of power and advantage in contemporary capitalist societies. Conflicts over whether to label activities or people as criminal are not carried out on a level playing field. The wealthy and powerful have disproportionate power to shape law making, and to evade its enforcement. The idea of a ‘criminal justice system’ is at best an unrealized dream, and at worst an ideological cloak disguising injustice, as chapters 4 and 5 will show. The title of a classic critical criminology text sums it up well: The Rich Get Richer and the Poor Get Prison (Reiman and Leighton 2012). What complicates matters is that it is also the poor who get disproportionately victimized by crime. All of this has been accentuated by the political triumph of neo-liberalism since the 1970s throughout the western world (Streeck 2014), vastly exacerbating the injustices of criminal justice (Reiner 2007; Bell 2011, 2015; Turner 2014).

The realist position straddles a wide spectrum of political and theoretical ones, united only by their acceptance that crime represents real problems, which exist whether or not they are labelled as crime. Most criminological research, past and present, has operated with what can be regarded as naive realism. It has simply taken for granted the categories of criminal law as the objects of analysis. Criminology in practice has focused on the small part of criminal law that gets to be formally measured and processed, and the even smaller group of criminal justice lottery losers, those who are caught and convicted (sometimes incorrectly).

Self-declared realist approaches originated in the 1970s as a conscious reaction to the critical criminology that proliferated in the 1960s and early 1970s. The key aspects of critical criminology that realists of all stripes targeted were its tendencies to extreme constructivism and to crime control scepticism.

Right-wing realism was spearheaded by James Q. Wilson's seminal 1975 book Thinking about Crime. Wilson sidestepped any issues about defining or measuring crime, focusing on ‘predatory street crime’, not only because it was what most frightened the public but because he saw it as a truly menacing and immoral threat to civilized existence. Wilson dismissed liberal-Left criminology's pursuit of ‘root causes’ of crime as a pointless and misguided distraction from seeking innovative, workable solutions to crime. His goal was the identification of promising policies that could economically and effectively reduce crime in the here and now, without waiting for social ‘root causes’ (which he was dubious about anyway) to be tackled by social reform and redistributive welfare (which, as a conservative, he opposed).

Wilson's book was symptomatic of the rapid ousting of the post-war Keynesian welfarist consensus by neo-liberalism. Wilson himself stressed smart, evidence-based initiatives, rather than tougher, ‘zero tolerance’ policing and punishment. However, his realist blueprint provided an intellectual boost not only to what has come to be known as administrative criminology, developing more effective security and opportunity-reducing situational prevention, but also to a prison boom in many countries. Such strategies have been celebrated as the source of the crime drop since the 1990s by can-do criminal justice policy makers and governments. These claims will be considered critically in chapter 7.

In parallel with the growth of Right realism and administrative criminology, there also developed a vigorous Left realist perspective, a reaction against what some critical criminologists had come to disown as their own earlier ‘Left idealism’ (Young 1975; Lea and Young 1984). Crime, they argued, was not just an ideological construction aiming to demonize the poor. It was a real scourge precisely in the poorest communities, as most crime was intra-class. A major source of Left realism was also the growing influence of feminism, and a sensitization to the reality of the pervasive victimization of women (and children), in working-class and other communities, by violence and abuse.

Although Left realists did accept that there were deeper, fundamental causes of crime, they argued that the Left must develop effective and practicable interventions to tackle crime now, and not just talk of reducing the long-run sources. The answer was not tougher but more legitimate, evidence-led policy. For example, the police would be more effective if they could regain legitimacy in poor and/or black and minority ethnic (BAME) areas, which had become alienated by militaristic tactics, through more consensual, community-oriented styles which facilitated the flow of information.

Both constructivism and realism make important points that can and should be reconciled (as recognized for example by a new ‘ultra-realism’, cf. Hall and Winlow 2015). Criminal law making and enforcement are largely shaped by the massively unequal structures of power and wealth in capitalist societies, which are growing ever wider under neo-liberalism. The constructivists are thus right to problematize processes of criminalization.

However, much criminal law does have popular support, even though the law in action focuses almost exclusively on the street crimes committed by poor, marginalized young men. Popular support for criminalization of such predatory offences is only in small part a matter of media-fomented false consciousness, though no doubt the media do purvey a distorted representation of crime (see chapter 6). At its core, the popular legitimacy of much policing and penal policy is grounded in the reality of serious harm perpetrated by poor young men against others, and also against women, children and older people, in their neighbourhoods.

Critical criminology has rightly emphasized the massively greater harms against property and people perpetrated by the crimes of the powerful (Hillyard et al. 2004; Green and Ward 2004, 2012; Tombs and Whyte 2015). Many of these most dangerous actions are not unequivocally criminalized because of the power of elites to erect barriers of impunity around their depredations (as chapter 4 demonstrates). However, there are various reasons why it is harder to generate popular concern about the suffering inflicted by state and corporate wrongdoing, apart from low visibility fabricated by the operation of power itself. One is the longer, more complex, chain of causation, running from decisions made at the top of organizational hierarchies to the pain of the mass of people suffering from these policies.

Even more fundamentally, there is a gulf between the immediate fear and injury engendered by face-to-face confrontation, and the possibly more serious, even life-trashing, but less visceral anguish caused, say, by financial skulduggery or by austerity policies that can kill people. Recently, my teenage son and I had to get our car from a dark, deserted underground car park in the small hours. We both acknowledged relief as I drove out. I may have lectured for many years about the small risk of being attacked by a robber compared, say, to my crashing the car on the way home. I know that I am actually suffering greater financial loss from being mis-sold payment protection insurance (PPI)² and other products, and from such crimes as organized rigging of key lending and exchange rates, than I would even from several thefts of my money and mobile. None of these truths comforted me in those few frightening minutes.

The realists of the political Right and Left correctly stress the seriousness of the core of ordinary criminal law offences. However, the constructionists also underline validly that the formation and the enforcement of criminal law are shaped by unequal and unjust structures of power and advantage.

Social injustice and criminal justice

Criminal law in the books and in action has a Janus-faced character. On the one hand, it contributes to a degree of order that is necessary for coordination and peaceful coexistence in a minimally civilized society. On the other hand, all known complex societies have been built on unjust, unequal hierarchies of power and privilege. As pithily formulated by policing scholar Otwin Marenin, criminal justice deals with both ‘parking tickets’ and ‘class repression’ (Marenin 1982). So even if criminal law contributes to maintaining order in a fair way, without acerbating inequality, the order that is reproduced is structurally unjust. But for reasons similar to those that vitiated Stalin's doctrine of ‘socialism in one country’, social justice is unachievable in one institution that is encircled by an unequal society. In reality, all criminal justice institutions acerbate the social inequalities in the societies they are embedded in.

The concept and conceptions of crime are intricately interconnected with the development and operations of modern capitalism. We will see this in subsequent chapters, when the development and ramifications of conceptions of crime are explored. The project of developing a supposedly objective, technically administered, neutral code of right and wrong that applies to everyone and is accepted by everyone may be an impossible dream in a society structured by deep inequalities of class, ethnicity, gender and other lines of cleavage. At the same time, the essentially contested ideal of the rule of law, as the optimal way of settling disputes and enforcing norms, may be of universal value, as the Marxist historian E. P. Thompson argued powerfully against a majority of his fellow radicals (Thompson 1975: Part 3, iv). Nonetheless, as Thompson's own historical research demonstrated, the formulation and practice of criminal law are a far cry from the ideals of legality and are grotesquely distorted by inequalities of class and power.

The subsequent chapters of this book will consider the multiple specific conceptions of crime, contesting the amorphous basic concept of crime − an assertion that something seriously problematic and wrong is happening and that something needs to be done. We will look at: the anchored conception of crime as criminal law violation; the problematic relationship of this to morality and social practice; the unequal application of it to the powerful and the disadvantaged; how media and political discourse misrepresent crime; and how crime patterns and trends (especially the recent crime drop) might be explained. Running through all these conceptions will be the key structuring relationship between crime and capitalism and how this has mutated over time and between places.

Series page

Copyright page

Dedication