Counter-Colonial Criminology: A Critique of Imperialist Reason / Edition 1 available in Paperback
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The Enlightenment and Euro-American Theories of the Judicial Process
The influence of the Roman Empire on the evolution of European penology is all too obvious. Many legal historians would emphasise the role of the Roman emperors, as well as Napoleon and German legal scholars in laying the foundation of the Romano-Germanic family of law which dominates continental Europe today. However, when it comes to modern European imperialism and the imposition (of often perverted western ideas about 'crime and punishment' on the rest of the world, and the heroic resistance to this) of a largely puzzling criminal justice, conventional criminology is curiously silent. This conspiracy of silence may be due to criminology's complicity in the imperialist project. The silence could also be partly due to the questionable nature of criminal justice in the face of resolute resistance to colonial injustice in contrast to the relative legal consensus among the ruling capitalist classes of Europe.
From your reading of history, you must be familiar with the socio-cultural contexts within which the Enlightenment movement developed and from which the movement broke away to found modernity. The pre-Enlightenment period was the era of supernatural explanations for power and misconduct – kings ruled because they had divine right to rule and people became deviant as a result of demonic possession from which they had to be exorcised and purified if possible, or destroyed in order to be saved in the hereafter. The demonic judicial process was characterised by public executions for serious 'offenders' or sinners, pillory and shame for cheats, the centralisation of judicial authority in the hands of religious officials, public administration of punishment in the community and, above all, a phallocentric bias against pagan women, who were executed as witches (Pfohl, 1994). In this sense, the Enlightenment, or Iluminismo in Portuguese, was a progressive movement in social thought, aimed at the liberation of individuals from despotic rule by the forces of nature, religious orthodoxy and political traditionalism in Europe.
Piers Beirne analysed how a Frenchman was wrongly executed in 1761 for the murder of his son who had in fact committed suicide. Three years later, Beccaria published anonymously his best-seller, Treatise on Crime and Punishment, condemning the arbitrary power exercised by judges and calling for the rational application of the law based on the principle of equality. He also called for the abolition of the death penalty because, according to him, the right to take life was not one of the rights that individuals possessed in a state of nature and so was not a right that people ceded to the state to be exercised on their behalf under the social contract. However, his insistence that punishment should be made to fit the crime provided his supporters with an excuse to retain capital punishment as the only penalty that fitted certain crimes. At the same time, his opponents were powerful members of the justice system and the Church who ridiculed his idea of equality before the law and convinced the Pope of the need to ban his treatise for almost 200 years (Beirne, 1993). The execution of a single innocent Frenchman counts for more in the conventional history of criminology than the genocidal trans-Atlantic slavery in which millions of Africans were destroyed or the genocide of Native Americans and Aboriginal Australians by European conquistados.
The European slave trade was the testing ground for the Enlightenment's credentials as a liberatory thought, but as Gilroy (1993), Fanon (1963) and Rodney (1972) – all descendants of enslaved Africans – have shown, Iluminismo was pathetically blinded by what Retamar (1979) calls the 'black legend'. According to the myth of the black legend, Spain was blamed by Britain and France for giving a bad name to imperialism due to its more brutal form of the civilising process. However, Retamar argues: 'If anything distinguishes the Spanish conquest from the depredations of Holland, France, England, Germany, Belgium or the United States ... it is not the proportion of crimes – in this they are all worthy rivals – but rather the proportion of scruples.'
The conquest of the New World and the development of European slavery systematised the persecution of people simply because they appeared different, long before this experiment was extended to the 'witches' of Europe. The European enslavement of Africans and the massacre of Native Americans began in the fifteenth century, but it was in the seventeenth century that the rarely enforced medieval criminal category of 'witchcraft' became a massive force of moral panic that saw millions of mostly women murdered. European enslavement of Africans and the genocidal conquest of Native Americans started before the witch craze, but all three forms of persecution continued together for many years. In fact, the Salem witch hunt was blamed on Tituba, a kitchen slave from Barbados, who was the first to be tried and murdered for allegedly bewitching young girls, who were crawling on all fours, and barking like dogs, at a time when the Royal Charter of the Puritans had just been revoked, giving rise to widespread economic stress and uncertainty (Pfohl 1994: 26; Wilson 1993).
It was at the height of the slave trade that classicism emerged to challenge the arbitrary nature of punishment in medieval Europe, but this insight was not extended to enslaved Africans who were arbitrarily victimised, even when they did no wrong. However, it was not until the height of colonialism in Africa and Asia that Europe discovered the new 'science' of criminology as a tool to aid the control of the Other – a supposed advancement on classicist philosophies of justice. This was also the time that the Marquis de Sade was writing about the pleasure of inflicting pain on innocent people, a metaphor for imperialism, except that the sadist did not live on the surpluses of sadism. However, talk of retribution and utilitarianism could well become a metaphor for the campaign by people of African descent demanding reparations for the crimes of slavery and colonialism, except that Marx rightly critiqued the gangster philosophy of Jeremy Bentham, who suggested that everyone was a calculating philistine, maximising profits and minimising losses, like the bourgeoisie, without regard to morality (Marx, 1954: 609–10). In other words, the demand for reparations is not a search for profit from slavery by people of African descent, but a search for justice which would be incomprehensible to the utilitarian Bentham, who saw the common people as objects to be manipulated with carrots and sticks instead of recognising them as active subjects who are making their own principled history. As Cæsaire put it, with his compelling poetic prose that says a lot about criminology without any need to name the discipline:
Security? Culture? The rule of law? In the meantime, I look around and wherever there are colonizers and colonized face to face, I see force, brutality, cruelty, sadism, conflict, and, in a parody of education, the hasty manufacture of a few thousand subordinate functionaries, 'boys', artisans, office clerks, and interpreters necessary for the smooth operation of business ... Between the colonizer and colonized there is room only for forced labor, intimidation, pressure, the police, taxation, theft, rape, compulsory crops, contempt, mistrust, arrogance, self-complacency, swinishness, brainless elites, degraded masses. (Cæsaire, 1972: 21)
ENLIGHTENED RETRIBUTION AND UTILITARIANISM
The Enlightenment came about to challenge the privilege of divine right as well as the ideology of revealed knowledge among Europeans while denying that the colonised had the rational faculty to reason about what is just and what is cruel. In the place of divine right, moral philosophers like Hobbes (1650), Locke (1690), Rousseau (1762), Kant, Hegel and others insisted that a social contract was the best possible foundation for civil democratic rule, which must be informed by rational principles rather than by unverifiable claims of revelation. Yet under the slave trade and colonialism, democracy was completely denied, the social contract was nonexistent and whole populations were treated as criminals without human rights. Cesare Beccaria's (1804) publication is credited with laying the foundation of the classicist school of criminology by synthesising the principles of the (Hobbesian) social contract, which referred to political rule in general, and applying them directly to crime and punishment. According to him, men have the right to use punishment to deter one another from wrecking the social contract into which they have freely entered. Again, the emphasis is on the power of European men to punish others but, given that the enslaved and the colonised did not freely enter into any social contract, what was being administered to them is better understood as victimisation, especially when they were completely innocent.
According to Beccaria, punishment is justifiable only if it is not arbitrary (and it was certainly arbitrary under slavery and colonialism), if it is calculable (the pain caused by colonialism is beyond calculation though slave law often tried to calculate the quantity of torture that could be imposed at a time; see James, 1980), if it is applied to all offenders equally, irrespective of their social circumstances (slavery and colonialism punished the innocent as though they were offenders), and if it is proportional to the amount of pain caused by the crime. What sort of punishment would be proportional to the crimes of slavery and colonialism for which people of African descent are deservedly demanding reparations?
The French Revolutionary Penal Code of 1791 was apparently based on these Beccarian principles of inflexible rationality yet Napoleon refused to recognise the Haitian revolution of that year until his army was defeated by Haitian forces led by Toussaint l'Ouverture (James, 1980). Then Napoleon tricked this leader of the Black Jacobins, as James called them, to Paris for a peace treaty only to kidnap him and torture him in prison until his death. The impractical nature of the inflexible Penal Code resulted in neoclassical revisions to the Code in 1810 and 1819 to make allowance for the mitigating circumstances of age and premeditation, but still without recognising slavery as a crime against humanity. (That declaration waited almost 200 years until the World Congress against Racism in 2001, a conference that was boycotted by America and threatened by Europe because the issue of reparations for the crimes of slavery and colonialism was tabled for discussion along with the injustice of Israeli colonisation of Palestinian territories.) In England, insanity was added as a defence following the case of McNaughten who was charged in 1843 with the murder of Mr Drummond, secretary to the Prime Minister, Robert Peel (who organised the first professional police force). McNaughten claimed that it was Peel that he intended to kill because God had asked him to do so on the ground that the Prime Minister worshipped the devil and that he was running a government of Evil Tories. The fact that McNaughten was a political activist in the Chartist movement against the alienation of labour by the industrial revolution was ignored by the prosecution (Pfohl, 1994). Given his Irish name, he could have been an anti-imperialist too but the jury was satisfied with the insanity plea.
Before these neoclassicist reforms, Jeremy Bentham had found the archaic state of eighteenth-century English common law repugnant in the same way that Beccaria found the continuation of harsh demonic control in Europe repulsive. In his books, Bentham (1789) closely followed Beccaria in attempting to find an answer to the Hobbesian question of why society is possible in spite (but also because) of the love of private pleasure and dislike of personal pain (except when it is the sadistic pain inflicted on others under slavery and colonialism). Although Bentham and Beccaria are in agreement with Hobbes that European men are basically hedonistic bastards, they differ in the sense that Beccaria would want punishment to serve the purpose of retribution, whereas Bentham would add the utilitarian principle of deterrence to the purpose of punishment.
A review of the philosophy of punishment shows that the punishment of the innocent (the colonised, for instance) is treated as a fantastic tale found only in fiction and analogies. For example, a strong objection to the Benthamite utilitarian philosophy of punishment by Beccarian retributivist philosophers is that utilitarians would permit and even encourage the punishment of the innocent if this could be seen to have the utility of promoting order (a common colonial tactic). For example, if a white woman is allegedly raped by a black man in a colonial situation, the hypothetical example goes, it would be utilitarian to punish any black man, even if he is innocent, in order to satisfy the public desire for revenge and avert a race riot in which many more black people might be attacked and killed. Note that there is no hesitation on the part of this hypothesis that the rapist was a black man for, under the colonial situation, the native is synonymous with the offender.
Rawls (1969) attempted to solve this hypothetical case (without doubting whether the allegation that the rapist was black is true or false) by assuming that:
1. The punishment of the innocent in such a circumstance would not promote law and order and therefore would not be utilitarian, especially if it is known that the person punished was innocent. So,
2. Such a punishment can work only if it remains a secret and for it to remain a secret, there must be a special institution for 'telishment' whose job it would be to manipulate the public and control information about telished individuals and cases. In this sense, the punishment of the innocent would not be punishment but telishment and because the conditions for the establishment of institutions for telishment are impossible, telishment can only be hypothesised but never practised.
Rawls's assumptions are flawed by the fact that knowledge of innocence is never universal and collective, but often sectional and partisan. Under the colonial situation, people who are known by many to be innocent could remain under 'punishment' (Nelson Mandela, for instance) if the people who believe them to be innocent lack the power to effect or secure their acquittal. On the other hand, people who are widely known to be guilty could escape punishment because the people who know of their guilt lack the will or the power to prove their guilt and effect or secure their punishment. In other words, the sophisticated attempt to define conditions for telishment is an unnecessary diversion from the fact that existing institutions do 'punish' the innocent and attempt to conceal their innocence or even with public knowledge of their innocence, without having to rely on a philosophical institution for telishment.
Anthony Quinton (1969) comes close to recognising that 'punishing the innocent' is not only a logical contradiction or hypothetical hair-splitting, but also a historical problem that faces real people. Among moral philosophers, he is one of the few who agree that suffering can be inflicted on innocent people, but he insists that this cannot be called punishment. According to Quinton, such suffering should properly be described as 'judicial terrorism' or 'social surgery'. As he puts it, 'If we inflict suffering on an innocent man and try to pass it off as punishment, we are guilty of lying since we make a lying imputation that he is guilty and responsible for an offence' (Quinton, 1969: 58–9).
Excerpted from "Counter-Colonial Criminology"
Copyright © 2003 Biko Agozino.
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Table of ContentsAcknowledgement Table of contents Introduction 1. The Enlightenment and Euro American Theories of the Judicial Process 2. From Determinism to Meaning: The Emergence of Labeling Perspective 3. From Societal Reaction to Questions of Power: From Labelling to Radical Criminology 4. Feminist Perspectives and Critical Criminology 5. Lesbian Rape: Maternal Metaphors for the Patriarchal State and International Conflict Resolution 6. Post-Structuralism and Positivism in Criminological Theory 7. Social Fiction Sui Generis: The Fairy Tale Structure of Criminological Theory 8. Executive lawlessness and the struggle for democracy in Africa 9. Radical Criminology In African Literature' 10. Committed Objectivity in Race-Class-Gender Research 11. How Scientific is Criminal Justice? A Methodological Critique of research on McCleskey V. Kemp and other capital cases. 12. What is Institutionalised? The Race-Class-Gender Articulation of Stephen Lawrence' 13. 'Criminal Records: The Toughest, The Police and The Thieves; The Policing of Peter Tosh and Popular Culture' Conclusion: Beyond Criminological Orientalism. Bibliography About The Author Endonotes