At the Crossroad Among Crime, Norms and Values
By Thomas
Gilly
ABSTRACT:
This paper is aimed at the investigation of the
complex nature that is characteristic of the relation between crime norms and
values.
It highlights the relevance of prescriptive and
descriptive norms of crime, and it addresses the interaction between norms,
values and crime. In this respect two major problems are raised: The first one
consists of building a bridge between norms and values; the second one consists
of the question whether and to what extent values can explain crime.
The investigation of this issue is highly relevant
for a better understanding of the rationale of terrorism.
PROLOGUE
Questioning
the Actual Value Debate.
Observations about the Call for the Return of
Values
Traditionally
crime is defined as the transgression of a norm that is defined and sanctioned
by the law. Given the circumstance that norms and values are traditionally
thought of as opposing figures, the question of whether or not and to what
extent values are involved in crime is not really relevant to the legal
definition of crime. In modern legal positivism the definition of crime is
valid by virtue of the law, not by virtue of values.
And yet, during the last decade values rapidly came
to the forefront of public debate. The issue became increasingly pertinent to
social policy and criminal justice issues[1].
The call for a return to traditional values is
rooted in the conviction that the revival of traditional values is the best
solution to the weakness of public moral consciousness. Politicians
of all colors are likely to associate the weakness of public moral
consciousness with the whole gamut of social problems from inequality and
exclusion to crime and drug abuse.
Although
the call for the return to traditional values has become very popular, it is a
controversial issue. Given that the value debate developed as an inherent part
of US conservative politics[2],
the critical reaction within intellectual and academic circles does not really
come as a surprise. In criminology and criminal justice the critical voice
points out the penal revival that is involved in the moralization of the
criminal justice debate (Garland & Sparks. 2000:189-204).
Obviously
such polemics – however justified they may be – do not really touch the heart
of the problem; instead they turn around it...
Among
the major problems that have received far less consideration than others, the
first one that is to be raised consists of the relevance of values to crime.
Given the irrelevance of values for the legal crime definition, the call for
the return of values makes sense only if it is rooted in the conviction that
values is an issue that is relevant for crime commission and for crime
prevention. Suppose that this is the case. The in depth study of such relevance
culminates into the question: which impact of values upon crime commission/
prevention? Given the inherent rationale in penal policy and penal politics
which is ideally rooted in and based on scientific evidence, the scientific
study of this issue culminated into the question: Can values explain crime?
At
a first glance they can not, because of the nature of crime which is a
normative nature, not an axiological one[3].
Obviously it is the paradox that consists of the impact of values upon an issue
that is per definition rooted in a normative rationale that launches the
controversy.
The
second major problem that is to be raised has to do with the debate on values.
Schematically we can distinguish between two major opinions. According to the
first one, values have to be thought as of relative figures. This opinion is
held by the great majority of authors, and it dominates the contemporary debate
in moral philosophy. The second opinion consists of the advocacy for the
absolute and objective nature of values. This second opinion is very prominent
in religious morals, but it is also highly relevant to human rights.
This
is not the place to provide for an in depth study of each of both opinions; nor
is it possible to end the debate. Instead, the controversy is simply the most
appropriate means to develop the second major problem that is to be raised.
Obviously
the call for the return of values only makes sense if values are thought of as
absolute figures; the relative conception of values can never be the means to
restore the weakness of public moral consciousness because such weakness
involves moral relativism. Who can assert with certainty that the return of
traditional values is not a return to moral relativism?
What
does moral relativism mean when it is applied to crime? The best way to answer
the question is to quote Nietzsche:
He
observed in “The Geneology of Morals”, “We do not love a thing because it is
good, it is good because we love it”[4].
What is involved in such an opinion is the substitution of subjective values
for objective goods. According to Nietzsche goodness is not something objective
that attracts the will or desire of human beings; rather, it is the will’s
projection of values onto something else.
Suppose
that crime is evil. It follows that crime/evil is not something objective that
attracts our revulsion or our condemnation (a negative expression of our will);
rather, it is our will’s projection of negative values on behavior. We do not
condemn crime because it is evil, but it is evil because we condemn it.
The
think-piece requires several observations.
The
first one is the striking resemblance that exists between a crime definition
that is rooted in moral relativism and the contingent nature that is
characteristic of the legal crime definition.
If both norms and values are
contingent upon people’s will, is it not impossible to think of values as
figures that escape from this contingency? And how is it possible to think of
norms as appropriated supporters for absolute values? The call for the return
of absolute values only makes sense if such a return is accompanied by
normative support.
The
second observation consists of the following hypothesis: Suppose that our will
projects positive values on a culture of genocide, mass murder or even on a
culture of racial segregation. Moral relativism engenders ethically inadmissible
consequences: Genocide can no longer be thought of as a crime! Is racial
segregation good simply because people project a positive value on it?
Suppose
furthermore that the will that consist of the projection of positive values on
crime converges with the lawmaker’s will to provide genocide with a legal
basis. Morals will then be the certain defender of legally organized crime.
The
third observation points out the limits of the previous one: The circumstance
that the majority of us would agree with the opinion that moral relativism
engenders ethically inadmissible consequences is not necessarily a piece of
evidence for the universal nature and the absolute validity of values. In other
words, our moral revulsion is not necessarily anchored in moral absolutism.
Although genocide can hardly be thought of as an issue that is rooted in moral
relativism, it is always possible to argue that the circumstance that the
majority of us reacts with disappointment and revolt against the ethically
prohibited consequences of a projection of positive values on genocide does not
imply that the evil / crime that is involved in genocide is an objective value.
One might indeed argue – however inadmissible this argumentation may be – that
all what we demonstrate through our revolting reaction is that there are people
who provide negative values on a type of behavior on which other people project
positive values.
In
the final analysis both reactions / projections can be thought as of moral
relativism.
The
fourth observation consists of the requirement for a normative choice. Given
the circumstance that it is possible to think of both reactions of as moral
relativism and suppose that the objective nature of evil that is involved in
genocide is devoid of any empirical evidence (another highly controversial
issue to be demonstrated) the only means to disconnect evil and moral
relativism one from each other and to define the evil that is involved in
genocide in absolute, objective and universally valid terms is to grant this
absolute, universal and objective nature with a normative base. In which case
the objective nature of the negative value that is involved in genocide is not
anchored in the facts (what is), but in the norm (what ought to be).
Through
lack of empirical support, the criterion that provides the evil that is
involved in genocide with an absolute and objective sense is the normative
criterion.
But
this assumes that objective values might be thought as of norms in this that
the latter provides for the former. This means furthermore that norms and
values which are traditionally thought as figures that belong to opposite
referential orders interact. And this means at least that our initial
supposition that consisted of thinking crime as evil implies that there is a
normative and an axiological conception / dimension of good and evil and that
both interact one with each other.
The
last observation points to the empirical nature of objective and universal
values. We can not assert with certainty that universal and objective values
are devoid of any empirical dimension or support. Suppose that people to save
human life have to kill other people. For the former who have to make the
decision to kill or not to kill people in order to save other people’s life the
decision-making involves always a problem of moral consciousness. Such a
problem can only come into existence under the condition that human life is an
absolute objective value. Suppose that people to save human life decide to kill
other people. Such a decision can never be rooted in moral relativism. The
reason is that human life, if it were a relative value, can never be a valid
criterion for the legitimization of the sacrifice of human life. The following
argument comes as a support: Suppose that moral relativism was involved in the
decision. It follows that people project a negative value on human life to save
their projection of positive values on the same good. What is involved in this
think-piece is the substitution of positive values for negative values and vice
versa. Each of both projections destroys each other.
INTRODUCTION
The association of crime and values is a
multi-faceted issue: If we understand by crime the transgression of a norm that
is defined and sanctioned by the law, the association of crime with values
requires the association of the legal norm with values.
If we are likely to admit that crime is evil, that
criminal behavior is morally deplorable or inadmissible or even perfectly
desirable behavior from a moral viewpoint,- in sum if we refer to an
axiological and not to a normative crime definition, crime being associated to
values means values being associated to values.
If we understand by crime the transgression of a the
norm that instead of providing for prescription, describes the way of how the majority of
people, in a given society, behave by virtue of culture and habit, the
association between crime and values holds for the association of crime culture
with values.
Considering this third point two major problems are involved:
First, are there values that favor
crime culture more then others? Are some values more predisposed towards crime
culture than others? If this is the case, it is likely that some values are
more predisposed towards crime prevention than others? Second, could it be that
crime culture varies as a function of values and in turn could it be that
values vary as a function of crime culture? Suppose that crime culture varies
as a function of values. Why should values not have a similar effect upon the
culture where legal norms are globally respected? To support this observation
one might argue that crime culture must be thought as of a specific figure of
the way people might behave by virtue of culture. If variations in this
specific figure of culture depend on values, and if this specific culture is
itself a variant of culture, then each of both figures – the culture where the
breaking of the law is normal behavior and the culture where the respect of the
legal norm is normal behavior – are necessarily particular aspects of the great
variety of descriptive norms that are involved in cultural habits. This assumes
that the breaking of law as well as the respect of the law is contingent upon
variations in descriptive norms. If these variations in descriptive norms vary
as a function of values, does this implicate that the former are contingent
upon the latter? This question brings two major problems to the fore of the
debate:
(i)
Which are
the effects of values upon descriptive norms? Given the contingency of both
breaking the law (crime) and respecting the law, it follows that the question
of which effects values have upon crime cannot be considered independently from
the question which effects of values upon behavior that is respectful of the
law. In this respect the question whether and to which degree the contingency
of criminal and of legal behavior is subjected to a sorts of axiological
determinism is to be discussed.
(ii)
Which are
the effects of normative behavior / descriptive norms upon values? This
question can not be discussed independently from two others: Could it be that
values are contingent upon cultural change? Could it be that the values that
are involved in crime culture are the same as those that are involved in a
culture wherein the law is respected? The issue that is involved in both
questions is value adjustment.
We have all experienced the contingency of criminal
and legal behavior. Behavior that, at a given moment, has been perceived /
defined as criminal behavior by the majority of us is likely to be perceived /
defined as perfectly non criminal behavior today. It is simply because our
culture has changed and because we have adjusted our former values. Could it be
that certain forms of criminal behavior / of not criminal behavior are devoid
of contingency? And if yes are those forms associated with universal and quasi
eternal values that are themselves devoid of any contingency? And if not, do
ethical considerations not require for normative choices that are aimed to
provide cultural values with universally valid normative protection?
Not all behavior that we define or perceive as
criminal is criminalized by the law; the inverse is also relevant. With this
observation the problem of the convergence / difference between legally defined
behavior and socially defined behavior is raised, but also the convergence /
difference between behavior that is defined with reference to prescriptive
norms and behavior that is defined with reference to descriptive norms on the
one hand, and the normative and the axiological definition of crime on the
other hand.
The interaction between legally and socially defined
behaviors / between behavior that is defined by prescriptive norms and behavior
that is inherent part of descriptive norms and between the normative and the axiological
crime definition is an issue to be discussed in the first part of this essay.
An analogy between the contingency that is
characteristic of our every day life crime perception / definition and the
contingent nature of the legal definition is easily drawn. Does each of both
processes of definition interact and if so, how do they interact? This question
leads to the problem of the connection between norm and value adjustment.
Value and norm adjustment is an issue that is
central to the question of whether or not values can explain crime. This
question is at the heart of the third part of this essay.
The relationship that is involved in each of both issues is the
relationship between values, norms and crime. More than any other issue,
terrorism is relevant for the understanding of the relationship’s complex
nature. This issue is the focus of the middle section of the essay.
I.
Values,
Norms and Crime
It happens frequently that people in every day life
talk about crime in a manner that differs from legal crime talk. Sometimes the
legal definition of crime and our personal definition or perception of crime
converge, sometimes they differ one from each other.
1. -
Normative and axiological crime conception
Schematically, the discrepancy that might exist
between the public’s definition / perception of crime and the positivist legal
and / or analytical / semantic definition of crime can be thought as of the
contra between norms and values. For argument’s sake the representation or the
image of crime in public opinion refers to morals and values rather than to
norms.
Norms
and values belong to different referential orders. Values can be thought in
terms of good, bad, right or wrong etc. Axiological assessments involve
appreciation and evaluation. In contrast, norms are thought of in terms of
rights, reason, obligations or interdiction; they are thought of as regulative
figures or rules. Moreover, norms are thought of in terms of objectivity,
values as of subjective and more relative figures.
The question of what is wrong and what is
right, what is good and bad, what morally deplorable or morally acceptable or
desirable is much more relevant for every day life crime talk than it is for
positivist legal crime talk. In fact, legal positivism has no concern for
morals (Kelsen 1960).
From the viewpoint of semantic logic, this
difference can be resumed as follows: Norms are proposals that provide for
interdiction /, permission, order etc, whereas values take the form of
evaluative proposals (which are based on evaluative judgments, either negative
or positive). When people appreciate behavior, then they generally approve it,
they disapprove when they define it negatively.
Does this mean that crime as it is defined and
/ or perceived in every day life precludes necessarily normative topics?
Obviously the answer is negative. For argument’s sake, people who perceive or
define behavior as being morally deplorable or unacceptable are likely to think
of it as prohibited. In turn, behavior is viewed as permissible or it is even
expected when it is perceived or defined as morally convenient or desirable
behavior.
In general norms require sanctions. This is
particularly true for norms that prohibit or defend certain types of behavior.
We call these norms by the name “prescriptive norms”. The opposite is
“descriptive norms”. Descriptive norms do not provide for prescription (to do
or not to do). They involve a certain way to be and specific ways in which to
behave. When people behave in this or that way, it is simply because it is
custom. Descriptive norms, in general, do not require sanctions.
It is important to distinguish between formal
and informal sanctions. A “formal sanction” refers to a sanction that requires
specific material support. The criminal law is the best example; it provides
for formal sanctions.
On the other hand, informal sanctions refer to
those sanctions that do not require material support. For instance, socially
non-conformist behavior might be sanctioned by the exclusion of the deviant
person or the deviant group by the majority of those who behave in conformity
with the norms they have assimilated and inhibited.
But sanctions are not necessarily involved in
norms. This observation applies to both legal and social norms. Not all legal
norms require a sanction. Many social
norms are devoid of sanctions. For argument’s sake, the normative content of
customs or habits often provides rules that are devoid of any obligatory
character; they look more like simple advice of what it would be better or more
desirable to do.
This assumes that norms do not necessarily
require sanctions to be respected.
Many areas of our daily social life are
governed by a whole gamut of rules and norms that, because of their complete
assimilation and inhibition, do not require a specific verbal or written form
of expression. We do things and we do not things because this is the way our
life works; because this is normal and because we all do so.
The
need for sanctions increases proportionately to the decrease in inhibitions, or
in the acculturation of norms.
2. - Crime
Culture, Acculturation and the moral signifier of crime
Public
opinion often associates crime with morality. When people commit crime we are
likely to judge them in a negative way and, in general, we think of criminal
behavior as a morally deplorable or inadmissible behavior. But not all behavior
that is defined by the law as criminal behavior is associated with morality and
criminal behavior, even if such behavior is the subject of a moral evaluation,
is not always perceived and / or defined in public opinion as a morally
deplorable or inadmissible act.
Imagine a given social and economical
environment where stealing, drug use and drug dealing or incivilities have
become customary. In this typical case of crime culture, stealing and drug
trafficking have become the normal way for people to achieve goals. Since it is
normal, such behavior is never associated with morals by the members of the
crime culture. On the other hand, this crime culture might be associated with
morals by those who do not participate in it.
Suppose that the use of cannabis or dealing
with cannabis is an inherent part of the culture of a minority group. Suppose
furthermore that the majority group, during a certain period of time, has
reacted against it with a moral depreciation. Imagine then that the use of
cannabis has become prominent for the majority of the members of a given
society. In this atypical case of acculturation where the majority group adopts
the cultural habits of the minority group, it is unlikely that cannabis use and
trafficking continues to be perceived as morally deplorable issues. Rather, it
is likely that people find that cannabis use is perfectly acceptable. And yet
it could be that, even in this case, the law continues to criminalize such
behavior.
The public sometimes associates evil with
crime. People who commit sexual violence against children, people who murder
children are doing evil. Obviously the members of a civilized society would
agree with this opinion. We are all likely to define such behavior as criminal
behavior, regardless of the fact that such behavior is indeed criminalized by
the law. The question of whether or not the law criminalizes the killing of
children is completely irrelevant to our moral judgment.
Even if both the legal and moral definitions
of crime converge, each definition exists independently from the other and each
belongs to a different order: this order is normative regarding the legal
definition and axiological regarding the moral definition.
But this difference does not preclude the
interaction between each of both. Suppose that a particular society has not
criminalized the killing of people under the law. Instead the criminal justice
system would criminalize the transgression of the legal norm that would consist
of the prescription to kill the members of a specific ethnical or religious or
cultural group. It could be that the members of the society that do not belong
to these groups respect the legal norm that consists of the prescription to
achieve mass murder. What could be – however unimaginable- has become reality.
Several hypotheses are to be distinguished:
The respect of this legal norm does not involve any moral or ethical
consideration. In other words, people respect the law simply because they are
afraid of the sanctions that are incurred upon its transgression. Second, the
respect of that legal norm is associated with moral or ethical considerations.
In this respect two figures are to be distinguished: (i) People take part in
mass murder because they hold the opinion that mass murder is not evil, but
perfectly justified, if not desirable. In this case their involvement in mass
murder is due to their – however inadmissible it is – collective morals of
murder. They act because they believe that mass murder is a moral / ethical
requirement, not because the law-maker requires for mass murder. (ii) People
take part in mass murder because the
lawmaker supports the morals
that make them believe that mass murder is a desirable and perfectly justified
action; in this case the legal prescription and the “moral” requirement for
mass murder perfectly converge. But it could also be that people who hold the
opinion that mass murder is evil do take part in mass murder because of their
absolute respect of the law or simply because they are afraid of sanctions;
their behavior therefore is the result of the rational calculation that culminates
into the slogan: it is better to kill people than to be killed or imprisoned.
Each of these observations is highly relevant
to the in-depth study of genocide.
With the 1948 Genocide Convention the nations
of the civilized world demonstrated both their indignation towards morally
inadmissible and revolting practices and the conviction that such inadmissible
practices require for legal prohibition and condemnation. The notion of “crime
against humanity” is the culmination of the process by which the rationale of
the law has been adjusted accordingly to humanity history’s most unimaginable,
revolting and disastrous crime enterprise that is unique to the Shoah. The
adjustment of the inherent rationale in the positivist law is much more than
the inaugural and initial act that points the criminal nature of this singular
tragedy. Rather, it is the inauguration of the process by which the law maker
criminalizes what is genuinely, and by virtue of its nature, a crime against
humanity. On this account the adjustment of the law’s rationale can hardly be
thought as of an inaugural constitution of crime against humanity; rather it is
the post-facto declaration and criminalization of that which is ontologically a
crime against humanity. And that declaration is unique to the interaction
between both the legal norms and the ethical conception of crime.
3. - Common
consciousness, tolerance and the moral and the legal signifier of crime.
When crime is defined in terms of morals, then it is
because certain types of behavior somewhat hurt an inherent moral code in our
common consciousness. In turn, not all behavior that hurts our moral
consciousness automatically requires a moral definition of crime. To be defined
as criminal (in the moral sense of the word), the act must be serious or
dangerous enough to be deemed outside the limits of the field which covers
those morally deplorable acts which are or can be, to a certain degree,
tolerated. The limits of tolerance vary and are subjected to change.
Consequently, the various
elements that might cover the
field of tolerance can be thought as of changing values.
But the answer to the question of how to
define these limits is always the same with reference to those fundamental
values which can not suffer an offense of any kind.
Behavior that seriously hurts our moral
consciousness, in general, is behavior that is criminalized by the law. But it
could happen that an act which seriously hurts the common consciousness enough
to be perceived and / or defined in public opinion as a crime is not defined as
criminal by the law. Durkheim already pointed this out.
Given the different orders to which legal and
moral crime definition belong, this observation does not really come as a
surprise. For argument’s sake, homosexuality is an issue that, for a long time,
has been criminalized by the law. At that time, homosexuality was perceived and
defined by public opinion as a morally prohibited – “a criminal” behavior.
Today homosexuality is no longer an offense defined and sanctioned by the law.
And yet for many people who demonstrate their religious faith and practice
their religion, homosexuality continues to be a morally unacceptable issue. The
same observation applies to abortion and prostitution; legalized, these issues
continue to be perceived as morally unacceptable by many people.
It could also be that an act that the public
considers morally deplorable behavior, but that does not seriously hurt the
moral consciousness enough to be defined as morally disallowed (criminal), is criminalized
by the law. This is in general the case when the lawmaker falls behind with the
legal adjustment of liberal or liberalized public morals. This assumes that
there is a discrepancy between norms and value adjustments. For argument’s
sake, the use of soft drugs, in public opinion, is largely tolerated, even if
this issue continues to be perceived as a custom that is morally undesirable,
if not morally deplorable. And yet soft drug use in many countries is
criminalized by the law. Other examples are alcohol and cigarettes. These are
drugs. And yet for a long time, and with some exceptions, neither the lawmakers
nor public opinion required prohibition. It is just because people who were
smoking or drinking behaved in a perfectly correct, if not desirable way.
Today, smoking in public spaces and at work is largely prohibited and
sanctioned by the law. Regardless of health damage, smoking, due to a public
moral campaign, has become an irresponsible behavior, namely with regards to
nonsmokers. And yet legal prohibition of such customs is always a controversial
issue, even if the number of people who hold the opinion
that smokers behave in an
irresponsible way that demonstrates any respect for the other constantly
increases.
This observation leads to the last
hypothesis:
An act which
is criminal by virtue of the law does not necessarily hurt common
consciousness, nor is it automatically perceived as a criminal act.
Obviously the relationship between norms and values
and crime is a very complex issue. The whole gamut of problems and conflicts
that are involved in this issue receives a singular and condensed illustration
in the issue of terrorism. In many regards terrorism must be thought as of the
focal centre of this complex relation.
II
THE
CASE OF TERRORISM
Terrorists provide public opinion with moral crime
talk. This assumes that terrorists advocate the absolute primacy of a moral/
axiological crime concept upon the normative legal definition of crime. As we
have already seen before, the moral crime notion can be defined with reference
to the serious threat to moral consciousness.
1. -
Terrorists do perfectly know that they do evil.
The first question to be raised is as follows: Are
terrorists likely to think of terrorism as a crime (in the moral sense of the
word) or do they rather dissolve the notion of crime into morals? Instead of
responding directly to each of both questions, it is preferable to point a
third question: Do terrorists know that what they are doing is evil? At a first
glance the answer is negative. For argument’s sake, terrorists prefer to point
out the highly honest and the morally desirable nature of their activities. The
truth is that they know that what they are doing is evil. They know perfectly
well that terror is evil and that this evil hurts and revolts common
consciousness. Otherwise, they would not use terror as an appropriate means of
achieving their goals.
With respect to our first question, this
assumes that terrorists are likely to think terrorism as of crime (in a moral
sense of the word). In order to support this assessment, some further
preliminary observations are to be made:
(i)
From the
theoretical or logical –semantic viewpoint, the moral or axiological notion of
crime is defined in terms of the normative legal notion of crime. This means
that the meaning of both, the moral and the legal crime notion, depends on the
circumstance that each of both refer to different referential orders. Indeed, the legal definition of crime holds
for the legal positivist definition; therefore it precludes any sorts of a
transcendental, either natural or axiological, legal order. In turn, the moral
/ axiological crime definition, because it necessarily refers to a
transcendental legal order, precludes the legal definition of crime as it
results from the legal positivist tradition. This means that the advocacy for a
moral crime talk is always an advocacy against the legal crime talk and vice
versa. Does this mean that the advocacy for a moral crime definition
pre-supposes the existence of a normative legal crime talk? And, in turn, that
the advocacy for a legal positivist crime definition presupposes the existence
of an axiological crime definition?
(ii)
The
advocacy for a legal crime definition does not presuppose the existence of a
moral crime definition, whereas the advocacy for a moral crime definition
requires the existence of a legal positivist definition. The reason is that
crime is traditionally and historically defined as the transgression of
positivist law. The historical process upon which justice has become contingent
is definitively achieved. The transformation is the process that supplanted
natural or upper natural justice by that of “social» justice. “Social”
justice”, as used in this context, means justice achievement within society and
by means of the lawmaking process. As a result of this process, law has become
entirely positivist. This explains the circumstance that a transcendental –
natural or upper natural – legal order / justice are completely foreign to the
majority of the (criminal) justice systems of the civilized world. Given this
empirical evidence, the requirement for a moral/ axiological crime notion /
justice concept within a modern justice context (that is completely dominated
by the positivist law) pre-supposes legal positivism.
(iii)
Terrorists, as previously mentioned, know that
that what they do is evil. Why, then, do they do evil? At a first glance, the
answer is because they do not care about. Really? If they would not care they
would not commit terrible and terrifying acts. In fact they do evil because
they are truly convinced that that what they are doing is not only necessary
but also perfectly justified. From their viewpoint terror is a means to reach a
goal. Before the nature of this goal is questioned, there is a need to briefly
discuss the nature of the means-goals scheme and the nature of the concept of
justice which is involved in this scheme.
2.
- But terrorists have no moral consciousness. The nature of terrorism’s
rationale.
To reach goals, people use means; in general they
use the most appropriated means, or, at least the means that is perceived as
being the most appropriate. This assumes that they behave in a rational manner.
This means furthermore that rationality is involved in the scheme. Moreover
this scheme can only be defined with reference to rationality. Such a
relationship precludes any moral or axiological signifier. For argument’s sake
people use terror as a means to reach goals; the circumstance that they know or
even do not know that what they are doing is evil has an impact on the rational
nature of the scheme, although it is highly relevant to this rationale: terror,
because of its highly ethically deplorable and unacceptable – criminal- nature,
is the most effective means to reach the goal.
The nature of this relationship is rational,
not axiological. And it is that rationality that, from the terrorist’s
viewpoint, provides terror with legitimacy. The circumstance that terrorists are
truly convinced that their behavior is perfectly necessary and justified is
rooted in this rational scheme. If people act in a justified manner then they
act in general in a just manner. Given that terrorists behave in an illegal
manner it is obvious that they do not behave in a manner that is just from the
legal viewpoint, nor can their behavior be thought of as moral or axiological
justice. The reason is that they behave in a certain way to achieve goals and
that this scheme is rational, not axiological.
To resume, from the terrorist viewpoint,
terror is just/-ified because it is a useful or even necessary means to reach
goals. In the final analysis it is the goal that provides legitimization to the
means, regardless of their nature. All means, foremost the most terrific are
good and appropriate means – are just with regards to goal achievement.
This is utilitarian thought and practice in
its purest form. The concept of justice that is involved in terrorism’s
means-goal rationale is utilitarian justice, not axiological justice and not
deontological justice.
This very important observation is highly
relevant to the deconstruction of terrorism’s self and public image. Obviously
the utilitarian rooted justice rationale disturbs the image of morally just
terror.
3. -
Terrorism and its utilitarian rationale: L’Anti-Hume
Even if we are likely to recognize that the goal
that is inherent in the terrorism rationale provides a positive value (“good”,
“justice”, “freedom” etc.), even if we concede the axiological nature of that
goal, there is no doubt about the utilitarian concept of justice that is
involved in the rationale. For argument’s sake: For terrorists, terror is a
just means for goal achievement and it is just in that justice (“good”, liberty
etc.) is derived by terror. Justice results from a certain way to behave, to
act. Rational choice is involved, and rational choice presumes the freedom of
choice and action.
Hume’s utilitarian concept of justice is
traditionally the prototype of modern utilitarian justice. According to Hume
justice, schematically resumed, results from the common good (satisfaction of
the interests of the largest majority of the people living in a given society).
At a first glance it is easy to draw the analogy between this classical figure
of utilitarian justice and the one that is involved in the terrorism rationale.
For Hume, one might argue, as well as for the
terrorist, justice derives from the common good. Another point that is common
to both schemes is that this good (justice) is achieved through a rational
calculation. The difference is that in Hume’s rationale the calculation
implicates that each individual of the people who are living together and who
are guided by personal interests, who have different and often contradictory
goals, and who are likely to use different and contradictory means to reach
satisfaction must calculate the behavior that is to be adopted in order to
satisfy the interests of all, in an optimal manner.
Obviously this rationale is aimed at means
adjustment and it is based on general rationally rooted in consensus. However,
the calculation that is inherent in the terrorism rationale is neither aimed at
means adjustment, nor is it based on general consensus. Instead it is based on
terrorists’ consensus. The terrorism rationale does not presuppose a general
consensus about the need to adjust means to reach common goals. Instead it
disturbs this scheme through the use of terror.
If terrorists would follow Hume’s rationale,
they would stop terrorism: the disadvantages and disastrous impact of terrorism
on the life conditions of those people in whose name terrorist threats are
committed supplant, in a disproportionate manner, the advantages, real if not
simply expected. This is the lesson of the Second Intifada.
4. Terrorism,
modem democracy and the theory of tyranticide
Terrorists do not only know that terrorism is evil,
but they also know that terrorism is a crime from the legal perspective. Given
that the inherent rationale in the utilitarian scheme of justice can hardly
provide a moral legitimization of terrorism, the circumstance that terrorism,
for a long time, has been thought, and, to a certain degree, continues to be
thought of as of just crime (crime for the just cause) can only be explained
with reference to a concept of justice / legal order that transcends legal
positivism. Terrorists refer to that transcendental order.
Traditionally terrorism is – however
controversial this might be – associated with the fight for freedom, the fight
for emancipation and national independence, the fight against oppression. This
supposes that terrorists are likely to define terror as a means to fight
against the oppressor.
Modern democracy is based on the law of the
majority. In modern democracy, therefore, there is no place for a
transcendental legal order that provided the fight against oppression with
legitimization. It follows that modern democracy precludes the Theory of
Tyranticide. According to the French historian François Furet the scheme which
covers the two principal figures of Tyrants has become irrelevant to political
theory and practice since social contract theory has provided the political
philosophical foundation for modern democracy.
And yet the somewhat romantic image of the
fighter for freedom and against oppression, for a long time, has been
successfully applied to terrorists, and, to tell the truth, it continues to be
prominent in public opinion, media and intellectual circles. How can we explain
this paradox? Undoubtedly Hobbes’ contract theory precludes the Theory of
Tyranticide. And yet it is not at all certain that the same observation applies
to Rousseau’s social contract theory; it does not formally preclude the right
to fight against oppression. But the real re-inventor of this classical theory
in modern political and social theory, is Marx. By supplanting the material
signifier of crime with the formal legal signifier, Marx provides a dualistic
construction of crime: The formal legal definition of crime, because it is
thought of as of a means of oppression, becomes potentially “criminal”; the
transgression of the legal norm (crime) becomes the act by which the oppressed
react against oppression. This assumes that crime (in the legal sense of the
word) is the result of the process by which the lawmaker criminalizes the
emancipation of the oppressed people. This idea dominates the whole tradition
of critical theory and its criminological derivation.
5. Terrorism
and Marxism
Terrorists know very well that what they do is
criminal by virtue of the law. Given the complete dissolution of the legal
signifier into a political or even economical one such a consciousness can
never be a means to respect the law; rather it is an encouragement for the transgression
of the legal norm, all the more so since the legal signifier of crime is
automatically associated with oppression, inequality and the lack of
emancipation.
And yet, Marxism’s reminiscence of the Theory of tyranticide (Jaszi & Lewis
1958) is a controversial issue. In another study I have already pointed out the
problem: this reminiscence is the result of a reappraisal of the works of the
young Marx[5] that – however
controversial it might be, in particular with regard to dogmatic Marxism and
historical materialism – has been and still is very prominent in critical
occidental discourse. By applying it to modern democracy – however problematic
such an intellectual operation may be with regard to modern democracy and the
law of the majority - neo-Marxism
and critical theory have provided many contemporary social philosophers and
social theorists with the advocacy of the ‘just crime’ notion or the notion of
‘crime for a just cause’. This
circumstance explains the successful promotion of a terrible, but profoundly
just “Robin Hood”.
6. Terrorism
and Human Rights. The axiological and normative supporter of terrorism
The preceding discussion supports a more
differentiated interpretation of our initial statement. Terrorists are likely
to consider and to perceive what they do as crime (in the moral sense of the
word) in that they know perfectly well that terrorist threats do hurt and
revolt our moral consciousness, that terrorism is perceived by the majority of
us as criminal. But this issue, although it is highly relevant to the practical
impact of terrorism’s rationale, is completely foreign to the nature of this
rationale; it precludes the invasion of axiological consideration of any kind.
Instead terrorism, because of the dissolution of the legal definition of crime
into a material signifier of crime, provides a morally faceted transfiguration
of crime as it is defined by positivist law. Because of this transfiguration,
crime as it is defined by law becomes “criminal”, or “unjust”. The rationale
culminates into the “just fight against that crime and injustice”.
The result is that such a fight can no longer
be associated with crime; Terrorism is neither crime in the legal sense of the
term (as the legal definition is entirely dissolved), nor can it be thought of
any longer as a transgression of transcendental legal order, either axiological
or natural (as it is precisely that order that provides the fight with
legitimacy).
Apart from this axiological support that is
rooted in a transcendental upper order of justice and legality, terrorism
receives normative support. Who is the supporter? It can not be positivist law.
It can only be a norm that is formally incorporated into the positivist legal
system, but, at the same time, somewhat incarnates its moral consciousness and
provides for its correction. As far as such a normative thing is thought as of
justice, it is an inherent part of a teleological conception of justice.
Human rights is the issue that has the natural
predilection toward this aim. For argument’s sake, in public opinion and everyday life the
discourse that criticizes democracy in the name of justice, liberty, and
emancipation has never lost prominence. Moreover the experience teaches us that
human rights has been, and continues to be, used as the normative key reference
that provides the fight for emancipation against totalitarian regimes with
legitimacy. As long as terrorism is thought of with respect to those schemes,
terrorism is automatically associated with human rights.
The notion of human rights implies that
democracy is thought of dualistically. The same observation applies to law and
justice. Human rights imply that democracy is a project in process rather than
a definitive plan. It implies also that democracy is virtually, but not always,
the focus of two conflicting forces that are inherent in democracy. Human
rights refer to and actualize the inherent conflict - potential in democracy.
What is involved in human rights is the conflict between formal and material
democracy, formal positivist and material justice.
And yet such a conflict, from the theoretical
viewpoint, can not exist in modern democracy. This think-piece is irrelevant to
the law of majority, and it is completely foreign to the inherent rationale of
legal positivism. And, to tell the truth, in a legal system that is strongly
influenced by a theory that demonstrates the highest and most consequent
development of legal positivism there is no place for a scheme of human rights
that works as a moral outworker and that is not an inherent part of the
positivist legality. The rationale of such systems requires for the dissolution
of the notion of human rights into a fundamental constitutional legality. The
process that is involved supplants the notion of human rights by that of
constitutionally recognized and
protected fundamental / basic rights and liberties, and it supplants the
natural or anthropological conception of rights as it is involved in the notion
of human rights by that of an artificial, normative legal conception. As long
as fundamental rights and liberties are the tributary of such an
anthropological or naturalist essentialism, the law is underpinned by a moral
out-worker.
The success of a transcendental legality – of
a think-piece that is irrelevant to the rationale of legal positivism can be
explained in two ways.
The first one that I have already pointed out
consists of the observation that legal positivism thought of in absolute terms
is likely to become the morally unacceptable supporter of totalitarian regimes.
The second reason is the tautology of the inherent rationale of modern
democracy and the auto-referring nature of the positivist law. Through the lack
of a rationale that could provide its inherent legality with a normative
out-worker, the dilemma of tautology and of self -reference is compensated by the
setup of a material and dynamic signifier of modern democracy. This signifier
can only be rooted in, and must necessarily refer to, the original foundation
of modern democracy. Otherwise, such a material signifier and such a dynamic
conception of democracy would coincide with the formal rules that govern the
life of modern democracy. Social contract is modern democracy’s
political-philosophical foundation.
The social contract is the artificial
construction that, according to the method of Galileo, is aimed to reconstruct
the social corpus as a function of individuals who are owners of natural
rights. Human rights are the anthropologically faceted transfiguration of this
artificial figure. With the Declaration of Human Rights that was originally an
inherent part of an artificial, but highly relevant think-piece, has become a
sort of empirical evidence. The most important practical consequence is that
the law of the majority, which is the basic rule that governs modem democracy
and which presumes the efficiency of a working democracy is continuously
confronted with, if not contradicted by, the narrative of democracy’s origin
and foundation. But this means that human rights provide modern democracy with
a retrospective deconstruction of its legitimacy.
7. -
Terrorism and the Foundation of modern democracy. The law of democracy’s origin
contra the law of the majority.
This is the major reason for democracy’s and human
right’s embarrassment with terrorism.
In the final analysis such an embarrassment is
due to the inherent semantic contradiction of the notion of human rights. On
the one hand human rights are anchored in a somewhat upper legal order that
holds for a lex ante legem (in the positivist sense of the word); the
referential order that is involved must be thought as of natural law; the
corresponding topic is the “status naturalis”. Given the nature of this
referential order, the relevance of human rights for processes that are
involved in the constitution of State, comes not really as a surprise. On all
these accounts the practice of human rights involves political violence. On the
other hand human rights is an issue that refers to and pre-supposes the
legality; otherwise human rights could hardly play the role of democracy’s
legality moral consciousness.
The ambiguity of this construction consists of
its natural predisposition towards the confusion between each of both orders.
That what is involved here is the substitution of a natural or pre-legal
conception of right and justice for a legal conception and vice versa, of a
natural state of society for a civil state of society and vice versa. The most
important practical consequence is that human rights provide processes of
national liberation and auto-determination that incolve violence as a practical
means of elementary rights of human beings (conservation and preservation) with
moral legitimization. At the same time human rights support the invasion of
democracy and peaceful conflict solution by those archaic forms of violence
that are inherent in the natural right of conservation and preservation.
And yet the moralization of a pre- democratic
and pre-legal state wherein violence is the natural expression of archaic
rights, on the one hand, and the process that consists of the transfer of
topics from “status naturalis” to modern democracy, on the other hand is an
highly contradictory think-piece.
The dynamics of human rights consist of the
process that supplants the law of majority by that of modern democracy’s origin
and foundation. The latter is at the heart of terrorism’s ideology. By playing
the law of origins against the law of the majority, terrorism successfully
provides for the “criminalization” of the law of majority; the dissolution of
terrorism’s criminal nature into – however controversial from an ethical and
democratic viewpoint – an anthropologically faceted ethos of origins, is the
most important consequence.
Simultaneously terrorism’s normative context
or referential order is the subject of the process that supplants the
prescriptive nature of terrorism’s normativity by that of the descriptive
nature. The highly ethically deplorable consequence is that terrorists are no
longer criminals, but the certain administrators and non corrupted defenders of
democracy’s foundation and origin. In all these accounts the circumstance that
terrorism has had, for a long time, the privilege to be discussed in
intellectual circles as a highly attractive and political correct issue does
not really come as a surprise.
Terrorism stages here and now and for the
future the retrospective show of democracy’s foundation and origin, the
terrible revival of the inherent forces of the genesis of modern democracy –
the screenplay is somewhat fascistic. As long as the retrospective show has
human rights as its play-ground, terrorism’s fascistic nature is veiled in
rose.
It can happen that terrorism, at a given
moment and in a given context, leaves this particular stage and provides for
another show that can hardly go on with the same play-ground. The lack of human
rights’ shelter brings terrorism fascistic nature out in the open. Islamic
fundamentalist terrorism is the most relevant example of our times; it is
theocratic fascism.
The question of whether theocratic fascistic
movements that use terror as a means to reach their goals should or should not
be allowed to participate in the process of democratic elections is a highly
controversial one. It is unacceptable to provide such movements with democratic
support; theocratic fascism that requires
the destruction of democratic nations is not worth entering the door of
democracy. This argument is anchored in the conviction that to ensure its
viability, a democracy must be a strong democracy. This conviction fits within
the rationale of democracy: in democracy there is no place for groups,
movements or even people that attempt to destroy democracy. Apart from the
opinion that, by pointing out the legitimacy of the fight for freedom and
emancipation and national independence, this demonstrates its attachment to the
human rights – law of origin twins, a contradiction is hardly to be discovered.
One can hope for the best. The fact is that such optimism has had disastrous
consequences: Hitler was democratically elected!
Obviously the issue is a case for ethics. Suppose
that such optimism is hold by the majority of democracy’s citizen. Suppose that
the idea that such movements or groups have the ability to develop in and with
democracy has wone the battle. The dilemma that is involved is that there is no
return for one way tickets.
If our discussion provides us with a lesson,
then it is the importance of the interaction between norms and values and the
relevance of the interaction between both to crime. We have already seen that
crime is traditionally defined with reference to the legal norm. Traditionally
the crime definition is a normative definition, not an axiological definition.
But we have also acknowledged that values may have a strong influence upon
crime and, to a certain degree, they might be relevant to the commission and
/or the legitimization of crime. This leads us to the question: Can values
explain crime? If this is so then values produce effects that engender or cause
crime or even prevent crime.
III
Which
effects of values upon crime?
Here is not the place to provide for an in-depth
examination of the issue, nor is it the place to review the great number of
works which are dealing with the topic. Instead I will focus on a study that is
highly relevant to our purpose.
David Halperen, in his study “Moral Values, Social Trust and Inequality. Can Values
Explain Crime?” (2001:230-251) distinguished three levels of crime which
are associated with moral values.
1. - Values might cause crime
directly in the sense that an individual who held them might be more likely
commit crime. Values’ individual effect.
For example, a person who believes that stealing
property is a perfectly acceptable act - or who lacks social conscience - would
be more likely to steal than one who believed that act was morally wrong.
This first case needs some comments:
It is
clear that that what is valid for a particular individual (stealing property as
a perfectly acceptable act) might be valid for a group of individuals, members
of a society or even for the whole society. The best example is when there is a
crime culture.
One can reasonably expect that such an event
comes into existence when people who have perfectly inhibited the inherent
values of a social and economical ethos, for different reasons, break the law
to reach these ethical goals. In a crime culture, for example, stealing is a
perfectly acceptable act.
1-1. Three
ways to define the values involved in stealing:
This observation leads us to the heart of the problem
that is involved in this first point. This first case confronts us indeed with
at least three different referents and / or meanings of the word “value”: (i)
stealing is a perfect acceptable act; the value that is involved here holds
that the act consists of the appreciation or positive evaluation of stealing.
As far as stealing can be thought as a descriptive norm, the value that is
involved consists of the appreciation / positive judgment that is applied to a
descriptive norm. This assumes (ii) that stealing, for the majority of us, is
an unacceptable act; the value that is involved here maintians that the act
that consists of the depreciation of and / or the negative judgment that is
applied to a particular behavior (stealing). Given that stealing consists of
taking away one other’s property (of transgressing the legal norm that protects
the right of property), it is clear (iii) that property contains a positive
value that is protected by law.
Obviously there is a correlation between (i)
and (ii). When people have the opinion that stealing is a perfectly acceptable
act, then there are always other people who hold or might hold the opposite
opinion. The reason is that an act that consists of a negative axiological
judgment or evaluation is only conceivable, can only be thought of, with
reference to its opposite. In sum there is no evil without good, there is no
good without evil.
Why do some people hold the opinion that
stealing is a perfectly acceptable or desirable act? Obviously it is because
they agree completely with the opinion that property is a positive and
desirable value. When other people hold the opposite opinion (that stealing is
unacceptable or undesirable behavior), it is obviously for the same reason.
Suppose property is a negative value for the
members of a given society. At a first glance it makes no sense to steal
property. And stealing is neither a perfectly acceptable act, nor can it be
thought as of a perfectly unacceptable act.
Really? This all depends on what people understand by property. Stealing
of private property might be a perfectly acceptable means to reach collective
property, and vice versa.
Let me come back to the first example:
Property is a positive value for the members of a given society. The case is a
good illustration of the discrepancy that might exist between social consensus
upon means and social consensus upon ends or goals. The goal that is involved
is property achievement. By stealing, people demonstrate both the complete
agreement with and the complete inhibition of the positive value that is
property. By respecting property, other people provide for the same
demonstration.
1.2 Common
goals/ values and opposite means/ moral judgments regarding value achievement:
This assumes that there is a global consensus about
this specific goal. But there is no global consensus regarding the means to
reach that goal. All the evidence suggests that people who believe that
stealing is a perfectly acceptable means to achieve property hold this opinion
because of a lack of equal opportunity. It could also be that they hold this
opinion simply because they refuse, for diverse reasons, to be respectful of
the rules that provide for the means to be applied to achieve property.
In the first case, people’s social and
economic situation prevents them from profiting from the normative limits of
regular property achievement. In the second case they do not accept (any
longer) these limits, not because of their social economic status, but for
other reasons. In turn, people who hold the opposite opinion do not have
problems with regular property achievement. They do not have problems with
regular property achievement because of their socio-economic status.
The moral judgment that is applied to stealing
varies as a function of the socio-economic situation in which people who are
making the judgment are living. Each of the judgments, the positive and the
negative one, is rooted in a value (property) that is globally appreciated.
1.3 Crime
associated with values. Limits of the issue’s irrelevance to certain
criminological theories:
Can the latter be thought of as the direct cause of
stealing? The answer is that it can not. If people who are stealing property
were in the same conditions as those who are not stealing, they would not
steal. Can the opinion that stealing is a perfectly acceptable behavior be
thought as a direct cause of stealing? Here again the answer is no it can not.
Why? Because it is possible to imagine that people who hold the opposite
opinion do not hesitate to steal just because they have no other possibility.
In all of these accounts we must acknowledge that values, as far as this case
is concerned, cannot explain crime. Rather it is social and economic inequality
which help explain crime[6].
But even this hypothesis requires a critical
comment. It is indeed possible to imagine that people who hold the opinion that
stealing is morally unacceptable or deplorable behavior are going to steal. For
example it could happen that people are stealing, not because they are excluded
from the normal opportunities of property achievement, not because they have no
other choice, but simply because they wish to achieve more money than they
already have. In this case their behavior is rooted in a rational calculation.
On the one hand they perfectly agree with the opinion that stealing is
deplorable behavior, but on the other they might, at a given moment and in a
given situation, consider that the transgression of their moral code is much
more profitable for them than its scrupulous respect.
There is a second critical point to be mentioned:
As pointed out by Sir Halperen, it is hardly likely that an association between
crime and values is expected in crime theories that focus on crime that is
associated with opportunity factors, ethnicity, genetics or psychiatry. But it
would be an error to believe that such theories necessarily and always preclude
the association between crime and values. For argument’s sake, it is easy to
imagine that people who are excluded and who do not profit from equal
opportunity factors do not steal property, even if stealing is the only means
for property or financial achievement. Maybe they are afraid of the sanction;
maybe they do not steal simply because stealing property is not customary. But
it could also be that they will not steal because they have adopted or are
inhibited by their moral code which prevents them from stealing. In this case
the respect of this moral code is always associated with the axiological
principle that stealing is absolutely not acceptable.
This example is a good illustration of the
relevance of values to the prevention of crime. Let me mention another example:
It happens that people, namely men, commit crime in order to re-establish the damaged
honor of their family. For a long time this custom has been very prominent in
archaic family culture. Even today the custom is still relevant to family
cultures that are strongly influenced by religion.
1.4 Some typical figures of values being involved
in crime and crime prevention. Adultery
and Martyrdom:
Mass Media provide us with stories about husbands who murder their
spouses who are suspected of adultery; brothers or family fathers kill their
daughter / sisters who have dishonored their future husbands. Adulterous
children are frequently killed by dishonored family members. In all these cases
values are involved in the commission of crime.
The same observation applies to human beings who are sacrificed in the
name of religion. This custom has been highly relevant for archaic societies
and ancient religion. For argument’s sake we have all heard or read about Roman or other ancient culture warriors who
believed that they were consecrated to the glories of the war in the Roman case
and to the solar deity in the case of the Aztecs. In these ancient cultures men
gave up their lives willingly believing that the Afterlife provided them with a
But values not only have an impact on crime commitment, they might also
be relevant to crime prevention. The Bible provides us with tales involving
each of both aspects.
1.4.-1
Abraham and Isaac:
We know all
the tale of Abraham and his son Isaac. After G’d asked Abraham to sacrifice his
son, Abraham took his son in order to sacrifice him. It is likely that the
majority of us, today, would agree with the opinion that G’d asked Abraham to
commit a crime. Maybe Abraham held the same opinion, maybe not. What is certain
is that Abraham did not hesitate to respect the will of G’d. Even if G’d asked
him to sacrifice the most precious good he had, he did not hesitate. Why?
Obviously this is one of the most difficult and controversial questions in
Hebrew literature. And it is not possible for us to resolve it.
Abraham’s deed, as pointed by Judith Marcus, was greatly admired by the
philosopher George Lucàcs who celebrated his “unconditional obedience”. One
possible answer is that Abraham intended to sacrifice his son because it was
G’d who required it. If a human being would have asked Abraham to sacrifice his
son, he would have refused to do it. This assumes that Abraham demonstrates his
faith and loyalty towards G’d by being respectful of G’d’s order. Maybe that
this first part of the tale reminds us that an act that is intolerable from
human beings’ viewpoint or morals, or that is even be thought as of “criminal” behavior by human beings is irrelevant when the parameter is G’d. Another
possible way of interpreting this tale consists of the inverse scheme: An act
that is inadmissible from “G’d’s viewpoint (Isaac to be sacrificed by his
father in the name of G’d) is irrelevant to human beings’ intelligence or
morals. After all, the tale stages a test or experiment and it may be that G ‘d
wanted to test Abraham’s capacity to say no and to refuse executing an order
that G’d wanted him to refuse. But in all these hypotheses, the sacrifice, if
it would have been made, is rooted in values.
In fact Abraham never sacrificed his son,
because of the angel who stayed Abraham’s hand on
After this experiment Abraham is left a lonely
old man. Isaac never spoke to his father again and Sarah died. Obviously the
relationship is sacrificed. And it may be that the tale reminders us that we
often sacrifice our relationship for false commitments. Such false commitments
are often rooted in wrong or erroneous beliefs, but they can also be rooted in
custom.
If such is the lesson of the tale, the
sacrifice of the human being itself must be taken as a metaphor. But even if we
agree with the opinion that in our tale the killing of human beings results in
the killing of human relationships, the tale’s relevance to crime remains
intact. Crime can indeed be thought as of the culmination of the sacrifice of
human relationships. Thus, the tale of Abraham and Isaac demonstrates the
relevance of values to the commission of crime and to crime prevention.
2. - Values might cause crime
indirectly in the sense that, if most people held them, they would be less
likely to apply sanctions; therefore they would increase the probability that
others would offend. Values’ ecological effect
Intermediate sanctions and youth delinquency are
good examples. Regarding youth delinquency, punishment, for a long time, has
been a social taboo. Given the prominence of social-educational treatment in
public opinion, the circumstance that many European lawmakers provided for
alternative sanctions does not really come as a surprise.
2.1 Ecological effect and security
debate:
And yet, the idea that developed during the last
decade and that came rapidly to the fore of the public and legal debate pointed
the negative effects of the liberal regime. According to the critics, the
liberal scheme favored the increase of juvenile and minor delinquency. The
requirement for harsher sanctions that developed as a result culminated into a
repressive reversal.
The same trend is observable in other areas.
For instance, in the
The ecological effect is an issue that rapidly
came to the forefront of the actual debate. It has been and continues to be the
most prominent and powerful supporter of current security policy. The ecological
effect is at the heart of criminal justice systems that, during the last
decade, has successfully assimilated the increasing influence of critics who
point out the negative effects of the tolerance society upon public opinion.
The ecological effect is the slogan that provided legitimacy to the trend
labeled by its critics “penal reversal” or “moral conservatism”.
2.2 Ecological effect and death
penalty:
The death penalty is an issue that is more relevant
than any other to the discussion of the ecological effect. Suppose that most
people hold the opinion that, in a humanitarian sanctions system, there is no
place for the death penalty. Suppose furthermore that death penalty is to be
applied to very serious offenses. Could it be that the murder rate increases
because of a lack of the death penalty? According to recent research, the
preventive effect of the death penalty is an extremely controversial issue.
Therefore, the increase in homicide rates can hardly be thought of as the
ecological effect of the absence of the death penalty.
Let us briefly discuss the inverse case: most
people hold the opinion that there is no incompatibility between the death
penalty and a humanitarian sanctions system. Suppose furthermore that the death
penalty is to be applied to very serious crimes and that the lawmakers provide
a humanitarian execution of the penalty. Could it be that a humanitarian
execution increases the possibility that people would commit murder more than a
non humanist execution? In other words could it be that a humanitarian
execution and a non humanitarian execution have different ecological effects
upon crime commitment? Through lack of empirical data it is impossible to
answer the question. And yet it is hardly likely that a humanist execution does
more than a non humanist execution increase the possibility that people would
commit serious crime. Are offenders who can reasonably expect to be imprisoned
for a period of five years predisposed towards the transgression of a given
legal norm more than those who can reasonably expect to be imprisoned for a
period of ten years? Obviously the answer is no. The analogy between this case
and the previous one is easily drawn.
3. - Values might be associated with crime,
but with the causality in the other direction.
For example, it could be that criminal offenses lead
individuals to adjust their values (increase their tolerance).rather than the
way around. In the first part of this essay we have already discussed some
examples that belong to this issue: Soft drug use and drug dealing,
homosexuality, or prostitution.
The scheme is highly relevant to issues of
social change. As we have already seen increasing tolerance towards crime in a
given society is frequently associated with legal adjustment. And, in general,
the legal adjustment develops as a direct consequence of the value adjustment.
But it also happens that the lawmaker, by adjusting the norm, anticipates the
value adjustment to be produced in a given society. The progressive
decriminalization / legalization of euthanasia, of human cells cloning, of drug
use, of substitutes for hard drugs or of the mass screening for AIDS or even
the legalization of homosexuals’ marriage are good examples.
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[1] In fact and to tell the
truth values have always been relevant to policy debates and penal practice.
This observation applies in particular to religious values ( Durkheim, 1964;
Garland 1990: 203; Bayer & Wright: 2001; Regnerus:2003). “Religion”, as James D. Unnever and Francis
T. Cullen and Brandon A. Applegate (2006: 305) have stated, “is just
potentially implicated in understanding not only the causes of criminal
behavior, but also how society reacts to behavior it defines as illegal”.
[2] In this respect it is
worth mentioning that, as Unnever and Cullan and Applegate ( 2006:305) have
stated, “compared to other advanced industrial nations expresions of religious
faith are widespread in the United states and have a prominent role in shaping
the contours of policy debates“. In this respect, the observation that this trend,
which is at present a global trend observable in all industrial nations, first
developed in the United States, where it influences the public debate more than
anywhere else does not really come as a surprise.
[3] One might argue that values,
namely religious values, are implicated in understanding both the causes of
crime and society’s reaction toward crime (Unnever and Cullan and Applegate
(2006:305). Although this
argument is rooted in empirical evidence, it is irrelevant to the validity of
our observation. Suppose that values cause crime. Note then that crime is
social behavior. It follows that values cause social behavior. This assumes that
values cause both criminal and non-criminal (social) behavior. But this causal relation
has an impact on the law-making process; it is irrelevant to the lawmakers
decision to define social behavior as criminal or non-criminal behavior. In
this respect the cause of crime is always the process by which the lawmaker
criminalizes social behavior. The analogy between this observation and
Durkheim’s crime definition is easily drawn. According to Durkheim, an act is
criminal because it hurts the common consciousness. But Durkheim observed also
that not all acts that hurt our consciousness are defined as crime by the
lawmaker.
[4] In fact Nietzsche picked up this
idea from Hobbes who developed it. According to Hobbes who has been heavily
influenced by Machiavell but also by Epicurian ideas, the idea of good is what
we like and evil what we dislike. In chapter 6 Part I of Leviathan we
read :
« That which men
desire they are said to love, and to hate those things for which they have
aversion. So that desire and love are the same thing; save that by desire, we
signify the absence of the object; by love, most commonly the presence of the
same. So also by aversion, we signify the absence; and by hate, the presence of
the object. »
« Of appetites and
aversions, some are born with men; as appetite of food, appetite of excretion,
and exoneration (which may also and more properly be called aversions, from
somewhat they feel in their bodies), and some other appetites, not many. The
rest, which are appetites of particular things, proceed from experience and
trial of their effects upon themselves or other men. For of things we know not
at all, or believe not to be, we can have no further desire than to taste and
try. But aversion we have for things, not only which we know have hurt us, but
also that we do not know whether they will hurt us, or not »
« Those things which
we neither desire nor hate, we are said to contemn: contempt being nothing else
but an immobility or contumacy of the heart in resisting the action of certain
things; and proceeding from that the heart is already moved otherwise, by other
more potent objects, or from want of experience of them. »
« And because the
constitution of a man's body is in continual mutation, it is impossible that
all the same things should always cause in him the same appetites and
aversions: much less can all men consent in the desire of almost any one and
the same object » And in Chapter
13, I : "Moral philosophy is
nothing else but the science of what is good, and evil, in the conversation,
and society of mankind. Good, and evil,
are names that signify our appetites, and aversions; which in different
tempers, customs, and doctrines of men, are different."
.
.
[5] This reappraisal is the
result of an interpretation that focuses on the difference between the works of
the young Marx and those of the older. Such an interpretation, by focusing on
the antagonistic structure of Mark works, developed during the 1960s in the
Western democratic world. The scheme is an inherent part of neo-Marxist
and critical theory’s attempt to get back in touch with Marxism and to provide
Marxism by means of a theoretical re-conceptualization with a more humanist
dimension. It must be thought as a result of the traditional Left’s disillusion
and disappointment about historical materialism and the Communist totalitarian
experience. Later the scheme is snatched up by conservative critics of Marx,
providing a focal center on the inherent contradiction within Marx’s oeuvre.
See on this subject for example the re-lecture by François Furet
of Marx’s analysis of the French Revolution in Furet’s
and Calvie’s Marx et le Révolution
Française (1986)
[6] This observation fits within
David Halperen’s comment. He points that “it is possible to have a theory of
crime in which values have no role, such
that no association between values and
offences would be expected (crime associated to opportunity factors or to
ethnics or genetic or psychiatric etc )”