- Category: In brief
- Last Updated: Wednesday, 08 October 2014 09:50
- Published: Sunday, 27 July 2014 23:09
- Written by Keith Shier
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“A people permanently occupying a fixed territory bound together by common habits and custom into one body politic exercising, through the medium of an organized government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace and of entering into international relations with other states” (West's Encyclopaedia of American Law cited in thefreedictionary.com).
The above definition is the starting point in outlining how the term “the State” is understood within the context of this article. The only issue that may require clarification relates to the notion of “independent sovereignty and control”. While this phrase is largely true there are, possibly, certain exceptions. For instance European Union (EU) members are obliged to integrate certain directives into their national laws, for example the 2002 Waste Electrical and Electronic Equipment directive (Sander, Schilling, Tojo, Rossem, Vernon & George, 2007). In terms of wider international laws, there is some debate as to whether these laws can be truly said to supersede those of a nation state. The issue usually relates to whether or not international laws must first be adopted into national legislation as set out by that nations constitution. However, a widely accepted and rapidly spreading stance on this is The Kelsian Theory, which purports that International law takes precedence, and even if a nation’s constitution prevents it from implementing international laws domestically, this failure will trigger the nation’s international responsibility and incur sanctions (Kelsen in Anon, 2013).
In 1979 Louis Henkin documented that: "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." ( in Koh, 1997).This statement has been deemed to be quite accurate and it has since been proposed to be largely due to either nations feeling that the international rules are fair and beneficial or due to the cohesive, functional dynamic of the treaty regimes in place and not because of any threatened sanctions (Koh, 1997). However recent events such as the expansion of settlements in the West Bank of Israel and atrocities carried out by the Assad regime in Syria may undermine this theory and show that there is ambiguity over modern states “complete” sovereignty.
The State as creator of legislation, therefore defining what is criminal and being the executive enforcer of crime control and the criminal justice system, leads to a very specific set of acts and behaviours being conceptualized as harmful crimes most in need of being controlled. Reiman (1979 in Sutherland, 2013) illustrated by use of his “carnival mirror” metaphor how the State not only exaggerates the harm of street-level crime but also distorts the perception of harmful corporate acts and fails to treat them as crimes.
As mentioned above, a State requires sustainability. This involves creating and maintaining an economy to generate the capital necessary to function and progress. The state’s role in relation to economic activity can vary greatly. In many Western States there has been a shift toward neo-liberalism in which free trade, deregulation and privatisation are actively promoted. This involves a reduction in government control of the economy (Taylor & Jordan, 2009) but still leaves the state in the role of defining and regulating economic and corporate criminal activities.
The increasingly neo-liberal attitude of Western societies that drives the free market has led to an interesting dynamic developing. On the one hand, the State must act as the sole regulator to ensure businesses adhere to legal operations, on the other the repositioning of capital from the public to the private sector means intense regulation could reduce the benefits to the economy (Coleman, Sim, Tombs & Whyte, 2009). Mahon (1979 in Coleman et al, 2009) describes how regulatory bodies are created to resolve conflicts that develop between those with opposing interests (largely class-based conflicts) in order to maintain social order. Snider (2000 in Coleman et al, 2009) highlights that as the moral legitimacy of business organisations, or as he puts it ‘the social credibility of capital’, has increased, it diminishes the room to manoeuvre in calling for greater regulation and further tends to remove corporate crime from state agendas. This means that the simplistic notion of the ‘regulatory’ state versus corporations has become very imaginary and in actual fact the relationship between the two is a complex and symbiotic one.
This structure has led to a plethora of business conducts and activities that have been quite harmful to individual members of society being described as ‘breaches of regulation’ rather than being termed ‘criminal’, the latter being a label more true to their nature. An obvious example is the casino capitalism and investment gambling that led to the latest financial crisis and, for Ireland, an 85 billion euro bailout in which the burden of repayment was absorbed almost wholly by the state, thus ensuring it was paid at the expense of the taxpayer.
The case study of the Paducah Gaseous Diffusion Plant in Paducah, Kentucky in the USA (Bruce & Becker, 2007) is one of only a few pieces of research that focuses on State-Corporate crime, specifically on how the State can not only facilitate but also instigate crime. The study came about as a direct result of the media uncovering how the US Government and company officials were actively covering up serious health and environmental misconduct at nuclear facilities (Bruce & Becker, 2007). The plant was owned by the US Government but its operations were contracted out to a private company. The falsifying of health and safety reports at the plant led to workers being exposed to high levels of radioactive materials and they were consciously under-educated as to the harms associated with these substances (Office of Oversight, Environment, Safety and Health, 2000, in Bruce & Becker, 2007). Later reports highlight that workers at the Paducah Gaseous Diffusion Plant had annual exposure to radiation levels twenty times higher than what is now considered safe, and ten times as many cases of leukaemia than the average population (Warrick 1999, in Bruce & Becker, 2007).
The US Governments’ motivation for actively subduing crimes related to Health, Safety and the Environment lay in their need to be seen as the leading nation in nuclear development during the Cold War period (Duffy 1997, in Bruce & Becker, 2007).
Modern Western industrialised neo-liberal societies, particularly the US, Britain, and to a lesser extent Ireland, have been characterised by increasingly ‘tough on crime’ policies (Coleman, 2009). These policies have been incredibly targeted and only relate to a small proportion of all crimes committed, specifically ‘street’ level crimes. The stance that the State takes on crime undoubtedly affects the perception of criminality held by members within that society. The political necessity of being ‘tough on crime’ in the US, Britain and Ireland has been a factor in a hardline, retributive attitude in relation to punitive sanctions for criminals. This has been strengthened by the mostly symbiotic relationship between ‘tough on crime’ governments and a private media industry that has made an incredibly profitable business model off of the statistical over-reporting of sensationalist violent crime (O’Brien, 2007). By essentially demonising one category of offenders and relatively ignoring entire other cohorts of individuals engaging in crime, a State can increase the stigma associated with a type of crime so much that it leads to social exclusion. Many of these ‘street level’ crimes are highly linked to poverty and social disadvantage, being either drug related or petty theft and burglary, an industry that can at times be the only viable source of income for the extremely impoverished (Suede, 2011).
Up to a point, the democratic state can only criminalise and, as importantly, publicly condone that which its members will allow it to. What becomes criminal and what is de-criminalised should ideally represent the general consensus of the public, a difficult balance to acheive. In an Irish context, a great example is the legality of contraceptives. Contraceptives, namely the diaphragm, condoms and spermicides had been made illegal by laws enacted in 1929 and 1935 (Anon, 2001). The influence of the Catholic Church and a conservative public allowed this to remain in place and largely unchallenged until the ‘contraception revolution’ of the 1960’s. By this time a popular movement was calling for the lessening of restrictions on birth control. However, there was still a highly conservative and influential sector of society that was concerned that any liberalisation of contraceptives would lead to a lessening of morals in society (Drennan, 2012). The State’s position only changed in 1979 when the new government decided it was politically viable to change the tone of the discussion from one of morality to that of health, family planning and regulation, stressing that new legislation would ensure they were only available through authorised channels (Drennan, 2012).
The above helps to illustrate the changing nature of social norms and social censures, and the resulting evolution, in the true Darwinian sense of adaptation, of criminal laws over time. This forming and reforming of criminal law can take time to develop. Governments’ are constantly under pressure to respond to these changes in society, which will be stronger and occur faster among certain demographics than others. This can lead to important issues of criminal legislation being ‘shelved’ and subsequent governments failing to clarify or address certain issues, such as the ongoing debate surrounding abortion in Ireland.
The State’s role in relation to criminal law is not a singular one. A nation is itself a complex eco-system and while its criminal law serves a multitude of functions, which vary over time, the overarching aim should be to ensure a sense of security and stability. The criminal law of a State should allow its’ people to feel safe while still allowing enough liberties to enable the majority of citizens, who have varied beliefs and interests, to live productive lives relatively free from feelings of intrusion or persecution.
Anon (2001). The day we drove the condom train straight through de Valera's Ireland. Viewed 30/01/14: http://www.independent.ie/unsorted/features/the-day-we-drove-the-condom-train-straight-through-de-valeras-ireland-26248644.html
Anon (2013). The Implementation of International Rules Within The National System. 30/01/14 Viewed : http://www.google.ie/urlsa=t&rct=j&q=&esrc=s&source=web&cd=7&ved=0CFQQFjAG&url=http%3A%2F%2Fhome.aubg.bg%2Ffaculty%2Fnbentz%2FInternational%2520Law%2520and%2520Organization%2FClass%2520preparation%2520and%2520lecture%2520outline%2FThe%2520Implementation%2520of%2520International%2520Rules%2520Within%2520National%2520Systems.doc&ei=4rzfUsT1JIvA7Abkg4CADQ&usg=AFQjCNEx1Ni5aqRn2APDXFJlRTLR9xlluA&bvm=bv.59568121,d.ZGU
Bruce, A & Becker, P. (2007) 'State-Corporate Crime and the Paducah Gaseous Diffusion Plant', Western Criminology Journal, 8(2), pp. 29 - 43.
Coleman, R. (2009) 'Policing the working class in the city of renewal: the state and social surveillance', in Coleman, R., Sim, J. Tombs, S., Whyte, D. (ed.) State Power Crime. London: Sage Publication, pp. 62 - 75.
Drennan, J. (2012) Standing by the Republic, Dublin: Gill & Macmillan.
Koh, H. (2007) Why Do Nations Obey International Law?. Viewed 30/01/14: http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2897&context=fss_papers
Sander, K., Schilling, S., Tojo, N., Rossem, C, V., Vernon, J., George, C. (2007) The Producer Responsibility Principle of the WEEE Directive. Sweden: Europa.
Suede, Michael. (2011). “Victimless Crime Constitutes 86% of The Federal Prison Population”. Libertarian News. Viewed 30/01/14: http://www.libertariannews.org/2011/09/29/victimless-crime-constitutes-86-of-the-american-prison-population/
Sutherland (2013). Crimes of the Powerful: Theories of White Collar Crime. Viewed 30/01/14: www.sagepub.com/upm-data/38171_11
Taylor, C., & Jordan, G. (2009). Neoliberalism: From New Liberal Philosophy to Anti-Liberal Slogan, Studies in Comparative International Development (SCID), Volume 44, Number 2, 137–161.http://people.bu.edu/tboas/neoliberalism.pdf
thefreedictionary.com (2013) State. Viewed 30/01/14:http://legal-dictionary.thefreedictionary.com/state
Keith Shier........completing a Masters in Criminology, University College Cork.