Article in Justice of the Peace

172 JPN (12 Apr 2008) 228

Doc. No. 2008.010

Introductory note by Francis Bennion

This article is a longer version of my review of The Politics of Antisocial Behaviour: Amoral Panics by Stuart Waiton (Doc No. 2008.009).

The following excerpt from Onora O’Neill’s Reith Lectures ‘A Question of Trust’ (Cambridge University Press, 2002, p 46) is relevant to this article:

‘An unending stream of new legislation and regulation, memoranda and instructions, guidance and advice floods into public sector institutions. For example, a look into the vast database of documents on the Department of Health website arouses a mixture of despair and disbelief. Central planning may have failed in the former Soviet Union but it is alive and well in Britain today. The new accountability culture aims at ever more perfect administrative control of institutional and professional life.’

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Law-Churning and the Sociologists

FRANCIS BENNION*

Introductory

Some years ago an American legal commentator observed that what he called “the orgy of statute making that characterises the regulatory state” had transformed the role of the US Supreme Court1. In Britain there has been an increasing tendency on the part of politicians to think it will benefit them electorally if they promote frequent legislation. Judges disapprove of this. Rose LJ, Vice-President of the Criminal Division of the Court of Appeal, said in 2005:

“It is more than a decade since the late Lord Taylor of Gosforth CJ called for a reduction in the torrent of legislation affecting criminal justice. Regrettably, that call has gone unheeded by successive governments. Indeed, the quantity of such legislation has increased and its quality has, if anything, diminished.”2

A commentator in Justice of the Peace recently complained that the British Government has become “a legislative and regulatory ‘junkie’ whose ‘fix’ is provided by yet another new Bill or policy announcement”.3

I have written before about this phenomenon of constantly changing and adding to the law, which I call law-churning.4 Now the sociologist Stuart Waiton has suggested another reason for this phenomenon to add to those mentioned above. In a book published this year he says, speaking of the British Government which came to power in 1997:

“Safety as a new ‘moral’ absolute under New Labour has developed apace, and the attempt to regulate social processes that appear to be beyond their control has led to more laws and more new crimes being created than by any other administration.”5

In this article I follow the trail started by that remark, which suggests that momentous social developments may underlie the complaint against law-churning. Contrary to usual practice, I do not here venture any suggestions for improvement. Sociology prides itself on being an objective science, based on accurate observation and theories drawn from that. For the information of lawyers, I am content merely to report on some of these important sociological theories.

Waiton’s book describes a change which sociologists perceive to have occurred during the past two decades in the moral/cultural attitudes that shape the state’s legislative and other governmental responses to what they call “panics”. Here we stumble on sociological jargon, but that is easily mastered. For Waiton and his colleagues a “panic” is what the OED describes as a sudden and excessive feeling of alarm or fear, usually affecting a body of persons, originating in some real or supposed danger vaguely apprehended, and leading to extravagant or injudicious efforts to secure safety. This may arise in connection with the misbehaviour of children, for example bullying, or threats to children, such as paedophilia. The sociologists cover a wide field however. In the past two decades they say the British public has got into “panics” over things affecting all age groups and ranging from AIDS to so-called mad cow disease, from binge drinking to raves.

These “panics” used to be based largely on conservative moral principles of right and wrong, and so were called by sociologists “moral panics”. Waiton detects a remarkable recent shift to factors not morally linked, such as a hankering for universal safety: hence the reference in his title to “amoral panics”. He gloomily concludes that the values of duty, chastity, sobriety and self-discipline that formed the basic standards of past moral campaigners are today felt to be alien – so much so that those who embody them are seen as a threat to “the new amoral and diminished norms”. I return to that point at the end of this article.

Waiton on Law-Churning

In Britain over the last two decades, Waiton says in the Preface to Amoral Panics, the move towards using laws and regulations to resolve society’s problems has developed at a relentless pace. According to him, little is said about the way that (as the reaction of authorities to genuine issues of concern about rising crime, or violence and abuse) this method of running society has come to dominate ahead of all others. He maintains that an acceleration of new laws took off under John Major in the early 1990s and has been speeded further under New Labour since 1997. He adds:

“In the UK it has recently been observed that almost unbelievably there have been over three thousand new laws introduced since Labour came to power – one for every day they have been in office.”

The purpose of his book, says Waiton, is to attempt to explain this development by examining what he calls the politics of antisocial behaviour. He ends his Preface by saying:

“New laws are introduced today, and old freedoms lost, with almost casual political statements or Bills that nonchalantly drift through Parliament. Before the 1990s for example the type of countries that were understood to have curfews were either authoritarian communist

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regimes, unstable states that were constantly under threat, or what were termed ‘tinpot dictatorships’. For a nation like Britain to introduce curfews on the streets at this point in time would have been unthinkable. By the end of the decade however, curfews had become not a source of embarrassment to Western leaders but something that both Bill Clinton in the United States and Tony Blair in the UK promoted. Blanket regulations of the night-time activities of young people were no longer a reflection of authoritarianism – but simply one of myriad initiatives to help improve ‘community safety’.”

I will now give a selection of comments made on law-churning in the text of Amoral Panics.

Waiton says that for many people the election of a Labour Government in 1997 after almost two decades of Conservative rule was a cause for celebration. It was recognized that the Labour Party, now promoted as “New Labour”, had changed. However there remained the hope, for some, that now Labour was again in power the authoritarian approach of the Thatcher and Major Governments would be reversed. As it turned out, however, the New Labour Government introduced more laws and regulations than even the previous Conservative Government – which itself had set a record for the amount of legislation passed.6

For example in relation to aggressive begging Tony Blair’s policy, says Waiton, was “to make the streets safe for everyone”. The reaction of John Wadham, the Director of Liberty, was to question the tendency by the Labour leader to see social problems as resolvable by “more laws, more criminal offences and more prosecutions”.7

Where the previous Labour Home Secretary Roy Hattersley, in the late 1980s, had made civil liberties the key test of the Government’s criminal justice legislation, Tony Blair argued on taking office in 1997 that “reducing crime had to be the first test and civil liberties the second”. All the building blocks for the politics of antisocial behaviour were, says Waiton, now in place. By 2006 the logic of micro-politics had resulted in over 3000 new criminal offences being created by the Labour post-1997 Government. This was a “frenzied approach to law making”. The present leader of the Liberal Democrats, Nick Clegg MP, said that nothing could justify the step change in the number of new criminal offences invented by the New Labour Government and its “obsession with controlling the minutiae of everyday life”.8

Waiton says that safety has become a new “moral” absolute under New Labour and the attempt to regulate social processes that appear to be beyond their control has led to more laws and more new crimes being created than by any other administration. He goes on:

“Relating to a more fragmented public there is simultaneously an attempt to reconnect with people through their fears. Safety has consequently become the organizing principle of the politics of fear.”9

Waiton goes on to explain how the sociological concept of a moral panic developed in Britain from the work of Stanley Cohen in 1972.10 Cohen’s analyses of the scare surrounding the Mods and Rockers fights in the early 1960s looked at moral panics in terms of what the Mods and Rockers represented in society. Rather than their actions being significant in themselves, Cohen argued, the Mods and Rockers were seen and treated as a symbol of Americanised affluence and youthful hedonism, rejecting old values like the ethics of sobriety and hard work.

“Cohen not only launched the term moral panic, but also was the first to analyse what he saw as the spontaneous collective behaviour involved in these panics, which were short-lived and developed outside of societies’ key institutions. The media exaggerated the problem; the police and courts were activated and pushed for more powers . . . thus escalating the issue; politicians denounced the fighting as ‘evil’ and called for new laws; local action groups emerged – a ‘germinal social movement’ to demand tougher remedies; and the public reacted to all of the above developments. The result: a fully-fledged moral panic.”11

In America so-called social constructionists have stressed the importance of the “victim” as a new moral icon. In one book the American Philip Jenkins pointed out that in the 1980s a whole new branch of the legal profession developed in relation to lawsuits undertaken on behalf of victims.12 Waiton says that this, rather than being a peculiarity of law, reflected the new child protection movement’s emphasis on the experience of the victim as part of a new “panic”.13

From Moral Panics to Fear of Risk14

Waiton says that since the early writings on moral panics much has changed, indeed the term itself has not only become an established sociological concept, but is used so widely that the specific features explored by Cohen are often lost. Left-wing sociologists once accused the right of raising moral panics over a wide variety of issues. Now some scares without particular moral content, such as those over BSE or “mad cow disease”, are treated in the same way as moral panics simply because of the fear factor.

According to Waiton, whereas panics in the past were often occasional, short-lived, focused on specific groups and activities, and generated by conservatives, today they arise in various sections of society and cover an ever-wider array of issues. Some, such as MMR vaccine, bird flu and the millennium bug, can be described as amoral rather than moral. He adds:

“Whatever the myth and reality of these ‘panics’, the language of ‘epidemics’ and ‘chaos’ used to describe them depicts a society that feels out of control, and expresses a deep sense of pessimism about the future. Rather than panicking being the preserve of reactionary traditionalists, it seems that to one degree or another we are all in a panic about something.”15

Waiton says that whereas moral panic theories like Cohen’s often analysed what were occasional outbursts within an otherwise stable or calm society, recent sociological theories have emerged that depict a more generalized and.

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constant state of risk and fear. Frank Furedi’s book Culture of Fear: Risk-Taking and the Morality of Low Expectations16 describes how “risk consciousness” has become widespread across our society. Occasional eruptions of fear have been replaced by a more cultural sense of unease. For Furedi this is, says Waiton, “an expression of a fundamental loss of belief in humanity, progress and the idea of active moral subjects, which has developed out of the collapse of both left-wing and right-wing ideologies and the failure of the political and social experiments of the twentieth century”.17

Waiton next gives us the views of the sociologist Sheldon Ungar. Whereas moral panic research, Ungar argues, is concerned with exaggeration of the perceived threat and the use of panics to engineer social consensus and control, with a risk society where accidents are unpredictable and uncontrollable this strategy does not work. A risk society has a “roulette dynamic”. Rather than moral order being created through worked-up scares, “authorities can find themselves carriers of ‘hot potatoes’”.18

Rather than “risks” being generated by an elite who attempt to promote an alternative moral order, Waiton says, Ungar “accurately illustrates the way many risks emerge outwith the traditional elite and can undermine rather than cohere the elite”. However Waiton criticises Ungar for accepting the idea that the risks in question are real. As with so-called moral panics, the interest lies in the reaction of authority to dangers that are more imaginary than real. Here Waiton cites Bill Durodie, who argues that there has been an “unprecedented convergence of the political left’s loss of faith in science and social transformation with the political right’s traditional misgivings”. This has lent itself to “a pessimistic outlook leading to the rise of an exaggerated risk consciousness”.19

Rise of Amoral Panics

Waiton says that instead of moral panics we now have amoral panics. He says these are “a form of moralising without any wider system of meaning”. They have emerged largely because of “a collapse in the ‘faiths’ of the right and left, that cohered society in the past”. In a table he contrasts nine types of social scare that formerly constituted a moral panic but now constitute an amoral panic. I will give a brief account of these.

1. Whereas a moral panic was a minority concern or reaction to a specific event or change in society, the corresponding amoral panic is a universalized sense of anxiety felt across society about myriad issues.

2. A moral panic was often damped down by key sections of the elite, but amoral panics tend to be generated and/or encouraged by the political elite.

3. Moral panics infrequently resulted in new laws and/or changes in institutional practices, but amoral panics often lead to major changes to law and/or institutional practices.

4. Moral panics were promoted by “old conservatives” who defended tradition, but amoral panics are promoted by “new conservatives” with a belief neither in the future nor the past.

5. A moral panic would attempt to defend a conservative morality associated with religion and nation, whereas an amoral panic involves a rejection of universal values and a promotion of “the etiquette of individual safety”.

6. Moral panics emerged at times of contest between left and right, but amoral panics are linked to the collapse of both left and right.

7. Moral claims faced political challenge, while amoral claims face little opposition.

8. A moral panic is predicated on a belief in the possibility of a morally responsible individual, while an amoral panic is predicated on a diminished sense of the individual and the emergence of the “vulnerable public”.

9. The “old Victorians” panicked about the loss of moral absolutes, whereas the “new Victorians panic over the very possibility of absolutes.

Nowadays, says Waiton, absolutes are seen as a problem because they exclude some individuals. They are perceived as both a barrier to much-desired “inclusion” and at the same time a dangerous basis for fundamentalism and conflict. In the absence of a coherent system of beliefs, “beliefs themselves become a basis for elite panicking”. I myself would give sexual morality as an example here. I felt so strongly about the absence of an ethical system in this field that I devised one.20

Waiton’s conclusion brings us back to law-churning:

“. . . society could be said to be in a permanent state of [amoral] panic. Key institutions . . . are no longer grounded – they lack what Bauman would describe as a ‘solid’ foundation from which to direct their policies. For them, a panic response has become ‘good practice’ as well as a way to engage the public – a new basis of legitimation. Every major tragedy and atrocity over the last decade and a half has, for example, led to new laws and initiatives that change the nature of institutions and their relationship with the public.”21

It might be added that often these changes are not properly thought out, being devised by ill-educated persons having little knowledge of, or respect for, the institutional past.

Comment

I do not find any reason to disagree with Waiton’s conclusion, which I find convincing. However the note on which I choose to end this foray by a lawyer into sociologists’ territory is struck by a quotation from him I gave earlier, where he said that old values are now felt to be alien – so much so that those who embody them are seen as a threat to “the new amoral and diminished norms”.

Here I think we need to remember that most of the new norms that are thrust upon us nowadays originate with politicians whose main concern is to be placed into positions of power by the votes of the masses. That is democracy; and we are all democrats now. However it has the inevitable consequence that more refined and elevated values developed by those whom many people scornfully dismiss as the elites fail to qualify. “We must educate our future masters” said the perspicacious Robert Lowe at the time of the 1867 Reform Act; and the Forster Education Act of 1870 duly followed. Neither it nor its successors have succeeded in raising mass education above a very low level however. That is the level

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our society is stuck with, will-nilly. The print and broadcast media ensure that we have no escape from it.

An example comes to hand as I complete this article. Mme Hélène Carrère d’Encausse, life secretary of the Académie Française, is reported as saying:

“The Académie Française is not meant to be representative of France in demographic terms, but representative of the best of its intellectual endeavour.”22

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* Francis Bennion is an author, constitutional lawyer and draftsman of state constitutions. A former UK Parliamentary Counsel and member of the Oxford University Law Faculty, he is currently a Research Associate of the Oxford University Centre for Socio-Legal Studies.

1. G. Gilmore, The Ages of American Law (1977), p. 95.

2. R v Bradley [2005] EWCA Crim 20 at [39]; (2005) The Times, January 17.

3. Glenna Robson, “Fine Words Butter No Parsnips”, 172 JPN (March 22, 2008), 181.

4. See “Déjà Vu, or the Judge Addresses the Society”, 170 JPN (November 18, 2006) 888. See also Bennion on Statutory Interpretation, 5th edn 2008, pp. 928-929.

5. Stuart Waiton, The Politics of Antisocial Behaviour: Amoral Panics, (hereinafter Amoral Panics), Routledge 2008, pp. 98-99. I am grateful to Dr Waiton’s important book, and the varied research on which it is based, for much of the information in this article.

6. Pages 15-16.

7. Page 66.

8. Pages 81-82.

9. Pages 98-99.

10. See Cohen’s book Folk Devils and Moral Panics: The Creation of the Mods and Rockers (London: Routledge 1972, republished 2002).

11. Page 107 (references omitted).

12. Philip Jenkins, Moral Panic: Changing Concepts of the Child Molester in Modern America, New Haven: Yale University Press 1998, p. 219.

13. Page 127.

14. This section is mainly based on pages 130-134.

15. Page 104.

16. Cassell 1997, revised edition by Continuum 2002.

17. On Professor Furedi’s thinking see further my review of his 2004 book Where Have All the Intellectuals Gone? Confronting 21st Century Philistinism at www.francisbennion.com/2005/001.htm

18. Sheldon Ungar, “Moral Panic Versus the Risk Society: The Implications of the Changing Sites of Social Anxiety”, British Journal of Sociology, Vol. 52, Issue 2 (2001), p. 276.

19. Bill Durodie, “The Demoralization of Science”, Conference at Cardiff University on Demoralization, Morality, Authority and Power, April 5, 2002.

20. See F. A. R. Bennion, The Sex Code: Morals for Moderns (Weidenfeld & Nicolson, 1991).

21. Pages 140-141.

22. The Observer, April 6, 2008, p. 36.