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).
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.’
Law-Churning and the Sociologists
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 Court. 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
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.”
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”.
I have written before about this phenomenon of constantly changing and adding to the
law, which I call law-churning. 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.”
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
These “panics” used to be based largely on conservative
moral principles of right and wrong, and so were called by sociologists “moral
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.
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
(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
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’.”
will now give a selection of comments made on law-churning in the text of Amoral
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.
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”.
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”.
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
the organizing principle
of the politics of fear.”
Waiton goes on to explain how the sociological concept
of a moral panic developed in Britain from the work of Stanley Cohen in 1972. 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
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.”
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. 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”.
From Moral Panics to Fear of Risk
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.
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.
“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.”
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.
constant state of risk and fear. Frank Furedi’s
book Culture of Fear: Risk-Taking and the Morality of Low Expectations describes
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”.
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’”.
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”.
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
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
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
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.
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.”
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
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
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
“The Académie Française is not
meant to be representative of France in demographic terms, but representative of the
best of its intellectual endeavour.”
Bennion is an author, constitutional lawyer and draftsman of state constitutions. A former
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.
G. Gilmore, The Ages
of American Law (1977), p. 95.
R v Bradley  EWCA Crim 20 at ; (2005) The
Glenna Robson, “Fine Words Butter No Parsnips”,
172 JPN (March 22, 2008), 181.
See “Déjà Vu, or the Judge Addresses
the Society”, 170 JPN
(November 18, 2006) 888. See also Bennion on Statutory Interpretation, 5th edn 2008,
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.
. Pages 81-82.
See Cohen’s book Folk Devils and Moral
Panics: The Creation of the Mods and Rockers (London: Routledge
1972, republished 2002).
Page 107 (references omitted).
Philip Jenkins, Moral Panic:
Changing Concepts of the Child Molester in Modern America, New Haven: Yale
University Press 1998, p. 219.
This section is mainly based on pages 130-134.
Cassell 1997, revised edition by Continuum 2002.
Furedi’s thinking see further my review of his 2004 book Where Have All the
Gone? Confronting 21st Century Philistinism at www.francisbennion.com/2005/001.htm
Ungar, “Moral Panic Versus the Risk Society: The Implications of the Changing Sites
Social Anxiety”, British Journal of Sociology, Vol. 52, Issue 2 (2001), p. 276.
Bill Durodie, “The
Demoralization of Science”, Conference at Cardiff University on Demoralization,
Morality, Authority and Power, April 5, 2002.
See F. A. R. Bennion, The Sex Code: Morals for Moderns (Weidenfeld & Nicolson,
. The Observer, April 6, 2008, p. 36.