Wednesday, August 4, 2010


We continue reviewing the 1986 book entitled “The Politics of Victimization” by Robert Elias, then of Tufts University.*

Elias quotes Ivan Illych, a 1960s world-type guru: “The law is used to impose a given mindset on all participants. The resulting contend of the law embodies the ideologies of the lawmakers and judges. How they experience the ideology inherent in a culture becomes established mythology in the laws they make and apply”. (p.27)

There’s a lot more here than meets the eye.

Illych, whom Elias approvingly quotes, is doing a couple of things here, and none of them bode well (nor, being adopted, have they worked out well) for American Constitutional principles and law.

First, Illych is embracing a form of legal ‘positivism’. This doesn’t mean that laws are ‘positive’ in the sense of upbeat or good; it means that law is ‘posited’ or brought into being by the lawmakers who make it. If you think of it as ‘posited’ law you’re probably going to be closer to what the idea of ‘positive’ law really is.

This, however, means that there is no Higher Law coming from a Lawmaker or from any Source higher than the lawmakers themselves; there is no ‘natural law’ or ‘natural Law’ to which human (lawmaker-made) laws must conform if they are to be valid.

The Western tradition had reached a high-point with the achievement of the Medieval synthesis: God had created the world and made its (and His) principles accessible to human Reason – therefore the law-maker (and the ruler) wants to first arrive at an awareness of what this Higher Law requires, and then pass laws that are b) workable in the local jurisdiction but that also a) conform to the Higher Law. Otherwise, said the Medieval synthesis, a law that contravenes or is not in conformity with the Higher Law does not enjoy the authority of ‘law’ at all and can – perhaps must – be disobeyed.

As the unitive influence of Christendom waned after the Protestant Reformation and the wars of religion, and as ‘Science’ began to grow in cultural authority, legal thinking tried to achieve the same results without the ‘God’ part: you want to make laws that conform to Reason (but nothing about where Reason comes from or what Grounds it and gives it its authority).

You could get away with this for a while in the afterglow of the Medieval synthesis: Reason sort of replaced God but folks were still used to the idea that there was some Source of Law that gave it its authority to which even governments and elite legislators and law-makers must conform.

But then, coming into what historians call the Modern era, there was much more disagreement as to what Reason required or what it actually ‘said’.

There was still a lot of support for the idea of ‘natural law’: that there is a law built into the nature of human existence … this was again sort of a Medieval synthesis without any God: ‘nature’ became the replacement for ‘God’. You can see the effect of this in Constitutional thought and in Jefferson’s justifications for “inalienable rights” and “human dignity” in the Declaration of Independence: no earthly government can interfere with the rights and dignity of humans because those rights and that dignity were grounded in the ‘natural law’ of human existence itself.

But there were now not only folks who disagreed about the nature or will of God (as in the Protestant Reformation and subsequently) but also lots of thinkers who felt that there may well be no God at all, but there was human Reason instead.

And after some curves and twists and turns, Legal Positivism came along in the 19th century (after the Constitutional founding and after the Framers’ generation): some thinkers gave up on any Higher Law at all, whether from Nature or from a God. Instead, they figured, there was the actual power of a government, and that government (monarchy, republic, tyranny, or what-have-you) would make such laws as it made, and those laws had their authority (merely) from the bald fact that the government in that jurisdiction had made them.

So, in the Positivist view, a law is what it is. Its authority comes from the authority that made it, and that government is the ‘source’ of the law. And that government can change laws, or it can make new laws, and they will be authoritative because of the government that made them. And if that government changed a law – or even abolished it – then that was OK too. Government was the ‘source’ – and the only source – of law’s authority; a law did not have to ‘answer to’ or ‘conform to’ any Higher Law; and neither did the government that made it.

You can see where things could go wrong with a theory like this: a government could do what it wanted to. It didn’t have to ‘answer to’ any higher Authority or conform to any higher Theory. Of course, prudence would dictate that the government should use its huge authority wisely, and as ‘democracy’ began to spread after the American Constitution set an example, then The People or their elected representatives would actually have some control over the making of the laws that would govern them.

Although the French Revolution raised up the idea of “Reason” almost to the level of idolatry: Reason in that view was almost a living force (there was even a ‘Goddess of Reason’), but that force would reveal its wisdom only to the elites of the Revolution, and they would make the laws.

Things started to get wayyyyy complicated.

Karl Marx in the mid-1800s saw the whole of human existence as governed by the economic and the material concerns, a kind of very this-worldly approach. By the time of the Communist Revolution of 1917 those leading Communists – adults who had read Marx when they were young – under the guidance of Lenin picked up on the themes of Positivism (a law is what the government says it is), Marx (the only forces that govern human history are the economic forces of this world), and Lenin’s particular take on an elite Party whose cadres grasped the ‘reason’ of the Revolution, a ‘wisdom’ that had the force of Reason because it held the true key to ultimate paradise on earth and in human history.

What all this has to do with the SO community is that the radical-feminist movement, looking for some sort of conceptual scheme that would ‘justify’ its demands, adopted Marx by taking large chunks of his vision and simply substituting ‘gender’ for ‘class’: thus,‘capitalism’ in Marx became feministical ‘patriarchy’; ‘capitalists’ became ‘men’; ‘the workers’ became ‘women’; and the oppression that capitalists did to workers through dominating them economically, men did to women through sexual and physical domination and violence.

And you can see where things were bound to go.

Illych tried to use Marxism – still a viable theory in the 1950s and 1960s – to crack open more space for folks to get a bigger slice of the pie and a bigger grasp on life in general, and it was well-intentioned.

But once you get – here in America in the 1960s and since – a gambit whereby Marxist theory is introduced into a Constitutional Republic and a democracy based on the deliberative participation of The People … then you were going to create huge and deep cracks in the very foundations of the polity.

Marx and Lenin envisioned genuine ‘class war’ that would bring about the ‘revolution’ whereby the workers – under the guidance of the ‘vanguard elites’ of the Party – would rise up, demand their rightful authority and piece of the pie, and thus everything would turn into the Workers’ Paradise and Heaven – so to speak – would enter history and come to earth.

Translated by feministical alchemy to America, this meant a ‘gender war’ whereby ‘women’ would overthrow ‘men’ under the guidance of the vanguard cadres of feminism, turn the tables on the ‘patriarchy’, get what was rightfully theirs that had long been denied to them, and it would be ‘paradise’.

And but of course, this being a revolution and all, some “eggs would have to be broken to make the omelette” (as the Commies used to love saying). And again, the SO community now understands how History can get up-close and personal even when it seems so far away.

What has been bothering me for quite a while is that the Beltway pols bought all of this, especially in the decade of the 1990s when – ironically – the homeland of Marxism-Leninism and its entire system collapsed under the weight of such a frakkulously wrong and violent regime.

And then Illych echoes the idea that the only dynamics that grant laws their public aura of ‘rightness’ are ‘myths’ that grow up around them. There is no Higher Law and no Higher Reality, so the laws don’t have to conform to any of that; there is no Higher Law-giver either. People simply ‘get used to’ the laws and how they are applied, not because the laws might be ‘right’ or ‘rightly applied’ but simply out of force of habit.

And it is precisely here, says Illych, that ‘change’ can be effected: by ripping aside the veil of the people’s ‘myths’ and imposing the bright light of the revolution’s (whatever revolution you’re into) ‘reason’. And maybe the faster the better; because your average folks are like ‘muggles’ in Harry Potter: they really just don’t get it and the best thing to do is to maneuver them where they really need to go. (In that sense, I would say, Dumbledore is a better guide than Marx or Lenin or Illych or the feministicals: he had a deep respect for the ways of those who ‘just didn’t get it’ and still respected them).

Elias then does some more thinking out loud and spills more beans.

In a “democratic pluralist” approach, the criminal law reflects the preferences of ‘the people’; it is presumed that the preferences of the people and the shaping influence of their elected representatives and the work of general “public interest groups” will be enough to provide a workable and proper criminal law for a society. (p.29)

BUT, he quickly goes on, “many dispute the pluralist view” (p.29) And let’s not forget that the ‘democratic pluralist’ view is the one that has been the national ideal since the Founding.

Those who dispute it think that it’s “largely ineffective” and that you need more than those “public interest groups”. Since there are “special interest groups” that can concentrate their energies specifically to get what they want, then “special interests may largely dominate lawmaking, policymaking, and public opinion, marshalling the resources to wield the most effective political power”. (p.29)

So it’s not enough merely to establish solid and widely-known “definitions” of crimes or “criminal definitions”, because those “special interests” are actually “dominant interests” that will “dominate” how the laws and definitions are applied. (You can hear echoes of Marx already.) And these special interests may even help shape public opinion to support their “world view”… “even when it serves public interests far less than their own” (Ditto Marx.)

And since the “public” can be manipulated subtly to abandon its own interests, then clearly, of course, the public’s opinion cannot be fully trusted (or – although he doesn’t say it – respected).

Furthermore, there is an “ideological” element to all of this: dominant interests may well get to say what is and isn’t an important crime. (p.30) And you can see where Victimology and radical-feminism are starting to converge here – because suddenly ‘sex offenses’, broadly and vaguely defined are going to become the most awful of all crimes because ‘everybody just knows it’.

In a subsection a bit ominously entitled “Evolving Needs” he then says that “Some believe that official definitions of [crime and] victimization emerge from power and struggle, which powerful economic interests may dominate”. (p.30) You can again see the curious fusing of Marxist and criminal-law thinking, working toward a vision wherein dominant economic interests (patriarchal?) get to say because of their power what is and isn’t an important crime (and ‘victim’), and that “struggle” is required to fix this problem.

Whereas Elias tries to keep the Marxist thing going – that it is actual economic elites who try to keep the ‘poor’ and ‘working classes’ down by defining crime in such a way as to enable the state to control those classe, and that it is white-collar and economic crime that should be a focus of the criminal law – you can see quickly, from the vantage point of a quarter century, that American radical-feminism and ‘governance feminism’ was going to skip the Marxist economics and make ‘men’ the oppressing gender, upon whom the tables need to be turned by the radical-feminists themselves becoming a politically organized “special interest” and turning the criminal law against the oppressor class of ‘men’ by going after sex-offenses.

(And looking at what has happened to the economy, you can also see how vital it was to keep a close eye on that ‘white collar crime’, and what happened when the government police power let the Wall Street ‘white collar’ crowd run wild while it focused its attentions on ‘sex offenders’.)

Again, while Elias is trying to make the case for expanding the criminal law and its application to make ‘white-collar’ and ‘economic’ crimes more important and substantial, you can see where the American radical-feminists had another idea altogether: to make ‘male’ crimes – ‘sex offenses’ – vastly more significant a part of the national criminal law policy. And – I would add – in the process that radical-feminist advocacy, joined with certain Rightist law-and-order elements, took Elias’s Victimology in a whole other direction: into ‘sex offense land’, leaving the white-collar folks to play on their own in the Wall Street sandbox.

And in the process a “special interest” was raised up that functioned as dangerously as the dominant-economic special-interests that Elias himself had originally been talking about.

Elias is still trying to make his somewhat Marxist case for treating, say, negligent mine owners as far more dangerous criminals than lower-class violent offenders: while We recoil at the thought of one murder every 26 minutes in this country, he says, yet there is no concern for one workplace death due to injury or work-induced disease every 4.5 minutes. (p.32)

But these workplace deaths, he says, should be “predictable and preventable”. (p.32)

And you can see, right here, where the American crime-oriented Victimology would try to ‘predict’ and ‘prevent’ crimes (especially sex crimes), while Elias was talking about using the criminal law to buttress policies to prevent workplace injury and disease.

He uses an example: suppose the Ford Motor Company decided quietly that it would be cheaper to pay off a predictable number of families a predictable amount of money for fatalities caused by a certain defect than it would be to recall a whole lotta cars and fix the defect. (p.32) Is it right that this be considered merely a ‘business decision’ and not an actual crime?

I have something of an automobile image myself: suppose you as a legislator want to make a big bunch of potential voters as happy as you can. You let your office get involved with a bunch of folks who want ‘dangerous drivers’ off the roads; drivers who, say, ‘use their cars as a weapon’.

So you help them get media attention for the rare, rare case where a driver – in a fit of rage or lunacy – actually uses his motor vehicle as a weapon to purposely ram and harm somebody.

Well and good. But then that sort of thing doesn’t happen very often so you’re not going to get much bang for your buck, not many voters for the energy you’ve invested. So you expand the definition of ‘using a car as a weapon’ to include just about anybody who causes a motor-vehicle accident or has a motor-vehicle accident or who gets a ticket. NOW you’ve got some numbers!

Then you want to play up the ‘harm’ in order to keep up public sympathy and concern. And you also want to keep focusing on the grisly crashes so that folks think they happen all the time, while also quietly corralling all the accident-involved or ticketed drivers.


In fact, Elias will get to that: referring again to “some thinkers” he suggests that Victimology should not accept conventionally-defined and prioritized crimes in the first place. Instead, victimologists “could begin defining victims and victimization using broader criteria, perhaps from some general theory of the state or from universal human rights” (p.34) (Which, you may recall, is exactly what Martha Nussbaum tries to do in her article 20 years later.)

That “general theory of the state” would include what you can call the Regulatory-Preventive State or the Nanny State, whose role is not simply to keep a level playing field for mature and adult citizens to work out their lives and express their energies, but rather is expected to be as intrusive as a mother at a breakfast table of squalling infants, arranging who gets what and so forth according to her own indisputable and un-appealable decision-making wisdom.

In such a theory, Legal Positivism – that a law derives its authority solely from the power of the government that makes it – works just fine. What Mommy says goes ‘just because’ and what the government says goes ‘just because’.

But that’s not the recipe for a Constitutional Republic, a democratic polity, or a politically competent Citizenry.

The “universal human rights” approach would state that there are some universally recognized “rights” that all humans have. But that’s not compatible with Legal Positivism: if some government in the world makes laws, who is to say that it can’t or that its laws are ‘wrong’?

And if just one government doesn’t recognize those “rights”, then by your definition they are precisely not “universal”.

(This is going to be a problem if American victim-oriented feminism seeks to extend itself into other countries and cultures, although the American media haven’t really gotten into the problem very much.)

So such approaches are going to run into the very defects of their theoretical virtues: what gives Victimology – as a ‘science’ or a ‘movement’ – the right or the authority to tell a government or a culture that it is not defining ‘victimization’ broadly enough and that it needs to change?

This is where “special interest” consciousness-raising and horse-trading would come in, but as I’ve said above, you wind up going down that road and you become a manipulator (and not just an educator) of public opinion, and the SO community can bear witness to just what frakkulence follows from a political agenda that seeks to bypass the opinion of those who ‘just don’t get it’ and get legislators to impose laws regardless of how poorly conceived or unworkable they are.

Which is pretty much where this country is now.


*My copy is the paperback version put out by Oxford UP in 1986. It bears the ISBN 0-19-503980-7. It will be unwieldy to include both Chapter Titles and sub-headings as well as page numbers, in case you have a different edition. I will stick to only using page references when I make quotations, but for especially important points I will do so.

No comments:

Post a Comment