A state-fostered climate of fear and loathing

A new book on criminal law in Britain persuasively argues that the more the state seeks to protect us from each other, the more we believe we have something to fear.

Tara McCormack

Topics Books

Security, wrote Karl Marx in On the Jewish Question, ‘is the highest social concept of civil society, the concept of police expressing the fact that the whole of society exists only in order to guarantee to each of its members the preservation of his person, his rights, and his property’. Thomas Hobbes, one of the key thinkers about the problem of authority and legitimacy in early modern society, argued that men sacrifice some of their liberty in order to join together in civil society and ensure their security. Hobbes famously described a state of nature in which there is no security and life is nasty, brutish and short. That is to say, bourgeois society assumes atomised and egoistic individuals who need protection from each other. The security of the individual and property is therefore quite central to this specific social order.

As Peter Ramsay observes in his new book, The Insecurity State: Vulnerable Autonomy and the Right to Security in the Criminal Law, UK criminal legislation has steadily expanded in the past two decades based upon the assumption that the individual has a right to security. More and more conduct has been made subject to threats of state punishment. And key to this expansion is the anti-social behavioural order, or ASBO. (Although the ASBO is itself is actually a civil measure, the breaching of an ASBO is a criminal offence.) Given the premises of liberal capitalist society and the centrality of the security of the individual and property to this particular social order, should the introduction of the ASBO (or the broader expansion of the criminal law) surprise us? Certainly, a great deal of critical academic commentary has tended to understand this ever-expanding realm of security as a way in which liberal societies are governed – that is, business as usual.

But Ramsay, senior lecturer in law at the London School of Economics, argues that the ASBO does not represent business as usual. It is, in fact, representative of a profound change in the nature and role of the state. His book not only serves to illuminate a very particular and peculiar state measure, but also illuminates the crisis of the state that has given rise to it. In essence, Ramsay argues that the ASBO plays a key role in an attempt to forge a new relationship between the government and the governed in a context in which old sources of authority and legitimacy have eroded. (It should be noted that the Lib-Con coalition government has reformed the ASBO and replaced it with very similar measures, so this discussion is not simply a point of historical interest.)

The ASBO was introduced by the New Labour government in 1998. It was New Labour’s first major contribution to the criminal-justice system and its flagship policy. At first glance, the ASBO appears to be straightforward. Ramsay argues that it has generally been understood as a way of punishing offensive behaviour. European campaign group Statewatch, for example, argues that the ASBO is a way of criminalising previously non-criminal behaviour. Ramsay constructs a rigorously supported case that this understanding of the ASBO is incorrect. In fact, the ASBO is about ensuring a subjective sense of security. Do such conclusions matter beyond the confines of legal scholars? I would argue that it does, both in terms of the nature of this particular measure and the nature of the state that has given rise to it.

Let us look in more detail at what the ASBO is. Ramsay constructs a detailed argument that the ASBO is substantively different from the normal kind of criminal measure. Rather than protecting property or people from objective or real threats, the ASBO is about intersubjective relations between citizens, about protecting people from the fear of crime. Drawing upon detailed legal discussions and cases, Ramsay demonstrates that the ASBO is aimed at behaviour that manifests a disposition that fails to reassure others about their future security.

The ASBO has many intrinsic features that mark it apart from the ordinary criminal law. For example, it is aimed at the behaviour and/or potential behaviour of a specific individual, whereas normal criminal law is (in principle) general. Therefore, the friend of the ASBO bearer can engage in exactly the same behaviour without any prohibition. The ASBO is not necessarily aimed at behaviour that is threatening or that is motivated by any kind of intention to harm. Also, the liability for this ‘wrong’ can be for conduct that is not unlawful in itself. The ASBO is, furthermore, preventative, based, as it is, on the possibility of future action.

The ASBO is, then, a speculative measure based on an assumption about the future disposition of a specific person, or as Ramsay puts it: ‘Liability to an ASBO arises when a person manifests a disposition that fails to reassure others about their future security.’ (It is important to note that the ASBO is not unique; a number of similar measures have been developed in recent years that are aimed less at objective, concrete threats than at ensuring subjective feelings of security.)

So how do we account for this peculiar administrative measure (and similar measures)? There are two key, and related, changes that allow us to begin to put the ASBO in context and which the ASBO seeks to address. Firstly, there is a significant change in the relationship between the citizen and the state. Secondly, there is a change in the way that the individual is conceptualised by the state. It is in this context that the ASBO was and is a key part of an attempt to forge a new relationship between the state and the citizen based upon specific rights and responsibilities.

Labour’s criminal-justice policies were a response to a weakening of public confidence in criminal justice and a sense that people could no longer be expected to behave in normal and decent ways. There was a growing sense among people that society was disorderly and threatening. Ramsay provides a fascinating quote from former Labour home secretary Jack Straw describing the way in which the complaints of his constituents had changed since he was first elected in 1979. Then, complaints had been mostly about housing and services; in recent years, however, the complaints had become mostly about the behaviour of others.

Crucially, we see a gap opening between the state and citizens. Citizens no longer feel that the state can do what it says it will. So although the expansion of the scope of criminal law seems authoritarian (and, indeed, will be directly experienced as authoritarian), the state itself is weak. Ramsay demonstrates how the ASBO is premised on a problematic understanding of the breakdown of state authority, in which citizens call into question the state’s efficacy. It lacks authority; it is no longer sovereign.

The ASBO is premised, therefore, on a particular understanding of the individual as vulnerable, as in need of protection from the fear of crime. The expansion of the idea of the vulnerable individual is something that has long been noted on spiked and it was the premise for much of New Labour’s criminal policies and social policies.

Ramsay locates the ASBO in New Labour’s re-conception of citizenship and its resultant criminal justice and social policies. It became part of Labour’s broader policies in terms of civic renewal and social cohesion. Of course, the ‘normal’ criminal law that protects property and person is ultimately about social cohesion in one obvious way – that is, the maintenance of a specific set of social relations. But the development of ASBO-style measures represents something substantively different. In essence, the ASBO is part of the way in which the New Labour government attempted to construct a new kind of contract between the citizen and government. The ASBO then seeks to fill the gap left by the erosion of the old social bonds and institutions; citizenship is made conditional upon rights and duties of minimum obligations of civility to each other.

The New Labour government was not the first to grapple with these problems; John Major’s Conservative administration did, too. In fact, it is during the 1980s that we see the beginning of the decline of public engagement and the erosion of political support for the state, combined with a breakdown of the postwar consensus and the apparent shift away from the welfare state. These trends have gathered pace in the past two decades. Today, it is an established fact that Western democracies are experiencing falling voter turnout and rising public distrust and disengagement. Polls repeatedly show that people also feel that crime and disorder is on the increase, despite an actual fall in crime rates since the 1980s – a trend the recession has notreversed.

So where does this leave us? The first point to make is that reconstituting state authority and legitimacy and attempting to achieve civic renewal on the basis of fear and vulnerability is a bleak and bizarre project. The more that the state seeks to protect us from each other, the more that we believe that we have something to fear from each other and demand state protection. But this is also an irrational project, even in the state’s own terms. By taking more and more upon itself and attempting to mediate all informal social relationships, the state becomes less and less able to deliver on its exponentially expanding role. This is a project that can only undermine itself.

However, this is not just a top-down problem that can be resolved by demonstrating the illiberal and problematic nature of these measures. This is where the problem is more complicated. The ASBO has been popular, it has been legitimate, and it reflects a sense of unease, fear and a related sense of intolerance towards behaviour that we find unpleasant, annoying or inconvenient. Related to this is an increasing reluctance to deal with things informally because, broadly speaking, people no longer believe that informal sanctions or requests work. There is a sense that things are always on the edge. Without a doubt, state policies certainly increase and serve to justify our sense of fear and estrangement from each other, but they do not create it; the ground is already fertile.

I would argue that the smoking ban and the proliferation of bans on hitherto legal activities, such as drinking in public places, are also part of the same dynamic as the ASBO (and similar criminal measures). Again, there is no general outcry against such illiberal policies. In fact, they are pretty popular. It is still astonishing to me that smoking in enclosed ‘public’ places was banned on spurious health grounds, and with barely a whimper of protest. These measures enjoy legitimacy and that is not simply because of government messages.

The broader question, then, is how to make the case for freedom in an age in which it is not seen as important, an age in which the principle of freedom is no longer an obvious one. All too often, people are happy to see the liberty of others taken away if those people are doing something that they find to be disturbing or even just annoying or inconvenient. Arguments for freedom have less purchase in this anxious and intolerant age. One of the first steps, however, is to understand the particular nature of what is going on today. To this project, Ramsay makes a valuable contribution.

Tara McCormack is a lecturer in international politics at the University of Leicester. She is author of Critique, Security and Power: The Political Limits to Critical and Emancipatory Approaches to Security, published by Routledge. (Buy this book from Amazon(UK).)

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