Doing Research into Comparative Criminal Justice David Nelken
divest at least part of its responsibilities in this sphere,1 has much less relevance to societies in Continental Europe where in some respects it is only now that the responsibility of the State to protect its citizens from street crime is beginning to be taken seriously. In Italy for example until recently the emphasis was always given to the relatively more serious threats facing the state from terrorism, corruption and organised crime. Conventional or street crimes, from burglary to robbery, were termed ‘micro-crimes’. Matters changed only with the arrival of foreign immigrants in considerable numbers for the first time in the 1990’s. Rather than the crime label serving as the means to create ‘outsiders’, the Italian media simply formulated the more direct equation: those who came from the ‘outside’ (the so called ‘extra-comunitari’) were to be considered potential or active criminals.
Much the same can be said for Jock Young’s eloquent analysis of what he calls the ‘exclusive society’.2 Despite the many similarities at the level of practice brought about by the homogenising and converging influences of the European Union, the debate over solidarity versus exclusion takes rather different forms depending on whether it is the representatives of the State or the members of civil society who are allocated the main role in creating an integrated sense of identity and community. If ‘penality’ is so much a matter of cultural meaning and not merely instrumental affectivity3 it is obvious that this will vary from culture to culture. Indeed it is fair to say that many of the important points made by these leading scholars are comparative observations about the similarities and the differences they notice within Anglo-American culture.
There are many reasons for doing comparative research in criminal justice.4 As a result of globalisation we are increasingly affected by what is done elsewhere and increasingly aware of developments in other places.5 The literature shows a growing interest in exploring wider differences in criminal justice, especially, but not only, with respect to the slow move to legal unification or collaboration within the European Union. There are now many valuable monographs on different aspects of the criminal process, in addition to articles in both general and specialist journals. There are also the beginnings of distinct schools and approaches, whether positivist,6 interpretivist,7 or Foucauldian.8 Research into comparative criminal justice also needs to take account of what is currently being produced in other disciplines: not only in sociology and anthropology but also history, political science or cross-cultural psychology. In addition, there is an obvious if under-theorised overlap with comparative law.9
It remains true, however, that whether the goal is understanding other systems of criminal justice as such, or only parts thereof, there is still too much reliance on what may be termed ‘comparison by juxtaposition’. The standard texts in comparative criminal justice typically invite the local ‘experts’ from different countries to provide national reports. In collective research projects representatives of different systems say ‘this is what we do in Poland, what do you do in Denmark? It is much rarer for scholars to address what lies behind their descriptions and interpretations. With few exceptions, collections of articles about criminal justice contain relatively little about the actual process of doing cross-cultural research.10 At best this question is addressed briefly by the editors rather than by the contributors themselves.11
Comparative research will make slow progress unless more explicit attention is given to clarifying what a given comparison is for and how a given aim can best be achieved. Considerable care is also required in deciding what needs to be compared, and how significant similarities and differences are to be identified. It is not uncommon for writers to assume that there are ‘functional equivalents’12 between the stages of criminal justice in different societies.13 But it may be a mistake to treat the concept of ‘criminal justice’, as a set of interdependent decision making stages, as itself a cultural universal. There are many even industrially advanced societies which do not conceive of the decisions of those responding to criminal law violations as part of an interconnected scheme and where there are few if any empirical studies of such decision-making. The same applies to taking dilemmas such as the choice between ‘due process’ and ‘crime control’ or between ‘justice’ and ‘welfare’ as universal.14 To protect themselves against the dangers of ethnocentrism researchers need to engage in patient dialectical interchange between cultures and so become alive to their cultural biases, the problems of translation, and the pervading influence of specific histories.
On the other hand, it is also true that the effects of globalisation mean that ‘national’ legal cultures, or even the ‘legal families’ described by comparative lawyers, are less and less independent of one another. Ideas about ‘criminal justice’, especially those represented by currently influential Anglo-American models, are being borrowed without too much attention being paid to their cultural origins or social preconditions, and (sometimes) this is bringing about change in the social contexts in which they are introduced. A given system of criminal justice will increasingly have its roots in more than one ‘Legal culture’.15 The current working of Italian criminal justice for example is presently moulded both by the long standing hegemony of German penal law (which is still unchallenged amongst the law professors who deal in substantive criminal law), and the more recent influence of Anglo-American ideas which have come in as a result of the introduction of a large number of accusatorial elements in the penal process. Beyond this, the Italian system, like many others, is also more and more affected by wider general trends such as the rise of risk society, the growth of private police, the new emphasis on crime prevention and so on.
If we want to go beyond ‘comparison by juxtaposition’ we will need to establish some sort of working relationship with those who know more about other systems than we do. Some of those who write about comparative criminal justice may even be dependent on mediators to overcome their lack of proficiency in the local languages.16 But, for almost any researcher, local experts and practitioners will inevitably be the direct or indirect source of most of their claims about other systems of criminal justice. Yet too little attention has been given to the implications of this reliance. There seems to be scant recognition, for example, of the extent to which the descriptions of the aims or results of legal institutions and procedures which local experts provide are themselves, in various ways, part of the context they are describing. Those whose opinions we rely on may often be partial to one side or other of contemporary political battles over criminal justice. In Italy for example, some academics and practitioners are notoriously pro-judges, others are anti-judges.17 In France some commentators are strongly against importing ideas from the common law world, others are less antagonistic.18 In Japan leading academics are involved in fierce controversy over the need for greater rights-consciousness. Others are against such developments.
Moreover, cultural variability means that the problem faced in different societies is not always the same. In some cultures, such as Italy, Spain or much of Latin America, it is considered appropriate for an academic to identify and be identified as a member of a group. In playing the role of what Gramsci called an ‘organic intellectual’ your prime duty is understood both by your allies and by your opponents to be the furtherance of a specific group ideal. In consequence, the question of social and political affiliation is one of the first questions raised (even if not always openly) in considering the point and validity of academic criticisms of current practices and of corresponding proposals for reform. In other societies, such as Anglo-Saxon cultures, however, the approved practice for many scholars and practitioners is to avoid such open identification. Relatively speaking, the extent of political consensus, or of admiration for allegedly neutral criteria based on ‘results’ or ‘efficiency’, may be such that there is less pressure to take sides. And intellectuals may also simply count for less politically so their affiliations are less important! But if we think carefully about the allegiances of the experts we know personally in English-speaking cultures we will often be able to associate them with ‘standing’ for given political or policy positions. And those from more politicised cultures may have doubts about professed scientific neutrality. How then can we imagine that it is enough to cite foreign academics or practitioners without some knowledge about their affiliations, and an understanding of the role responsibilities of affiliation in the culture under investigation? Surely it would (or should?) make a difference when reading an article in the British Journal of Criminology by an Italian scholar that describes the work of Italian judicial prosecutors if we were to discover that the author has made an academic and even political career out of continually criticising the judiciary.
Even if we try to make proper allowance for the fact that our sources are ‘partial’ there still remains the problem that experts and practitioners are undoubtedly part of their own culture. This is, after all, why we consult them. But this means that they do not necessarily ask or answer questions based on where the outside researcher is ‘coming from’ (and may not even have the basis for understanding such questions). In a multitude of ways their descriptions and also their criticisms will also belong to their culture and may take for granted exactly what we most want to understand. In many cases those insiders we rely on will not necessarily even be aware of the ways their practices are special in a comparative perspective. Insofar as we are dependent only on them we will not therefore necessarily get to appreciate what makes their way of doing things ‘special’ in relation to our expectations. If, on the other hand, we insist nonetheless on asking questions from our own ‘starting point’19 we will at best learn about how different another society may be from what we are used to. But this is of strictly limited use for understanding how another society works as it does. Somehow we must try to transcend such partial perspectives.
A. THREE METHODOLOGICAL APPROACHES
There is unfortunately no methodological recipe which could give us a ready-made answer to how best to compare societies. But we can at least try to be clearer about how different approaches to gathering empirical data are likely to affect the way we do such research. In a recent edited collection I examined this question with reference to three of the most common methods of doing comparative research in contemporary societies.20 The three approaches I distinguished were those I called ‘virtually there’, ‘researching there’ and ‘being there’. These distinctions are heuristic; in practice there may be considerable differences in the way research is carried out even within each of these categories. More important, these approaches are rarely found in a pure form, even if in different research projects one or other will usually be found to predominate.
The approach that I have called ‘virtually there’ aims to further the goal of accurate descriptions of relevant differences between systems of criminal justice by means of inter-cultural co-operation. Instead of going to learn about a foreign culture at first hand the researcher is content to be ‘virtually there’, by relying on an inside expert from the society or societies. Hence this approach is particularly conditioned by such reliance and this has to be borne in mind at all stages. A sophisticated example of what can nonetheless be achieved if care is taken in using this approach is provided by Brants and Field’s study of legal cultures, procedural cultures and procedural traditions as they affect covert policing in England and in Holland.21
Brants and Field treated themselves as experts in the distinctive traditions of the societies in which each of them lived and worked and each took on the responsibility to mediate this expertise for the sake of the collaborator. Each therefore tried to familiarise the other with salient aspects of his own system in terms that the other could relate to aspects of his or her own society. This turned out to be more difficult than they had imagined. Such collaboration, they found, required a high degree of mutual trust and involved ‘negotiating’ mutually acceptable descriptions of legal practice in each of their home countries. They constantly came up against the dangers of not comparing like with like and the difficulties of reaching genuinely shared meanings between those socialised into different legal cultures. They discovered, for example that in England and Wales the idea of ‘diversion’ referred to a choice to take cases out of the system, as part of a pragmatic effort to avoid the negative, self fulfilling side-effects caused when people are drawn into the criminal justice process. In the Netherlands, on the other hand, diversion was part of a continuum of responses, which were considered intrinsic to the criminal justice system; and seen mainly as matter of re-routing offenders from the punishment option to more positive methods of conflict resolution. Again, in England and Wales, diversion was seen as a somewhat ‘guilty secret’, which compromises the ideals of adversary justice in the interests of making the criminal process more expeditious. Diversion in the Netherlands, by contrast, was understood as an aspect of the wider ‘politics of accommodation’, which encouraged an ample use of prosecution and other official use of discretion.