Comparative Criminal Justice
| Author | David Nelken |
| DOI | 10.1177/1477370809104684 |
| Published date | 01 July 2009 |
| Date | 01 July 2009 |
| Subject Matter | Articles |
DOI: 10.1177/1477370809104684
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ARTICLES
Comparative Criminal Justice
Beyond Ethnocentrism and Relativism
David Nelken
University of Macerata, Italy
A B S T R A C T
How can the study of comparative criminal justice avoid the opposite dangers of
ethnocentrism and relativism? The problem is examined taking as an example
Cavadino and Dignan’s recent analysis of differences in prison rates. The case
is made that more attention needs to be given to understanding how different
criminal justice systems actually produce prison rates as well as to interpreting
the ideas and values that animate those inside and outside the system.
K E Y W O R D S
Comparative Criminal Justice / Comparative Criminal Procedure / Ethnocentrism
and Relativism / Processes of Attrition / Garantismo / Gedogen / Tolerance.
Comparative criminal justice: Making sense of difference
The task of comparative criminal justice, most scholars would agree, is to
com pare and contrast our ways of responding to crime with those practised
else where. It also often involves, even if it does not necessarily have to do
so, borrowing from, or at least trying to learn from, what is done in other
places. It would seem obvious therefore that, if it is to be at all helpful, com-
parison requires understanding and interpreting what those in other places
are actually trying to do. What I want to show in this paper is that the
implications of this apparently banal point are not always straightforward.
The reason for this is that it can be difficult not to fall foul of two opposing
dangers. On the one hand, there is the risk of being ethnocentric – assuming
that what we do, our way of thinking about and responding to crime, is uni-
versally shared or, at least, that it would be right for everyone else. On the
292 European
Journal
of Criminology 6(4)
other hand, there is the temptation of relativism, the view that we will never
really be able to grasp what others are doing and that we can have no basis
for evaluating whether what they do is right. To get beyond these alternatives
requires a careful mix of explanatory and interpretative strategies (Nelken
1994).1 We need to recognize that, although criminal justice practices gain
their sense from the setting that shapes them and the conditions with which
they have to deal, they can also be understood by outsiders and need to be
evaluated according to cosmopolitan and not only local criteria.
But this is easier said than done. It is inevitable that our perception of
others will be coloured to some extent by our own cultural starting points
– even when we say that what we are doing is trying to learn from them.
And criminologists do also have their own shared cultural common-sense.
We tend to argue that the rise in crime rates is exaggerated by the media
and the politicians, that we should avoid creating even more deviance by
over-reacting to offending, that the availability of work and decent housing
are more effective ways of reducing crime than whatever can be delivered by
criminal justice. In the face of the changes brought about by neo-liberalism,
we plead instead for policies based on inclusion, solidarity, tolerance and
respect for difference. Not least, we recommend that politicians listen to pro-
fessionals rather than seeking easy popularity. There may be little to quarrel
with in these claims as aspirations. But when our study of other places
merely confirms what we already thought was true and right, we need to
be aware that we may not have given sufficient care to analysing the simi-
larities and differences that may lie behind the practices we are studying.
The same applies to the more specific biases that come from our local
cultural backgrounds. Policy makers in the Netherlands, for example, tend
to look for pragmatic, practically workable solutions to crime – as they do
when seeking to resolve other types of problem. In Dutch cultural common-
sense, being pragmatic means not being dogmatic, but elsewhere these terms
may have a different relationship. In Italy, the term ‘pragmatic’ suggests
behaviour that is not guided by principles and that therefore borders on
being unprincipled. Which is not to say the Italians in everyday life are not
often pragmatic, and the Dutch never principled. Far from it. The point is
rather how difficult it can be for us to see the limits of our ways of seeing
things. As the American philosopher Morgenbesser reportedly used to say,
‘pragmatism is all right in theory’! But if the question is when it would be
appropriate not to be pragmatic, a pragmatic approach itself may not be
1 Francis Pakes (2004: 13ff) suggests that those who favour an exclusively interpretative
approach to social life (I am not in fact one of them) must necessarily be relativists. Whether or
not this is true is doubtful, but those who rely only on a positivistic strategy certainly do run
a high risk of ethnocentrism.
Nelken Comparative criminal justice
293
able to provide the answer we need. Likewise, it is impossible to specify, in
principle, all the contingencies that may play a role in shaping the everyday
application of principles.
If we are to come close to grasping successfully what other systems of
criminal justice are actually trying to do, we must avoid attributing to them
intentions on the basis of what we imagine they should be doing – even if
these are the best of intentions. Likewise – but this can be even more tricky –
we should be careful not to deduce intentions from the outcomes being
achieved. But it is often tempting – especially for the purposes of advancing
a given agenda in local debates – to try to do just that. A good current
example in my view can be found in some of the arguments being used as part
of the important debate concerning the problem of growing punitiveness in
responding to crime both in the USA and elsewhere. In briefly reviewing this
debate I shall suggest that criminologists from Anglo-American backgrounds
engaged in cross-cultural research need to devote more attention to what
they and others mean by punitiveness and tolerance.
I shall first say something about the so-called ‘punitive turn’ and then
describe some recent attempts to link punishment to differences in political
economy. In seeking to show the dangers of ethnocentrism, and the way
more attention to interpretative questions might help to avoid them, I shall
illustrate my argument with accounts of what may be some relatively un-
familiar features of penal justice in Italy. The choice of Italy is not only a
reflection of the fact that this is the country whose criminal justice system
I now know best. Italy is also, surprisingly, the major European country
with one of the lowest levels of offenders in prison in proportion to its popu-
lation (Proband 2008).
The ‘punitive turn’: America as dystopia – Europe as
utopia?
Criminal justice systems today face many common problems and increas-
ingly seem to be responding in similar ways to ‘risk society’ (Beck 1992). As
Hans Boutellier puts it, people are now seeking a ‘safety utopia’ (Boutellier
2004). Like all utopias, the attempt to impose this one can be dangerous for
those who get in the way. But perhaps it is also dangerous for the rest of us!
Hence the concern amongst many criminologists about growing punitiveness.
Most of these writers do not argue that prison should be abolished. Still
less do they claim that punishment is never necessary or justified, or that
tolerance is always the better option – the decreased social tolerance of
some forms of criminal or deviant behaviour may even be welcomed. Their
con cern is about what Willem De Haan has described as the ‘bad conscience
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of punishment’ (De Haan 1990); the economic and political mobilization
of punitiveness – especially, but not only, in the United States – that is
described in books with titles such as Crime Control as Industry (Christie
1993), ‘Making Crime Pay’ (Beckett 1997), and, most recently, Governing
through Crime (Simon 2007).
Why is increasing resort to punishment and, in particular, greater use
of prison widely felt to be necessary and appropriate? Even though all the
evidence suggests that crime levels have been decreasing, trends in punish-
ment, to a large extent, follow their own timing and have their own logic.
In his recent influential thesis about what he calls the ‘culture of control’,
David Garland (2001) offers a pessimistic account of this development,
arguing that ‘penal welfarism’ has been displaced by the politicization of
crime and the growth of popular punitiveness. He notes the privileging
of public protection and the claim that ‘prison works’, and describes the
changes in the emotional tone of crime policy from decency and humanity
to insecurity, anger and resentment. What remains controversial, however,
is how far what others have called ‘the penal turn’ should be seen as a result
of widespread late-modern changes in social and economic conditions, or
rather treated as something tied more closely to the political and legal culture
of the USA. What some observers see as an essential aspect of late modern-
ity others see as ethnocentric projection – an Anglo-American tendency to
assume that what others do in foreign places and foreign languages is less
import ant, and that they too are...
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