Foil comparisons or foiled comparisons? Learning from Italian juvenile justice
| DOI | 10.1177/1477370815581698 |
| Date | 01 September 2015 |
| Author | David Nelken |
| Published date | 01 September 2015 |
| Subject Matter | Special issue articles |
European Journal of Criminology
2015, Vol. 12(5) 519 –534
© The Author(s) 2015
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DOI: 10.1177/1477370815581698
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Foil comparisons or foiled
comparisons? Learning from
Italian juvenile justice
David Nelken
King’s College London, UK
Abstract
This paper introduces the idea of ‘foil comparisons’, ones where the overriding goal is to change
given practices in the light of what are claimed to be better (or, sometimes, worse) practices
elsewhere. Using as an example a recent blog about what can be learned from Italian juvenile
justice, it shows the potential weaknesses of such comparisons in terms of understanding other
people’s practices. But it also warns that they are becoming ever more common.
Keywords
Comparative criminal justice, comparative criminology, foil comparisons, Italian juvenile justice
The goal of this special issue is to highlight the challenges of comparison. What is it that
makes a good comparative study? This of course depends on what comparison is for and
why we are undertaking it. People usually compare criminal justice systems because they
are concerned with one or more of the following three aims: to represent as faithfully as
possible relevant practices in different systems, to ‘explain’ (whatever this is taken to
involve) similarities and differences between systems, or to improve practice in the local
system or the one being compared. The priority given to these various goals may be dif-
ferent in different exercises and the pursuit of one may presuppose, further or hinder the
pursuit of the others. Given the difficulties of each of these tasks, there is almost always
more that could be said and done. And it is easy to get things wrong: matters can be mis-
represented, explanations mistaken and misleading lessons drawn.
What concerns us here, however, is how far the different aims of comparison are
compatible. In particular, I shall be discussing what I will call ‘foil’ comparisons.
These are ones where the overriding goal is to change given practices in the light of
Corresponding author:
David Nelken, 1–15 Dickson Poon School of Law, King’s College London, Somerset House, The Strand,
London WC2R 1LA, UK.
Email: sen4144@gmail.com
581698EUC0010.1177/1477370815581698European Journal of CriminologyNelken
research-article2015
Special issue article
520 European Journal of Criminology 12(5)
what are claimed to be better (or, sometimes, worse) practices elsewhere. This may be
contrasted – at least analytically – with the effort instead to describe what happens
elsewhere with all its strengths and weaknesses, or else to seek for its own sake to
establish universalizable explanations of how social variables are connected. Do foil
comparisons inevitably get things wrong? When and why does this matter? Could it be
an acceptable cost to pay in return for the potential practical and political gains of use-
ful comparison? In seeking some answer to these awkward questions I shall use as an
example a recent blog entry by the head of a campaigning penal reform group in the
UK that describes what she thinks can be learned from the Italian juvenile justice sys-
tem. After quoting this blog in full, I then examine the account it gives us in relation to
the three goals of comparing criminal justice I have just outlined. I conclude by sug-
gesting that we need to think more about foil comparisons not only because they may
tend to get things wrong but also because of the role they play in increasingly prevalent
efforts to make the world commensurable.
Two days in Milan
The Howard League is probably the leading criminal justice campaigning group in
England and Wales, with an impressive record of sustained research and public engage-
ment to do with penal matters. On 2 April 2012, Frances Crook, the Director of the
League, placed the following entry on her blog:1
Last week I was in Milan with members of the All Party Parliamentary Group on Women in the
Penal System. We were there to look at the Italian juvenile justice system and its approach to
girls. Whilst there we met the president of the juvenile and family court in Milan, lay magistrates,
social workers and educators who worked with children who had transgressed the law. It was a
fascinating two days and we learnt a lot. The Italian juvenile justice system is very different
from our own adversarial system. The juvenile courts deal with both civil and criminal cases.
Professional and lay judges are specialists and are chosen for their expertise in understanding
children and families. There are opportunities for children who have committed an offence to
be pardoned or to have the slate wiped clean throughout the process. The professionals we met
recognised that teenagers could be difficult but their behaviour was regarded as part of the
normal process of adolescence. The aim of the juvenile justice system is to reintegrate and
re-educate children, not to punish them.
The Italian courts recognise that girls and boys often commit misdemeanours as a cry for help.
The judge can recommend that social services conduct an investigation of the child’s background
and the circumstances that have led to the offence and ensure that a package of support is put
in place for the child and also for the parents if necessary. This is expensive but it is recognised
that if you tackle the social and welfare problems you save in the long term as the child will not
end up in the adult penal system. This is unlike the system in England and Wales where the
youth court is separated from the family court and youth court magistrates have no powers to
deal with welfare issues.
We sat in during a hearing for a teenage boy who had been charged with a minor sexual offence.
He had spent a year in a residential community whilst on probation. Having heard from his
lawyer, his social worker and psychologist, the judge was satisfied that he would not commit
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