PART II: UNEQUAL, TRANSITIONAL CONTEXT
3. Introduction: The personal is political
3.3 Constructions of crime
3.3.2 Crime as harm
Friedrichs (2006) contends that ‘criminological orthodoxy’ is characterised by a historical focus on ‘street’ crime, with the relative neglect of white-collar crime, particularly
corporate crime in the criminological and criminal justice literature. Specifically addressing the restorative justice community, he states that ‘what has traditionally been defined as crime must begin by abandoning the term ‘crime’ itself and replacing it with a new term’ (p.442). This seems to be one of the premises of those committed to a
restorative justice approach who promote the term ‘harm’ in place of crime.
This resonates with Muncie’s (2000:5) suggestion that crime be recoded as social harm and Criminal Justice as Social Justice. From van Wormer’s perspective, restorative
86 justice is a form of social justice (2002:113). This presents an implicit challenge to
restorative justice practitioners to take the intersectional nature of harms and social justice into account in the course of processing ’crime’ as defined by criminal law.
Friedrichs (2006:443) also draws attention to the different ‘cognate, hybrid or marginal forms of white-collar crime’ that escape the criminal law definition of crime, but can be more harmful in terms of its scale and consequences. These include amongst others,
‘illegal, unethical, and harmful actions committed on behalf of corporations’ as well as occupational-, state/corporate-, finance-, enterprise- (syndicates and legitimate business), contrepreneurial- (scams), and techno-crimes’ (p.442-3).
Another form of harms, which Friedrichs (2006:443) argues is not suitably captured by traditional conceptions of crime, are ‘crimes of globalization’ which arguably are implicated as causes or correlates of ‘street crimes’. He suggests that the restorative justice movements’ focus on harm is particularly suitable for crimes of globalisation. He argues that while, for example, it might not be the World Bank’s intention to do harm, its
‘mode of operation is intrinsically criminogenic and it functions undemocratically despite its stated goals of enhancing people’s lives’ (2006:443). Friedrichs argues elsewhere that the effects of some of the World Bank’s operations are also criminogenic and that it has been:
[C]harged with complicity in policies with genocidal consequences, with exacerbating ethnic conflict, with increasing the gap between rich and poor, with fostering immense ecological and environmental damage, with
neglecting agriculture …and with the callous displacement of vast numbers of indigenous people in developing countries… (Friedrichs, 2010:166).
Similarly, orthodox criminologists neglect crimes of the state and other large scale crimes (Cohen 2001, Friedrichs, 2006). Friedrichs suggests that an inverse relationship exists between the overall amount of attention criminologists give to different types of crime.
The degree of harm caused by these crimes, ’seems especially applicable to the realm of crimes of the state’ (2006:444). Cohen (2001) gives a thorough account of the neglect of large scale crimes. He attributes this to various ‘states of denial’ from the individual to the state and global level, and questions whether this is leading to ‘cultures of denial’
(p.278-296). Cohen’s analysis is referred to as the ‘most persuasive and fully realised account of criminological neglect of large–scale crimes’ (Friedrichs, 2006:444). He
87 suggests that unlike Cohen, most criminologists ’tend to share a more broadly diffused resistance to confronting monumental crimes and atrocities’ (2006:444). I argue that practitioners in turn limit themselves to the theoretical confines of their chosen male and western restorative justice ‘father’, ‘grandfather’, ‘pioneer’ or ‘leading scholar’, as they are referred to in the literature and by some practitioners.
Cohen (2001) cuts to the core of the main ‘invisible’ and denied nested causes, correlates and facilitators of modern harms. His argument is a general comment on free market capitalism and how it generates cultures of denial. The ‘physical reproduction of the conditions of denial’ he refers to, are still evident in South Africa today. The reality is that even the new regime is not able to provide the fundamental human rights, equality and social justice promised in the constitution while pursuing free market capitalism. This suggests that restorative justice practitioners should have a working understanding of the micro-macro linkages and interaction of global, social structural and individual harms;
have the ability to discern the patterns of interaction as it relates to the cases they are facilitating; and have the ability to devise a course of action that takes these patterns into account. Cohen (2001:293) draws attention to the types of ‘solutions’ many government’s apply, which exacerbate rather than reduce the crime problem. He states that:
The ‘solution’ to these problems [of late capitalism] now physically reproduces the conditions of denial. The strategy is exclusion and segregation: enclaves of redundant populations, living in the modern versions of ghettoes, remote enough to become ‘out of sight, out of mind’, separated from enclaves of winners, in their guarded shopping malls, gated communities and retirement villages. (Cohen, 2001:293).
The course of action that restorative justice practitioners can take, albeit limited, would be in line with an expansive view of restorative justice which emphasises the need to
‘understand crime and criminal justice within the context of the existing political
economy, the focus on conventional offenders and the range of ‘pathological’ conditions giving rise to such offenders’ (Friedrichs, 2006:446). As Wozniak (2002:221) has observed, ‘peacemaking criminologists tend to examine the connections among social structure, crimes, social harms, the criminal justice system, and peacemaking
alternatives’. A long-term peacebuilding perspective includes different levels of analysis which does not limit the focus to intra- and interpersonal factors. This resonates with Sullivan & Tifft’s (2001:179) argument about restorative justice, that ‘possibilities for
88 transforming social arrangements exist on all levels, from the most personal up through the most global’ and provides a way to overcome the ‘it can’t be done’ and the ‘one person can’t make a difference’ syndromes that ‘can deflate our energies for
transformation’ (p.180).