Week 7

This week we've been looking at the way that politics affects the criminal law.

Earlier in the unit we've talked about how and why particular actions get defined as 'crimes'. It has to do with harm and repugnance: if an action is seen as particularly harmful, or a harmless action is seen to be particularly revolting, it's likely to be criminalised.

The trouble is, this creates the possibility that actions - and people - will be criminalised purely because they happen to be unpopular. The law is supposed to stand in the way of this happening. The law is supposed to provide a coherent, comprehensive and rational set of rules governing everything that happens in society. Because the law is supposed to be coherent, new laws can't be added on arbitrarily; because the law is supposed to be rational, new laws have got to make sense.

At least, that's the theory. In practice, laws are made by politicians, which means that the law is vulnerable to political pressure. The main pressure on the law over the last couple of decades has come from an approach to the law called penal populism. Populism consists essentially of politicians telling people that their common-sense view of the world is right, and politicians are lying to them (at least, all the other politicians are). Penal populism consists of telling people that they're right to be worried about crime, they're right to think that the criminal justice system is in difficulty, and that the government is now going to listen to them and do something about it.

From Michael Howard in the mid-90s to Louise Casey in the late 00s, politicians of different parties have played the 'penal populist' card over and over again - hence Ian Loader's comment about taking "another ride on the law-and-order merry-go-round". This clearly suggests that there's a problem with penal populism - if it was ever going to work, it should have worked by now! The danger is that penal populism may encourage the anger and anxiety about crime which it claims to address - the more politicians announce that crime is a huge problem that other politicians have failed to deal with, the more people believe that crime is a huge problem that all politicians are failing to deal with.