Crime and Punishment: The Issue with Modern Law

In the third instalment of his column, Adam Durrant argues that Keir Starmer’s adoption of a law and order rhetoric is fundamentally flawed, and that law should aim at harm reduction, not punishment.

Photo by Tingey Injury Law Firm on Unsplash 

We have a problem in this country and that is our perception of law's very nature. Rhetoric around crime has become increasingly worrying. From a slew of bills that crackdown on our civil liberties and access to democracy, to recent comments praising capital punishment, violence by the state has made its way deep into our politics. Unfortunately, I expect this from a Tory government - it is not in their political interest to care for the citizen - but Keir Starmer has now taken their philosophy under his wing with his terrifying new portrayal of Labour as the party of law and order. Worse still, his party of law and order is striving to bring the well-established violence of the British police force into the local communities to crack down on ‘anti-social behaviour’. This intersection of the law versus the community is indicative of a widespread misunderstanding of what law should be and what its purpose truly is. 

Starmer, a former prosecutor, has made it pretty clear that punishment and exclusion is his primary methodology, and he is not alone in this key misunderstanding. To him, the law is immutable, unquestionable and overbearing in its nature. Emphasis on punishment drives the idea that the law hangs over our heads as an invisible force ready to strike as soon as we put a foot wrong. It is unrelated to us and our communities.The presumption that law is all powerful is one of the primary causes of state violence. However, this was not the initial purpose of the idea of ‘law’. Having studied early mediaeval law I have found that there is a lot to learn from early law texts and, fortunately, some hope that we are not confined to our current ways of thinking. To be clear, the laws of this period are undeniably problematic in content, and I do not advocate for their return, but rather, it is the principles behind these laws that we should pay attention to.

In a time before state or centralised governments, maintaining peace in a community was hard when things went wrong, especially when the threat of retributional violence and feuding was concerned. It was in this arena where law became important. Overwhelmingly in all the law texts I have come across, the purpose is conflict resolution, as opposed to our punishment and deterrent based system. Often, we perceive our past to be filled with cruel and unusual punishments, including the death penalty, but there was a distinct lack of sanctioned violence in punishment for a crime. It seems that there was an understanding that violence breeds violence. Contrary to popular belief, brutality is not inherent in human society and history shows that we go to great lengths to prevent it. There was some room for violence by the community against ‘lawbreakers’ if they wished, but these cases were strictly defined. 

This drive for harm reduction meant that the legal systems had an overwhelming victim-focus. Because the community had to be satisfied in order for peace to return, the wrong had to be righted: stolen goods returned, the family compensated, and so forth. Most importantly, the victim-focus was not on satisfaction through seeing ‘justice’ being done, like Starmer’s approach of allowing the victim to choose the punishment, but rather solving the problems a crime has caused. This didn’t always work and in our society, a victim-focused law would look very different, but nonetheless the goal would be the same: to limit the harm done when crimes are committed. We see over and over again under our current system that the law takes up far too much energy chasing criminals and not enough supporting the victims of those crimes to rebuild their lives, thus strengthening a community and reducing future crime. This is not to say that criminals should run free, far from it, and immediate danger must be removed. It is certainly tricky to navigate, but we should keep the purpose of reducing harm firmly in our sights.

A crucial part of this process was that law was created by the community. Law was very often participatory, both in its creation and its enforcement. Although we can see laws being passed down by kings and through a strict hierarchy, we also see evidence that these conflict resolution strategies may have come from communities themselves before being encoded by a superior. The importance of community cooperation is immeasurable when it comes to maintaining a peaceful and healthy society. Starmer’s uniformed officers miss the key to solving ‘anti-social behaviour’: strong and healthy bonds between neighbours. 

It’s worth repeating the warning that early mediaeval laws were immoral in content, and their return would be horrific. Advocates for defunding police forces and prison reform with innovative approaches that are better suited to modern day society are well worth reading, and we should be listening to them. However, we should also reconceptualise the way we perceive the function of law. This institution’s purpose was, and should be, first and foremost to reduce harm; law should be participatory, it should be part of community building, rather than simply controlling a population. We cannot afford to have punishment and violent enforcement as its primary function, which is what Starmer seems to want. His rhetoric ignores the purpose for which law was created and feeds into dangerous, authoritarian thinking that peace is derived from control and violence. Cooperation is the only way to truly create a safe society.