David Nelken

Comparative Criminal Justice Beyond Ethnocentrism and Relativism

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 Dignans 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.

The thin line between legitimate and criminal enterprises: subsidy frauds in the European Community

This paper describes and analyses a large fraud against the financial interests of the European Community (EC). On the basis of this case and our interviews with officials in five EC countries, we highlight structural impediments to the control of such frauds, draw parallels with other research on organisational crime and suggest that the distinction between “organised crime” and “white-collar crime” be abandoned in favour of an “enterprise model” of crime. We conclude by pointing out that legal changes and strict controls alone cannot substantially reduce the huge potential for EC frauds, especially in view of the abolition of ECs internal borders in 1993. Antifraud policies must also address the underlying structural factors.

Blind Insights? The Limits of a Reflexive Sociology of Law

Is there a danger that sociological approaches to law end up creating law in their own image? Can they set their own limits? Could they help further rather than hinder the process by which law becomes more technocratic? Continuing a debate with Roger Cotterrell, this paper offers an examination of Cotterrells suggestion, in the last issue, that these dangers can be avoided provided that sociological interpretation of legal ideas recognizes an allegiance to law rather than to academic sociology. By contrast, I propose a reflexive strategy intended to invite sociology to examine the ways in which its discourses and practices are both similar to but also different from those of law.

Disclosing/Invoking Legal Culture: an Introduction:

rates (e.g. Blankenburg, 1994, in press) sociology of law has not been in the forefront of those seeking to understand differences between legal cultures or the possible implications of these various trends.’ The sociological task of understanding and mapping the differences among legal culture bristles with theoretical and methodological difficulties, however. What we know so far about other legal cultures (beyond the somewhat scholastic models identified by comparative law) is still a matter of chance: there is, for example, more literature and discussion in English about Japanese legal culture than there is about our neighbours in the European Union such as France, Germany or Italy. The study of modern legal cultures is further complicated by the need to investigate processes of mutual influence and globalization.’ Given the practical problems of becoming a participant in more than one culture, I find that there is a strong temptation to rely on insider accounts or occasional visits for interviewing and observation (see, e.g. Bell, 1995). The findings of these methods can easily be refused as anecdote, stereotyping and oversimplification. Collaborative research projects, on the other hand, often run up against differences in academic culture

The Corruption of Politics and the Politics of Corruption: An Overview

Control of corruption in the US, A. Black politics as a business - reflections arising from research into political corruption, D. Della Porta and A. Pizzorno from Salmon to Nolan - corruption panics in English politics, A. Doig reactions to corruption in the Netherlands, P. van Duyne the public purse and the private campaign - political finance in Israel, M. Hornung the corruption issues in China and Hong Kong, C. Jones elite prosecutions - serious fraud, corruption and criminal justice in England and Wales, M. Levi Tangentopoli and the particular characteristics of Italian magistracy, D. Nelken BCCI and the control of transnational corruption, N. Passas corruption and its control in France, V. Ruggiero.

Reading and writing youth justice in Italy and (England and) Wales

This article draws on an ongoing comparative study of youth justice in Italy and (England and) Wales to pose two questions. First, to what extent does the construction and use of social reports in the youth justice systems in the two jurisdictions conform to projected ‘new’ transnational trends in neo-liberal penal discourses? Second, in so far as differences in the influence of these discourses can be identified, how are they to be explained and interpreted? Particular attention is focused on differences in the institutional and cultural relations between those who write and those who use and interpret such reports. But these relations are examined in the light of broader differences in political cultures which, by defining the ‘problem’ of youth and crime in different ways, frame differently the decision-making surrounding social reports in the two jurisdictions. The study is based on empirical data (semi-structured interviews, case-file analysis) primarily drawn from Emilia Romagna in Italy and from South Wales.

Italian Juvenile Justice: Tolerance, Leniency or Indulgence?

This paper offers a critique and further development of points made in Scalia’s account of Italian juvenile justice as a ‘lesson in tolerance’, published in an earlier issue of the journal. It discusses tolerance as a value and as a fact, the supposed sources of tolerance, and the stages at which tolerance can be displayed. It then re-examines quantitative and qualitative evidence of tolerance in Italy, paying special attention to comparing like with like, and considers the relevance of the wider conditions that may help shape Italian patterns of tolerance. It concludes with some brief cautions about how far lessons can be drawn from Italian practice.

Is there a Crisis in Law and Legal Ideology

the portrayal by each of these writers of the implications of the growth of state intervention into and management of increasing areas of social and economic life, and this agreement is the more remarkable because Tay and Kamenka explicitly reject a Marxist approach to these matters whereas Habermas claims to be a Marxist theorist. Tay and Kamenka are rather better at providing an account of the alleged crisis in law than they are at explaining how this is related to changes in society: it is for this reason that it becomes important to look at ideas such as those of Habermas concerning the contemporary crisis in society. In examining both these arguments I shall be particularly concerned with the adequacy with which they deal with the three issues mentioned previously. I shall also illustrate how their theoretical defects are not merely a matter of academic significance but help to explain why their accounts failed to allow for a number of recent changes in law in directions contrary to those predicted.

Human trafficking and legal culture

This Article discusses the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons. In the first part it offers a critical discussion of what is entailed by speaking of a “shortfall” of enforcement in dealing with the social problem of human trafficking. It then goes on to show that there are two competing narratives of this problem and of the way it is being responded to, and explains why we need to learn more about the interests and values that condition the “law in action.” In the last section the Article discusses the potential relevance of the idea of the “legal culture” for explaining the patterns of “law in action” in different countries and different agencies. The Articles overall aim is to show the existence of a link between the manner in which the problem of trafficking is socially defined in practice, and the role of legal culture in shaping this link.

Denouncing the penal state

Whilst teaching law in Edinburgh in the late 1970s, I found myself on the outer edge of a group of Labour party academic activists. (This was at a time when Gordon Brown, Alistair Darling, and Robin Cook were all Edinburgh-based.) The problem we were asked to address was how to rethink the welfare state so as to reduce welfare dependency. I was not particularly enthused by this challenge, and so chose instead to make a contribution as a lay panel member in the welfare-oriented Scottish juvenile justice system. It is, therefore, with special interest that I read Wacquant’s brilliant investigations, in his books Prisons of Poverty (2009a) and Punishing the Poor (2009b), into the relationship between welfare and penality, and the role of think-tanks in spreading a new orthodoxy about punishment and the prison in particular. Wacquant shows us beyond doubt that, in the USA, the scaling down of welfare support provided by the state went together with a more severe response to offending and a rapid expansion in the use of the prison. He also demonstrates that there has been a sustained effort to export both ideas elsewhere. Wacquant’s books display considerable theoretical acumen: he stresses the need to draw both on Durkheim and Marx so as to encompass the expressive and instrumental aspects of penality, and, if a little less persuasively, the value of Bourdieu’s concept of ‘bureaucratic field’ as a corrective to the overly mechanical and functionalist approaches to how the restructuring of the neoliberal state led to increasing punishment. But above all, the argument is carried along by massive empirical detail, including illustrations from Wacquant’s own first-hand investigations of prison conditions and his involvement in public debates over punishment. Both books include a variety of striking and original insights, some connected to his contributions to urban and race sociology as with his challenging claims about the functional equivalency of slavery, ‘Jim Crow’ laws, the urban ghetto, and now the prison. Wacquant’s comprehensive analysis proves, once again, not only that punishment is about more than crime, but also that criminology is too important to be left to criminologists. Wacquant’s central argument is that rising punitiveness must be treated as a response to social rather than criminal insecurity. In the USA, this resulted principally from increased global competition and the rise in costs of raw materials, the end of Fordist methods of production, and the reaction against the equal rights revolution. The