Crimes of (dis) obedience: Radical shifting of the criminological gaze

The development and unification of criminology as a discipline, as a distinct terrain of study and knowledge complex has mostly revolved and condensed around two interrelated focuses: 1. legally defined crimes or deviance and transgression from social-moral norms, and 2. the criminalisation, control and punishment that relate to these. Condensing its gaze on crime and deviance has led to a disregard for acts that create major harm while obeying either law or social norms. Likewise, focusing on criminalisation and punishment has led to criminology showing interest mainly on ‘man on his back’ rather than ‘man fighting back’ (see Gouldner 1968). Both ‘crimes of obedience’ and ‘crimes of dissent’ go beyond the usual grammar of deviance, crime and punishment. They produce inevitable tensions in framing and understanding, and an ambivalent relation with the justice system. A whole new grammar and conceptual baggage is needed for criminology to engage with these acts in a sustained way, and in doing that it has to borrow some conceptual apparatus from the sciences of psychology, sociology, political science and philosophy.

Crimes of obedience

The term “crimes of obedience” was first explicitly used — at least in English language sources^[1] — by two social psychologists, Herbert Kelman and Lee Hamilton, in 1989 in their book Crimes of obedience: Toward a social psychology of authority and responsibility. The case studies they investigated range from the My Lai military massacre in Vietnam, to organizational misconduct such as the Watergate scandal and the systemic failures that led to the crash of the Challenger space shuttle. They defined “crimes of obedience” as: “an illegal or immoral act committed in response to orders or directions from authority” (1989: 307). Kelman and Hamilton identified authorization, routinization, and dehumanization as requisite to sanction massacres. Authorization meant that sanctioned massacres occur in a context of an authority ordering or at least tacitly approving the killing. Routinization allows people to participate in actions without considering the implications of that action and without really making a decision. Dehumanization of the victims occurs when a group of people is defined entirely in terms of a category to which they belong, and when this category is excluded from the human family.

Social psychology’s interest on attitudes and the impact of social influence on them has a long history, and obviously Kelman and Hamilton’s precursors -among others- were important works in social psychology such as Milgram’s experiments on obedience, Asch and Sherif’s experiments on conformity, Darley and Latane’s experiments on bystander effect, and Zimbardo’s prison experiment. While these experiments were very varied and cannot be summarized in any coherent way, what they all seemed to imply is that virtually anyone is capable of committing “crimes of obedience”. That means that ordinary people who are simply doing their jobs and have no particular hostility towards others, can become agents in destructive processes due to practices and techniques designed to produce submission, or what Kelman and Hamilton called “binding forces”. This whole tradition of social psychology was therefore very important because it challenged both the theory of the authoritarian personality or that of the aggressive drives as origins for evil deeds (see Forti 2012).

Within criminology, an important but untranslated work (Fangevoktere i konsentrasjonsleire / Guards in concentration camps) was written by the great Norwegian criminologists Nils Christie in 1972. Christie investigated the terrible acts conducted by the Norwegian guards in the northern camps where the Nazis had imprisoned Yugoslavian partisans. After interviewing many former prisoners and guards who had behaved cruelly (or not), he realised that those who had not behaved cruelly towards the prisoners had gotten to know something about them (name, age, family situation), while those who had behaved cruelly had made sure they knew nothing beyond what the Germans told them (e.g. that the prisoners were savages from the Balkans). This insight, as David Cayley wrote in his Nils Christie: In Memoriam became the central principle of Christie’s criminology: how punitive we are varies with how much we know about the one whom we punish. He spent his life describing the harms that result from designing our justice system around the idea that offenders are monsters. Nils used to say he always looked for monsters, but could never find them.

Originating therefore in the shadow of WWII, the term “crimes of obedience” has been directly related to mass murder or genocide, and perceived as a domain of political science rather than that of criminology. Nevertheless in the last decades it has been argued that criminological theories developed to explain relatively mundane forms of deviance can help explain seemingly incomprehensible acts of mass violence. The most important work in this tradition of “upscaling” has been Darfur and the crime of genocide by John Hagan (2008), and there have been some substantial works that have made the “upscaling” argument very explicitly such as Criminology and genocide studies: Notes on what might have been and what still could be (2000), by Edward Day & Margaret Vandiver, Towards a criminology of crimes against humanity (2009), by Daniel Maier-Katkin, Daniel Mears and Thomas Bernard, and How can criminology contribute to an explanation of international crimes (2014) by Stephan Harrendorf.

Besides the “upscaling”, there has also been “downscaling” whereby the framework of “crimes of obedience” has been applied, or suggested to be applied, also to ‘less destructive processes’ such as corporate crimes, sexual harassment, harms in the workplace, and torture in the prison of Abu Ghraib. The most sustained work has been conducted by Leanne Weber on applying the framework of “crimes of obedience” to the detention of asylum seekers. In their book Kelman and Hamilton (1989) saw bureaucracies as one of the primary vehicles for the promotion of “crimes of obedience” within the modern nation state. Their case studies included in fact organizational misconduct such as the Watergate scandal and the systemic failures that led to the crash of the Challenger space shuttle. Zygmund Bauman has argued that: “bureaucracy made the Holocaust. And made it in its own image” (Bauman 1989: 105), and Ulrich Beck has likened the capacity of bureaucracies to neutralize individual moral judgment to a kind of abandonment of the self: “It is as if one were acting while being personally absent. One acts physically, without acting morally or politically. The generalized other – the system – acts within and through oneself” (Beck 1992: 33).

Focusing on “crimes of obedience”, implies a radical shifting of the criminological gaze. Criminology needs to engage with a paradigm of ‘normality of evil’, focusing less on guilt of the transgression and more on the harm caused by nonjudgment. In New demons: Rethinking power and evil today (2012), Simona Forti makes a call for moving beyond the paradigm of “absolute demons” towards what she calls “mediocre demons”. Evil she says can be made by mediocre actions and actors and thrive through the gradual accumulation of unnecessary suffering over time (normality of evil). Absolute demons still exist but “if their efforts are successful it is because they are seamlessly integrated into the desire of those who being too preoccupied with consolidating their life opportunities adapt without reacting” (2012:9).

While appreciating the contribution of social psychology, Forti argues that “saying that normal people can commit evil is not enough” (2012:191) and we need to dig deeper. “Today more than ever what has to be questioned is the desire for rules and conformity that cement our lives in irresponsibility and indifference” (2012:8). We need to ask not why we “become wicked subjects but how do we become obedient subjects, what desire motivates our anxiety to conform, and how is the relation of subordination cemented” (2012:9). In her genealogy of obedience and the ‘normality of evil’, Forti draws from Hannah Arendt, Michel Foucault, and Primo Levi, among others.

According to Forti, our greatest debt when considering the normality or ‘banality of evil’ is to Hannah Arendt, as she was the first to grasp the complexity of a system of evil and made for us available a constellation of useful concepts to think about it. While in The Origins of Totalitarianism Arendt qualified the evil that was committed as ‘radical evil’, with Eichmann in Jerusalem she started speaking of the ‘banality of evil’. Arendt writes: “The trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal.” (1992: 10). By employing the word banality she meant to break with traditional and deceitful representations of evil as exceptional, radical and demonic. Banality referred to Eichmann’ s character such as his way of speaking, his use of clichés and official language (Amtsprache), his motives which were intrinsically non-criminal, and obviously a lot or routine activities people like him were involved in. Nevertheless Arendt did not take seriously the justification used by Nazis criminals: ‘I was a cog in the machine’. For Arendt, Eichmann’s obedience was something beyond simple submission to authority. “This new type of criminal, who is in actual fact hostis generis humani, commits his crimes under circumstances that make it well-nigh impossible for him to know or to feel that he is doing wrong” (1992: 276). Arendt qualifies such a lack of imagination and the inability to adopt somebody else’s viewpoint as “thoughtlessness”. It is thoughtlessness that becomes one of the conditions for the accomplishment of a crime against humanity: “such thoughtlessness can wreak more havoc than all the evil instincts taken together.” (1992: 288)

Likewise the whole work of Michel Foucault has also opened an important path to rethink evil. His work on the different institutions (prisons, schools, armies, hospitals, psychiatric asylums) and the scientific disciplines (“sciences of man” in Foucault’s term) which produce docile bodies, discipline and submission, his rethinking of the relations of power in general, and also his work on biopolitics has useful for showing that evil comes not only from a thanatopolitics but also from the will to maximize life. Forti also refers to the important heritage left by Primo Levi through his work, especially in The Drowned and the Saved, where he taught us that before we reach a stage of domination polarized between victims and perpetrators, there is a gray area of strategies of power, domination, cooption and resistance where we all engage in actions and inactions, wrongs and indifference, negations and shrugs.

Importantly, Forti also draws from the “philosophers of dissent” like Jan Patocka, Vaclav Havel, Milan Kundera and Czesław Milosz in order to come to a critical attitude of dissent and disobedience. Kelman and Hamilton (1989) view those who exercise civil disobedience as paradigmatic of the good citizen, because such individuals refuse to obey authorities they find morally wrong. Here we approach my second argument: criminology should incorporate ‘man fighting back’ rather than ‘man on his back’, thus focus on dissensus and disobedience.

Crimes of dissent

The term “crimes of dissent” was used in 2009 by Jarret Lovell in his book with the same title, where he investigates multiple acts and reasons of activists who deliberately break the law to further their causes, and the consequences that follow these acts from the reaction of the criminal justice system. The term “crimes of dissent” refers to the criminalization of a range of acts which constitute counter-conducts, resistance, indocility, dissensus, or disobedience, such as whistleblowing, solidarity, and protest. Lovell conceptualizes “crimes of dissent” as any act of disobedience to the authority in pursuit of what protesters perceive as a higher standard of morality or justice. He emphasised the constant tension between personal conscious as the source of individual agency and state power as the source of law, order and conformity.

“Crimes of dissent” are significantly different from any other type of deviant behavior. Unlike most ordinary crimes, crimes of dissent are always public, altruistic, and collective. They include the potentially negative consequences of political activism (arrest, trial, jail, etc.). In fact, central to the philosophy of civil disobedience stands the requirement that disobedients accept punishment for their illegal acts (the same goes for the ‘conscientious objectors’). In this book Lovell argued for a cultural criminology of ‘dissent’ that would see civil disobedience as principled law breaking or as ‘pure crime’ and like Kelman and Hamilton, as the highest expression of citizenship. Likewise, directly dissociating deviance from disobedience, Morselli and Passini (2010) studied the autobiographical narratives of Nelson Mandela, Martin Luther King, Jr., and Mohandas K. Gandhi as case studies of people who became deeply involved into disobeying authority and who faced strong persecution for this disobedience.

These acts produce inevitable tensions in framing and understanding, and an ambivalent relation with the justice system. Interesting questions become important such as: are these people activists or criminals, is the reaction of the justice system legitimate or utterly unjust, do these acts constitute crimes because they break the law and how shall we call them, should we obey the law or should we obey our own judgments, how shall we deal with tension between law and justice? Another vital question is the difference between ‘crimes of dissent’ that take into account or have it as part of their philosophy to be potentially criminalized, such as ‘civil disobedience’, and crimes that are criminalized but they should not be such as the so-called ‘crimes of solidarity’ or whistleblowing acts which should on the opposite be protected by law.

To conclude, I think not only for criminology, but for all disciplines and for all anti-disciplines it is about time we invest thinking, time and resources into engaging with obedience and the ‘normality of evil’ and in nourishing disobedience and dissent as a civic value. Today, some of the most evil harms that are caused in refugee camps, in the asylum procedures, in our seas and our shores, come from bureaucracy, indifference, nonjudgement, and normality. The death politics taking place (towards some) is conducted on the name of biopolitics: a desire to maximize the life (of some). Nevertheless, while in what has been written above a dislike for obedience might be discernible, and it might seem that disobedience is the answer, it is Foucault’s complex genealogy of what he had called a ‘critical attitude’, that is the most precious because it sheds light on the ambivalence of obedience, and on the difficulty of creating a critical attitude in relation to our conduct. Especially his later work was a constant search for possible self-determination of the subject that allow the divergent forces within the subject to coexist in their inner anarchy without tearing the subject apart (see Forti, 2012: 256). The core of this ambivalence can be caught by Nietzsche’s perplexing statement: “He who cannot obey himself will be commanded. That is the nature of living creatures.” The work of critique appears therefore to be self-formation, self-determination, and self-governance.

References

Arendt, Hannah (1992). Eichmann in Jerusalem: A report on the banality of evil. Harmondsworth, Penguin.

Bauman, Zygmund (1989). Modernity and the Holocaust. Cambridge: Polity.

Beck, Ulrich (1992). Risk society: Towards a new modernity. London: Sage.

Cayley, David (2015). Nils Christie: In Memoriam.

Day, Edward, and Margaret Vandiver (2000). Criminology and genocide studies: Notes on what might have been and what still could be. Crime, Law and Social Change, 34: 43-59.

Forti, Simona (2012). New demons: Rethinking power and evil today. Stanford University Press, Stanford.

Gouldner, Alvin (1968). The Sociologist as partisan: Sociology and the welfare state. The American Sociologist, 3 (2):103-116.

Hagan, John (2008). Darfur and the crime of genocide. Cambridge, Cambridge University Press.

Harrendorf, Stefan (2014). How can criminology contribute to an explanation of international crimes? Journal of International Criminal Justice, 12: 231-252.

Kelman, Herbert and Lee Hamilton (1989). Crimes of obedience: Toward a social psychology of authority and responsibility. Yale University Press, New Haven.

Lovell, Jarret (2009). Crimes of dissent: Civil disobedience, criminal justice and the politics of conscience. NYU Press, New York.

Maier-Katkin, Daniel, Daniel Mears and Thomas Bernard (2009). Towards a criminology of crimes against humanity. Theoretical Criminology, 13 (2): 227-255.

Morselli, Davide and Stefano Passini (2010). Avoiding crimes of obedience: A comparative study of the autobiographies of M. K. Gandhi, Nelson Mandela, and Martin Luther King. Journal of Peace and Conflict, 16: 295–319.

Weber, Leanne (2005). The detention of asylum seekers as a crime of obedience. Critical Criminology,13: 89–109.

Acknowledgements

Cover photo: Hernán Piñera (CC), Guard Mounting Buckingham Palace, 2013.