by Steven Poole
Understandably, the committee had continued to prod Michael as to what ‘anti-social behaviour’ might really mean. At one stage he had suggested that it consisted of ‘activities that ruin the lives of individuals, families or communities’.15 However, the ruining of a life may be just as subjective a matter as ‘anti-social behaviour’. People sometimes complain that their lives were ruined when they were dumped by a lover. In subsequent years many other glosses of ‘anti-social behaviour’ were offered, all just as uselessly vague. It was ‘unruly behaviour’, offered a government review.16 It was ‘thoughtless, inconsiderate or malicious activity’, wrote the minister for crime reduction in 2003,17 neglecting to think that if being ‘thoughtless’ really were grounds for locking people up, there would have to be an unprecedented expansion of prisons. Perhaps it was better to define what ‘anti-social behaviour’ wasn’t: it was the opposite, according to Tony Blair, of ‘proper behaviour’.18 That cleared everything up.
Back in 1998, in a fit of creativity, Alun Michael had finally come up with the alternative phrase ‘sub-criminal behaviour’, a novel legal concept. The commission scrutineers were none too impressed. MP Edward Leigh pointed out: ‘Behaviour is either criminal, in that it infringes an Act of Parliament and a provision clearly laid down, or it is not. There is no such thing as sub-criminal behaviour; there is behaviour and criminal behaviour.’ Michael’s response was this: ‘Sub-criminal behaviour is behaviour of a level that may be criminal, but to be actually described as such it would have to be proved to be so before a court.’19 This was a fascinating argument. Normally, the law presumes innocence: to overcome this presumption, it must indeed be ‘proved … before a court’ that the accused has committed a crime. But according to Michael, there existed a grey area of ‘sub-criminality’ whereby people were not presumed innocent just because there was no proof that they were criminals. In attempting thus to water down the long-established tradition of presumption of innocence, it could be said that Michael was acting in a powerfully anti-social manner.
The blatant Unspeak of ‘sub-criminal behaviour’ burned brightly but briefly: it did not survive in the text of the subsequent Act. But Michael also took a second tack in fielding criticism of his government’s legislation: that debates and quibbles about what ‘anti-social behaviour’ really meant would be proven irrelevant, because the courts would always interpret the legislation in a way that led to reasonable judgements. Let us look, then, at some examples of how the courts did subsequently use Asbos.
In 2004, a thirty-nine-year-old man was convicted for having breached the terms of his Asbo. The order in question had ‘prohibited him from entering Birmingham city centre, using or engaging in any threatening, abusive, offensive, intimidating, insulting language or behaviour, or engaging in violence or damage against any person or property within the city centre’.20 He had been seen on a city-centre closed-circuit television camera, where he ‘appeared to be asking for money and acting in [an] aggressive manner when money [was] refused’; he subsequently ‘spat in an officer’s face when in [the] police station following arrest’. The man was sentenced to forty-five months in prison. Had it been reasonable to ban him from ever going into the centre of Birmingham? Was nearly four years in prison a reasonable punishment for begging, even ‘aggressive’ begging?
The editor of Criminal Law Week thought not. The length of ‘imprisonment for conduct which per se was either not criminal at all or, to the extent that it was criminal, was non-imprisonable, merely serves to highlight the true nature of the anti-social behaviour legislation as a Vagrancy Act for the 21st century,’ he wrote.21 The Vagrancy Act of 1824 had provided for the imprisonment of ‘incorrigible rogues’, for a period wholly out of proportion to the specific act that had led to their arrests. Similarly with Asbos. American judges, too, had made similar criticisms of long ‘three strikes’ sentences: ‘the triggering offense must, within some degree, be substantial enough to bear the weight of the sentence it elicits.’22 ‘One of the principal abuses’ of the Asbo legislation, the Criminal Law Week editor wrote elsewhere, was:
the re-writing of the penalty section of the statute book, so as to convert non-imprisonable behaviour into imprisonable behaviour and to increase the maximum penalties for offences that are imprisonable, but with maximum penalties of less than five years. […] [T]he prospect reveals itself of the prisons filling up with unlicensed or uninsured drivers, with joyriders, prostitutes, beggars, shoplifters, the drunk and disorderly, and the like – the old ‘incorrigible rogues’ law, dusted down, given a new name and some 21st century spin.23
We should note that the editor writes of the ‘abuses’ of Asbos. In some cases, Asbos had been used with success to tackle clearly aggressive and violent behaviour, such as intimidation of the elderly on council housing estates, or to keep in check ugly disputes between neighbours. In cases where it could be clearly determined that genuinely high levels of ‘harassment, alarm or distress’ were being caused, the Asbo might be an effective tool. But detailed independent research on positive Asbo outcomes, and what proportion they made of the total number of orders imposed, was not forthcoming. This was hardly surprising, given that the government’s refusal to define ‘anti-social behaviour’ or ‘harassment, alarm or distress’ often led the courts to interpret those concepts extremely widely. On the one hand, the issuing courts piled up prohibitions willy-nilly, as with the bans on sarcasm, ‘grass’, and underwear; on the other, the sentencing courts imposed disproportionate punishments for breaching those prohibitions in relatively trivial ways. This had all been predictable, perhaps, from the deliberate vagueness of the legislation: Asbos positively invited ‘abuses’ precisely because of the transparently Unspeak way in which they had been defined. Facetious or overly onerous terms in Asbos contributed to the fact that, by summer 2005, 42 per cent of all Asbos were being breached,24 a figure which cast considerable doubt on the extent of their deterrent power.
There were, moreover, serious cases where it was arguable whether the Asbo’s terms were in the real interests of anyone. Take an example from 2005: a twenty-three-year-old woman, who had tried three times to kill herself by jumping into the River Avon in Bath and had on each occasion been rescued, who had also been found ‘hanging by her fingertips’ from a railway bridge and ‘loitering at the top of multi-storey car parks’, was given an Asbo.25 The terms of the order forbade her from going to any railway track, river, watercourse, or canal in the whole of England and Wales. She was also forbidden from ‘loitering’ on bridges and from going to a multi-storey car park alone. Arguably, to attempt suicide is ‘anti-social’ in both senses: it is unsociable, and bespeaks dissatisfaction with society as a whole. But the woman was banned in future from doing things that could in no way be described as anti-social.
Magistrate Pamela Gwyther told the woman: ‘You are not to dip one toe, not one finger, in a river or canal.’26 This seems an excessively harsh thing to say to a person who is evidently unhappy. Not only are you not allowed to throw yourself into a river again, but you can’t even dip a toe or a finger: you have, in effect, forfeited any right to normal enjoyment of such places. The personal aggressiveness of this command is also incompatible with the underlying fact that the Asbo wasn’t really about the woman at all: it was about other people. Its terms stated that she must not do anything ‘which could cause alarm or distress to the public’.27 Never mind the distress that she was in. Upholding the Asbo on appeal, a judge later emphasised that ‘rescuers also needed protection’.28
The Asbo thus criminalised a wide range of ordinary activity, such as paddling in a stream or standing on a bridge to watch the sunset. Meanwhile, the public could safely go about their business in the knowledge that they would not again have to suffer the particular form of ‘distress’ occasioned by witnessing an act of attempted suicide. If one thinks that the true interests of society are served by attempting to help troubled people, rather than simply ordering them not to be unhappy in our back ya
rd, then this Asbo itself was profoundly anti-social. We may at least be thankful that Asbos did not exist in the eighteenth century, since one would doubtless have been slapped on Mary Wollstonecraft after she attempted suicide by jumping off Putney Bridge.29 After she was rescued, no one thought to take revenge by banning her from the riverside, even though as a pioneering feminist writer she was a powerfully ‘anti-social’ force. (Instead, she was eventually driven to France by George Ill’s outlawing of ‘seditious’ meetings and writings.)
In the wide and often fatuous prohibitions on behaviour imposed by Asbos, it seemed that the British government and courts were extending their role into that of managing day-today morality. It would have been perfectly in tune with the language and assumptions of Asbos, for example, to target adultery. After all, adultery is ‘anti-social’ in that it acts in opposition to the social norm of monogamous marriage. It also may cause ‘alarm and distress’ not just to the spouse whose partner is unfaithful but to that spouse’s friends and family, thereby getting around the ‘not of the same household’ clause, and so fitting perfectly the law’s description of ‘anti-social behaviour’. Why not impose Asbos on every newlywed couple forbidding them from committing adultery, so that if one of them does, you can send them to prison? That would surely be an excellent deterrent against cheating. Why not go further and declare obese people to be ‘anti-social’, since they do not conform to socially preferred body types as seen on television, and might cause distress to people sitting next to them on an aeroplane? Why not impose Asbos on opposition politicians, since they do not agree with the way the country is currently run, and surely alarm many people who find them canvassing on their doorsteps? The possibilities are endless.
Yet it is not clear that most people really do want the law to govern all aspects of their behaviour. All crime is anti-social, but not everything we might call anti-social should be a crime. There is a host of excellent reasons why law should not be entirely coextensive with morality. If all our actions were governed by fear of state retribution, the idea of moral or virtuous behaviour for its own sake would be degraded. More importantly, people in large democratic countries can, and very often do, have reasonable disagreements over moral questions. Indeed, the existence of ‘moral law’ is commonly understood by liberal westerners to be a feature of other places, of societies whose principles are not readily admired – of places where, for example, adulterous women are stoned to death, as in Iran, Pakistan, and the United Arab Emirates.
The requirement that the law should extend to all areas of morality, indeed, is a characteristic of religious fundamentalism. In July 2005, a bill tabled by a coalition of religious parties in Pakistan’s North-West Frontier Province called for a new government department to ‘discourage vice and encourage virtue’, adherence to whose strictures would be ensured by a ‘moral police force’.30 Opposition politicians called this ‘Taliban-style extremism’. Meanwhile, the drafters of the new Iraqi constitution missed deadline after deadline to finalise the document over the summer of 2005, in part because different factions could not agree on the extent to which Islamic law, shariah, should be supreme in the land: whether it should be ‘the fundamental source’ or only ‘a source’ of Iraq law.31 Nor is this exclusively a religious phenomenon. During the Terror in revolutionary France, Robespierre equated justice with virtue, and incivisme – lack of civic virtue, or in other words, ‘anti-social behaviour’ – became a crime.32
Such examples are very different from Asbos, you might say. And assuredly they are. But only in degree; not in kind. The germ of the idea that no part of the moral life should go ungoverned by the state is already present in the practice, now enshrined in British law, of punishing ‘anti-social behaviour’. The concept’s scope looked set to widen ever further as Tony Blair called in September 2005 for the increased use of ‘Parenting Orders’, according to which law-enforcement agencies would instruct parents on what to do with children who showed signs of beginning to ‘go off the rails’.33 Failure to comply with the order could result in a parent’s prosecution and a fine of up to £1000.34 It was not explained how further impoverishing parents who were already likely to be poor would improve their children’s behaviour.
The American commentator Christopher Caldwell, observing the beginnings of a similar trend in the US, argued that all such initiatives were ‘attempts to promote sentiments of community when such sentiments do not arise spontaneously’.35 Indeed: what better way to conjure up a sense of social cohesion than the historically tried-and-tested method of demonising those who are deemed not to fit in, those who are ‘anti-social’? Meanwhile, perhaps according to the principle that if you speak about it often enough it must exist, the language of ‘community’ itself had become another powerful term of Unspeak.
‘Go to any community’
‘Community’ is among the most perfect political words in English. It can mean several things at once, or nothing at all. It can conjure things that don’t exist, and deny the existence of those that do. It can be used in celebration, or in passive-aggressive attack. Its use in public language is almost always evidence of an Unspeak strategy at work.
The word’s political force is rooted in a powerful sense of people being nice to each other. ‘Community’ derives from the Latin communitatem, which meant the quality of fellowship, shared relations or feelings.36 Medieval Latin usage concretised the word, so that it meant specifically a body of people sharing such feelings in common. Thus the English term came to mean not just any group of people, but a group of people who thought of themselves as a group. Connotations of fellowship, cooperation, trust, and mutual help combined to make ‘community’ denote something like the ideal social organisation of human beings. The motto of post-revolutionary France, ‘Liberté, Egalité, Fraternité’, carries in its third term something very similar to this ideal notion of ‘community’: a brotherhood of man. Among the very earliest English uses of the term, in 1587, was the observation that humans everywhere ought to be ‘united by the communitie of their kind’,37 though unfortunately they were not.
Just as intermediate levels of organisation between society and the individual complicated notions of who was ‘anti-social’, there is not one universal ‘community’ but numerous sizes and types of groupings of people that can be called ‘communities’, with varying levels of fidelity to the word’s original meaning. Often the word is used to label a mere geographical area. Writing in late 2004, for example, Tony Blair defended his government’s record by instructing voters:
Go to any community in this country – particularly those that had the roughest time in 18 years of Conservative government – and you will see the impact of progressive government.38
Being told to ‘go to’ a community, the reader will naturally have assumed that a community is a place. But what kind of place is it? The city of Liverpool surely is not a community, any more than the island of Manhattan. A suburb of London, say Brixton – is that a community? Or does it need to be even smaller, a subset of a suburb, just a few streets square? Even in such a small area, are we to assume that all the residents really comprise a ‘community’ of cooperative friendliness, basking in a genuine esprit de quartier, as the French say? Well, that is indeed what we are invited to think. Blair could have written simply ‘Go to any place’, but in using the word ‘community’ he subtly imported all the feel-good notions of mutual help and understanding that the word implies.
The difficulty of drawing the conceptual boundaries of any one ‘community’ within a vast modern city is a symptom of the fact that, as often used politically, the term ‘community’ is saturated with nostalgia for forms of life that no longer exist. If you had to draw a picture of a ‘community’, you would probably come up with an idealised country village (‘It takes a village,’ noted Hillary Clinton) of a few hundred inhabitants at most: a place with a square, a tavern, and cheerful farmers, a place where, as in the TV series Cheers, everybody knows your name. Such modes of lif
e are rare in Los Angeles or London. And a homogeneously friendly community is not automatically found in the country any more than it is in the city. So to describe a local area as a ‘community’ is to express a wish about how the people living there should behave, regardless of how they actually do behave. (Can there be a community of the anti-social?)
Used in this way, then, ‘community’ maps political desire on to geography. But there are other possible forms of ‘community’, that depend not on shared location but on shared interests. Guilds of craftsmen, athletics clubs, or specialist internet forums whose members discuss the implications for quantum physics of Buffy the Vampire Slayer may all be thought of as ‘communities’, even though their members are widely dispersed. (This sense of community, still implying virtuous cooperation, may then be appropriated by other groups who wish to be regarded in a positive light. And so businesspeople, usually in cut-throat competition with each other, will present themselves in a united front as the ‘business community’ when it comes time to lobby against corporate tax rises or an increase in the minimum wage.) Indeed, though all uses of the word ‘community’ codify a kind of idealism, this sense of common interest or sympathy is probably the most robust. It may be appropriate, for example, to say that users of the London Underground temporarily became a ‘community’ after the July 2005 bombings; or to say that the siege of Sarajevo sought to destroy a particular kind of ‘community’, in the sense of a way of life that was not predicated on ethnic differences.
But words are used in many different ways. As with ‘antisocial’, the fact that ‘community’ has a reasonable meaning does not prevent it from being used in other, more argumentative senses. If we examine the phrase ‘the international community’, for example, we find that its inbuilt notions of global fellowship and multilateral agreement express a very particular wish about how the countries of the world should act with respect to each other. ‘International community’ itself is a form of Unspeak, mapping political desire on to geopolitics. For this reason the phrase is regularly subjected to scorn – ‘the so-called international community’, wrote Justice Antonin Scalia;39 ‘a fiction called the international community’,40 said Michael Ignatieff – by those who find such a harmonious ideal naive.