Incivilities: Regulating Offensive Behaviour by A. von Hirsch and A.P. Simester (Eds.).
Sarah Blandy · The Howard Journal of Criminal Justice · 2008
Oxford : Hart ( 2006 ) 304pp. £37.00hb ISBN 978-1-8411-3499-4 This edited collection is the product of two inter-disciplinary colloquia on the subject of incivilities, held in Cambridge in 2002 and 2003. Amongst the eleven contributors are philosophers, criminologists, a sociologist, and penal theorists. The editors say in their brief preface that their aim was to explore principles that might define and limit the scope of what they term ‘quality-of-life prohibitions’ by the State, for example, against begging, indecent exposure, and anti-social conduct, all of which have the potential to cause offence to others. The contributors are amongst the most respected in their various fields, and each chapter can stand alone. Although the arguments made in any one chapter may fit comfortably within its disciplinary boundaries, the book as a whole attempts to look beyond those boundaries. The success in this endeavour is variable; sometimes points made in one chapter are engaged with in others, but rather too frequently, opportunities for cross-referencing have not been taken up. The chapters are very diverse in style and approach, making the book as a whole difficult to review in a limited space, but fascinating to read. Paul Roberts's extensive first chapter argues persuasively for inter-disciplinary discussion around a central question: what kinds of conduct should be proscribed by the criminal law? Much of this discussion in subsequent chapters focuses on the relevance and applicability of Feinberg's Harm Principle. Douglas Husak's chapter on disgust addresses the intriguing notion that perhaps offensive conduct is not becoming more pervasive; maybe we are all becoming thinner-skinned and more likely to take offence. In his closely argued contribution, John Tasioulas rejects the usefulness of a harm/offence distinction in favour of a norm-governed definition of offensive behaviour. The very different approach to offensive conduct taken in Germany (based on violation of ‘legal rights’) is outlined by Tatjana Hornle, who suggests that German penal theory could profit from a change of perspective to the victim's point of view. This, of course, is exactly the perspective taken by current UK legislation, in particular the anti-social behaviour order (ASBO). Anthony Duff and Sandra Marshall's chapter criticises the ASBO as a disproportionate response to offensive behaviour. The editors contribute two chapters; their first addresses principles for penalising offensive behaviour, concluding that offensiveness is only wrongful when it ‘treats others with a gross lack of consideration or respect’ (p.120). The second chapter by Andrew von Hirsch and Andrew Simester characterises the ASBO as a ‘two-step prohibition order’, by which behaviour, not in itself unlawful, becomes criminal if the prohibition is breached. The volume becomes increasingly less theoretical towards the end. Elizabeth Burney sets out, entertainingly and informatively, the historical development of the regulation of offensive behaviour in England and Wales. The chapter by sociologist Bryan Turner reminds us of the importance of trust and ‘social capital’ (here used in the way this concept has been adopted by UK policy makers, rather than in Bourdieu's original sense) when considering how to deal with offensive behaviour. Finally, Anthony Bottoms reflects on lessons from his empirical research in Sheffield. For those looking for policy recommendations, Bottoms's chapter ends with five broad principles which he suggests should inform policies designed to tackle incivilities. In this very stimulating, challenging book, the arguments about offensive behaviour are lifted above the mundane policy level, and its breadth of scope will appeal to an international readership. However, the book suffers from some ambiguity as to whether it is specifically addressing the UK anti-social behaviour agenda, or is dealing with incivility as an abstract topic for analysis. The theoretical chapters and those which take a more grounded approach do not quite combine to produce a volume which adds up to more than the sum of its parts. This might have been remedied by including an introduction and conclusion which signposted the main arguments made by each contributor and the major points of difference between them. Nonetheless the book will continue to provide a valuable reference point for debates around incivilities for some time to come.