This is an extract from my article ‘“Law”, “order”, “justice”, “crime”: disrupting key concepts in criminology through the study of colonial history’ published in The Law Teacher in December 2020. The full article is available here: https://www.tandfonline.com/doi/full/10.1080/03069400.2020.1827787

A Spanish translation of this blog post is available here: https://unenormecampo.files.wordpress.com/2021/01/moore-2021.-el-problema-colonial-de-la-criminologia.pdf Thanks Dani!

At this time colonialism’s significance to education is being recognised and all disciplines are being challenged to ‘decolonise’.^[1] Disciplines emerged in Europe at the same time as it developed power/knowledge/difference to govern both its capitalist metropole and its colonies.^[2] Like other disciplines, criminology’s “historical emergence … was occasioned by a problem, a requirement, an obstacle of a theoretical or practical order”.^[3] That order was the capitalist and imperial order. In fulfilling this function Criminology has always been “entirely utilitarian”.^[4] For Michel Foucault, criminology “is of such utility … that it does not even need to seek a theoretical justification for itself”.^[5] 

As a discipline criminology is unique in that its subject matter – ‘crime’ – is determined by the state.^[6] Given that it is the state that determines criminology’s subject matter, it is concerning that the discipline generates theories that often “have no concept or theory of the state”.^[7] As a consequence the discipline tends to ignore the often oppressive and violent nature of the state itself.^[8] Given the state’s central role in not only defining ‘crime’, but also in responding to it through penal law and its criminal justice agencies, it is vital for criminology to understand how the modern state, in the metropole, settler colonies and the post-colonial ‘independent’ states has been shaped not only by capitalism but by the challenges of colonial governance.^[9]

Whilst the focus on ‘crime’ ensures criminology’s range is determined by the state, ‘crime’ existed before, and without, criminology. Criminology’s specific contribution was its invention of the criminal; ‘crime’ ceased to be something committed by otherwise normal people but by the criminal ‘other’.^[10] The penal philosophy of Beccaria and Bentham had perceived criminals as rational beings, motivated by exactly the same forces and influences as everybody else.^[11] The key to stopping, or at least minimising, offences was to ensure the certainty of receiving an appropriate punishment.^[12] Criminology changed this. During the 19th century criminals ceased to be rational beings, they became both morally defective and in need of reformation. Lombroso, and other early criminologists, discovered the ‘born criminal’; an incurable primitive being, sub-human, and entirely unlike the ‘normal’ person.^[13] Criminology invented “an enemy mysterious, unrecognized by history … the CRIMINAL.”^[14] 

So why was it that, in the nineteenth century, this ‘mysterious’ and ‘unrecognized’ criminal was able to be perceived? In the preceding centuries Europe had been engaged in invasion, genocide, slavery, asset stripping and a myriad of other oppressive and exploitative activities across the globe.^[15] Colonial domination required humanity to not be universal. Invented in the metropole and deployed in the colony, ‘race’ (or more accurately racism) enabled the creation of the ‘racial other’, the subject without the rights and liberty of the liberal ‘white’ citizen.^[16] The discipline most central to the project of scientifically proving the otherness of the colonial subject was anthropology and Lombroso chose to initially brand the discipline that would become criminology as ‘criminal anthropology’.^[17] When in 1924 the Indian legal scholar K S Pillai, observed that: “The African Negro reminds us of several characteristics of Lombroso’s born criminal …” his association was no coincidence. Lombroso’s ‘other’, the born criminal, could only be discovered because of the racial ‘other’; anthropology’s invention legitimising colonialism.^[18]

These issues are almost exclusively avoided in the teaching of criminology. ‘Crime’ is largely presented as an unproblematic concept, with criminal justice institutions and the operation of penal law accepted as its natural responses. My own research, seeking to explain contemporary levels of penality in the metropole through historical analysis, led me to move beyond the metropole and to a focus on colonial governance. Whilst the punitive turn of recent decades could not be explained by a historic focus on Britain, a wider perspective of the penality of the British state, in its empire, showed clear continuities.^[19] The introduction of this history makes the progressive and civilising Whig accounts of the development of criminal justice unsustainable.

Criminology’s link to ‘crime’ makes attempts to engage with colonialism problematic. For example, when Emmanuel Onyeozili claims that the British occupation of Lagos was “international terrorism and a violation of international law” and Biko Agozino argues that the “enslavement of Africans was a crime against humanity” they fail to acknowledge that however harmful, vile and repugnant the behaviours of British colonialism were, they were not crimes.^[20] Indeed, the British state carefully deployed law to legitimise its conduct. Rather than being ‘crimes’ these abuses of human rights show the limitation of the concept and the need to seek explanations and counter-colonial praxis which recognise the limitations of criminology’s core concepts. ‘Law’, ‘Order’, ‘Justice’, ‘Crime’ – concepts often presented as unproblematic in the curriculum of criminology – become much more challenging when explored through the history of the legal enslavement of Africans, the legal genocide of indigenous peoples, the legal looting of India, the racist colonial legal codes, and the wide range of other legalised (and legally enforced) injustices and harms that characterised colonial governance.^[21] Without this history any study of ‘crime’, criminals or the criminal justice system is not only incomplete but fundamentally inaccurate.

Explaining how criminology “continues to operate largely as a repressive technology,” Agozino has highlighted how it “was developed primarily as a tool for imperialist domination”.^[22] Indeed Agozino has repeatedly drawn attention to the highly problematic relationship between criminology and colonialism observing that criminologists have “completely ignored the crimes of colonialism and the epochal struggles for decolonisation while focusing on street crimes.”^[23] Criminology therefore has a colonial problem.^[24] It not only has, like all disciplines, to confront the colonial legacy of the academy and the states in which it seeks to operate, but through its focus on ‘crime’, it has accepted that that state defines its remit. Its foundational contribution, the invention of the criminal ‘other’, a development made possible through the utilising of the racist concept of the racial ‘other’ makes decolonisation even more difficult. Current attempts to decolonise the discipline are problematic.  For example, Southern Criminology, which explicitly states that is not intended ‘to dismiss the conceptual and empirical advances in criminology, but to more usefully de-colonize and democratize the toolbox of available criminological concepts, theories and methods’, adopts a largely geographic conception of ‘Southern’.^[25] This has enabled settler colonies and their criminological discourse to be located in the ‘South’ thereby failing to recognise that, as Edouard Glissant has pointed out, ‘(t)he west is not in the west. It is a project, not a place.’^[26] Likewise, recent Australian attempts at Decolonising Criminology and introducing Indigenous Criminology have failed to engage fully with the genocidal logic of settler colonialism.^[27] To date these new paradigms have failed to satisfactorily demonstrate if criminology, an “imperialistic discipline”, can be decolonised?^[28]

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^[1] Gurminder, K. Bhambra, Dalia Gebrial and Kerem Nişancioğlu (eds), Decolonising the University (Pluto Press, 2018)

^[2] Stuart Hall The Fateful Triangle: Race, Ethnicity, Nation (Harvard University Press, 2017)

^[3] Michel Foucault, The Order of Things (Routledge, 2002) p.376

^[4] Michel Foucault, Power/knowledge: Selected Interviews and Other Writings 1972-1977 (Harvester Wheatsheaf, 1980) p. 47

^[5] Ibid.

^[6] Paddy Hillyard and Steve Tombs, ‘Beyond Criminology’ in Paddy Hillyard and others (eds.), Beyond Criminology: Taking Harm Seriously (Pluto Press, 2004)

^[7] Stuart Hall, Chas Critcher, Tony Jefferson, John Clarke & Brian Roberts, Policing the Crisis: Mugging, the State, and Law and Order(MacMillan Press, 1978) p. 190

^[8] Joe Sim, ‘The Victimised State and the Mystification of Social Harm’ in Paddy Hillyard and others (eds.), Beyond Criminology: Taking Harm Seriously (Pluto Press, 2004) 

^[9] Partha Chatterjee, The Black Hole of Empire: History of a Global Practice of Power (Princeton University Press, 2012)

^[10] David Garland, Punishment and Welfare: A history of penal strategies (Gower, 1985)

^[11] Cesare Beccaria, On Crimes and Punishments (Hackett Publishing, 1986); Jeremy Bentham, ‘Principles of Penal Law’ in John Bowring (ed.), The Works of Jeremy Bentham, Volume IV (William Tait, 1843), pp. 365-380.

^[12] Ibid

^[13] Cesare Lombroso, Criminal Man (Trans. Mary Gibson and Nicole Hahn Rafter, Duke University Press, 2006); Cesare Lombroso, Criminal Woman, the Prostitute, and the Normal Woman (Trans. Mary Gibson and Nicole Hahn Rafter, Duke University Press, 2004)

^[14] Raffaele Garofalo, Criminology (Little, Brown, and Company, 1914) p.xxvii. Emphasis in the original.

^[15] Aimé Césaire, Discourse on Colonialism, (Trans. Joan Pinkham, Monthly Review Press, 2000)

^[16] Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (2nd edn. University of Chicago Press, 1999); Domenico Losurdo Liberalism: A Counter-History (Verso, 2011)

^[17] Nicole Hahn Rafter, Creating Born Criminals (University of Illinois Press, 1997)

^[18] Pillai, K.S. Principles of Criminology: The Tagore Law Lectures – 1920, (Vest & Co, 1924)

^[19] J.M. Moore, ‘Is the Empire coming home? Liberalism, exclusion and the punitiveness of the British State’ [2014] Papers from the British Criminology Conference

^[20] Emmanuel C. Onyeozili, ‘Gunboat Criminology and the Colonization of Africa’ in Anita Kalunta-Crumpton and Biko Agozino (Eds.) Pan-African Issues in Crime and Justice  (Ashgate, 2004) p.225; Biko Agozino, ‘Reparative Justice: A Pan-African Criminology Primer’ in Anita Kalunta-Crumpton and Biko Agozino, (eds.) Pan-African Issues in Crime and Justice (Ashgate, 2004) p.234

^[21] David Olusoga, Black and British: A Forgotten History (Macmillan, 2016); Asafa Jalata, ‘The Impact of English Colonial Terrorism and Genocide on Indigenous/Black Australians’ Sage Open <https://journals.sagepub.com/doi/full/10.1177/2158244013499143> accessed 26 October 2019; Shashi Tharoor, Inglorious Empire: What the British did to India (Penguin, 2016); Ivan Evans,  ‘Racial violence and the origins of segregation in South Africa’, in Caroline Elkins and Susan Pedersen (eds.) Settler Colonialism in the Twentieth Century (Routledge, 2005).

^[22] Biko Agozino, Counter-Colonial Criminology: A Critique of Imperialist reason (Pluto Press, 2003) p.228

^[23] Biko Agozino, ‘The Withering Away of the Law: An Indigenous Perspective on the Decolonisation of the Criminal Justice System and Criminology’ [2018] Journal of Global Indigeneity, 3(1), p.6

^[24] Space does not permit me to further develop this point. However, it is important to stress that this ‘problem’ presents in very different ways in independent former colonies, settler-colonies and the metropole.  

^[25] Kerry Carrington, Russell Hogg, and Máximo Sozzo, ‘Southern Criminology’ [2016] British Journal of Criminology 56 (1) p. 1

^[26] Edouard Glissant, Caribbean Discourse: Selected Essays (University of Virginia Press, 1992) p. 2.

^[27] Harry Blagg and Thalia Anthony, Decolonising Criminology: Imagining Justice in a Postcolonial World (Palgrave Macmillan, 2019); Chris Cunneen and Juan Tauri, Indigenous Criminology (Policy Press, 2016). Also see my review of Indigenous Criminology (J.M. Moore, ‘Review of Indigenous Criminology’ (2017) Howard Journal of Crime and Justice 56 (3) pp. 386-7. 

^[28] Biko Agozino, ‘Reparative Justice: A Pan-African Criminology Primer’ in Anita Kalunta-Crumpton and Biko Agozino (eds), Pan-African Issues in Crime and Justice (Ashgate, 2004) p.228