Broken Windows and World Youth Day 08

By skepticlawyer

I’ve been watching the ongoing debate (and sometime irritation) over Catholic World Youth Day with interest from afar, noting both the Pope’s clear humanity and dignity and the state’s heavy-handed responses to protest. I think Heath G over at Catallaxy is right when he argues that the various state interventions helped poison the well of goodwill for World Youth Day. What should have passed by as a positive and attractive part of Sydney’s ongoing participation in world events was rapidly mired in ugly debates about the loss of civil liberties. This (inevitably) segued into arguments about complicity in both the laws’ passage and the Church’s troubled history with pedophile priests.

While I’m a skeptic and don’t believe any of it (insert random joke about invisible pink unicorns here), I also don’t expect Catholics to adopt my perspectives, either, or to modify other positions that contradict their core beliefs. Take abortion, for example. Catholic opposition to abortion is of a piece with the Church’s opposition to the death penalty. It is quite possible for Benedict XVI to endorse environmentalism, eschew relativism and abortion, all the while still arguing for ‘life-affirming’ policies – without engaging in self-contradiction.

I’ve felt torn in odd ways, too. I take Currency Lad’s point that Cardinal Pell is a target simply by virtue of his refusal to hew to a ‘progressive’ line on many issues. No doubt, however, Pell’s position was made worse by the Iemma government thundering around like a bull elephant waving the ‘Laura Norder’ flag for all it was worth.

What I found most interesting, however, was the state’s determination that pilgrims not be ‘inconvenienced’ or ‘annoyed’. As we all know, the Federal Court rolled the latter part of the emergency law – it being incapable of reasonable definition. One would hope that this will help cure governments of one of the sillier aspects of the Laura Norder bug, but I doubt it.

The desire to use police power to protect people not from crime but from ‘irritation’ or ‘annoyance’ has its origins in George Kelling and James Wilson’s seminal piece of criminological writing, Broken Windows. Interestingly, however, the likes of Iemma (and Britain’s ‘ASBO-boosters’) have never implemented key parts of their original recommendations.

The essence of the first part of Kelling and Wilson’s argument is sketched out early in their piece:

But how can a neighborhood be “safer” when the crime rate has not gone down—in fact, may have gone up? Finding the answer requires first that we understand what most often frightens people in public places. Many citizens, of course, are primarily frightened by crime, especially crime involving a sudden, violent attack by a stranger. This risk is very real, in Newark as in many large cities. But we tend to overlook another source of fear—the fear of being bothered by disorderly people. Not violent people, nor, necessarily, criminals, but disreputable or obstreperous or unpredictable people: panhandlers, drunks, addicts, rowdy teenagers, prostitutes, loiterers, the mentally disturbed.

People – as a general rule – do not respond well to difference outside a certain ‘range’ in their community. Of course, a given community may have a wide ‘range’ – central Oxford, where the University dominates the Town, has a wide ‘range’ when it comes to accepting difference – in clothing, politics, attitudes, activities. However, woe betide any ‘Townie’ who wants to accompany his hoodie and tattoos with a boom-box in the Cornmarket – he’ll be moved on rapidly, and if he persists, ASBOed. Central Oxford’s ‘range’ does not extend to a common feature in American cities – youths playing ‘private’ music in public. I explained this to an American colleague who visited me last week (and noticed the lack of boom-boxes), and he was incredulous. Similarly, a Gownie who strays too far from the Centre while wearing academic dress (especially at night) is in grave danger of being beaten up. The Townie ‘range’ does not extend to oddly dressed members of the (purported) ruling class.

As an aside, I’ve come to the conclusion that the width of liberal societies’ ‘range’ has constricted in recent times thanks to minority demands for acceptance rather than tolerance. The two words have very different meanings, yet proponents of the latter often confuse it with the former. Something of this difficulty may be gleaned from reading the Wikipedia entry on the term. It is possible to be homophobic, Islamophobic, racist, sexist or what-have-you (insert rotten attitude du jour here) while still maintaining tolerance. Intolerance comes about when people act on their prejudices.

Where the likes of Iemma and the architects of the ASBO have departed from Kelling and Wilson’s formula is in their desire to formalise the whole process – to enact laws codifying ‘annoyance’ or ‘harassment, alarm or distress’. As I’ve already argued, this is part of a general ‘ban-happy’ (and very statist) trend in many Western democracies. By contrast, Kelling and Wilson – in a proposal that shocks many liberals – argued that police maintenance of order should be kept extralegal and informal:

The people were made up of ‘regulars’ and ‘strangers’. Regulars included both ‘decent folk’ and some drunks and derelicts who were always there but who ‘knew their place’. Strangers were, well, strangers, and viewed suspiciously, sometimes apprehensively. The officer—call him Kelly—knew who the regulars were, and they knew him. As he saw his job, he was to keep an eye on strangers, and make certain that the disreputable regulars observed some informal but widely understood rules. Drunks and addicts could sit on the stoops, but could not lie down. People could drink on side streets, but not at the main intersection. Bottles had to be in paper bags. Talking to, bothering, or begging from people waiting at the bus stop was strictly forbidden. If a dispute erupted between a businessman and a customer, the businessman was assumed to be right, especially if the customer was a stranger. If a stranger loitered, Kelly would ask him if he had any means of support and what his business was; if he gave unsatisfactory answers, he was sent on his way. Persons who broke the informal rules, especially those who bothered people waiting at bus stops, were arrested for vagrancy. Noisy teenagers were told to keep quiet.

These rules were defined and enforced in collaboration with the ‘regulars’ on the street. Another neighborhood might have different rules, but these, everybody understood, were the rules for this neighborhood. If someone violated them, the regulars not only turned to Kelly for help but also ridiculed the violator. Sometimes what Kelly did could be described as ‘enforcing the law,’ but just as often it involved taking informal or extralegal steps to help protect what the neighborhood had decided was the appropriate level of public order. Some of the things he did probably would not withstand a legal challenge.

This process involves trusting the state to police a given community’s ‘range’; it also involves trusting citizens to understand the limits of ‘self-help’ when confronted with ‘annoying’ or ‘harassing’ behaviour. I think there is a fair argument that attempting to set these boundaries legally infringes peoples’ rights more notably than allowing ‘order’ to be placed outside the law. Far better for ‘annoyed’ World Youth Day pilgrims to be able to tell gay rights protesters, say, to pull their heads in than to come to a sanitised Sydney swept clean of the very wide ‘range’ of difference that makes the city so remarkable. Low level confrontation may even have the benefit of enriching both groups’ conception of ‘tolerance’; perhaps it may even teach the state that attempting to hide people or ideas others find offensive or annoying is actually a form of deception, in that it pretends that neither difference nor conflict exist.

Kelling and Wilson recognise that this is a difficult balancing act, and – to my mind – come down too firmly on the ‘Laura Norder’ side of the debate. That said, their comment on using the law to always and on every occasion circumscribe policing is very telling:

Once we begin to think of all aspects of police work as involving the application of universal rules under special procedures, we inevitably ask what constitutes an “undesirable person” and why we should “criminalize” vagrancy or drunkenness. A strong and commendable desire to see that people are treated fairly makes us worry about allowing the police to rout persons who are undesirable by some vague or parochial standard. A growing and not-so-commendable utilitarianism leads us to doubt that any behavior that does not “hurt” another person should be made illegal. And thus many of us who watch over the police are reluctant to allow them to perform, in the only way they can, a function that every neighborhood desperately wants them to perform.

22 Comments

  1. Fred Thornett
    Posted July 20, 2008 at 8:57 am | Permalink

    Wise words, Helen. You MUST return to Australia soon. You are needed, as a High Court judge, the Chief Parliamentary Draftsman or best of all as Prime Minister – though I expect that your natural good taste and intellectual brilliance would prevent you from being PM.

    Cheerio from Hobart.

  2. Sinclair Davidson
    Posted July 20, 2008 at 9:20 am | Permalink

    I don’t disagree SL, I’m wondering though about the boundary between civilisation and barbarism. In times past it may have been unnecessary to have anti-annoyance laws because ‘protesters’ could be expected to be polite.

    The question I asked at Catallaxy seems to be unanswered “what are the limits of legitimate protest?” – that seems to be the Kelling and Wilson point in your final quote.

  3. rog
    Posted July 20, 2008 at 9:21 am | Permalink

    Not only were police used by the state to ensure a level of “happiness” resources were deployed from normal policing duties (catching crims etc) for this activity. The state’s immediate concern for the happiness of its citizens is not an enduring affection, it would seem.

  4. Sinclair Davidson
    Posted July 20, 2008 at 9:38 am | Permalink

    That’s hardly new – whenever the cops provide security at the footy the same thing is happening.

  5. Posted July 20, 2008 at 9:45 am | Permalink

    I think it’s worth remembering that protests in days gone by could be impolite, even criminal – think of the suffragettes and some of the early trade union activities. You had hat-pins in the King’s horse, destruction of property etc.

    Kelling & Wilson are trying to deal with a lower-order set of irritations that – I think – we seem to cope less well with these days.

  6. Sinclair Davidson
    Posted July 20, 2008 at 9:54 am | Permalink

    Good point. I’ve been reading a bit in Buchanan and Stigler where they say that the protesters of the 1960s were barbarians and somewhat different to protests before than time.

  7. Posted July 20, 2008 at 9:55 am | Permalink

    Helen, I thought that this was one of the best posts I have ever read. As Fred implied in his comment, I really admired the clarity of your thought..

  8. Posted July 20, 2008 at 10:03 am | Permalink

    Thanks Jim & Fred, although to be fair it’s been brewing for a while. I took criminology as one of my BCL options despite not having done it before (always a risky strategy). Even though my take on it was always fairly philosophical, I finished up doing surprisingly well (I surprised myself, let’s say).

  9. John Hasenkam
    Posted July 20, 2008 at 1:58 pm | Permalink

    SL,

    Great post. Thanks.

  10. Posted July 20, 2008 at 2:46 pm | Permalink

    It’s important to remember that protestors aren’t the only ones capable of barbarism at these things. In Joh Bjelke-Petersen’s time the cops were extremely barbaric. Hell you didn’t need to be a protestor you just needed to be under 30 and minding your own business.

    The Church does actually seem to create very strong feelings of opposition. I do wonder at the sense of, say, gay protest against the Pope’s visit. It won’t change Church doctrine which is not subject to democratic whims. Moreover it won’t change life on Oxford St where the doctrines of the Church don’t have much relevance – so what’s the point.

    Perhaps the tolerance/acceptance thing comes in here. They’re not only different they can be at loggerheads. If a gay activist group demands acceptance by the Pope they are being intolerant of the Pope’s rights to believe as he chooses (such as they are). And vice versa.

    Then again most protesting is done, in my experience, by people who either can’t afford the primal scream therapy they require and/or addicts of megaphones. So reasonable discourse won’t win. However the laws as they stand mean that the cops can bust people if they cross the line so what’s the point of the new legislation?

    There are two points: 1. to show ‘we are tough on law and order issues’, 2. Something I think entirely more sinister.: creeping autocracy.

    If you can be busted for being annoying I think maybe we’d wanna start at the broadcasting institutions. The assumption should be of guilt until proven innocent beyond reasonable doubt. 🙂

  11. Posted July 20, 2008 at 5:40 pm | Permalink

    Perhaps the tolerance/acceptance thing comes in here. They’re not only different they can be at loggerheads.

    This strikes me as the nub of the issue. I wrote the post with difference in mind, not complete polarization, but the more I think about it, the more I suspect you’re right. It’s like certain types of positive liberty – if your state enacts laws designed to produce more of certain ‘positive’ liberties (I’m thinking here of laws designed to protect group rights), it can have a particularly deleterious effect on negative liberty.

  12. Graham Bell
    Posted July 20, 2008 at 9:26 pm | Permalink

    SkepticLawyer:

    1. The religious perspective:
    If the pilgrims were out on the street and they heard opinions that contradicted their own, that was merely a test of their own faith – and they should have regarded such tests as blessings from their Savior and as compliments to the firmness of their faith.

    2. The security perspective:
    The name of the game was getting thousands and thousands of young pilgrims together for a couple of major religious events conducted by high-value targets without anyone being shot, rammed, poisoned, blown up, gassed, burnt or whatever by terrorists or attacked and terrified by activists – that’s all.

    Difficult task with myriad facets – but overall, a fairly straightforward operation with one simple basic aim.

    How could The Authorities get it so wrong? Damned if I know? It must take real talent to upset and offend so many people unnecessarily.

    Of course there is a need to have a highly visible security presence – as well as the much more effective covert security. But this whole circus was the antithesis of the invisible iron fist in the unobtrusive velvet glove. Wonder if they were smoking non-tobacco products at the time?

    Don’t get me wrong; I am delighted that all events have passed without a terrorist incident – and for that I am highly appreciative of all the hard work put in by the people on the ground to prevent anything nasty happening.

    Next time, let’s have unobtrusive impenetrable security that inconveniences and annoys none of the the public at all. It can be done. It must be done.

  13. Patrick B
    Posted July 21, 2008 at 8:52 am | Permalink

    “protesters of the 1960s were barbarians”.
    What all of them? Seems to me that given some of the great inequities (see race relations) that the state could very well be held responsible for the scale of the protest. Same for Vietnam.
    This is a very academic discussion and completely ignores the emotional aspect of protest which I would posit plays a large part in the determining the vigor of the response of both sides.
    And then of course we have the “what have we got to lose aspect”. Civil rights in parts of the US during the 1960s were so bad for some people that the prospect of a violent confrontation with the state was relished as a chance to get even. Any analysis that fails to account for these factors fails rather quickly I’m afraid.

  14. Sinclair Davidson
    Posted July 21, 2008 at 10:30 am | Permalink

    Page 48 of Stigler’s autobiography “Memoirs of an unregulated economist” (emphasis in the original).

    “The more radical of the rebelling students of the late 1960s were barbarians: They were prepared to suppress free speech and other traditional liberal values with violence in order to advance their intransigent demands”.

  15. Posted July 21, 2008 at 3:52 pm | Permalink

    Maybe the distinction between earlier and later protesters is the desire to suppress free speech, and not the presence or absence of violence. One of the suffragettes may have thrown herself under the King’s horse, but AFAIK no suffragette ever argued that people opposed to extending the franchise to women should be silenced.

    Even Stigler qualifies his comments with ‘the more radical of the rebelling students’. There are idiots in every large group (and group IQ in a large lump of people milling about outside in the hot sun probably drops 20 points too).

    This is a diversion from the main point, however – no reasonable person is going to argue against police powers being used against violent individuals or groups. Kelling and Wilson (and by extension the ASBO and Iemma’s silly law) deal with ‘annoyance’ and ‘inconvenience’, ‘harassment, alarm or distress’ and using the police to attempt to ameliorate peoples’ feelings about the area they live in or the places where they congregate.

  16. Posted July 21, 2008 at 5:20 pm | Permalink

    It’s like certain types of positive liberty – if your state enacts laws designed to produce more of certain ‘positive’ liberties (I’m thinking here of laws designed to protect group rights), it can have a particularly deleterious effect on negative liberty.

    Yeah and because people don’t understand what is meant by ‘rights’ they conjur up all sorts of ‘rights’ without thinking of the consequences. If we have a ‘right’ to something the government is obliged to see we have it.
    .
    As Bob Hawke said viz HECS: There’s no such thing as free education: the question is who pays for it..
    .
    There was an excellent essay (by a leftist) on this problem; I’ll see if I can dig it up.

    protesters of the 1960s were barbarians.

    The 1960s was Rousseauian and Romantic – ie the youth culture as a whole tried to strip down civilization’s veneer a little bit. Can’t say I blame ’em after 5 decades of war and slump it’s possible that the Establishment could use an airing out.

    The political movements in various countries (particularly Italy, France, Germany and Japan – funny that) tended to anti-social violence. The Red Brigades and such as Meinhoff testify to where this ended up.

    Of course it wasn’t like Conventional Society was exactly ‘liberal’ in dealing with the more reasonable aspects of the 1960s social watershed either. The FBI, for example, seemed to resemble the Gestapo more than a democratic police force in those days.

    Of course it could’ve been worse. Better to be a hippie getting conked in Chicago then be a hippie in Prague ’bout the same time.
    .
    And also: Prague hippies were probably much better company than the Chicago variety. The grooming, the culture and the conversation would’ve been of an altogether higher standard.

  17. Posted July 21, 2008 at 5:26 pm | Permalink

    And did I mention that Malcolm McDowell’s notions of what to do with hippies are something I agree with in spirit altho’ my committment to post-Enlightenment values prevents me from carrying out the more extreme proscriptions.
    .
    But if you guys wanna set fire to a few of ’em I won’t squawk. 🙂

  18. Posted July 22, 2008 at 6:06 am | Permalink

    I’m just old enough to remember the Red Brigades killing of Aldo Moro after a long period in captivity. I later learned that during the investigation of Moro’s kidnapping, General Carlo Alberto Dalla Chiesa reportedly responded to a member of the security services (which were suggesting torture against a suspect): “Italy can survive the loss of Aldo Moro. It would not survive the introduction of torture”.

    That is true civility – and an extraordinary contrast with Antonio Negri’s statement – a mere year after Moro’s killing – that ‘every action of destruction and sabotage seems to me a manifestation of class solidarity…. Nor does the pain of my adversary affect me: proletarian justice has the productive force of self-affirmation and the faculty of logical conviction.’

  19. Posted July 22, 2008 at 5:56 pm | Permalink

    There was an excellent essay (by a leftist) on this problem; I’ll see if I can dig it up.

    The essay appeared in this book
    It is “Freedom, Liberty, and Rights: Three Cautionary Tales” by Aryeh Neier of the Open Society Institute. The book is a reaction to the use of agit-prop by the Bush administration. I’m not certain what Neier’s personal politics are. He’s a refugee from the Nazis and’s spent his life fighting for rights, civility, the rule of law.

    His essay criticized the use of ‘rights’ both by patriotic scoundrels and fuzzy feel good rent-a-crowd types.

    Haven’t read the whole book yet. But the few bits I have were good.

  20. Posted July 22, 2008 at 6:06 pm | Permalink

    ‘every action of destruction and sabotage seems to me a manifestation of class solidarity…. Nor does the pain of my adversary affect me: proletarian justice has the productive force of self-affirmation and the faculty of logical conviction.’

    Le Carre’s Absolute Friends starts off in late 60s Berlin (well actually Pakistan but it moves to Berlin quickly).

    The scene is a hive of activist squatters who’re slowly cleaving between the violent and the non-violent.

    The depiction of those violent is interesting. Unsurprisingly they are dogmatic, motivated by hostility to their upper-middle class background and contemptuous of anyone who thinks for themselves or adopts nuanced viewpoints.

    These are the people the follow Ulrike Meinhoff who says it all here:

    Protest is when I say this does not please me. Resistance is when I ensure what does not please me occurs no more.

    This absolutist mentality can crop up anywhere, in any ideological setting. Ayn Rand was famously contemptuous of moderation. She thought it more moral to be an outright Communist.

    But then you must wonder about someone who preaches individual liberty and then dictates her disciples’ musical tastes for them.

    Disciples? That says it all too.

  21. Posted July 28, 2008 at 7:56 pm | Permalink

    I’m reading John Gray’s Black Mass at the moment, and while I find it in turns irritating and illuminating, he has certainly put his finger on the ‘utopian eschatology’ (to use a Bird coinage) of those who really do believe they can transform society.

  22. DeusExMacintosh
    Posted July 29, 2008 at 9:43 pm | Permalink

    Protest is when I say this does not please me. Resistance is when I ensure what does not please me occurs no more.

    So the Borg were right, Resistance IS futile…

3 Trackbacks

  1. By Tolerance v. Acceptance at sw’as on July 28, 2008 at 7:38 pm

    […] just been reading another exquisitely written post[1] over at scepticlawyer about World Youth Day 2008 and the Government’s heavy handed, unnecessary and damaging […]

  2. […] the former (allied to attempts at controlling how one is portrayed) are fraught with danger. I’ve written about this before: People – as a general rule – do not respond well to difference outside a certain […]

  3. […] work well, and sometimes courts strike them down, as happened when — during protests over Pope Benedict’s visit and World Youth Day in 2008 — NSW Premier Morris Iemma tried to criminalise ‘annoying’ behaviour. The law can […]

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