hydrarchist writes

This is Part 1 of a three-part essay. Part 2 is to be found here, and the final Part 3 here."

"Crime Becomes Custom, Custom Becomes Crime"

Trevor Bark

Paper presented at the 'Making Social Movements:
The British Marxist Historians and Protest Movements' conference, June 26-28 2002 Edge Hill College of Higher Education.

Abstract

The British Marxist Historians (BMH) were involved in the study not only of protest and social movements, but of what was and was becoming crime. The enclosures, the change from wages in kind (perquisites) to the wage form itself (Linebaugh 1991), wood gathering, nutting and so on that were previously peoples custom were criminalized and fought politically by the disposessed. Thompsons 'moral economy' theses was based upon the study of bread riots, and this in turn became part of what is known as the social crime debate (Douglas Hay et al, 1975)

Rather than economic crime and protest being central to the poors' lives, crime became marginalized and left to the professionals or a marginalized lumpen element in the Fordist era. Into the late modern era we have seen the growth of crime often linked to high unemployment and 'flexibility', and the growth of social movement protest.

The themes of the BMH about a militant participation in the present, a political Marxism, and reconstructing theory are important ones. To that end we involve ourselves in the social movements, whether that is a rediscovery of the mass tobacco and alcohol smuggler, other informal economic activity in the city, or the emerging anti-capitalist movement.

I am presenting a case for the development of the social crime concept by testing whether the key characteristics can be found today, and also politically reassessing the nature of crime itself. Originally (Hay et al, 1975) said it wasn't possible to distinguish between 'good' criminals here and 'bad' criminals there, and this all blurred into the labouring poor; Linebaugh (1991) notes payment of wages was often years behind. The distinction between the respectable/unrespectable, non-deserving and deserving poor manifested itself in the political development of the Labour movement and Marxism, and can be found within the anti-capitalist movement.

Following "No Logo" and its emphasis on the trademark brand names in the shops I will present analysis about shoplifting and whether the politics of part of the anti-capitalist movement has had any effect on shoplifters choices. I will ask the question about how you go about destroying the brand most effectively, and outline the liberalism found within "No Logo". 'Crime' is now a central feature of the social movements large manifestations and also for a significant section of the general public.

INTRODUCTION

The title of the paper may seem like a reversal of the chronological order in which the events described happened. However I placed it this way round because I want to emphasize the precedence with which I view contemporary events. It also has something to do with the involvement I have with these events that lends it subjective force, and I am aware of that. Although as my grandparents grandparents were born in the 1830's I am also aware of the influence history exerts, as oral history is passed down. This is work in progress.

Custom Becomes Crime

The British Marxist Historians produced a lot of exiting material about the development of capitalism and the struggles of the poor. It is the process of the capitalist turning custom into 'crime' which is the centerpiece of the early social crime debate

"the vast expansion of property-protecting law in the eighteenth century, transforming for example 'customs of the trade' into the embezzlement of materials and the gathering of firewood into a rural felony, then we can see the substance behind Edward Thompson's remark: 'Crime in the sense of being on the wrong side of the law was, for vast numbers of undifferentiated working people normal'." [1]

This outlines how the process of the proletarianisation of the masses was carried out by divorcing them from the feudal means of production through criminalisation. When the peasantry worked the lords land for part of the product, they also had some rights to common pasture. Where they could run some of their livestock and also cut turf for fuel, gather nuts (nutting) eggs (a-egging )[2] and wood for fuel from the forest and so on. The poors' access to game has always been tightly controlled however and had always been known as poaching for which there were harsh penalties and even death as punishment. At one point only the owner of land could kill game which even antagonised some of the more well off and relatively powerful people. In order to be able to hunt

"By an act of 1670 a man had to be lord of a manor, or have a substantial income from landed property, even to kill a hare on his own land. The basic game qualification was an income of £100 yearly from a freehold estate, which in 1750 was between five and ten times the annual income of a labourer, and fifty times the property qualification to vote for a knight of the shire." [3]

There were also substantial criminal penalties, but these did not stop

"the poor… [who] reminded themselves that Genesis said the animals were made for man, and poached with passionate determination and courage" [4]

The socio-economic conditions that formed the backdrop for this was of social crime activities, and described by Linebaugh (1991) as follows

"The industrial revolution and accompanying demographic revolution were the
backgrounds to the greatest transformation in history, in revolutionising 'needs'
and in destroying the authority of customary expectations. This is what demarks
the 'pre-industrial' or the 'traditional' from the modern world." [5]

So as the economy gradually became more capitalist and technologically advanced pressures built up. There was a demand for the actual and capitalist ownership of land that was accomplished largely in the last decades of the 18th century. Also the gradual imposition of new and capitalist laws altered social relationships. This had the effect of making it harder for the peasants to survive legally than before. Wood gathering and nutting became theft and trespass, there was no commons left to run livestock on, killing game for food became a capital offence and other traditional rights to a proportion of the harvest (gleaning) became theft also. So the 'income mixes', Vobruba uses this term to describe methods of "Combining incomes from different sources" [6] , afforded by the variety of combinations of incomes in kind on offer were gradually whittled away. Finally it was as late as 1887 that

"it was traditional to pay part of a farm labourer's wages in cider. A typical
allowance was three or four pints a day, increased to six to eight pints during
haymaking and harvest. Then a clause in the Truck act prohibited the
payment of wages in alcoholic beverages and cider truck became illegal." [7]

So far I have emphasised the social crime activities that went on in the countryside that resulted in the great shift of people to urban settings, indeed the majority of people have been in urban areas since 1810. The main issues here are that as the capitalist definition of private property in land, game, and produce were established they went against previous customary practice. So as the criminal law began to redefine ownership, it also upheld new forms of circulation as we shall later see from our discussion of the liberal economics surrounding the supply of grain and the resulting bread riots. Alongside this, early capitalist formation relied on the manufacture mode of production. This made the central workshop its core and removed the labour process to a site owned and controlled by the boss. He was then able to maintain control over both the tools and materials of labour that he owned and over the labouring activity of the workers employed. They then received the wage. This working class was recruited in 3 ways for these factories:

1. Urban pool of labour.

2. Migrants from the countryside

3. People from other parts of the world.

Various new laws also enforced the necessary protections and morality for these new capitalist arrangements. However, this is the actual pre-history of the factory that we are talking about here. These changes are part of the preconditions necessary for the extension of the factory system into the everyday life of the masses. Attitudes that were previously based upon the seasons within agriculture largely were task orientated and unaccustomed to the brutal reality of the clock. The following emphasize the space aspect of the new employment conditions, but the control of time was just as important.

"Handicraft, putting out and manufacture could lead to confusion as to the ownership of the means, materials and product of production. The Williamite criminal code sought to clarify the confusion. The privilege of benefit of clergy was removed from the following offences: robberies of 5s or more in a dwelling house, shop or warehouse (Robbery act of 1691); stealing goods of 5s or more in the day or night from a shop (Shoplifting act of 1699): stealing goods of 40s or more from a dwelling or outhouse (Larceny from a dwelling act of 1713). Of cardinal significance to these statutes was the locus operandi. New modes of circulation of commodities (shopping) and new modes of their production (putting out and manufacture) that emphasized physical locations were reflected in these revised definitions of robbery, breaking and entering, burglary and shoplifting." [8]

Some idea and significance of the struggles against liberal economics can be seen if we look at the period between 1720 and 1750

"in the British Isles a home market was being formed during this period. We see this clearly in the provisioning of protein to London - that is, in the meat trades. Provisions originated from the far reaches of Scotland, Wales and Ireland; they were realized in sale at many markets; they were consumed in London. A transportation infrastructure was created; roads were built; capitalist methods of marketing were imposed; people were expropriated from traditional ways. In Ireland and in Scotland banditry prevailed; in London Highway robbery. Bandits and Highwaymen conducted their affairs with distinct, living memories of a regulated moral economy.
Behind the abstracted 'corruption' noted so often then and since as being typical of the period, there were monied corporations insinuating an avaricious tone into society. An aggressive dialectic existed between two forces: one established commodities, organized labour and provided discipline at the gallows; the other consisted of an unusual conglomeration of people with different ideas and experiences of property..." [9]

When identifying the range of activities that come under the category of social crime there are different levels of analysis. We can start by looking at the means by which people collected the goods, then we can look at the means of its' distribution (if at all due to personal use), the cultural aspects which involved such things as dog training and solidarity, and any violence used to protect themselves and their 'property'.

However, it was a later period, that between 1776 and 1800 which saw the pace of change speed up and also the magnitude and importance of many issues. We shall see that the rate of enclosures was especially great in this period.

ENCLOSURE

"was a plain enough case of class robbery, played according to fair rules of property and
law laid down by a Parliament of property owners and lawyers"

E.P. Thompson "The Making of the English Working Class".

"the law was employed as an instrument of agrarian capitalism, furthering the 'reasons' of
improvement. If it is pretended that the law was impartial, deriving its rules from its own self-extrapolating logic, then we must reply that this pretence was class fraud... Enclosure, in taking
the commons away from the poor, made them strangers in their own land."

E.P. Thompson, "Customs in Common", Penguin, 1991, P 175, 176, 184

From the late 14th century to the early nineteenth we are talking about the transition from the feudal mode of production to the capitalist one. It was not a matter of simple and immediate replacement but a process of transition between the idealised epochs. Of crucial importance is the fate of the peasantry and its' proletarianisation.

"as long as the mass of the people have direct ties to the soil and hence to their means of subsistence, capitalist production cannot be widespread, for the essential element of capitalist production is the existence of a mass of labourers who are forced to sell their labour power to capital in order to subsist. The transition from the feudal mode of production to the capitalist mode of production therefore requires the seperation of the mass of producers from the means of production." [10]

It was between 1780 and 1830 that the 'industrial revolution' was said to have begun in Britain and revolutionised peoples lives. This process was and is based upon particular social relations of the capitalist mode of production in the context of the long transition from feudalism to capitalism. In opposition to the economists who disguise the nature of class power in development by minimizing the role of force in capitalist transactions and associated economic transformations. I hope to show how the 'competitive' and hostile forces were arranged.

The classical economic interpretation would see the 'progress' of economic development that "consists primarily of the triumph of the advanced manufacturing or 'industrial' sector over the backward agricultural or 'traditional' sector" (Lazonick P. 3) It is particularly based upon qualitative changes in social relations which are masked by such neutral terms as "industrialisation". Which in and by itself specifies only a form of material production and leaves out much more, and can be used as

"to portray 'industrial' development as a class-neutral technological process which can be adequately assessed in quantitative terms.... The idea of 'industrialisation' is in itself historically meaningless and misleading unless we specify the historical changes in the social relations of production of both agriculture and manufacturing which permit the rapid expansion of material production." [11]

Central to Marx's analysis of the rise of capitalist production is his view of the role of enclosures. To begin with we will define enclosure as

"a process of taking land which is either communal property or individual property operated in a system of communal agriculture, and redividing it and reallocating it in private plots or tracts which are often literally enclosed off from one another. Generally, then, enclosure represents the extinction of communal or semi-communal forms of landholding and their replacement by purely private forms. The results of enclosures in England... were, according to Marx, not only the creation of purely private property in agriculture, but also the creation of a landless labour force, an expanded food supply to feed this labour force, a home market for agricultural and manufacturing products and the concentration of landed wealth... Enclosures, extending from the 15th to the 19th century were prime instruments in the proletarianisation of a significant portion of the English labouring class... even though following enclosures, many of the newly created proletarians remained as wage labourers in the agricultural sector, they had become, nevertheless, dependent on capital for their subsistence. With their proletarianisation, the social relations into which these labourers now entered had radically changed... What mattered in terms of economic and social development was the fact that their labour power had become a commodity" [12]

The emergence and dominance of neo-classical economics of the liberal economy which saw the emergence of industrial capitalist social relations as normal, has been replicated in the past 20 years by the control and command centers of the capitalist economy, and the transnational corporations. What has been called 'globalisation' is in fact the breakdown of several economic and political barriers to growth and the emergence of neo-liberalism. These were Keynesianism in the West and the former 'communist' states in much of the rest of the world. The disciplinary economic measures forced on countries have resulted in the creation of proletarians from the ashes of the peasantry around the world, by such organisations as the World Bank and the International Monetary fund (Midnight Notes, 1990, P. 2) who have enforced 'structural adjustments' that have had this effect.

It is of no surprise that the highest rate of enclosure and it's last wave in Britain should have come as the industrial revolution started and developed. The genesis of which were the previous waves of enclosure already mentioned. It is not because of an idealised romantic love of the land that we are concentrating on enclosures, it is because of distinct social relations and the means of production on the land that it is important. These took the form of customary rights that varied from parish to parish. The peasants cow could graze on the common; firewood, nuts and mushrooms could be collected in the forest, the peasants could cultivate the natural world as they saw fit and poach for meat as the Game laws prevented people from killing on land they even had rented from the Lord of the Manor.

"The most important common right, common of pasture, was of critical importance to common field agriculture... a number of other property rights of less central significance to agriculture but often of great importance in household economies, usually lay over the same lands. The right to take turves [Fuel] or wood from the wasteland; rights to fish, gather acorns, and mast for pigs; or to take sand or gravel from the common, might all be matters defined by local custom. Who could take what, when, and where were inscribed in immemorial practice... Beyond common of pasture and the other common rights already mentioned... were a variety of claims recognised in only some places. Customs existed allowing the burning of furze for ashes, or even (some commoners claimes) the taking of game.... the right to glean the harvested fields for fallen grain was maintained for the women and children of the labourers and poor... The sanction of religious precept was perhaps particularly strong with respect to gleaning customs: 'And when ye reap the harvest of your land, thou shalt not make clean riddance of the corners of thy field when thou reapest, neither shalt thou gather any gleaning of thy harvest; thou shalt leave them unto the poor, and to the stranger: I am the Lord your God' (Leviticus 23:22)" [13]

The language used and understood at the time was of common of pasture for cows, and right of sheepwalk for sheep, the right to cut wood as fuel, for housing, for a stile, fuel and furniture was common of estovers, fishing rights were called common of piscary, and the fact that bogs existed in lots of areas led to common of turbary for peat cutting rights. [14]

Whilst it is true that enclosures started at the end of the 14th century it is only when land became scarce due to economic changes and population growth that enclosures became so politically important

"In the 16th and 17th centuries... as sheep farming increased, as population grew... and as grain production for the market became more profitable, land ceased to be relatively abundant. When landlords enclosed the commons, the inhabitants had virtually no legal claim to continuation of their customary rights. Legally protected rights to the use of commons accrued only to those who held an interest in the open-field. The rights to land use by cottagers and squatters were at the will of the lord; such rights could be extinguished by the will of the lord" [15]

It is the process of proletarianisation on a worldwide scale that has made the current period one of great struggle, hardship and hope. Whilst Klein could talk about the sweatshop method of production in export processing zones this is merely the surface manifestation of the current period, and an illusory demon to chase. The real root of the issue is the creation of a worldwide labour force, the final abolition of the mass peasant, and as Midnight Notes say "the largest Enclosure of the worldly common in history" (1990, P. 1) Like the orginal epoch of enclosure new mass migrants have been formed as the people are seperated from their means of production and placed at the disposal of the globalised capitalist economy.

For our purposes it should be noted that it was the time after the restoration of the Stuart monarchy that states organised political power merged with the emerging capitalist class to end the final traces of the feudal economic relationships ie. the destruction of the open field system operated by the peasantry and from which it derived its subsistence. There was of course different levels of relative wealth and this influenced the fortunes of those people. Even those lucky enough to remain with a couple of acres of land felt the neutral (according to classical economic theory) economic pressure to sell (Hay and Rogers, 1997) their last remaining tie to the land and hence were totally proletarianised.

"The 'upper' yeomen and perhaps some of the more well-to-do 'lower' yeomen were already, at the end of the seventeenth century, producing primarily with the idea of marketing as much surplus value as possible as oppossed to producing merely to meet their subsistence needs. As wage labour became more available and as the land market grew, these richer peasants were leasing and buying more land and hiring more labour. They were ceasing to be independent peasants and were becoming capitalist farmers and even landlords.... as for the cottagers and squatters... their means of subsistence became increasingly tenuous as more and more of the common land was enclosed. They derived an increasing share of their subsistence by selling their labour power as a commodity and/or producing for exchange in the putting out system. They derived a decreasing share of their subsistence by directly appropriating it from the land.
In the late 17th and early 18th century, there were many forces working to accelerate these changes. Substitution of terms of tenure... also, much of the land enclosed during the first 60 years of the 18th century involved conversion of arable to pasture for purposes of sheep-raising. As in the 16th century, such enclosure had the most sudden and dramatic effects in creating a proletariat." [16]

We must further note the scale of the enclosures in a realistic history. After the 1st private enclosure act passed by parliament in 1710 there was vigorous opposition and resistance, raids on the Bishops deer and 'Blacking', the Black Acts ('death statutes') and this is all described in "Whigs and Hunters" by E. P. Thompson. The next 30 years between 1720 and 1750 saw 100 more acts. It was apparent the pace was continuing to rise when 139 acts happened in the next decade to 1760. 4000 acts were passed between 1750 and 1850 with 2 dramatic rises in the rate of enclosure. Firstly between 1764 and 1780 there were 900 acts passed, and between 1793 and 1815 a further 2000. Obviously periods of intense change, struggle, and with serious hardship. I don't think it's a surprise that the activities of General Ludd fall within the latter periodisation.

If we see enclosure as the representation of many different factors in proletarianisation then perhaps by about 1750, the social relations of capitalism were emerging as dominant in the agricultural sector (tenant farmer, landlord and wage labourer) and there were also a large number of proletarians to feed the booming industrial revolutions need for labour power.

If the Customs meant that people could gather subsistence from the land then the enclosures turned land into capitalist property, criminalising previous claims

"the most important attack on the claims of custom as law was the passage of so many enclosure acts in the last four decades of the eighteenth century.... its most important legal and social consequence was the obliteration of the customary common rights of the manor. What had been law for over 500 years ceased to be so; the history of struggles, over generations, of commoners and lords to define their respective property rights in the common lands and wastelands of the parish passed from the realm of lived custom, lived law, lived tradition and struggle, to total irrelevance. That this transformation happened in thousands of parishes (usually the most populous) in the lifetime of a generation meant that the familiar modes of regulation of life that was communal (although not democratic) were breached in a striking way" [17]

Social Crime Debate

Definition and Characteristics
.
Lea (1999) says that the social crime debate was started by Hobsbawm (1959, 1969, 1972) with his discussion of 'Primitive Rebels' and 'social bandits'. The main phase of this first wave social crime debate can be said to have existed in the 1970s and Lea (1999) identifies this as the "high point of the debate". There are a wide variety of events covered by this debate around the world, and

"The concept of social crime that emerged from these studies is quite broad and at times opaque. It involved a number of elements by no means all of which are necessarily present, or even regarded as essential, across the range of studies" [18]

Lea further identifies key aspects of social crime debate that are generally and implicitly present in the existing analysis. Firstly, that the breaking of law is or is implicit in the act as protest, for example poaching and the game laws which were widely regarded as unjust (Hay et al, 1975). Secondly, that there is widespread communal support for the activity in question and the people who are doing it based upon commonly held views about oppressive laws, and that there is a measure of popular justice contained within the act.

Thirdly, the criminalisation of custom that mainly centered around activities designed to assert traditional land uses in the face of encroaching capitalist social relations. Fourthly, social crime that exists in industrial capitalist society after the working class looses it's mass consciousness of pre-capitalist norms will be either of two forms. A) Either attempts at new or proto communist forms of distribution, or b) an underground capitalism with no laws comprised of stolen or illegally manufactured goods that the community tolerates not because it is prefigurative communism, but because it involves low prices. Finally, there is no 'nice and tidy' social crime here, and destructive anti social crime over there (Thompson, 1972) The authors of "Albions Fatal Tree" could find no evidence of these tightly formed categories existing in real communities. Instead the boundaries between social crime, anti social crime and non criminal acts were a part of everyday life and judgemental moralism didn't impinge on social relationships.

The start of a period of political and media attention on the alcohol and tobacco smuggling issue in comparison with shoplifting is interesting in itself. Vast amounts of money has been spent tackling smuggling and employing 1,000 extra customs officers recently, but why? In terms of financial costs the effects of shoplifting and alcohol and tobacco smuggling are fairly similarly gigantic. Yet one is the subject of MI5 inquiry and the other is not. This has the effect of virtually criminalizing people who previously would see themselves as law abiding individuals, and making the political dimensions of the whole process more apparent. Therefore increased policing control may have the opposite effect of that intended by resolving those already in the smuggling periphery, and drawing those into the smuggling fraternity people who wouldn't normally have considered it. The policing arrangements merely mediate the political struggle being carried out by powerful tobacco corporations, other political actors, and other institutions.

The emergent 'political criminality' is a cultural phenomena in the way it manifests itself, eg a pub on the seafront of Dover covered with anti Police grafitti, bad newspaper cuttings about the police, and piracy images which are identified as an emblem for smuggling. Also the smuggling village par excellance today is that of Gvelde just over the Belgium border. This frontier town is a tobacco centre replete with piracy images because it represents the first port of call of very cheap tobacco. French tobacco is cheap but the cheapest of all is Belgium, and Gvelde is about a 40 minute drive from Calais and the famous Eastenders alcohol retail warehouse in Calais carries maps showing the exact route to take. This analysis makes it clear that the individualistic and bourgeois nature of law (Pashukanis) that separates each 'offence' from all others in place, time and societal context is perforce a deliberate political pro-capitalist act which seeks to depolitisize the events taking place so that they can be processed by the criminal justice factory. A more honest approach as I hope to describe is a more historical and structural view, that does not excuse any of the behaviour that may have provoked lurid media tales, and at the same time avoiding judgemental and individual blame ascribing. Whilst situating behaviour in a living manner that dialectically relates to changes in the economy and society carried out by different actors.

Taking the left realist square of crime we realise that there is not just policing (policing being a generic term for crime prevention) here, and crime there,

"only a relation between the two - crime and control" (Hall et al, 1978 P. 185)

This is lived, negotiated and mediated through the institutions of capitalist society and the fluctuating economic fortunes of the masses, and those that live in it but are not of it eg gypsies, travellers, squatters. Without wishing to deny that there maybe a few people who fit the bourgeois definitions of criminals, who say "yes guv, you've got me bang to rights" in some sort of comic manner, it is the meaning on a mass level of smuggling, shoplifting and other social crime that makes it socially and politically interesting. There is an urgent need to differentiate, however tentatively, between acts as in Mertons analysis which states the tension felt in capitalist society creates actors who want to succeed in terms of bourgeois goals, but who are denied it by the very structure of bourgeois society (they therefore then choose to innovate deviant means to get to their financial end) Between those, and people who commit crime that personifies, again however tentatively and provisionally, crime that includes elements of protest and/or opposition to capitalist society.

We must be aware that in just focussing our research on eg smugglers in prison, or smuggling culture on the streets of Dover, Calais and elsewhere, we maybe committing a fundamental error in that we would be separating the 'perceived vanguard' from a wider, more fluid and sophisticated understanding of the different groups that form the class history as a whole. For it is not the only the smugglers who matter, it is the lorry drivers, white van men, off license retailers, market traders, car boot sellers, migrants, travelling salesmen, and most numerous of all the buyers of cheap cigarettes and alcohol.

"The point is easy to illustrate from the social history of nineteenth century London. The criminal 'fraternities' of East London were clearly parts of the wider class ecologies, class cultures and class formations of the London of the period. To reserve them for a special category would be simply to lose any grip on a central aspect of the history of the urban working class and the urban poor of the period. In the historical sense, 'crime' was a well articulated part of the working class cultural repertoire of the period: how some members of the labouring and casual poor 'lived' the contradictory experience and exploitative relationships which characterise class relations as a whole… For the children of those families… it must have been a very thin, often imperceptible, margin indeed between getting what they had to, legally, and scrounging where and however they could; and the margin, for all practical purposes, was not between 'legality' and 'illegality' so much as between survival and sheer destitution"
(Hall et al, 1978, P. 188) Emphasis added

Go To Part II