Abstract
Peter Ramsay’s The Insecurity State examines the recent emergence of a ‘right to security’ in the UK’s criminal law. Beginning with a detailed analysis of the Anti-Social Behaviour Order (ASBO), Ramsay argues that the liabilities contained in the ASBO—and the Coalition government’s proposed replacement—seek to protect a ‘freedom from fear’. Ramsay argues that the protection of subjective security—that is, one’s perception of security—has been historically indirect, being, as he puts it, ‘a secondary effect of laws that threaten punishment for an invasion of some other primary wrong’ (p. 2). Against this historical background, Ramsay contends that the criminal law has subsequently sought to protect our subjective feelings of security much more directly than in past times. While Ramsay accepts that ‘the protection of interests in subjective security by the substantive law is far from unprecedented’ (p. 3), he maintains that ‘the scope, speed and explicit character of the recent developments represents a qualitative shift that should be understood as the institutionalization of a “right to security” in UK law’ (p. 3).
In addition to this overarching argument, Ramsay seeks to address the following series of questions: why do these very broad laws enjoy a significant degree of political legitimacy? Why do both officials and the majority of the population consent to the duties imposed by protecting a right to security? Why is there relatively little political controversy about the substantive demands they make? Why have these sweeping security laws arisen in an apparently liberal society rather than in an avowedly authoritarian regime? [… ] What do these laws and the normative expectations they institutionalize tell us about the state that created them?
Contrary to the invocation of Hobbes’s Leviathan by many observers of criminal justice developments (Hallsworth and Lea, 2011), Ramsay argues that ‘the normative assumptions that are needed in order to justify punishing people for breaking these laws turn out to be ones that no Leviathan could maintain because they amount to a confession of the state’s lack of authority’ (p. 4). Therefore, for Ramsay, ‘The contemporary British state turns out to be less “security state” and more “insecurity state”’ (p. 4).
The approach underpinning The Insecurity State is distinct from much work in criminal law theory in that it does not seek to ask ‘whether or not the legal powers that subjects consent to are normatively right according to an abstract principle but, rather, what makes these powers legitimate in the context of a particular society at a particular time’ (p. 7). Given this focus, Ramsay draws on the ‘“social-scientific” concept of legitimacy’ as proposed by David Beetham (1991), instead of a strictly normative conceptualization (p. 7), and seeks to develop an ‘immanent critique’ (p. 9), working from the ‘inside out’ of the developments he surveys.
The structure of the book is as follows. Chapters 1 to 3 present a detailed analysis of the legislation and case law relating to the ASBO. This examination results in the following conclusion: in contrast to previous measures which appear to target the same type of behaviour (specifically section 5 of the Public Order Act 1986), the ASBO is ‘dispositional’ in its targeting. Ramsay contends that ‘the ASBO imposes a subtle positive obligation of active citizenship’, of avoiding the manifestation of an ‘unreassuring disposition’ (p. 12). Chapters 4 and 5 both explore the ASBO in its New Labour policy context and interrogate in particular the normative basis of New Labour’s policy claim that citizens owe ‘duties of reassurance’ (p. 13). Chapter 6 discusses the European Convention of Human Rights (ECHR) and argues that its implicit recognition of the right to security goes some way in explaining why the ASBO has largely been interpreted as ECHR-compliant, notwithstanding the vulnerability of many of those subject to ASBOs. Chapter 7 surveys a range of New Labour measures which can similarly be seen to target ‘the dangerousness of the offender rather than [that] of her acts’ (p. 14). Chapter 8 appropriately contrasts these measures with their historical forebears and seeks to emphasize the qualitative shift noted above. Chapters 9 and 10 investigate the relationship between liberalism and the right to security, leading to the argument that, paradoxically, ‘the criminal law’s threats are [now] premised on their own inadequacy’ (p. 15). In his conclusion, Ramsay argues that ‘liberalism is exhausted as a source of political authority’ and that this has important implications for criminal law theorists (p. 15).
There is a great deal of value to the approach adopted by Ramsay, and his resulting arguments. The challenge posed to the tendency of some analysts ‘to see in the policy and legislative development only an unprincipled reaction to popular anxiety’ (p. 5) is valuable—though Ramsay rightly recognizes that such views are not ‘entirely false’ (p. 4). Rather, he argues convincingly that we must ‘take seriously the claims of an influential body of contemporary political thought that does offer a normative justification for punishing harms to other people’s interests in feeling safe’ and that ‘this political thinking has been a predominant influence on governments (in the United Kingdom) from the 1990s onwards’ (pp. 4–5).
While in one sense a minor quibble, the description of the work as constituting a ‘political sociology of the substantive criminal law’ (p. 15) without further elaboration is somewhat unhelpful, given the vast array of approaches which are covered by this umbrella term (Nash and Scott, 2001). More substantially, the raising of the question ‘why human subjects at a particular time will consent to be ruled by one law or another?’ (p. 7), risks setting up expectations that cannot be met. In particular, I was not convinced that the methodology pursued and the evidence gathered (primarily case law and policy documents) were capable of addressing such a question: this is essentially an empirical question, requiring perhaps survey, interview and other data (see, for example, Jackson et al., 2012).
To press the point a little further, The Insecurity State expertly traces the logical connections which can be made between the case law, policy documents, legislation and relevant political ideologies as regards the ASBO and other relevant measures. However, at times the impression is given that explicit causal claims are being made, which the methods employed and empirical data drawn upon struggle fully to support. This is not to say that the arguments would not be supported by such data, but rather, that such data would likely complicate and enrich the argument Ramsay makes (in the same way as Ramsay’s approach enriches the existing criminal law theory literature).
This said, the detailed, painstaking exploration of ‘the construction of a new subject—the vulnerable subject—and the giving of institutional form and legitimacy to that subject’ (p. 9) is fascinating and represents a timely contribution to broader debates within criminology regarding the motivations of penal policy and its likely future direction. The book is dense, though readable, and tightly and convincingly argued. Ramsay argues for a serious engagement with political thought and its relationship with penal policy. In my view, The Insecurity State skilfully demonstrates the value of such an enterprise.