MASTER’S DEGREE IN LAW

The background of the criminalisation mechanism:
a formulaic Hegelian dialectic construction of the type “problem reaction solution”

In Canada, the privilege of legally redefining behaviour as a crime is an act reserved for a single social actor, the federal Parliament, but other social actors have a significant impact on this aspect of qualification, albeit more indirect. For example, the ruling government, by appointing judges, silently and subtly decides who will be the interpreters of the laws of the federal Parliament, who will be part of this small elitist group that will rule on the values of the party that forms the government which appointed them as judges, or on the values of the opposition parties.

Several social actors are involved in it and are at the center of legislative changes. The participation of some actors vary according to the issue targeted for criminalisation, while others are omnipresent: political parties, the police, the media, professional or educational organisations, activists, religious groups, private corporations, organisations, academics, etc.

Their role is to stir up public opinion when necessary and to focus attention on a specific aspect of the context regarding the issue, the ultimate goal being to obtain the social support needed for the adoption of legislative measures or the implementation of social programs.

One of the techniques often used by social actors interested in producing a legislative change related to a behaviour is the use of the ‘problem reaction solution’ dialectic:

• Problem: the behaviour to be prohibited is qualified as a major social problem, a critical situation requiring rapid intervention from the authorities.

• Reaction: the social actors provoke an uproar, eliciting a reaction from the public, who then demand that the authorities take legislative action (e.g. punitive legislation, criminalisation, etc.).

• Solution: claiming to speak on behalf of the public and in the public interest, social actors publicly propose predetermined ideological solutions that are in line with their interests and demand the authorities to adopt laws accordingly.

Stage 1: social actors qualify the behaviour as ‘socially problematic‘

• Emphasise the seriousness of the behaviour.

• Publicity through the media.

• Organisation of campaigns or collective actions through which complaints or grievances are made.

• Emphasise the importance of adopting laws to criminalise the targeted behaviour.

• Simplification of the debate.

• Use of language with terminology aligned with the partisan interests of the social actor, in accordance with the position being defended (use of the notion of risk, victimisation, promotion of action-taking, etc.).

• Use of tangible, concrete examples to which the public can relate. If the issue is no longer relevant, the actors redefine the problem to capture the public's attention again.

• Appeal to logic or emotions.

• Manufacturing consent.

• Use of techniques for manipulating the masses or engineering of consent (Edward Bernays, Walter Lippmann), making associations with individuals’ desires and fears, using ‘influencers’, promoting social conformism, etc.

• The public is free to make a forced (guided) choice, to choose from predetermined options. The public's freedom of choice and self-determination is significantly limited by this framework (“the worst form of non-freedom is the non-freedom that is not even perceived as such”).

Step 2: creating an amplifying effect regarding the seriousness of the ‘social problem’ through a moral panic that stimulates public reaction

• Once the behaviour is deemed problematic, the concerned actors seek to provoke a reaction from the public so that they demand the authorities to intervene: the creation of a moral panic.

• Moral panics are a tool used by social actors to convince the public that a behaviour is more than just a social problem, but that it is an important and urgent social problem that requires rapid intervention by the government or the Parliament.

• Moral panic has five main characteristics (Erich Goode, Nachman Ben-Jehuda, Stanley Cohen), often identifiable before the government introduces major legislation criminalising a behaviour:

  • concern, the existence of a high level of anxiety.

  • hostility towards people whose behaviour is considered problematic.

  • a certain degree of consensus that is achieved or manufactured.

  • disproportionality (exaggerating the nature of the behaviour to be criminalised or its consequences).

  • volatility (moral panics appear quickly, seemingly out of nowhere, and disappear just as suddenly).

• Other circumstances may characterise moral panics, depending on the degree of intensity or grandiloquence attributed to them.

• As a result of this process, the perception regarding the need to criminalise a certain behaviour is likely to be significantly altered by various messages used by social actors to promote their position.

  • Members of the public internalise these messages as if they were their objective reality and not a construct of the social actors.

  • Social actors also instrumentalise the considerable influence of peers, social conformity, or the illusion of the senses to instill social panic until the individual is brought to a point where he or she is open to suggestions.

  • During this moment of vulnerability, the message from the social actors is more easily received, which then leads the public to the next stage: receiving the proposed solutions, which the public can now accept.

Stage 3: social actors propose their solutions

• Once the ground is fertile for proposing solutions, the social actors bring out the heavy artillery:

  • the appeal to the authority and to the opinion of experts or technocrats to legitimise their solutions (some may be elected, others paid, funded, appointed, recruited or self-proclaimed).

  • the strategic use of self-legitimisation or the inter-legitimisation of State actors is activated and intensified.

  • marketing and public relations.

  • discrediting opponents and opposing positions.

  • censorship.

• The State uses these same mechanisms to legitimise its action of criminalising behaviour.