VISITING EXPERTS’ PAPERSA SUITABLE AMOUNT OF CRIME
Prof. Nils Christie*

I. INCARCERATION AS AN ANSWER**
A. Social Arrangements for the Promotion of Crime
If my power was that of a dictator and if I had the urge to construct a situation for the promotion of crime,then I would have shaped our societies in a form very close to what we find in a great number of modern
states.
We have constructed societies where it is particularly easy, and also in the interest of many, to define
unwanted behaviour as acts of crime - this in contrast to being examples of bad, mad, eccentric, exceptional,
indecent or just unwanted acts. We have also shaped these societies in ways that encourage unwanted formsof behaviour, and at the same time reduce possibilities for informal control. This whole situation is obviously
one that will influence the prison situation in the industrialised world. It will first and foremost create asituation with increased pressure on the prison systems within most of these societies. But this is notwithout exceptions. The size of the prison population in any society is also a result of past national history, ofmajor political ideas, and not at least the willingness to look for solutions other than the penal ones.
The table in Appendix A presents the number of prisoners per l00,000 inhabitants in some major areas ofour globe. The countries within each area are ranked according to size of their prison populations, in eachcase with the high-raters at the top. Most of the figures are taken from the useful statistics gathered by Roy
Walmsley (2003 and continuously updated and made available through International Centre for Prison
Studies.1 Some figures are based on material I have obtained in direct contact with representatives fromvarious prison administrations in countries I have visited. Some of my figures differ from those madeavailable from Roy Walmsley and International Centre for Prison Studies, but these differences are not ofimportance for the reasoning in what follows. Most figures are from the years 2000-2002.
***

The huge variation between countries is one of the most striking features in the table. We find Iceland at
the very bottom and USA and Russia as the absolute champions in incarceration among industrialised
countries.
We will come back to this major table several times in what follows, but let us here, as a first question,
ask if they have something in common, the two giant incarcerators.

B. The Great Incarcerators
The USA has today more than 2.1 million prisoners. This means 730 prisoners per 100,000 inhabitants more than 0.7%. The increase has been unbelievable since 1975. The growth has slowed down recently, but
has not come to a full stop. In addition to those imprisoned comes 4.7 millions on bail, probation and parole.
This means that 6.8 million of the US population in 2003 is under some sort of control of the institution forpenal law. Of the total population in the US, 2.4% is at any time under the control of this institution. Among
those 15 years or older, 3.1% of the population is under the same sort of control.
Russia is solidly behind, and increasingly so. On January 1st 2003, they had 866,000 prisoners or 607 per* Professor, Institute of Criminology, Faculty of Law, University of Oslo, Norway.
** Editors Note: The following paper is excerpted from Nils Christie (2004): “A Suitable Amount of Crime”, Routledge,
London. Professor Christie’s lectures at UNAFEI for the 127th International Training Course were based on chapters 4 - 6 ofhis book. Reprint permission has been granted by Universitetsforlaget, Oslo.
1 http://www.kcl.ac.uk/depsta/rel/icps/home.html.

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100,000 inhabitants. Two years earlier, they had more than a million prisoners, or 680 per 100,000
inhabitants. The number of prisoners waiting for trial went from 282,000 in year 2000 to 145,000 in 20032 . It
is the prisons for people waiting for trial that are the particular chambers of horror in Russia. Vivian Stern(1999) has edited a book on Russian prison conditions. “Sentenced to die” is the title. This formulation
captures the essence. Sleeping in three shifts in damp rooms with hundreds of prisoners does not give thebest of protection against an explosion of TB, HIV and AIDS within these establishments, an explosion thatlater will affect the whole Russian population. After sentencing, those sentenced are moved out of Moscow
to the Colonies, the former Gulag’s. Here conditions are considerably better.
The Duma, their Parliament, passed several important laws in May 2001 with the intention to reduce theprison population with 1/3. The effects of these new laws are easy to observe. Prior to these reforms, theaverage space in the remand prisons was less than 1 square metre per person. Today the average is 3.5
square metres, while the norm laid down by the public health authorities is 4 square metres (Kalinin 2002,p.17).

C. Common Features
What do they have in common these two states, in addition to being high on incarceration?
A first and obvious similarity between the USA and Russia is simply their size, in land, power andpopulation. With all this, there is also created a foundation for organisational patterns that encourage social
distance. At the broad avenues of Moscow there is a special lane in the middle, reserved for the President
and the cortège of dignitaries following him. At the small scale of a visiting scholar and on ordinary bumpy
roads in Russia, I have mentally been in the same social setting. For several hours, we had one police-carwith sirens and blue lights in front and one behind. Ordinary cars were forced to stop, here we come, theemperors or at least someone somehow related to those high up.
But not only in Moscow. Western capitals have their helicopters for their rulers as alternatives to thereserved middle lane. And they have their quota of close-knit associations for power-holders. I have vivid
memories from an occasion in Washington DC. It was a setting filled with particularly dignified persons. My
lasting memory from the evening was the welcome speech by the host. Many were invited and most came,but some had been unable to attend. But they had all - and we got the name for every invited dignitaries notthere - they had all personally phoned the host and explained why they were not able to attend. No secretary
could do. I felt as in a party for those close to the King. You were supposed to be there, or personally giveover-whelmingly good reasons for absence. Otherwise you might be at the edge of expulsion.
All this is in a way obvious: In large social systems, and I am talking about pyramidal ones, a relatively
small part of the population will be at the very top. Or, it demands at least exceptional political ingenuity tocreate conditions for a broader representation. With a small group at the top, those up there will become
extremely important to each other. But then, at the same time, the logic of the situation is that they become
distant from those they rule. Social distance is one of the conditions for heavy use of the penal system.
***

Another similarity between Russia and the US: they have in common a weak position of their judges. In
the US, this is obviously the case. Compared to judges in Western Europe, those in the US have gradually
lost their power to the politicians and to the prosecutors. The US system of sentencing tables gives thepoliticians - who are those deciding on the sentencing tables - detailed regulatory power in deciding on
punishment.3 So does also the extensive use of mandatory sentencing laws. If the facts of the case are clear,
the judge has nearly no room for discretion. In a survey of United States judges, 86% of district judges andchief probation officers agrees that the guidelines give too much discretion and control to prosecutors. 71.5%
were moderately or strongly opposed to retain the current system of mandatory sentencing guidelines.4

2 Source: Ludmilla Alpern, Moscow Centre for Prison Reform.
3 Kaataja Franko Aas has written a fascinating doctoral thesis on the relationship between technology and sentencing theory

and practice. (Aas (2003): From Faust to Macintosh: Sentencing in the Age of Information.)
4 (Federal Judicial Centre at http://www.fjc.gov/pubs.html).

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Judges in the US are also to a large extent directly elected. But the political process is based on limited
participation in the election process. More than 4 million people, including 1.4 million black men, cannot
vote because they have a criminal record. Many will never regain their right to vote (Mauer and ChesneyLind 2002). For a politician, here is not much to gain. In contrast to the judge, the prosecutor has kept his
power. He can make a deal with the suspect, drop parts of the charge if the suspect admits certain other acts.
In a system with sentencing tables, the prosecutor can heavily influence the end result.
But also in the classical Eastern European situation, the judge will to a large extent be dependent onpolitical powers to get the job, and retain it. Of particular importance here is the prosecutor. This is one of
the major reasons for the great number of people in detention waiting for trial. Russian and Belarus judges
hesitate to acquit. Instead, they return cases to the prosecutor. While the prosecutor thinks, the prisoner is
waiting it out. Often it takes years.
I cannot prove my point on the balance of power. But I observe, and I listen. I experienced an exposure ofthis situation during a meeting in Belarus in May 2002. Belarus will soon become the leading country ofincarceration in Europe if Russia reduces as planned. A few years ago, Belarus had 500 prisoners per
100,000 inhabitants. In 2001 they had 560. In absolute figures this means 56,000 prisoners. Belarus has 10
million inhabitants.
In this meeting in Belarus, the prison administration attended, together with several directors of prisonsand colonies. So did also some judges and prosecutors. Towards the end of the meeting, a little woman far
down the table asked for the floor. She had been a judge, but quit, and told us why. While she was speaking,the atmosphere in the room became ice-cold, but she continued. She was trained in law, and had learnt her
lesson: The major goal was to catch a maximum number of criminals and then jail them. So she did, as apolice jurist. She did it so well that she advanced. She became a judge, with the proper status and apartment
belonging to this kind of job. Again she knew the rules of the game: To get the accused sentenced. Lenientpunishments and an acquittal-rate of more than at a tiny percentage would be unacceptable. At one point in
time, she saw her dependence on the state she was supposed to control, and quit.
***

A further common feature between some of the leading incarcerators, is the root their prison systems
have in servitude or slavery.

Liberty for some is the title Scott Christianson (1998) has given his important book on this theme. In thesimplification necessary here and now, it is not much of an exaggeration to say that when the black in theSouth were set free, also to move, they took their seat in the front of the bus and went North, to the innercities, and from there to the prisons. Per 100,000 black males, 3535 were in prison on year-end 2001, against
462 per 100,000 of white males.5 Large prison figures are linked to the tradition of slavery.
The very same phenomena can also be seen in Russian history, a history that here includes Belarus.
There were not extremely many prisoners during the era of the Tsar. They had an alternative. They had
servitude. Peasants were the property of their masters. They could not move or marry without the consent
of the aristocrat who owned them. This meant that the lower classes were under severe control. And should
this control fail, or non-peasants misbehave, they had Siberia. The colonisation of that huge country was to alarge extent done by prisoners.6 In this perspective, the Gulag’s were not that much of a break with the past.
They were not first and foremost for dissenters. They were production units, filled with males from thelower classes. The servitude found its new form.
So, basically, these are similar systems for the maxi/maxi-incarcerators. And they are developing similar
5 To me, one person epitomises the resistance against all this. It is Al Bronstein, legal adviser to black people during theiractions in Alabama in the dangerous 1960s. And then, until the present, a central activist against the prison development in the
North. Today, he is still an important adviser for Prison Reform International in London.
6 Anton Chekov (1967) gives a unique description of the life among the deported to the island Sakhalin, close to Japan, which
was colonised in this way in the 1890s. Anton Chekhov was not there as a prisoner, but as a doctor with social consciousness
for his country-fellows. I am most grateful to Ludmilla Alpern who made me aware of this unique penological report.

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social and cultural traits; their particular music, language, clothes. There exists a FM radio station in
Moscow where most of the talk and music is prison talk and prison music. The same is obviously the case inparts of the US culture. There seems also to be similarities in the inner organisation of these systems. At
least for the Russian system, it seems clear that it everywhere, except earlier among most of the politicaldissidents, develops extremely stratified systems with the untouchable losers at the very bottom. Due tobetter material conditions, more possibilities for isolation of individual prisoners and also more guards per
inmate, this might be different in most US system, even though the many reports on gang wars indicate that
authorities are far from having complete control.
***

But there are also differences. Most importantly, the use-value of prisons differs among the highincarcerators.
Russia is, and has for some time, been in trouble with their prisons and colonies. The colonies are simply
not profitable any more. We might dislike it, but the Gulags were essential for the Russian war efforts in
1940-45. They were also possible to operate with some sort of efficiency in command-economy functioning
in the USSR after World War II, or the great Patriotic War as it is called in the East. But in a market
economy, they cannot compete. In Russia of today, their prison system therefore represent a great drain on
their economy.
Laura Piacentini (2002) has worked to find out what happened to the Russian Colonies when theeconomic system changed. She conveyed two interesting observations. First, adaptation to the new situation
was dependent on distance from Moscow. The further away, the freer was the situation of the local prison
administration; inspectors from Moscow were few and far between. Close to Moscow, the situation was
different. Here, they had to play to the tunes of the central administrators. These were tunes well known inpenology. The colonies had no more work to offer, large factory-halls were literally empty, or with small
groups of prisoners fiddling with some minor tasks in a corner of the premises. The answer from all
penological theory, as well as from the central prison administration, was clear and powerful: Prisoners arehere to be changed into law-abiding citizens. Therefore, the colony must offer treatment and education. But
in Russian colonies, as in most penal establishments around the world, this turned out to be mere words.
Quite different was the situation in inner Siberia, far from the watching eyes of the central
administration. The situation had been difficult to the extreme in the years after 1990. In the colonies, as inordinary places for work, it had passed months without payment for the staff. Parallel to this, it had also beena critical lack of food, clothes and heating for the prisoners. In this situation, an elaborate system of barter
was created. Local colonies scrutinised the local communities for tasks to be done; they had hungry
prisoners willing to do nearly everything for a return in something the colony could use for survival.
Gradually, this developed some of the colonies in the periphery of Russia into rather efficient units for
production. And here comes the dilemma for those who feel competent on penal matters: These colonies do
not offer treatment. Bad, according to theory and international conventions. But they offer work, even food.
But then to the other side of the coin, and it is here we come close to a new similarity between USA andRussia: The danger in this situation is that here, solidly planted in both the giant incarcerators - is laid thefoundation for a new system of forced labour.
In contrast to the Russian situation, the US can more easily afford its great prison population. To many in
the US, the building and running of prisons means profit. This is a major point in my book Crime Control as
Industry (Christie 2000). Recently, it has also been described cases where prisons inside the USA prove they
can compete with Third World countries in offering cheap labour to the US industry in general. And it is, ofcourse, better that prisoners eat than starve. It is also better that they work than suffer through idle hours.
But it is a danger in these obvious advantages. It is convenient for authorities that they work. A captive
workforce combines in a beautiful way the need for control of the lower classes with the need forinexpensive labour. It may lead states into temptations. It may lead to revivals of the institution of slavery.

D. On Welfare
The giant incarcerators have been our point of departure for this chapter. But our table in Appendix A on
prison populations does also open other important questions and concerns. Of particular interest is what we
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find concerning the difference between the US and Canada. The difference here is close to unbelievable.
Canada has 116 prisoners per 100,000 inhabitants, against the US with their 702. Two countries so close andstill so different. Joint border from coast to coast, same language, mostly same religion, to some extent samecontent in the media, and also with much of the same ideals when it comes to money and style of life. How
can we explain these differences in volume of incarceration? Even if the US had been without any
overrepresentation of blacks in their prisons, they would have had more than three times the prison rate ofCanada.
First, and before any attempts to explain, it is plainly important to register that the exceptional status ofCanada is possible! Canada is a highly developed, well functioning, modern state. They have their troubles
with crime as other modern states. They have politicians using crime problems as an agenda for selfpresentation. Nonetheless, they have a volume of prisoners at one sixth of their neighbour further south!
And this difference has increased during the past years. Canada is steadily decreasing its prison population,
while the US continuously is on the increase. When it comes to the volume of crime-control, we are not up
to destinies, but to political decisions open to choice.
And then, what is so peculiar to Canada?
It is embarrassing, but I have no clear answers, again only some hunches, this time based on a long life ofvisits to that country.
First, to visit Canada is for a Scandinavian very much as visiting one of the other Scandinavian countries.
A bit dull, perhaps. Well-regulated, orderly behaviour, polite relationships.
Second, penetrating the system a bit, one also finds another basic similarity: Canada is simply a welfare
state. They have it all, - old age pension, health insurance, leave of absence before birth and months
thereafter, unemployment benefits. Of course, there are defects in the system, and vivid discussions on how
to mend the defects, eventually reduce the safety net for the poor. But the situation of the poor isfundamentally different in Canada and the US. Their welfare system is defended from the very top of thepolitical establishment. Increased income inequality in the United States has not taken place in Canada, “dueto the offsetting influence of government transfers” (Sharpe 2000, p.158).
Related to this is a third difference. Canada has for years had a staff of civil servants with a conscious
policy of keeping the prison population under control. I have a personal experience here, being involved inmeetings in the Ministry of Finance in Ottawa on the budget for their prison system. All ministries had beenordered to cut their budgets, but those responsible for law and order said it was impossible, they had toincrease their budget since crime increased! But was it impossible, that was the question I was invited tocomment on. The question led to fascinating discussions on how to reduce harm - all sorts of harm - in the
Canadian society, and for what price.
As a conclusion: To use the penal system as a functional alternative to social welfare seems not to be amajor alternative in the Canadian society.

E. East and West in Europe
If we again take a look at the table and then concentrate on the European arena, two observations are
striking. First: The major difference in prison figures is between East and West. Only four countries inWestern Europe have more than 100 prisoners per 100,000 of their population, while the majority of theEastern European countries are above this level.
But then, as the second observation, we find huge differences also inside the Eastern European camp.
Next to the Russian Federation and Belarus, we find at the top first the Ukraine, and then the Baltic
republics, all with figures of 300 and more. At the very bottom we find Slovenia, - that little country has aprison population at level with the Nordic countries, and have had this position for years.
The general picture is clear: Russia is the super-incarcerator in Europe, then follows the former
members of the Soviet-Union. Visiting prisons in these countries, it is striking how similar they are in socialorganisation and material form to the prisons in Russia. Behind these core countries, with lower relative
figure of prisoners, but still high, we find those formerly independent states that up to the end of the cold

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war belonged to the Eastern block.
These countries are in so many ways squeezed in between East and West. I have, in Crime Control as
Industry, described how Finland shortly after World War II made a conscious decision to leave Eastern
Europe, also when it came to penal policy. And they succeeded; they have now for years had lower prison
figures than Denmark, Norway and Sweden. But, of course, Finland was during the cold war outside theEastern block, their penal policy was an instrument in their struggle to link themselves to Scandinavia.
But it is clear that the same struggles around penal policy now also go on in the other countries of theformer Eastern block. Poland is one of the interesting examples.

F. Polish Rhythms
Seen from a criminological perspective, the diagram in Appendix B is a treasure,7 - and a grim reality for
those behind the figures. It is a diagram of the total number of prisoners in Poland from 1945 until October
2002. Three features of the diagram are remarkable.
First, the rhythm in the line. From a start close to the bottom in 1945, it reached its first peak in 1950
with 98,000 prisoners. Six years later it was down to 35,000 then up again in 1963 to 105,000. The maximum
came in 1973 with 125,000 prisoners. Like this it ran until 1989, when it again was down, this time to 40,000.
In my interpretation, this is a picture of a prison system without ordinary backdoors, without releaseprocedures to use when the internal pressure on the system becomes too strong. A repressive state, strong
prosecutors, stern judges, - it was easier to say yes to imprisonment, than to say no. But tensions build up.
There were limits to the number of prisoners that could be accommodated, and also to the number that
could be given meaningful work. And prisoners protested. Several riots occurred. The rhythmic answers tothis were amnesties. Big ones in 1956, 1964, 1969, 1974, 1977, 1981, - and particularly in l989, the year
when the wall between East and West crumbled. Appendix B illustrates how badly suited prison figures are
as indicators of the crime situation in a country. Here it is bluntly clear how the prison population is areflection of political decisions. Other countries handle this matter more discretely.
Another fascinating development in the Diagram is the period after 1989. The old regime was broken.
Freedom, now also for the prisoners!
But it did not last, at the low level of 40,000 prisoners, but seemed for a period to stabilise around the 5560,000. These were the years of the political movement - later political party - with the name Solidarity,
obviously also with prisoners. But then the new freedom became old, and so also the trend in the diagram.
From 1999 and until October 2002 the figures have, to say it in the exact figures, gone up from 56,765 to
81,654. This is the figure I have used in Appendix A where we find Poland with 260 prisoners per 100,000
inhabitants. But in reality, the situation is even more extreme. Prisons are jammed. In the last months of2002 the official estimate was that 18,000 persons were on the waiting list for serving their prison
sentences. This is probably a large underestimate. Had those at the waiting-list also been included, thePolish prison figures would again have passed their 100,000. Once more.
What has happened?
First: Amnesties were seen as belonging to the past, a crude instrument to correct for failures in thesystem. And it can, rightly, be argued that amnesties are not the best of all solutions. Great numbers ofprisoners are released at the same time, putting the system for social assistance under sudden and dramaticpressure. But that strain has, of course, to be weighted against the strain of a dramatically increasing prison
population.
A second explanation of the increase in prison figures is simply that Poland is being partially“Westernised”. The old penal system is still there, the police, prosecutors, judges - no great purge took
place after 1989. But in this very situation comes the elements discussed in earlier chapters: Poland is on its
7 I got the diagram and additional figures from Monika Platek and Pawel Moczydlowski during a week of lectures and seminars

in Warsaw, and was also assisted by Klaus Witold and Dagmara Wozniakowska.

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way towards mono-cultures. And a great number of politicians in Poland as elsewhere in the west use thecrime-arena for self-presentation. In this endeavour, they receive perfect assistance from the media. As
Maria Los (2002) states, a radical shift has taken place in the mass media profile, from good news in state
propaganda to bad news in private media. And she continues:
For a population used to a criminal justice system characterized by routine detention of suspects,
disregard for legal niceties, long sentences and a ban on public criticism, these developments (theexposure of the bad news, N.C.) understandably produced images of a system verging on chaos orcollapse (p. 166).
My estimate, and I say this with particular reference to the diagram, is that this is a prison-system ingreat risk of severe turmoil. Poland is now to enter the European Union. This will inevitably lead to a great
reduction in the number of farmers. The surplus labour will move towards the towns. Social problems will
increase. The pressure on the prisons will increase. Amnesties have regularly followed prison riots. Riot willcome, and amnesties will follow. But this is a type of reform with great costs.

G. England and Wales - So Close to Eastern Europe
We have seen that East is East, and West is West, also when it comes to prison figures. But notcompletely. Slovenia belongs to the Nordic countries. But surprisingly, England and Wales seem to be on asteady course towards East European standards. In 2003, England and Wales have 139 prisoners per
100,000. The figures are steadily raising, with some 600 new prisoners every week8 A few years back,Portugal was the leading incarcerator in Western Europe. But that was before, not now. England and Wales
have entered Eastern Europe in the meaning that they have passed Bulgaria in relative number of prisoners,
and now stand even to Slovakia. Nothing indicates they are about to turn. They have passed Canada, thatstate previously so close to them, and they have soon - in relative figures - twice as many prisoners as theirclose neighbour Ireland. They have since long lost connection with the historical period when Winston
Churchill and his likeminded looked at imprisonment with considerable suspicion (Bennet 2003) and saw to
it that their figures were kept among the lowest in Western Europe. England’s similarity to the US is also
visible through colours inside the prisons. One in every 100 black British adults is now in prison according
to the latest Home Office figures.9
Attempting to understand this situation, I feel the handicaps of the combination of closeness and a large
portion of love, - a solid base for blindness. But of course, I cannot escape observing that step by step,
England and Wales have changed important elements in their system.
First of all, they are in a process of radical adaptation to the uni-dimensional society. All are better off,compared to the period just after World War II, but the social differences within the population haveincreased. Poor people are not so poor as before, but they experience the differences and feel unhappy bythem. The welfare state is clearly less so, than that state was some 50 years earlier.
Three generations of Britains have been followed from 1946 up to year 2000. In a conclusion on income
and living standards, Dearden, Goodman and Saunders (2003) write:
In conclusion, this chapter has demonstrated quite strikingly that, whilst living standards have, in
general, risen steadily with each successive cohort, inequalities in income and wages have also increased.
These findings alone represent a significant indicator of the changes in British society in the last decadesof the twentieth century. However, it is also important to recall our finding that there was also asignificant gradient in the incomes of cohort members according to their own parental background, as
measured by their fathers’ social class, and that this gradient appeared to have become steeper amongst
more recent cohorts. Thus, not only has Britain become an increasingly unequal society, but the income
achieved by the more recently born is more strongly linked to the social class position of their own
parental generation (p.189).
A second important element: England and Wales have also reduced the power of the judiciary. The Home
Office provides the courts with extensive statistics where each court can compare their own sentencing
8 The Guardian, June 16, 2003.
9 The Observer, March 30, 2003.

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practice with what happens in all other courts in the country. Judges also receive various guidelines, notsentencing-tables in the US style, but various forms of central guidance where precise tariffs are specified.
And this process is in steady continuation. The Guardian Weekly (May 8, 2003) describes a proposal fromthe home secretary the day before as this:Life will mean life for:• Multiple murders with a high degree of premeditation, involving abduction or sadistic conduct• Murder of a child in similar circumstances• Terrorist murderer• Term will not apply to killers under 20
30-year minimum for killing:• On-duty police or prison officer• With gun or explosive• On contract for other gain such as for racist, religious or sexist motives• Adult for sadistic or sexual reasons• Other multiple offences
15 year minimum:• Other murders by adults and all murders by children under 17
The Guardian reports that “Senior lawyers were unhappy with the announcement. … The Bar Council
described it as constitutionally a leap in the dark” and said Mr Blunkett (The home secretary) was trying to“institutionalise a grip of the executive around the neck of the judiciary”. The Howard League for Penal
Reform said the package could increase the present 3,900 life-sentence prisoners by 50%”.
Britain has also streamlined their system by establishing a position similar to that of a general procurator.
They call him Solicitor General - a position with authority to control that lines are kept. It is also, for thehigher courts, developed a system of professional prosecutors, and opened for appeals if prosecution sowants. Earlier, only the sentenced person could appeal. The official reasons for much of this is often named“consistency in sentencing”. But it can also be seen as strong centralising trends. I have met British judgesthat express the same complaints as some of the US judges; we are not to the same extent free to use
discretion as we were earlier! Central authorities are distant from those to be sentenced, but close topoliticians. Politicians are sensitive to punitive attitudes in the population and do also encourage such
attitudes. Chances are great that a shift in the balance of power - from the judiciary to the politicians andtheir administrators - will open for more punitive measures.
Important changes have also taken place in the probation service in Great Britain. Once upon a time, theruling idea here was to befriend the offender. Gradually, this has been changed. As in the US, probation isincreasingly seen as an enforcement service. Probation has also been centralised, it is also here possible tocontrol that the workers keep in line.
***

Penal systems are indicators of type of society.
Changes in penal systems relate to changes within any particular society. The centralising tendencies
described in the penal system of England and Wales, the move from befriending offenders to enforcing
control, and the strong growth in the prison population, are all probably linked to other basic changes. For
the general political process within a country, it is important to be aware of what happens, and use thatawareness for self-reflection.

II. STATE - OR NEIGHBOURS?
A. Icelandic Blues?
Iceland is the country of Western Europe with the lowest number of prisoners. In summer 2002 they had
one hundred prisoners, which means 35 per 100,000. They have one large prison with a capacity of 87
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a capacity of between 6 and 14 persons. Erlendur Baldursson (2000) is from their prison administration. He
tells that “…difficult prisoners have repeatedly been transferred from the largest prison to the smaller
prisons, as a rule successfully”.
***

It is so easy to dismiss this experience. That little country Iceland, what happens there has no relevancefor huge nations. I agree. On the other hand, some of these other nations also have lots of Iceland in theform of islands - inside their borders. First, in the form of small towns or cities. But large cities also haveislands, inside. New York has several, Paris is said to consist of a great number of French villages, andLondon is also, as far as I can observe, a conglomeration of villages. In my little city, Oslo, I live in one. I
moved to this island some 18 years ago, and have ever since been forced to reflect on why it is so
extraordinarily good to live there.
Basically, because this part of the city by and large, but with exceptions such as myself, is a low-income
district. Simply, there are a large number of poor people around. From that follows four social facts:•

A considerable amount of misery. The length of life for males here is ten years shorter than in theWest End. Living as single is more common here than elsewhere, so is it also to have problems withalcohol and drugs.

•

As a consequence of poverty, most people here do not have cars. From this follows that most people
do not shop outside the local neighbourhood. There is no convenient transport available tosupermarkets outside the district borders. In addition, many will not have so much cash available
that they can load up for several days. From this follows:•

Local shops survive. There are not many parts of Oslo so filled with kiosks and small shops as in this
area.

•

And one additional factor, a very important one: An extraordinary number of those living here are on
welfare of one sort or another. This means they have more time available than most people have.

So, when Saturday arrives, and I should have been out skiing in the forest, that is how many natives areconditioned, then I am instead tempted out into the local streets, shopping, talking, or just being.
This has other consequences. This island is, as you might have gathered, a place for all sorts of people;
some might be in official files with some sort of diagnosis. But in local neighbourhoods with muchinteraction, people do not remain only as diagnostic categories. People become characters: that man with theblind dog, the cigarette-butt collector, the kind old lady, that youngster to keep away from...
This also means that we have less crime in such neighbourhoods than in the more affluent parts of thecity. Of course, I do not, with this statement, say that less property disappears without the consent of theowner in my neighbourhood than in other neighbourhoods. Nor do I say that fewer people are bodily harmed
than elsewhere. Probably there is more of both. What I do say is that these activities get another meaning on
my island. We are not so scared, since we know our neighbours. And chances are great that we know someof the involved parties, or someone who knows some. This again means it does not feel quite so natural touse official designations such as “Theft” or “Violence”. Crime is a man-made phenomenon. Among people
who know something about each other, it is less natural to use crime categories. We might dislike what they
do, and attempt to hinder it. But we do not have quite the same need for the simple categories from penal
law. And if applied, these labels do not stick to the same extent.

B. Extermination of Primary Relations
We know particularly well what follows when primary relations dissolve.
Some among us can still remember George Caspar Homans, that US Navy officer with a voice trained todeafen storms. He turned anthropologist, and in his book from 1951 with the title “The Human Group”, hepresented the beautiful horror-story about the demise of “Hilltown”. Once this was a town filled with
important decision-making. You could not be away from social life for long, or wrong decisions on important

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matters might be taken. It was a place with all the pleasures and pains of social life, a social system well
suited for primary control. We know that primary control needs somebody close and concerned. If no one
there, the state will provide someone. Then to the sad end of the story: A railway appeared at the bottom of
the Hill, giving easy access to the big world. The town converted into a sleepy suburb where internal life
became of small consequence.
Forty-nine years later, Robert Putnam (2000) published his book “Bowling alone”. From being sociallyoutgoing, with many friends who often meet, deeply involved in civic life, the ordinary US person of today
seems to be much more of a social isolate. From myriads of studies, Putnam compares generations. How did
people 50 years old behave in 1955, compared to those of the same age in year 1995? He describes a clear
trend towards increased social isolation. As a symbol of it all: Bowling is not so much a group activity any
more, it has become an individual one. Bowling Halls acquire huge TV-screens to be watched while waiting
for the next play. The adjacent restaurant is gone. So are the friends you used to meet there in-between.
Now, after the game – which has become a competition against yourself – you drive home to another suburb,
to a household where seven hours of TV watching is waiting - seven hours and two TV-sets is the statisticalnorm for the country. Life in social networks is shrinking, while consumption of crime from the screen isincreasing.
Putnam’s analysis is met with criticism as to its importance for political life. His study is also to asurprising extent without a class perspective. Nonetheless, it is an essential finding that people do not meet
people to the extent they once did. This means increased reliance on the media for describing what happens
and what gives meaning to the occurrences. It also means greater dependence on the state to cope withthese perceived dangers.
If I am acquainted with my neighbours and have some sort of network close to me, I have an easy time ifsome youngsters misbehave in my hallway. I can call for someone who might know some of them, or I canturn to the athletic neighbour one floor up - or perhaps better - I can ask for help from the little lady I know
as particularly good at handling local conflicts.
But without a network, and with all the information on the increase of crime in mind, I would have locked
the door and called the police. I would thereby have created conditions both for encouraging unwanted
behaviour, and for giving that unwanted behaviour the meaning of crime. Maybe I would also haveencouraged conditions leading to an acceptance of some e-mail I received while I was working on this paper.
This was an irresistible offer launched under the title: “Spy on your baby-sitter.” A few days later, I got
the same offer under the title: “Watch your teens or keep an eye on the babysitter.”…it is a secret wireless camera used professionally by CIA, FBI and others …. And here is how it
works: A small camera hidden inside a light bulb so inconspicuous no one will suspect they are being
watched. You screw it into any lamp, (even over the shower, it could be in a dark place it doesn’t matter. …
Then you take the other piece and plug it into your VCR (or any type of TV, they say in other ads) and it is as
if you were standing over the person with a video camera….“The video signal “wraps around” the powerline, completely separate from the AC voltage. This is a security no home or office should be without.
But there are other dangers. Another e-mail gave comfort: The subject line was “Stop child molesters”,
and the offer was to get access to a database with more than 50,000,000 criminal files. And we learn:
The odds are great that one or more of these dangerous criminals may be living in your neighbourhood.
Approximately 200,000 convicted rapists are required to be registered in America at any one time. Many are
repeat offenders.
Access to the database of sex offenders is free of charge, but access to the file for the 50 million costs ten
dollars. The ads are as taken out of the documentary by Michael Moore, “Bowling for Columbine”.

C. Trivial Truths
And what do we do and say, we, the legions of social scientists around?

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We know, as a profession, some of the consequences of all this. But we do not tell, not often, not strongly,
and particularly, not concretely, with examples and detail. What we have to say is so much against the spiritof our time.
We know about city planning. A large shopping centre is projected outside an old city. Gains: Reduced
unemployment during the construction period, increased income to the construction firms and later to thefirms running the centres, and probably also a greater assortment of goods and improved conditions forparking. But then the penal costs: Increased number of arrests for shop-lifting, and also the social death ofthe old city in the neighbourhood, leading to an increased amount of unwanted behaviour. Police and guards
become necessary as functional alternatives to the missing counters and the neighbourhood shops.
So, we can say: Dissolve the supermarkets. And let all shops have a counter between customers andcommodities.
Or, as an alternative to the methods of the N.Y. subway police, we can say: To reduce penal costs, let nobus or streetcar run without a conductor. Social control carried out by a person who does not give thesituation the meaning of having crime control as its primary purpose leads to an increased feeling of security
among all passengers, it creates a more quiet atmosphere, more co-operation from other passengers and lessuse of force. But, of course, economic costs: Salaries to conductors minus costs for ticket machines,
electronic surveillance, and an increase in payment from those who usually do not pay.
Or we might turn really radical and say: Poverty is a relative phenomenon. Reduce the wealth of the rich,and the poor would not be that poor.
We know a lot, if questioned by journalists or others. But, of course, we also know the journalists will not
be particularly interested and not come back. They will turn to more useful criminologists, not to freeeggheads.

D. Old-fashioned Russia
I have the privilege of living close to Eastern Europe. Norway and Russia have a joint border up in the
North. And we have had no wars - except for Norwegian invasions in Viking times. But there is more to it
than that. I feel at home going East. This is not because of a similarity there with my present living in myhome country. It is more like coming back to the days of my grandmother. It is not only in Russia thishappens. So is it also in Poland, in Hungary and in many of the other Eastern European countries.
Why?
I have no solid explanation, again only a vague hunch: Perhaps it is due to communism. But not as statedin the old propaganda, not due to the effects of communism as we were told about in their fairytales back intime about workers paradise and all that. Not because of the transformation of some of these societies thattook place after 1918. And particularly not because of the efficiency in the changes. On the contrary, it isbecause of the inefficiency. Capitalism was able to change Western countries, change them into their presentmonolithic form, change their forms as well as their basic values. State communism of the eastern type wasalso able to change their societies. They changed the type of government, and exchanged the incumbents ofpower positions. With enormous human and material costs, they improved living conditions for many. They
modernised the material structures. But they were not very good in modernising the human soul.

E. Societies with More than One Leg
Even in the middle of the Cold War, there existed some professional contacts between the East and Westof Europe. We received some official visitors from Soviet criminology in Norway in the early 1960s, andreturned the visit in 1968. From then onwards, exchanges were frequent. A book of mine - “Limits to pain”(Christie 1981) - was published in the USSR in 1985; I think it was the first “Western” criminology
published there. This made contacts more legitimate and opened up for further interaction with theRussians, and by that legitimising fact also with their colleagues in other East European countries.
I give this little sketch of background to establish some sort of credibility to my next point, which simply
is as follows: These countries were, and still to some extent are, so remarkably old-fashioned. Again andagain the same strikes me when visiting East European countries, or receiving visitors from there: I am, in a

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way, back to the days I remember described by my oldest relatives, or find in writings from that time.
Of course, it is like that. These were societies functioning at a much lower technical and material level
than in the West. Their populations were living under a political system where the state was supposed toprovide the material goods needed for life. But that state was not particularly reliable in delivery. And it wasa one-party system. Political opposition was a dangerous matter. People did not want to talk to you in thestreets, visits in private homes might be a dangerous endeavour - for the host. Leaving Eastern Europe bytrain was an unpleasant experience. Armed inspectors entered, scrutinising the luggage compartments,
maybe someone had attempted to escape their state, flashlights under the trains, dogs, and of course guns. It
was like leaving a prison.
A scarcity of commodities, and an abundance of state control. No wonder many looked for other systems
of protection!
I brought a granddaughter to Russia quite recently. It was for a seminar in Astrakhan, a long journey with
ample time for talks with the participants. Most encounters had the same beginning: My granddaughter, 14
years old, was warmly greeted, so nice to meet a Norwegian girl. And then, with certainty, a few seconds
later came the fatal question: What was she planning to do in her life, what sort of study, and what sort ofwork was she preparing for? My granddaughter looked at me in despair, until she got accustomed to therepeated question. She was an ordinary Norwegian teenager. Life is open. She would finish her compulsory
education, maybe a year of travel abroad, maybe university, maybe first some years of ordinary work to earnmoney ... Then, perhaps, some years of study, but this would certainly not be a choice for grandfathers tointerfere with. “I have with one exception never got such a question at home,” she told me after the firstcross-examinations. But I felt the blame from my Russian colleagues. They thought of me as a bad
grandfather. Careless in the extreme. With such a clever and lively granddaughter - and he has not been able
to put her on the right track for a vocation!
I ought to have been prepared. For years, I have been struck by the survival ability of the intelligentsia in
Eastern Europe. In these societies, constructed to benefit the working class, I was rarely able to meetacademic people who had not one or two academicians as parents, and often also as grandparents. Probably,
but here I am on less safe ice, probably this is only a special case of what had happened in other segments ofRussian society. In scarcity, and under daily control of a powerful state, families, and family values, became ofgreater importance than in the West. Under scarcity, generations are forced into proximity. For a young
couple, she might be pregnant - the only solution is a room or a part of a room in the parents’ dwelling. The
family has small children and both mother and father need paid work to survive. Grandparents become atreasure, just as children are to them when the old age pension fails to appear. Or the “datcha”, the little
summer house so dear to those that had one, a fortune for the extended family, a place to be for the kids, aplace for the production of vegetables for them all. To be an outsider in such a system means serious danger.
Social capital has material realities.
The dark side of the one-party state pushed in the same direction. Informers are essential in such
systems, as was so clearly documented in the Stasi-archives after the collapse of the Federal Republic of
Germany. You never could know, for certain, who the informers were. Probably (but not certainly) they were
not in the close family. Ivo Moszny, a perceptive sociologist from Brno in the Czech Republic, has inconversations and lectures repeatedly pointed to this phenomenon.
I met him during the “Spring of Prague”, a short period with decreased political oppression. When that
peculiar spring had passed, he was in a way rescued. He got a position as a janitor at his old university.
Today, he is the Dean of the same faculty. Once, in an old Norwegian bus, a group of Scandinavian
criminologists travelled to Vienna via Poland and what was then Czechoslovakia. This was in the period
when he still was a janitor. He gave a remarkable lecture, inside our bus, outside of the ears of state control.
It was precisely on the importance of the family for resistance against totalitarian states that he spoke.
Hundreds of small lagoons for a life alternative to the one controlled by the state were constructed. The
family was one. But so also was the culture of the past, the heritage, the large novels, the music, the poetry.
To live in scarcity might also give room for an alternative life. This is one explanation for the culturalinterest one also meets today in Russia and in some of the neighbouring states. But maybe there is more to
this interest than just being a refuge against a totalitarian regime. Maybe the pronounced cultural/aesthetic

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interest is a deep feature of what it is to be Russian. Maybe it will survive material affluence. That crucial
test is happily enough not close to us in time.
***

But the Soviet heritage is not that far back in time. Let me turn to that.

F. Those Polish Students
I was invited to lecture in Poland, and used some of the themes above: the need for informal social
networks, the need for knowing your neighbours, and the need for primary control as an alternative to state
control. I met blank faces. Of course I met blank faces. Trained to distrust your neighbour, conditioned tosituations where that neighbour might be a spy for the system, it might all come back, why establish ties
that might prove dangerous? This is one of the serious costs of having been trained into life in a one-party
state.
These same costs are also clear when attempts are made to introduce mediation or restorative justice inEastern Europe. They have had their quota of it. They have had house committees or neighbourhood
committees. Or they have had workers courts in the factories - no more of this, thank you!
Again, it is easy to understand. They had it all, but were strictly politically governed. Those who decided,
were perhaps mediators, but they were also party members. The great interest for alternative conflict
solutions in the West is met with considerably less enthusiasm in Eastern Europe, and with good historicalreasons.
But this might also be an important experience for Western attempts to curb the state by introducing
civil ways of handling conflicts. Let me turn to this theme.

III. NO PUNISHMENT
A. Two Types of Justice
We know the picture: Females gathering at the water fountain or at natural meeting places along theriver. Here they come, often every day at the same time. Fetch the water, wash the clothes, - and exchange
information and evaluations. The point of departure for their conversations will often be concrete acts andsituations. These are described, compared with similar occurrences in the past and evaluated; was it right orwrong what happened, was it beautiful or ugly, was it a sign of strength or weakness? Males will often do thesame, at their places of meeting. Slowly, but far from always, some common understanding of theoccurrences might emerge. This is a process whereby norms are created through interaction. Let us call it
horizontal justice, created by persons with considerable equality brought about by closeness. Of course, notcomplete equality. Some have better clothes than others, some are from better families, some have more
wit. But compared to what now follows, they are equals. And their decisions are based on being part of aprocess.
***

Horizontal justice has three major characteristics:
1.

Decisions are locally anchored. How cases are solved in villages far away is of limited interest. Whatmatters is here and now, compared with the past, and with concern for the future. This can lead toinequality between districts, the “same” act can be evaluated differently in district A than in district
B and C. But the opinion inside each of these districts might unanimously be that justice has beenachieved in their particular area.

2.

Questions of relevance are handled in a radically different way from what happens in the legal
system. Relevance is seen as a central concern, but in situations with horizontal justice as one
without pre-defined solutions. Relevance is established through the process itself. Relevant is what
the participants find relevant. A minimum degree of consensus on relevance must be created among
all interested parties. That Kari 15 years back in time was humiliated by Per, might be seen as ofconsiderable importance by all interested discussants when Kari’s little sister has now covered Per’s

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little brother with tar and thereafter rolled him in feathers.
3.

At the water well, compensation becomes more important than retribution. This is related to several
structural elements in small-scale societies. Such societies are often relatively egalitarian. Not
necessarily in the meaning that all are equal in wealth or prestige, but in the meaning that if conflicts
appear, parties will move into alliances with their relatives and friends and thus mobilise until they
become somehow equal to their opponents. Many such societies also exist far away from external
authorities with power at their disposal. This means that they themselves will have to cope with theconflicts. This is a situation where the participants know each other from far back in time, and also
know that they will have to live together in the future. They can not do as modern people, just break
off relationships and move to another social system when conflicts loom. Punishments are
particularly dysfunctional in such systems. Punishment - infliction of pain intended as pain - means
moving towards civil war in fragile systems. With a distant external authority, with nowhere else to
move, and with no superiority of power, compensation rather than pain becomes the natural answer.
***

Then the other picture: Moses, down from the mountain. Under his arm he carried the rules, engraved instone, dictated to him by one even higher up than the top of that mountain. Moses was only a messenger,
the people - the populace - were the receivers, controlled from far above. Much later, Jesus and Mohammed
functioned according to the same principles. These are classical cases of what here will be designated as“vertical justice”.
In the case of Moses and his vertical justice, the situation is different from the one of horizontal justice.
With rules engraved in stone, an idea of the existence of general validity is created. Equal cases have to betreated equally and according to the rules. But cases are never equal, if everything is taken into
consideration. Of course not. Therefore, everything can not be taken into consideration in formal law. It
becomes necessary to eliminate most of the factors surrounding any act to be able to create cases that canbe presumed to be similar or equal. This process is called eliminating what is irrelevant. But what isirrelevant is a matter of values. To create equality, it is therefore necessary to create rules for irrelevancy. It
is a dogmatically decided irrelevance - as lay people so often experience when their lawyers forbid them tobring up in court what they believe is their best argument. This is what we train law students to know andapply. This type of justice is reached by establishing limitations on what can be taken into account, otherwise
equality could not be established in this setting. This is in sharp contrast to horizontal justice where thequestion of relevance is decided among the participants in the process.
With vertical justice, and the social distance implied in that process, there is also created a situation that
opens up for the application of punishment, for pain intended as pain. Modernity means to a large extent alife amidst people we do not know and never will come to know. This is a situation where penal law can beapplied with great ease. Penal law and modern time suits each other.

B. The Growth of Formal Law
Every second year, a new edition of a peculiar book comes to my office. It is a book published by The
Faculty of Law at the University of Oslo, the book is red, large, and voluminous, even printed on “Bible
paper”. In 1930, the book contained 2099 pages, in 2002, the number of pages had increased to 3111. This isthe book that contains all valid Norwegian laws from 1687 and up to the present. No lawyer will be without a
new edition of this book. Students of law will often carry the book under their arm, - the book has some ofthe same symbolic function for law students as the stethoscope for students of medicine.
In addition to laws in books, these days there are also the electronically conveyed messages. With themorning coffee, the last legal decisions can be called up on the screen by all the legal experts who areconnected to a legal data base. And they will all soon have to be connected if they want to be taken seriously.
The courts are under continuous electronic upgrading in all highly industrialised countries. In the case of thepenal courts, the sentencing tables of the US type will soon be outdated. Information on offender and offence
can be fed into the electronic system, and out comes details of the “profile” - the range of sentences in“similar” cases, not obligatory to follow, but yet persuasive examples of how other judges act. From carved
in stone to a diagram on what is a normal sentence on a screen. The electronic revolution has not createdequalitarian justice, but a pyramidal one.

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In the meantime, the water wells and a great number of other arenas for informal discussions are
abolished, even though coffee shops to some extent have taken over. Disappeared have also many of the oldvillages. But a new type of village has recently appeared. What there happens illustrates some of thestrength in the horizontal participatory justice system.

C. The Global Village
The females at the water well would often look differently at much of this. It was as if they were not sosure of their classifications. What is what, and who is who? But they are not there, any more. Instead, a new
type of users of mediation has grown in strength and importance. These are the large economic enterprises.
It is often said that in modern societies the village is dead. Gone. Just an empty shell to sleep in. Our
destiny is life in the megatown, a life among strangers. That is right. But also wrong. The villages have died.
All but the global village.
If we want to study a village of importance today, we must not go to the countryside, but to the very
centre of countries. We must go to the City. Literally. We must go to the City of London, Wall Street, or tosome of the inner districts of Tokyo or Singapore, perhaps even to Oslo. Arriving there, we must look forsome of the best-protected buildings, and then within these, try to get access to some of the major
enterprises occupying these premises. In my country, it might be one of the major oil companies, or evenbetter, one of the large law firms. Entering their premises is similar to entering a hut in an African village.
How can I utter such an absurdity?
For three good reasons. But as I list them, you will have to accept that, in what follows, I have had tosimplify and give an ideal-typical description
First, those living in the modern hut are linked to their neighbours in ways having functional similarities
with the old ones: by telephones, sometimes integrated with TV pictures, by telephone-conferences, oftenwith participants with oceans between them, or faxes or e-mails. Linked together, and with a common
cultural landscape from reading the Financial Times, the Wall Street Journal or The Economist.
Second, they are glued to each other, just as the old- fashioned villagers were. There is no other globe
available. They live there with the understanding that they will have to remain, or leave for the desert.
Third, the external authorities are far away, and with limited power. One modern law firm might have alarger legally trained staff than the whole Ministry of Justice and the Ministry of the Interior put together.
They know more of law, and dispose more resources than their rulers.
This, then, also makes them similar to the old-fashioned villagers when conflicts loom. They have
nowhere else to go, so they continue the relationships. But since they have no external authority to turn tofor protection they are again forced into ordinary village behaviour. They must solve the conflicts by civilmeans. We know from personal experience, or from social anthropology, that attempts to punish others in
the village mean breaking off relationships. It is a call for war. Conflicts in villages without external authority
and where people intend to remain, such conflicts will most often take a form whereby the parties create
coalitions to muster some sort of balance of strength. After this groundwork is done, they meet and work
towards civil solutions. If wrong acts have been performed, compensation to the victim, not pain to theoffender, becomes the major answer where relationships are to continue. As for the villagers everywhere, so
also for General Electric.
Penal law is a perfect instrument for certain purposes, but clumsy for others. It is one where we
eliminate many concerns, and it is one based on dichotomies - all or nothing - guilty or not guilty. In many
situations we are half-guilty. If that half-guilt is seen in the light of earlier misdeeds of the other party - or
her or his associates - an opening is given for compromise. Civil solutions are more integrative solutions
striving to preserve the social system as a body of interacting individuals.
In analogy with what happens in village law, lawyers in the global village will most often consider the
totality of situations and look for peaceful compromises and compensation rather than the use of swords.

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They will, as peacemakers and mediators everywhere, be highly regarded and, in our culture, highly paid.
Without a high reputation, they will, in certain types of villages, have trouble creating peace. They will
therefore guard their honour both against political involvement and against clients of low regard. High salaryis a corollary to high regard. In addition to money and prestige, they have probably also more fun than otherkinds of lawyers. In their global village, inside the limits of their economic-administrative system, they areback to working with totalities. They have the fun of old-fashioned tribal members in finding out about thelaw, participating in finding solutions all parties can live with, and thereafter the satisfaction of creating peace
inside their system. They are engaged in a holistic activity directed towards peace, in contrast to a
specialised one directed towards war.
The paradox is that, as these lawyers are enjoying their global village, they are so often causing
destruction of the remaining local villages. Their decisions on the economy are part of the driving forces in
the international development of industrialisation. Their activities in their global village are one of the key
elements in the process of modernity. Their activities create the conditions where another kind of legal
personnel is called for, a kind in extreme contrast to the civil one suited for conflicts at the water well.
***

So, what have I described so far?
I have described two ways of coping with conflicts, the way of Moses, and the way of the women at thewater well. And I have said there is growth and expansion in both solutions. Growth in penal law, but also
growth in the interest for mediation.

D. Abolish Punishment?
In discussions on penal matters, a major position is called Abolitionism.
The Abolitionists raise questions like: What logic, and ethic, makes it so certain that punishment haspriority over peacemaking? You lost an eye due to my deplorable behaviour, but I will give you my house.
You hurt me with your crazy driving, but I have forgiven you. Punishment is intended pain. Has the intendeddelivery of pain advantages as an instrument for restoring broken values? Has such pain advan-tages, andtherefore priority, over reconciliation, restoration, and forgiveness? I agree with the position behind thesequestions, but can not follow the Abolitionists all the way.
The most radical among them want to eliminate penal law and formal punishment altogether. But there
are several major problems with that position if followed to the extreme.
The first is a concern for those who do not wish to participate in a process of reconciliation or in reachingof a possible agreement. Some offenders do not have the ability, nor would they dare to look the victim in theeye, let alone ask for forgiveness; they panic and want an impersonal court procedure. Neither would somevictims consider reconciliation; they prefer the offender being punished. In both cases, a criminal legal
process commences. A civil conflict-solving process can hardly be considered in a modern state without acriminal law solution being available as a possible alternative. This might result in one person being forgiven
in a civil case, while another person is punished. But it can not be against the code of ethics that some,though not all, receive forgiveness. Those punished encounter what they would have faced if restoration did
not exist. Probably, those punished will receive a bit less. If forgiveness exists as a viable alternative in somecases, this would possibly reduce the severity of punishments in general within the system.
Another major concern if punishments were completely abolished, is that reconciliation processes could
degenerate. The offender, or his close relatives, might in despair promise too much in order to turn matters
into a more favourable direction. The arbitrator, the mediator or participants in a circle must stop this, andmight be forced to return such a case to the penal courts. Or the offender might be exposed to too strongpressure from the other party. There are instances from small communities where the men dominate theconflict-solving body and where the abused women are subjected to continued suppression.
For conflicts at the state level, the same objection can be raised. Laura Nader (2002), p. 144) expresses itlike this:18

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Fine-grained fieldwork indicates how coercive harmony operates to silence disputing indigenous
peoples who speak or act angrily (p. 127).
It began to look very much as if ADR (Alternative Dispute Resolution, N.C.) were a pacification
scheme, an attempt on the part of powerful interests in law and in economics to stem litigation by themasses, disguised by the rhetoric of an imaginary litigation explosion (p. 144).
In enthusiasm for mediation, it is important not to forget that rituals and arrangements in penal courts
might have important protective functions. When tensions run high, maybe even immediate violence
threatens, the solemn and also often utterly tedious and dull rituals in the penal apparatus might have acalming effect. Court procedures might make certain situations of conflict bearable, just as church rituals - ornowadays the fast developing “human ethical rituals” - make it possible to endure the sufferings at funerals
for a beloved one.
A special situation is created when an individual stands against an organisation. It might be the shoplifter
against the big firm, the graffiti-youngster against the municipality, or the passenger who did not pay against
the subway system. The point here is not necessarily the inequality in power, but that one party will be a
representative for a big organisation. It might be a representative with a large amount of routine, but alimited amount of personal interest in the conflict. In contrast, the other party might represent herself orhimself for the first time. Our official system for mediation in Norway is soaked with shoplifters, cases
particularly unsuited for mediation. The system for mediation might easily be perverted into juvenile courts
in disguise. Høigård (2002, pp. 288-293) has a highly relevant critique of this development in her book on
graffiti; “Street Galleries”. What goes on in these boards is, in her view, punishment of children.
An exception would be if the mediators in the boards were able to include the top management of the big
firm or of the subway system or the municipality. In that case, it would have been possible to raise questions
about how the shops are organised, if the temptations in the shop are exhibited in a way that make themclose to irresistible to youngsters, and if the shop in order to increase profit has far too few sales’ attendants
around. Or the question might be raised if the graffiti on the wall was not more beautiful and/or interesting
than the huge advertisements for underwear? Such meetings might be very useful for the social system ingeneral. But to get them going is probably utopian.
A third case for penal procedure is a situation in which there is no actual victim. Perhaps a belief has been
offended against. Some people might curse God or Allah in nations where this is considered a serious sin. Or
perhaps there is a need to regulate what some people are doing to themselves and their own bodies. Actions
against the use of drugs is at present the dominant example.
And then comes the more trivial concern that some simple regulations would ultimately need support.
Some drivers insist on driving at the speed of their choice. Civil measures, such as the withdrawal of adriving licence or the impounding of a vehicle, could be attempted, but are not always sufficient. Punishment
should remain as a last resort.
For some, none of the above concerns are of importance. Still they would punish. They will say: Society
has to do it. Independently of any utility or practical use of punishment, certain acts are so terrible that theperpetrator(s) must receive the vengeance of society. This would be their claim.

E. A Winter Night
Forty thousand citizens of Oslo took to the streets the very same week I was writing this chapter. It wason the first day of February, and it was dark and bitterly cold. A strong northern wind swept through thestreets, the temperature was 13 Celsius below zero, nonetheless, it was warming to be there.
Benjamin was the reason for it all. Some of his friends gave speeches, so also did the Prime Minister. A
young woman sang. Thereafter followed a solemn procession through the streets.
Benjamin was killed three days earlier. He had just turned 15. Knifed by three young people with some
sympathies for Nazi ideology. Enough is enough was the dominant mood of the country. Benjamin had blackskin. A year earlier he had, on national TV, condemned Norwegian racism. That might have been one of thereasons for his death.

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The procession was a manifestation of common values, and also an example of the new types of funeralrites coming into being - as flowers for Diana, candles on graves, or at the places where terrible events had
occurred. Public participation encouraged by and broadly covered by the media.
But then the question: Is this enough?
Much has already been done to prevent the spread of Nazi ideology and the establishment of Nazi
organisations. The State gives money to youth activists to help to get young people involved in Nazi groups
to retreat from these settings, and return to normal life. Parents are active, schools likewise, researchersattempt to get close to the Nazi groups to understand their behaviour and their motivation.10
But again, is this enough? Two young men and a woman have been found guilty.11 Is it possible to think interms of restorative justice in such a case? The value of a human life has been infringed upon. And not only
this. The act has been carried out by persons that at least initially might have thought the act was a positive
one, a move to fight back the invasion of a less valuable culture, or maybe even a less valuable race.
Would I still insist that this also is a case for restorative justice?
***

There are other difficult cases. In Norway recently, the entire population was shocked by the murder of
two small girls who were going to swim in a little lake in a forest somewhere in the south of the country.
They were sexually molested and killed. Two young men were found guilty and sentenced to long sentences.
One of them seemed to laugh when he left the court. The population was outraged, and so was I.
Nonetheless, let us try to imagine another end to the story. What would have happened if mediation had
been arranged and the relatives, after a long process, said: You killed our children, but we have forgiven you.
With our present knowledge of your past life-history, and with an acceptance of the sincerity of your deep
remorse, we have forgiven you. We know what your future will be if you have to spend years in prison,
therefore we beg the authorities to release you. What would have happened if this had been said by the
relatives, and followed up by the authorities?
I have no doubts about this being a solution in accordance with deep roots in our morality. But at thesame time I do not have any doubt that it is completely unreasonable to expect this to happen, let alone todemand that the next of kin to those murdered, should take part in a negotiation process that could possibly
lead to an end result like this. It is perfectly understandable and morally above blame for the next of kin tochoose punishment for the offender. But if mediation took place, could we then conceive of a situation where
the case ended there – ended with forgiveness? Why should it be obvious that the case still belonged to theprosecutor and prison authorities?
If all the victims, and all the relatives of those who could no longer talk had claimed that forgivenessshould reign, then, maybe, maybe, a sociologist would take Emile Durkheim in hand and argue that for thesake of the social cohesion of that particular society it might be necessary to let punishment follow thedisgusting acts. But the possibility of such a forgiveness from the parties involved is so distant that this kindof warning is as realistic as a warning of the breakdown of the oil market because most people have found it
morally right to drop any use of private cars. But if it happened, I would be at the side of those parents that
asked for forgiveness. The whole process of finding out what had happened, the determination of guilt, thequest for forgiveness, and then the act of forgiving - it would all be a powerful exposure of terrible, close tounbelievable horrible gruesome acts. The exposure of it all would represent a powerful distancing fromthose acts, at the same time as the act of forgiveness would take care of another equally important set offundamental values in our society.
***But would that be justice? In extreme cases, children are sexually abused in a horrible way, then killed. It
10 Cf. Fangen (2001) and Bjørgo (1997).
11 In February 2003 one of the men was sentenced to 17 years of imprisonment, the other 18 years.

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VISITING EXPERTS’ PAPERS

can not be right to let the guilty ones get away with words only? But the opposite position might also be awrong answer. The punishment can never be equal to the wrong done. As Giertsen (2003) writes, here in
my translation:
Punishment is a symbolic expression, it can not become equal to the crime on a one to one basis, and can
not be used as a measure-stick expressing the value of the victim. Punishment is first and foremost astatement that an act has damaged an important value, a value that must be re-established (p13).
Punishment can not be equal to damage. Relatives might say; he who killed was only sentenced to twelve
years, while my boy lost his whole life. That is not right! And they are also right, so far. But they arereasoning in a way that would lead society into unacceptable conditions. If we want to preserve humanity, it
is not a question of simple retribution. The lost son can not be brought back, a similar harm would be to takethe culprit’s life under conditions equal to his ways of acting. Our ethic must have a broader perspective. If
punishment is to take place, this punishment must represent the totality of our values.
Victims, and victim movements, will often feel deeply hurt when their sufferings are not reflected in thepunishment on a basis of one to one. This will often be expressed as sharp criticism of the courts, a criticism
eagerly brought to the surface in the media and from there to the politicians.
How to handle this situation?
There are no other ways than the usual: counter-arguments, exchange of ideas, attempts at clarification.
Choice of penal policy is a cultural question. It is not a question of instinctive actions and re-actions. It is anarea filled with deep moral questions. It is an area for novelists, playwrights, artists, - and for all citizens. It
is not only for experts, of course not. But it is not only for victims either. It must be a chorus of voices,
introducing a forest of concerns, partly concerns that are not easily digested, and also to a large extent not in
harmony. The more the field is seen as a cultural one, the less room remains for the simplified solutions.

F. Minimalism
The reasoning up to this point makes it hopefully clear that Abolitionism, in its purified form, is not an
attainable position. We can not abolish the penal institution totally. But I have also, hopefully, been able toshow that we can go a long way in that direction. Crime does not exist as a natural phenomenon. Crime isjust one among several possible ways of looking at deplorable acts. We are free to choose, and the variationin punishment levels over time in individual states and also between states is an illustration of that freedom.
In this situation, what comes close to my heart might be called Minimalism.12 This is close to theabolitionist position, but accepts that in certain cases, punishment is unavoidable. Both abolition-ists andminimalists take undesirable acts as their point of departure, not acts defined as crimes. And they ask how
these acts can be dealt with. Can compensating the injured party help to handle the case, or establishing a
truth commission, or helping the offender to ask for forgiveness? A minimalist position opens up choice. Bytaking the point of departure in the whole sequence of events leading to the undesirable action, punishment
becomes one, but only one, among several options. To let the analysis stem from conflicts, rather than from
crime, opens up a liberating perspective. It means that we are not captured in a “penal necessity”, but are
free to choose.
Good - and bad. It takes away the rigidity in seeing punishment as an absolute obligation, but forces us togive some reasons for our choice of punishment versus non-punishment. Let us, in what follows, test thepossibilities of the minimalist position on some catastrophes of our time.

12 The term abolitionism is inherited from the struggle against slavery, especially in the USA. Within this movement, theconflict was between those who wanted to abolish slavery altogether, and those who, by various means, wished to limit
slavery. And, as in the struggle against slavery, a more moderate group also exists within the abolitionist movement. They are
the minimalists. It is a bad name from the history of slavery, but a good one confronted with the complexities of finding
answers to severely unwanted acts.

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APPENDIX A
Prison Population Rate per 100,000 of National Populations

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Western Europe
England/Wales
Portugal
Spain
Italy
FranceNetherlands
Germany
Ireland
Austria
Belgium
GreeceSwitzerland
Denmark
FinlandSwedenNorwayIceland

139
135
126
100
99
93
91
86
85
85
80
69
66
66
64
62
37

Central and Eastern Europe
Russian Fed.
Belarus
UkraineLatviaEstonia
Lithuania
Moldova
PolandRomania
Georgia
Hungary
Czech Rep
Slovakia
Bulgaria
TurkeySlovenia

597
554
406
361
328
327
300
260
215
196
176
159
139
114
89
56

North America
USA
Canada730
116

Central America
BelizeCuba (estimate)
PanamaCosta Rica
Honduras
El Salvador
MexicoNicaragua
Guatemala

459
500
359
229
172
158
156
143
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127TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSSouth America
Chile
Uruguay
BrazilColombia
Argentina
Peru
BoliviaParaguay
Venezuela
Ecuador

204
166
137
126
154
104
102
75
62
59

Oceania
New ZealandAustralia

155
112

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APPENDIX B
Prison Population in Poland 1945-2002

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