Incivilities: Regulating Offensive Behaviour (review)

In societies with diverse cultures, beliefs, norms, and values, individuals are likely to encounter behaviour they find offensive or act in a manner that may offend others from time to time. Playing music at high volume, spitting chewing gum onto a city sidewalk, and swearing in public—these are just a few examples of actions that can be experienced by observers as antisocial. At what point do such deeds become offensive? What are the causes and consequences of offensive behaviour? How should such incivilities be regulated? In which instances is criminalization warranted, if at all? What principles ought to be followed to develop legal mechanisms that reduce instances of offence? These are the principal concerns explored in depth by the contributors to Incivilities: Regulating Offensive Behaviour, a volume edited by Andrew von Hirsch and A.P. Simester. A collection that draws on various disciplines, including philosophy, law and jurisprudence, criminology, and sociology, Incivilities makes a number of valuable contributions to the field of penology.

While one could simply dismiss the need to regulate behaviours that some perceive to be offensive, Anthony E. Bottoms argues that there is ample evidence to support the notion that regular exposure to even minor and separate incivilities leads some residents to perceive that deep problems exist in their communities (p. 256). Drawing on the work of social reaction theorists, Bryan S. Turner notes that governments acting on behalf of concerned citizens intensify the problem by targeting particular groups who, as a result, experience further marginalization and engage in additional offensive conduct (p. 234). Turner shows that the majority of incivilities are committed by young men who seek to satisfy frustration and alienation stemming from a lack of social integration (p. 219). Douglas Husak explores how and why people are offended by the conduct of others. By identifying emotions, such as disgust, that trigger the experience of offence, one "might reduce the likelihood that people will become offended" (p. 93). By shifting the analysis away from transgressors to the offended, these authors lay the groundwork for an exploration of shared solutions to commonly experienced problems.

The primary thread that connects the chapters of Incivilities is the condemnation of recent mechanisms deployed in the United Kingdom in a stated effort to crack down on incivilities, with a focus on two-step prohibitions such as Anti-Social Behaviour Orders (ASBOs) and Acceptable Behaviour Contracts (ABCs). These schemes are criticized for their capacity and tendency to impose lengthy restrictions on movement and otherwise legally permissible behaviour (Burney, p. 206) through processes with low evidentiary thresholds (von Hirsch and Simester).

Many of the contributors argue that the mechanisms for governing incivilities are excessively punitive. Von Hirsch and Simester argue that offensive behaviour ought to be criminalized only if the acts in question cannot be tolerated because of their "adverse side effects, their frequency, severity and pervasiveness" (p. 126), if the behaviour cannot be reasonably avoided by others (p. 127), and if the conduct designated for future prohibition is "offensive in itself" and not simply barred on the basis that it may signal to others that future similar behaviours will be deemed acceptable (p. 128). Tatjana Hörnle argues in addition that the violation of the rights of another person must remain the crux of criminalization (p. 146). John Tasioulas warns that mechanisms put in place in a stated effort to curb incivilities may signal "the lamentable propensity of legislatures to invoke 'offensiveness' as a justification for enacting criminal laws that oppress and further marginalize unpopular minority groups" (p. 170).

Although the authors focus on developments in the United Kingdom, the concepts, theories, and methods deployed in the volume will also be of use to law and society scholars conducting research in other countries, particularly in Canada, where there is no shortage of empirical materials with the passage of "safe streets acts" in provinces such as Ontario (1999) and British Columbia (2004). This book may become ever more pertinent to Canadian academics should interventions aimed at curtailing the...