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Broken Windows and World Youth Day 08

By Helen Dale - posted Wednesday, 7 January 2009

I’ve been watching the ongoing debate (and sometime irritation) over Catholic World Youth Day with interest from afar, noting both the Pope’s clear humanity and dignity and the state’s heavy-handed responses to protest. I think Heath G over at Catallaxy is right when he argues that the various state interventions helped poison the well of goodwill for World Youth Day. What should have passed by as a positive and attractive part of Sydney’s ongoing participation in world events was rapidly mired in ugly debates about the loss of civil liberties. This (inevitably) segued into arguments about complicity in both the laws’ passage and the Church’s troubled history with pedophile priests.

While I’m a sceptic and don’t believe any of it (insert random joke about invisible pink unicorns here), I also don’t expect Catholics to adopt my perspectives, either, or to modify other positions that contradict their core beliefs. Take abortion, for example. Catholic opposition to abortion is of a piece with the Church’s opposition to the death penalty. It is quite possible for Benedict XVI to endorse environmentalism, eschew relativism and abortion, all the while still arguing for “life-affirming” policies - without engaging in self-contradiction.

I’ve felt torn in odd ways, too. I take Currency Lad’s point that Cardinal Pell is a target simply by virtue of his refusal to hew to a “progressive” line on many issues. No doubt, however, Pell’s position was made worse by the Iemma government thundering around like a bull elephant waving the “Laura Norder” flag for all it was worth.


What I found most interesting, however, was the state’s determination that pilgrims not be “inconvenienced” or “annoyed”. As we all know, the Federal Court rolled the latter part of the emergency law - it being incapable of reasonable definition. One would hope that this will help cure governments of one of the sillier aspects of the Laura Norder bug, but I doubt it.

The desire to use police power to protect people not from crime but from “irritation” or “annoyance” has its origins in George Kelling and James Wilson’s seminal piece of criminological writing, Broken Windows. Interestingly, however, the likes of Iemma (and Britain’s “ASBO-boosters”) have never implemented key parts of their original recommendations.

The essence of the first part of Kelling and Wilson’s argument is sketched out early in their piece:

But how can a neighbourhood be “safer” when the crime rate has not gone down - in fact, may have gone up? Finding the answer requires first that we understand what most often frightens people in public places. Many citizens, of course, are primarily frightened by crime, especially crime involving a sudden, violent attack by a stranger. This risk is very real, in Newark as in many large cities. But we tend to overlook another source of fear - the fear of being bothered by disorderly people. Not violent people, nor, necessarily, criminals, but disreputable or obstreperous or unpredictable people: panhandlers, drunks, addicts, rowdy teenagers, prostitutes, loiterers, the mentally disturbed.

People - as a general rule - do not respond well to difference outside a certain “range” in their community. Of course, a given community may have a wide “range” - central Oxford, where the university dominates the town, has a wide “range” when it comes to accepting difference - in clothing, politics, attitudes, activities. However, woe betide any “townie” who wants to accompany his hoodie and tattoos with a boom-box in the Cornmarket - he’ll be moved on rapidly, and if he persists, ASBOed. Central Oxford’s “range” does not extend to a common feature in American cities - youths playing “private” music in public. I explained this to an American colleague who visited me last week (and noticed the lack of boom-boxes), and he was incredulous. Similarly, a “gownie” who strays too far from the centre while wearing academic dress (especially at night) is in grave danger of being beaten up. The townie “range” does not extend to oddly dressed members of the (purported) ruling class.

As an aside, I’ve come to the conclusion that the width of liberal societies’ “range” has constricted in recent times thanks to minority demands for acceptance rather than tolerance. The two words have very different meanings, yet proponents of the latter often confuse it with the former. Something of this difficulty may be gleaned from reading the Wikipedia entry on the term. It is possible to be homophobic, Islamophobic, racist, sexist or what-have-you (insert rotten attitude du jour here) while still maintaining tolerance. Intolerance comes about when people act on their prejudices.


Where the likes of Iemma and the architects of the ASBO have departed from Kelling and Wilson’s formula is in their desire to formalise the whole process - to enact laws codifying “annoyance” or “harassment, alarm or distress”. As I’ve already argued, this is part of a general “ban-happy” (and very statist) trend in many Western democracies. By contrast, Kelling and Wilson - in a proposal that shocks many liberals - argued that police maintenance of order should be kept extralegal and informal:

The people were made up of “regulars” and “strangers”. Regulars included both “decent folk” and some drunks and derelicts who were always there but who “knew their place”. Strangers were, well, strangers, and viewed suspiciously, sometimes apprehensively. The officer - call him Kelly - knew who the regulars were, and they knew him. As he saw his job, he was to keep an eye on strangers, and make certain that the disreputable regulars observed some informal but widely understood rules. Drunks and addicts could sit on the stoops, but could not lie down. People could drink on side streets, but not at the main intersection. Bottles had to be in paper bags. Talking to, bothering, or begging from people waiting at the bus stop was strictly forbidden. If a dispute erupted between a businessman and a customer, the businessman was assumed to be right, especially if the customer was a stranger. If a stranger loitered, Kelly would ask him if he had any means of support and what his business was; if he gave unsatisfactory answers, he was sent on his way. Persons who broke the informal rules, especially those who bothered people waiting at bus stops, were arrested for vagrancy. Noisy teenagers were told to keep quiet.

These rules were defined and enforced in collaboration with the “regulars” on the street. Another neighbourhood might have different rules, but these, everybody understood, were the rules for this neighbourhood. If someone violated them, the regulars not only turned to Kelly for help but also ridiculed the violator. Sometimes what Kelly did could be described as “enforcing the law,” but just as often it involved taking informal or extralegal steps to help protect what the neighbourhood had decided was the appropriate level of public order. Some of the things he did probably would not withstand a legal challenge.

This process involves trusting the state to police a given community’s “range”; it also involves trusting citizens to understand the limits of “self-help” when confronted with “annoying” or “harassing” behaviour. I think there is a fair argument that attempting to set these boundaries legally infringes peoples’ rights more notably than allowing “order” to be placed outside the law. Far better for “annoyed” World Youth Day pilgrims to be able to tell gay rights protesters, say, to pull their heads in than to come to a sanitised Sydney swept clean of the very wide “range” of difference that makes the city so remarkable. Low level confrontation may even have the benefit of enriching both groups’ conception of “tolerance”; perhaps it may even teach the state that attempting to hide people or ideas others find offensive or annoying is actually a form of deception, in that it pretends that neither difference nor conflict exist.

Kelling and Wilson recognise that this is a difficult balancing act, and - to my mind - come down too firmly on the “Laura Norder” side of the debate. That said, their comment on using the law to always and on every occasion circumscribe policing is very telling:

Once we begin to think of all aspects of police work as involving the application of universal rules under special procedures, we inevitably ask what constitutes an “undesirable person” and why we should “criminalise” vagrancy or drunkenness. A strong and commendable desire to see that people are treated fairly makes us worry about allowing the police to rout persons who are undesirable by some vague or parochial standard. A growing and not-so-commendable utilitarianism leads us to doubt that any behaviour that does not “hurt” another person should be made illegal. And thus many of us who watch over the police are reluctant to allow them to perform, in the only way they can, a function that every neighbourhood desperately wants them to perform.

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First published in Skeptic Lawyer on July 20, 2008. This article has been judged as one of the Best Blogs 2008 run in collaboration with Club Troppo. If you have a blog post you would like to nominate please send it to

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About the Author

Helen Dale completed the BCL at Brasenose College, Oxford last year and is now reading for her MPhil in law at the same college. In days gone by she was a writer and hack, but lawyering now takes up most of her time. She blogs at Skepticlawyer.

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