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Martin Paul Eve

Professor of Literature, Technology and Publishing at Birkbeck, University of London

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Prison Cell
Image credit: Still Burning under a CC-BY-NC license.

Perhaps one of the strongest arguments for universal suffrage, even among the convicted populous, can be taken from our recent history. There has been, in recent times, an over-identification of the law with absolute moral right. However, the imperfection of this equation can be clearly seen in two examples from the UK's recent history: in 1967, a person could be sent to prison for being gay and before 1991 a man could legally rape his wife. Given that we acknowledge that democracy accords the populous the right to vote for its laws, but that these laws are in flux and require amendment through this very democratic function, we must ask: why are we so arrogant as to believe that those currently criminalized will always, and should always, so be?

To take this example a little further. At present, in the UK, legislation has been put in place to provide the option of civil partnerships in place for gay couples and debate is taking place around gay marriage. Although there are those polarized on the issue (I'm not talking about the bigots, but rather those within the gay community itself who see it as potentially ceding to a bourgeoise sexuality -- although why shouldn't this be an option?), to consider that forty four years ago you could be imprisoned for this offence raises serious questions as to the self-satisfied nature of the 1983 Representation of the People Act.

The argument that convicts have forfeited their right to participate in society is also somewhat flawed. The structures that determined their right to participate were selected by the majority through democractic process. By systematically eliminating people from the pool of those who can choose the law, the tyranny of the majority serves as an echo chamber: it cannot be progressive because those criminalized have no voice. By all means, deprive those who transgress of their liberty on grounds of deterrent, public protection, or merely vengeful punishment. If, however, we truly believe in democracy, then it is imperative that we do not deprive anybody of the right to vote.

Furthermore, of what, exactly, are we so afraid? I have argued that there is a relativism at stake in all legal systems, but some laws are more relative than others. It seems hugely unlikely that the populous would ever vote in favour of a government which would legalize out-and-out murder (I've qualified that, for I fear quite a few would vote in favour of murder through the death penalty). Therefore, if convicted murderers were to vote for such a regime, we can rest assured that it would never achieve critical mass. In short: representation is only an issue for crimes in what could be termed the "relative zone"; those that have been in flux for millenia. We cannot afford the positivist complacency that we have moved beyond this flux.

While discussion on implementation of the EU ruling on this topic has focused on issues of national sovereignty, and also criticism of those who support the right of prisoners to vote for putting forward feeble arguments, I would argue that there are more fundamental issues of democracy at stake here. By denying those who are criminalized the opportunity to partake in the process of reform, democracy is little more than a façade wherein all crimes become political. If we are to believe in democracy – and one of the oft-cited arguments is that democracy is the only system capable of overthrowing itself – we must allow those with dissenting voices, even those on the other side of the law, to vote on the exact issues that criminalized them. We must move beyond a simple desire to dehumanise criminals by punishing, punishing, punishing, move beyond a simplistic, universal, unchallengeable respect for the law (at its most extreme, Nuremberg showed the world, despite its morality of the victor, the double-bound duties of the citizen to the law and unspecified ethical principles) and instead engage in rational, democratic discourse that acknowledges the morphology of the legal structure.

As Michel Foucault once put it: “They tell us that the prisons are overpopulated. But what if it were the population that were being overimprisoned?”