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British Journal of Criminology Advance Access originally published online on February 4, 2008
British Journal of Criminology 2008 48(2):138-153; doi:10.1093/bjc/azm074
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The British Journal of Criminology 48:138-153 (2008)
© The Author 2008. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD). All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org

Performative Regulation

A Case Study in How Powerful People Avoid Criminal Labels

Simon Mackenzie and Penny Green*

* Correspondence to Simon Mackenzie, Scottish Centre for Crime and Justice Research, Florentine House, 53 Hillhead St, University of Glasgow, G12 8QF. Penny Green is with the School of Law, Kings College London


  Abstract

This paper explores the role of invested powerful business actors in the criminalization process as applied to the illicit antiquities market. We present a case study of the precise mechanics of the role played by trade interests in the formation of the Dealing in Cultural Objects (Offences) Act 2003. This process involved the trade's entering appearance in the legislative process and neutralizing the possible constraining effects on its members of the new criminal offence which was to be created. We begin by exploring the political, historical and economic context in which discussion of the terms of the 2003 Act first began. We then follow the Act from its genesis through its various stages of drafting and re-drafting to its enactment. This case study of a single piece of legislation provides further data to add to the line of prior research that illustrates that powerful white-collar criminals, as well as sometimes preventing criminal legislation entering the statute books, can also influence the design of criminal legislation that does enter the statute books in order to protect themselves and their own business interests. We also use this case study of a process of contemporary lawmaking to outline the concept of performative regulation: broadly, that which in appearance serves political ends but in practice effects an inconsequential level of control.


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