The literature on social inclusion as a tool of policy analysis is prolific and sweeping in scope. This literature identifies the forms in which specific groups in society experience exclusion, whether political, social, or economic; it renders visible the human and economic costs of exclusion; and it asks fundamental questions directed at rendering our institutions and the outcomes they produce more inclusive of all. Social inclusion as a principle to inform government policy emerged in Europe in the 1980s, in response to growing social and economic divides in European nations.
The literature on social inclusion and criminal law is almost non-existent, not surprisingly in light of the inherent contradiction that is revealed by juxtaposing criminal law against the notion of social inclusion. Advancing social inclusion through criminal law is a daunting objective because criminal law is, by virtue of its historical origins, substantive offences, and current outcomes, directed at social exclusion. The endeavour of rethinking criminal law from a standpoint of social inclusion is reminiscent of efforts to confront criminal law with equality law: it is simply not possible to promote equality through a system that is actually premised on inequality without directly challenging power. As Meg Luxton puts it,
A commitment to social inclusion confronts the way social
power is situated.... Those who currently hold power and
are members of groups that have had the benefits of social
inclusion for generations stand to lose their relative
privileges and may be challenged to share their power in ways
that cannot be anticipated by policy-makers when they commit
themselves to developing and implementing radically new
practices. (2002: 8, 11).
However, it might also be apparent that the broader goals of social inclusion will be thwarted if criminal law and policy continue to create, or at least entrench, social and economic marginalization through criminal prosecution and punishment that disparately target the poor, Aboriginal people, and racialized persons, (2) among others. A political commitment to the pursuit of social inclusion therefore demands that the institutions, rules, and enforcement of the criminal law be re-examined using this same analytical tool. There are, for example, key themes and questions that can be usefully interrogated with respect to criminal law in the social inclusion literature, as well as in the work of law reformers, feminists, disability rights thinkers, and critical race theorists.
This article will first sketch the parameters and premises of social inclusion. It will then discuss the role that social inclusion might play in different aspects of criminal law: the process of law reform; the substantive definition of crime; the role of law enforcement; and the outcomes of criminal law, including the use of prison as the ultimate sanction. For each of these areas, the article will briefly touch upon criminal law's practices of social exclusion and then raise questions about how it might move towards an ethic of inclusion.
Defining social inclusion
The policy tool of social inclusion is described in terms of both process and substantive results. For instance, Terry Wotherspoon, in an article on social inclusion, Aboriginal peoples, and public education, argues that social inclusion is a process as well as an outcome and should be measured in relational as opposed to absolute terms (2002: 3). Meg Luxton distinguishes between weak and strong versions of socially inclusive practices and policies: commitments to non-discrimination, diversity, and equality of opportunity are less inclusive than commitments to anti-racist and anti-sexist educational policies, substantive equality, and affirmative action (2002). Anver Saloojee argues that "[s]ocial inclusion, by virtue of the fact that it is both a process and an outcome, can hold governments accountable for their policies. …