The Legal Definition of Crime - Case Study Example

Running Head: ‘Crime’ is a Self-evident and Unitary Concept ‘Crime’ is a Self-evident and Unitary Concept s Definition of Crime A characteristic of Positivism is the belief that there is an accord of value in society that can be systematically determined. Against this it can be concluded whether an act is deviant or not. The word ‘deviant’ is preferable to ‘criminal’, as the latter just refers to violations of legal codes which (a) may not reflect consensual values at all, (b) do not encompass all acts of deviance, or (c) are based on legal concepts which are unscientific, reflecting metaphysical concepts of free-will and intent. The legal definition of crime, to the extent that it is an intrinsic part in the system of the positivist law, provides, in an indirect way, for the principle to take, without any exception, itself as given: it excludes all citizens, without exception and apart from from socio-professional status, from referring to any kind of definition that would not be given by the norms of the positive law. Therefore the standard that requires for the need to take the legal definition of crime as given derives directly from the positivist nature of the legal system - in other words: it derives from the primary norm which, by providing for the positivist nature of law, puts that legal norms are valid by virtue of the legally established institution which have the power to create them (Kelsen, 1960). Besides this definite norm, which derives from the positive nature of the legal system, one should mention another normative origin of the principle to take the legal definition of crime as given. In fact, much if not all modern criminologists and deviance-theorists agree with the opinion that, to examine crime and deviance, one must refer to the legal definition of crime, notwithstanding the question how these sciences would have undertaken the construction of their subject. Therefore in the norm which the constraint criminologists and deviance theorist to take the legal definition of crime as given can be considered from an epistemological or methodological necessity. This explains modern mainstream criminology’s but also conventional deviance theory’s hostility towards a material definition or notion of crime. The advocacy for primacy of the formal legal definition of crime upon a material notion is based on the following core-arguments: a) Attempts made by the pioneers of criminology (e.g. Ferri and Garolalo), however also in radical critical criminology to construct the criminological fact with reference to a material criterion failed, b) a material notion of crime dissolves crime into a fluid and vague broad range invaded by normative and axiological considerations; c) the scientific explanation of crime as it is defined in empirical positivism requires for a certain stability and certainty of crime as subject of explanation; only the legal definition provides for such a scientific security (Kaiser, 1993:566-70). The second important practical effect is that criminology reproduces the inherent value-system of the positivist legal system. It is in the nature of this value-system to provide for the principle that the law is applicable without any reference to values. The legal norm is valid and legitimate not by virtue of morals, but by virtue of the legally established institutions which have the power to create norms. This assumes that resistance against a totalitarian state or a non-democratic legal system is criminal from a strict legal positivist viewpoint. As for criminology, the intrinsic ethical dilemma in the crime definition constraints criminologists to provide for an equal treatment of situations that is different by virtue of their nature, not by means of the positivist legal system. Beyond Legal Definitions of Crime In contrast to many a criminological approach, theoretical development has far from come to a standstill. There remains an important body of deconstructionist knowledge originating in no small measure from a European school of abolitionism - which continues to move beyond the essentialist signifiers of crime, criminality and criminal justice in order to facilitate the production of new critical insights and alternative visions of justice (De Haan, 1990; Steinert, 1986; Bianchi, 1986; van Swaaningen, 1997). Nowhere is this most obviously seen than in the influential reminder that realist and administrative criminologies are trapped within a legal definition of crime. Poverty, undernourishment, pollution, medical negligence, violation of workplace health and safety laws, corporate corruption, state violence, genocide, human rights violations and so on all carry with them more extensive and damaging consequences than most of the behaviours and incidents that presently make up the problem of crime. In the 1940s Sutherlands (1949) pathbreaking work on white-collar crime had introduced a definition of crime based on such concepts as injury to the state and as socially harmful. In the 1970s radical criminologists supported a further expanding of the criminological agenda to include racism, sexism and economic exploitation. In many respects this important debate was foreclosed by the growing hegemony of realist approaches. However it is a debate that remains unfinished. ‘By the 1990s numerous harms had begun to circulate on the margins of criminological inquiry’ (Muncie and McLaughlin, 1996). Questions of human rights denial entered the agenda, not simply through extending conceptions of what is crime? although by recognising the legal transgressions routinely employed by those wielding political and economic power and their ability to deny or conceal the harms they give a free rein under the protection of the law (Cohen, 1993). Recognising male violence and opening up the troublesome question of violent masculinities also carry with them the potential to disturb the narrow and narrow-minded concerns of much of what currently is understood to be the crime problem (Segal, 1990; Campbell, 1993; Jefferson 1997). The Nature and Causes of Crime Many criminologists believe crime as one among several forms of deviance, about which there are contradictory theories. Some consider crime a type of anomic behavior; others describe it as a more conscious response to social conditions, to stress, to the breakdown in law enforcement or social order, and to the labeling of certain behavior as deviant. Since cultures differ in organization and values, what is judged criminal may also differ, even though most societies have restraining laws or customs. Hereditary physical and psychological characteristics are nowadays usually ruled out as independent causes of crime, however psychological states are believed to establish an individuals reaction to potent environmental influences. Some criminologists emphasize that some offenders are born into environments that tend to cause criminal behavior. Others claim that since only some persons succumb to these influences, additional motivations must be at work. One generally accepted theory is Edwin Sutherlands concept of differential association, which argues that criminal behaviour, is learned in small groups. Psychiatry generally considers crime to result from emotional problems, often developing from childhood experience. The criminal characteristically enacts a subdued wish, or desire, and crimes such as arson or theft that result from pyromania or kleptomania are particular expressions of personality disorders; consequently, crime prevention and the cure of offenders are matters of treatment rather than coercion. The Extent and Distribution of Crime Though much the Positivists would be skeptical of the crime statistics, in that they are a product of an unempirical conceptualisation collected in a process, which is disorganized and non-exhaustive, they would not doubt their basic pyramidal shape and the variations indicated between different groups of people. That is to say, that the occurrence of crime is in fact greater among blacks than whites, young than old, male than female, and is inversely proportional to class and education. Therefore, they would consider the official statistics as ‘poor’ data, yet data of relevance all the same. Whatever his or her scientific principles, it is a rare Positivist who will not make direct use of the criminal statistics. Causes of Crime Crime is a product of the under-socialisation of the individual. This can be a result of: (a) an intrinsic genetic or physiological incapacity of the individual to be easily socialised; (b) a family background, which was unproductive in the use of socialisation techniques in its child-rearing practices; (c) a social background, which lacked rational and consistent consensual values. Each of these levels i.e. the physical, the family, and the social will be seen to compound with each, to decide the socialisation of a specific individual. Moreover it is observed that it is at the very bottom of the class structure, where the occurrence of crime is greatest, that such ‘defects’ are most likely to happen, for it is there that the least capable individuals build up and pass on their failings from generation to generation in a cycle of deprivation. The causes of crime are hence rooted in defects in the past of the actor, in his or her determined past history. Crime itself is a reflection of these; as a product of under-socialisation it is an activity without meaning, a non-rational outbreak of pre-social impulses. None of this falls into the trap of suggesting that the direction or shape that crime takes is a biological pre-given. As Hans Eysenck wisely notes: “Criminality is a social concept, not a biological one. Indeed, what is criminal in one country may not be criminal in another; homosexuality is a crime in some American states but not in Germany. Similarly, what is a crime at one time may not be at another. It is a crime to kill people but only in peacetime; during war it becomes a citizen’s duty to kill others … The very notion of criminality or crime would be meaningless without a context of learning or social experience and, quite generally, of human interaction. What the figures have demonstrated is that heredity is a very strong predisposing factor as far as committing crimes is concerned. But the actual way in which the crime is carried out, and whether or not the culprit is found and punished – these are obviously subject to the changing vicissitudes of everyday life. It would be meaningless to talk about the criminality or otherwise of a Robinson Crusoe, brought up and always confined by himself on a desert island. It is only in relation to society that the notion of criminality and of predisposition to crime has any meaning. While recognizing therefore, the tremendous power of heredity, we would by no means wish to suggest that environmental influences couldn’t also be very powerful and important indeed.” (Eysenck, 1977, pp.77, 79) The criminal or deviant would be a rule-breaker in any culture – he would be a peace lover during wartime, an aggressor during peace. It is not necessary, thus, for the Positivist to explain the content of the norms that are violated, merely the propensity of the individual to violate them. Policy Deductions ‘The criminal justice of the future, administered by judges who have sufficient knowledge, not of Roman or civil law, but of psychology, anthropology and psychiatry, will have for its sole task to determine if the defendant is the material author of the established crime; and instead of brilliant logomachies by the prosecution and the defence in an effort to trick one another, there will be a scientific discussion on the personal and social condition of the offender in order to classify him in one or another anthropological class to which one or another form of indeterminate segregation will apply” (Ferri, 1901, p.229). Only two texts (Vold/ Bernard and Beirne and Messerschmidt) put the positivist endeavor in the historical perspective of efforts to apply principles of scientific investigation to an entirely new area of study, that of crime. Crime as Social Harm In a harm-based discussion the concept of crime remains important only in so far as it alerts people to relations of power embedded in social orders which produce a whole series of social problems for their populations but of which only a selected few are considered worthy of criminal sanction. Questions as were first raised by Sutherland (1949), but the concept of social harm has never sincerely been incorporated into criminology. Steinert (1986) refers to troubles, Hulsman (1986) to problematic events, Pepinsky (1991) to the violent refusal of democratic behaviour and whilst De Haan (1990) talks of crime as social harm he never closely interrogates the concept. He is eventually persuaded to argue that there is no solution to the problem of defining crime. It will always carry with it a set of contestable, epistemological, moral and political assumptions (De Haan, 1990, p.154). References Bianchi, H. (1986), Pitfalls and Strategies of Abolition. In: H. Bianchi and R. van Swaaningen (Eds). Abolitionism: Towards a Non-Repressive Approach to Crime. Amsterdam: Free University Press. Campbell, B. (1993), Goliath: Britains Dangerous Places. London: Methuen. Cohen, S. (1993), Human Rights and Crimes of the State: the Culture of Denial. Australian and New Zealand Journal of Criminology, vol.26, no.2, pp.97-115. De Haan, W. (1990), The Politics of Redress. London: Unwin Hyman. Eysenck, Hans, J. (1977), Crime and Personality. London & Henley: Routledge & Kegan Paul Ltd. Ferri, Enrico. (1901), The Positive School of Criminology. English ed. Published in 1908 by C.H. Kerr and Company. Chicago. Ferri, E., (1905) La sociologie criminelle. Paris :Alcan Garofalo, (1905), La criminologie, Paris: Alcan 1905 Hulsman, L. H. C. (1986), Critical Criminology and the Concept of Crime. Contemporary Crises, vol.10, no.1, pp.63-80. Jefferson, T. (1997), Masculinities and Crimes. In: M. Maguire, R. Morgan and R. Reiner (Eds.). The Oxford Handbook of Criminology, Second edition. Oxford: Clarendon. Kaiser, (1993), ‘Verbrechensbegriff’, in G. Kaiser H-J. Kerner, F. Sdack and H. Schellhoss, eds., Kleines Kriminologisches Wörterbuch, 566-570, Heidelberg: UTB Müller Kelsen, H. (1960), Reine Rechtslehre. Franz Deuteke Verlag. Vienna. Muncie, J. and McLaughlin, E. (1996), The Problem of Crime. London: Sage/Open University. Pepinsky, H. (1991), The Geometry of Violence and Democracy. Bloomington: Indiana University Press. Segal, L. (1990), Slow Motion: Changing Masculinities, Changing Men. London: Virago. Steinert, H. (1986), Beyond Crime and Punishment. Contemporary Crises, vol.10, no.1, pp.21-38. Sutherland, E. H. (1949), White Collar Crime. New York: Holt, Rinehart and Winston. van Swaaningen, R. (1997), Critical Criminology: Visions from Europe. London: Sage. Vold, George, Bernard, Thomas J. (1979), Theoretical Criminology. 2d ed. New York: Oxford University Press. Read More