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.
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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.
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
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Difficulties Associated with Defining the Concept of Crime.
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