Critique of the Legal Order

Crime Control in Capitalist Society

Richard Quinney, Randall G. Shelden

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780765807977
• eBook ISBN: 9781351320344
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Originally published thirty years ago, Critique of the Legal Order remains highly relevant for the twenty-first century. Here Richard Quinney provides a critical look at the legal order in capitalist society. Using a traditional Marxist perspective, he argues that the legal order is not intended to reduce crime and suffering, but to maintain class differences and a social order that mainly benefits the ruling class. Quinney challenges modern criminologists to examine their own positions. As "ancillary agents of power," criminologists provide information that governing elites use to manipulate and control those who threaten the system. Quinney's original and thorough analysis of "crime control bureaucracies" and the class basis of such bureaucracies anticipates subsequent research and theorizing about the "crime control industry," a system that aims at social control of marginalized populations, rather than elimination of the social conditions that give rise to crime. He forcefully argues that technology applied to a "war against crime," together with academic scholarship, is used to help maintain social order to benefit a ruling class. Quinney also suggests alternatives. Anticipating the work of Noam Chomsky, he suggests we must first overcome a powerful media that provides a "general framework" that serves as the "boundary of expression." Chomsky calls this the manufacture of consent by providing necessary illusions. Quinney calls for a critical philosophy that enables us to transcend the current order and seek an egalitarian socialist order based upon true democratic principles. This core study for criminologists should interest those with a critical perspective on contemporary society.

1
A Critical Philosophy of Legal Order

We do not adequately understand our contemporary existence. Our comprehension of the present, as well as of the past, is obscured by our current consciousness — a consciousness developed within the existing order and serving only to maintain that order. If we are ever to remove the oppression of the age, we must critically understand the world about us. Only with the development of a new consciousness — a critical philosophy — can we begin to realize the world of which we are capable. My position is thus a critical one: critical not only in an assessment of our current condition, but critical in working toward a new existence — toward a negation of what is through thinking about and practicing what could be. Any possibility for a different life will come about only through new ideas formed in the course of altering the way we think and the way we live. What is required is no less than a whole new way of life. What is necessary is a new beginning — intellectually, spiritually, and politically.

Nowhere is the inadequacy of our understanding more apparent than in our thoughts and actions in relation to legal order. Our thinking about law and crime only confirms an official ideology that supports the existing social and economic order. As long as we fail to understand the nature of law in contemporary society, we will be bound by an oppressive reality. What is urgently needed is a critical philosophy of legal order.

The development of a critical philosophy of legal order should allow us to contemplate and act toward the fulfillment of a new reality. To accomplish this, it is necessary to understand where we have been in regard to our thinking about the legal order and also to understand the relation of our thoughts and actions to the official reality. In order to determine where we have been and where we are going, several modes of thought must be distinguished. Each mode embodies its own epistemology and ontology — its own way of thinking and its own assumptions about reality. Each takes a particular stance toward the philosophical issues of objectivity, reflexivity, and transcendence. Furthermore, each mode carries with it a specific relation to the dominant order. Each has its own potential for either oppressing us or liberating us. The four modes of thought are: (1) the positivistic, (2) the social constructionist, (3) the phenomenological, and (4) the critical. My objective in analyzing them is to develop a critical philosophy of legal order. The result will be a Marxian theory of crime control in capitalist society. This theory will be expanded in subsequent chapters into a critique of legal order.

THE POSITIVISTIC MODE

The positivistic mode of thought begins with the realist assumptions about existence. These assumptions are shared by anyone who has not reflected about the problems of perception and experience. At best, the positivist has only a naive acquaintance with epistemological and ontological concerns. Rather, “methodology” is the positivist’s chief concern — how to develop a method to grasp or “discover” the laws of the physical world.

Positivism follows the simple epistemology that absolutely separates the knower from the known. Objectivity is assumed to be possible because order is believed to exist independent of the observer. The observer’s cognitive apparatus supposedly does not affect the nature of what is known. Given enough knowledge, accumulated systematically, the scientist presumably could predict future events and control their occurrence. An orderly universe could be established through man’s knowledge and manipulation of the external world.

The overriding emphasis of positivistic thought is on the explanation of events. And in following a mechanistic conception of the relation of social facts, the positivist usually couches his explanations in terms of causality. What is ignored in this approach to explanation is an examination (or even an awareness) of the philosophical assumptions by which the observer operates.¹ There is neither a recognition that the nature of explanation depends upon the kinds of things investigated nor that explanation requires a description of the unique context in which events occur. Likewise, the positivist refuses to recognize that to assess and make statements about human actions is to engage in a moral endeavor. Instead, the positivist regards his activity as being “value free.”

The intellectual failure of positivism is that of not being reflexive. It makes little or no attempt to examine or even question the metaphysics of inquiry, to turn the activity of explanation back upon itself. The positivist refuses to be introspective. His concern is to get on with the task of explaining, without considering what he is doing. Positivistic thought is of a particular kind; it is calculative thinking as described by Heidegger: “Its peculiarity consists in the fact that whenever we plan, research, or organize, we always reckon with conditions that are given.” ² In other words, there is little time to ask the crucial philosophical questions that ultimately affect the operations of investigation. “Calculative thinking races from one prospect to the next. Calculative thinking never stops, never collects itself. Calculative thinking is not meditative thinking, not thinking which contemplates the meaning which reigns in everything that is.” ³

The political failure of positivist thought, as related to its intellectual failure, is its acceptance of the status quo. There is no questioning of the established order, just as there is no examination of scientific assumptions. The official reality is the one within which the positivist operates — and the one that he accepts and supports. The positivist takes for granted the dominant ideology that emphasizes bureaucratic rationality, modern technology, centralized authority, and scientific control.⁴ Positivistic thought, in fact, naturally lends itself to the official ideology and the interests of the ruling class. Little wonder that the talents of positivistic social scientists are in such demand by those who rule. Social scientists have failed to break out of the interpretations and practices of the official reality, that reality within which they comfortably operate, never asking what could be and never seeking to transcend the established order.

Most of the research and theoretical developments in the sociology of law have been dominated by the positivistic mode of thought.⁵ The legal order is taken for granted, and research is directed toward an understanding of how the system operates. Little attention is devoted to questions about why law exists, whether law is indeed necessary, or what a just system would look like. If the value of justice is considered at all, the concern is with the equitability of the system rather than with whether the system should exist in the first place. Suggestions may be made for changing particular laws, but the outlines of the legal system are to remain intact.⁶ Inadequacies in the administration of justice may be noted, but prescriptions for change merely call for more technical and efficient procedures.

The efforts of criminologists have been devoted almost solely to the most conservative interests. Attention traditionally has been on the violator of criminal law rather than on the legal system itself.⁷ Solutions to the crime problem have proposed changing the lawbreaker rather than the legal system. Only recently have some criminologists, realizing that law is problematic, turned their attention to a study of criminal law. But for the most part these studies have been based on the positivistic mode of thought.⁸

The conservative nature of most research and theory on law and crime is logically related to the social scientist’s emphasis on social order. In the search for the natural laws of society, social scientists have favored any existing arrangements that would assure an orderly society. Anything that would threaten the existing order has been regarded as a violation of natural law, a social pathology to be eradicated, ameliorated, or punished in some way. Social scientists have formed an easy alliance with the ruling class that profits from the preservation of the status quo. Research and theory in criminology and the sociology of law have done little more than provide a rationale for the established order. A social theory that would allow for human liberation has been excluded. It now seems evident that positivistic thought cannot provide a liberating conception of human existence. Instead, we must turn to alternative modes of thought.

THE SOCIAL CONSTRUCTIONIST MODE

Social constructionist thought begins with a recognition of philosophical idealism. Social constructionists work with an ontology that questions the existence of an objective reality apart from the individual’s imagination. Whether there are universal essences is indeed problematic. What can be assumed is that objects cannot exist independently of our minds, or at least that any such existence is important only as long as it can be perceived.

The epistemological assumption of social constructionist thought is that observations are based on our mental constructions, rather than on the raw apprehension of the physical world. The concern of the social constructionist is not primarily with the correspondence between “objective reality” and observation, but between observation and the utility of such observation in understanding our own subjective, multiple worlds. Therefore, the social scientist’s constructs have to be founded upon the world created by social actors. As Schutz conceptualized the problem: “The constructs of the social sciences are, so to speak, constructs of the second degree, that is, constructs of the constructs made by the actors on the social scene, whose behavior the social scientist has to observe and to explain in accordance with the procedural rules of his science.” ⁹ The world that is important to the social constructionist, then, is the one created by the social actions of human beings, through interaction and intercommunication with others. This social reality involves the social meanings and the products of the subjective world of actors.¹⁰ People construct activities and patterns of action as they attach meanings to their everyday life.

The social constructionist mode of thought makes a major advance over positivistic thought in respect to the crucial matter of reflexivity. The social constructionist questions the process by which he knows, instead of taking it for granted. In the course of this consideration, he reflects on his activity as observer, using to advantage the social and personal nature of his observation. That this reflexivity does not extend to a political stance, and possibly to political action, is a shortcoming inherent in the social constructionist mode.

Since social constructionist thought generally concentrates on the world of meanings created by social actors, its emphasis, especially in ethnomethodological studies, is on the construction of social order. Such concentration tends to ignore a world of events and structures that exists independent of the consciousness of social actors. This conservative side of social constructionist thought makes it inadequate for a critical perspective. As Richard Lichtman has written about this inadequacy: “It is overly subjective and voluntaristic, lacks an awareness of historical concreteness, is naive in its account of mutual typification and ultimately abandons the sense of human beings in struggle with an alien reality which they both master and to which they are subordinate. It is a view that tends to dissolve the concept of ’ideology’ or ’false consciousness’ and leaves us, often against the will of its advocates, without a critical posture toward the present inhuman reality.” ¹¹

Therefore, it is often necessary to revise or reject the world as some social actors conceive it. To accept the world that social actors portray is often to accept the view of reality that the ruling class perpetuates to assure its own dominance. Social constructionist thought fails to provide a stance that would allow us to transcend the official reality and, ultimately, our current existence. Although social constructionists furnish us with the beginnings for an examination of multiple realities, they fail to provide a yardstick for judging the goodness of one reality over another. Social relativism prevails at the expense of a critical understanding of the social world.

The social constructionist perspective, however, has given new vitality to the study of crime and the law. Departing significantly from positivistic studies, social constructionists have turned attention to the problematic nature of the legal order. They view crime and other forms of stigmatized behavior first as categories created and imposed upon some persons by others.¹² Crime exists because of the social construction and the application of the label.

Similarly, criminal law is not autonomous within society, but is itself a construction, created by those in positions of power. The administration of justice is a human social activity that is constructed as various legal agents interpret behavior and impose their order on those they select for processing.¹³ The social reality of crime is thus a process whereby conceptions of crime are constructed, criminal laws are established and administered, and behaviors are developed in relation to these criminal definitions.¹⁴

The legal order, accordingly, is a human activity. It is an order created for political purposes, to assure the hegemony of the ruling class. However, social constructionist thought stops at this point. To be sure, there are critical implications. There is the libertarian ideal that individuals should not be controlled by others, that people must be free to pursue their human potential. But there is, nevertheless, a failure to provide an im...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Introduction to the Transaction Edition
• Preface
• 1 A Critical Philosophy of Legal Order
• 2 Knowledge and Order
• 3 Preservation of Domestic Order by the Ruling Class
• 4 Crime Control in the Capitalist State
• 5 Ideology of Legal Order
• 6 Toward a Socialist Society