Law and Crime

Gerry Johnstone, Tony Ward

• Publisher: SAGE Publications Ltd
• Year: 2009
• Print ISBN: 9781412911245, 9781412911238
• eBook ISBN: 9781446243671
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminal Law
• Index: Social Sciences

What is the definition of ?crime?? Law and Crime helps the criminologist to understand how the law constructs crime and how one might engage in critical analysis of such legal constructions. It uses a thematic approach to comprehensively explore the relationship between criminal conduct, criminal justice and the law.

 

The book introduces key topics in criminal law scholarship for criminologists, including:

• criminalization
• fault and criminal responsibility
• corporate liability
• the production of criminal guilt
• the nature of judicial punishment.

Aimed at students with no prior knowledge of law, the book includes many useful features to enhance understanding, from chapter overviews and key terms to study questions and suggestions for further reading.

 

 

The Key Approaches to Criminology series celebrates the removal of traditional barriers between disciplines and, specifically, reflects criminology's interdisciplinary nature and focus.  It brings together some of the leading scholars working at the intersections of criminology and related subjects.  Each book in the series helps readers to make intellectual connections between criminology and other discourses, and to understand the importance of studying crime and criminal justice within the context of broader debates. 

 

The series is intended to have appeal across the entire range of undergraduate and postgraduate studies and beyond, comprising books which offer introductions to the fields as well as advancing ideas and knowledge in their subject areas. 

1

Criminal Law and its Critics

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Chapter Contents

Introduction

Some features of criminal law

Rules

Moral dimensions

Criminal procedure

Principles of liability

Purposes of criminal law

Critiques of criminal law

The libertarian critique

The ‘scientific’ critique

The socio-political critique

The restorative justice critique

An open attitude

Summary

Study questions

Further reading

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OVERVIEW

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Chapter 1:

• Explains the purpose of this book.

• Outlines some prominent features of the institution of criminal law.

• Introduces a number of important critical perspectives on criminal law.

KEY TERMS

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criminal law the libertarian critique the ‘scientific’ critique the socio-political critique the restorative justice critique

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Introduction

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This book is an introductory account of the institution of criminal law, written for students and scholars of criminology and related social sciences. To be clear, it is not a book on ‘law for criminologists’. Rather, we seek to provide an interdisciplinary analysis of key elements of the institution of criminal law. The disciplines we draw upon include not only criminology and law, but also history, philosophy, politics and sociology. Drawing upon works from these disciplines, we explore the creation, development and key features of criminal law, along with some of the ideas, values and projects that have shaped the institution and our expectations of it.

Our account of criminal law is a critical one. We do not start out by making the assumption that criminal law is a necessary social institution – necessary to restrain the tendency which many people have to behave in ways that are seriously wrongful and harmful. Nor do we assume that the criminal law of today is a distinct improvement over what went before. Rather, we want to provide a fair hearing to the viewpoint that criminal law is a deeply flawed institution, e.g. one which causes more harm than it prevents or which unjustifiably violates the liberties of people in order to provide spurious benefits to society. On the other hand, we will seek to avoid the opposite error of taking it for granted that criminal law is a ‘failing’ social institution. Hence, we will show that, for all its deficiencies, the criminal law has played a crucial role in articulating and defending very important social values.

In order to chart our course more clearly, we will start by identifying some core features of criminal law. We will then describe, in very general terms, some common critical stances towards this institution.

Some features of criminal law

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Rules

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Probably the most prominent feature of criminal law is that it contains a body of rules. More specifically, these are rules of conduct which are formulated and enforced by society’s rulers through its legislatures, courts and penal apparatus. These rules are addressed to all persons when they are within the jurisdiction of the rulers (Duff, 2002a: 14). They tend to specify types of behaviour that the rulers declare to be public wrongs: conduct which in that society is deemed harmful, unjustifiable and of concern to all righteous members of the society. These types of behaviour are called ‘offences’. The rules also stipulate that those found guilty of committing an offence are liable to some punishment such as a fine or period of imprisonment. The rules tend to be prohibitory in character, i.e. they refer to conduct from which people must refrain. Less commonly – and also controversially – some rules make it an offence to omit to do something in certain circumstances (Ormerod, 2005: 75ff; cf. Hughes, 1958).

Moral dimensions

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Another important feature of criminal law is that violation of its rules is widely regarded as immoral and/or disreputable. Those who violate the criminal law often attract the disapproval, and sometimes even the hatred, of ‘respectable society’. Partly, this is because many of the best known rules of criminal law prohibit conduct – such as murder, theft and rape – that is already, outside of the criminal law, regarded as immoral or disreputable (Duff, 2002a: 3–4, 12). As Sir James Fitzjames Stephen – author of the nineteenth-century classic History of the Criminal Law of England – put it:

The substantive criminal law … relates to actions which, if there were no criminal law at all, would be judged by the public at large much as they are judged of at present. If murder, theft and rape were not punished by law, the words would still be in use, and would be applied to the same or nearly the same actions. … In short, there is a moral as well as a legal classification of crimes. (Stephen, 1883: 75)

However, even where the conduct prohibited by criminal law is not obviously immoral or disreputable – is not patently wrong independently of its legal prohibition – those who are found guilty of engaging in such conduct can be morally tainted by their criminal conviction. It is as if the criminal law has its own moral authority so that once it prohibits a type of behaviour, to engage in that behaviour becomes immoral or disreputable even though it would not previously have been so. Hence, along with the formal sanction that is incurred by being found guilty of breaking the criminal law (e.g. the sentence of a fine or imprisonment), criminal conviction – or even suspicion of being involved in a criminal offence – tends to attract a social stigma. To get in trouble with the (criminal) law tends to push one towards or over a line that separates respectable from disreputable elements of society.

This ‘moral’ dimension of criminal law cannot be ignored if we wish to provide an adequate account of it. However, neither should it be overstated. In modern society there is a strong tendency to use the criminal law to regulate more and more conduct which – although considered injurious or dangerous – is not as obviously immoral or disreputable as Stephen’s examples of murder, theft and rape. Being found guilty of breaking one of these rules does not patently reveal some deep flaw in one’s moral character (in the way that even a minor conviction for theft is often thought to reveal the character flaw of dishonesty). The more criminal law is used in this way, the harder it is to sustain the notion that breach of the criminal law is inherently immoral or disreputable. Also, many of the sanctions for breaches of criminal law (even where the conduct in question does seem immoral or disreputable) are imposed in such a professionalized, bureaucratic way that they become more like mere ‘penalties’ than ‘punishments’. The latter term carries connotations of moral censure which are not so present in the former: penalties provide people with instrumental reasons to obey the law but do not necessarily construct the penalized behaviour as immoral or opprobrious.¹

Criminal procedure

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Another feature of criminal law is that there is a special procedure for determining whether somebody suspected of committing an offence, and who might wish to dispute the case against them, is guilty of violating one of its rules. The actual nature of this procedure has changed significantly throughout the history of criminal law and it still varies considerably between different countries (Delmas-Marty and Spencer, 2002; Vogler, 2005). However, a persistent underlying premise is that determining the guilt or innocence of a person accused of committing an offence – and certainly a serious offence – is a grave matter and should be done on the basis of a very rigorous testing of the case against the accused.

Such an approach is of course time-consuming, costly and likely to result in at least some people who have in fact broken the law evading conviction. Hence, there tend to be counter pressures and temptations to avoid the most rigorous process for many cases. This tends to result in practices designed to avoid having cases contested by, for instance, informally bargaining with accused persons over the charges to be brought against them or over the sort of sentence that will be demanded. It also leads to the creation of more summary processes for what are deemed to be minor offences attracting relatively light sanctions. It can also result in tendencies to remove the regulation of some conduct from the ambit of criminal law proper, by for example creating new ‘quasi-criminal’ regimes of regulation which use ‘on the spot fines’ imposed with little formality by agents such as traffic wardens, ticket inspectors or even machines.

In the popular imagination, the process of determining whether somebody accused of breaking the criminal law is guilty or innocent is a weighty affair involving rigorous testing of the case and lengthy and solemn deliberation by the decision-makers. This certainly captures the reality of some criminal law. However, a large proportion of cases are handled in a much more summary manner. It is not surprising that many of the public controversies surrounding criminal law are to do with whether the procedures for determining guilt or innocence are appropriate.

Principles of liability

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Along with substantive rules of conduct, criminal law contains principles of liability which indicate who or what can be held legally responsible for conduct which infringes its substantive rules and how their responsibility is affected by various circumstances. Most basically, it contains principles of capacity. Only certain entities are deemed to be within the ambit of regulation through the criminal law. The entities that are included vary between different historical periods and different countries. So, for instance, inanimate objects which cause death have been put on trial in ancient criminal law systems (Hyde, 1916). And, in medieval Europe, animals were sometimes subjected to criminal prosecution and punishment (Evans, 1987 [1906]). Contemporary English criminal law regards inanimate objects and non-human animals as lacking the capacity required to be subject to regulation through criminal law. This does not mean, of course, that they are not subject to regulation (many animals get trained and controlled and animals that behave badly and cause us harm and trouble are dealt with); rather their conduct is regulated through other mechanisms.

Amongst human beings, young children are generally considered to lack ‘criminal capacity’. Again, this does not mean that nothing will happen to a child below the age of criminal capacity who engages in the sorts of behaviour prohibited through criminal law. Rather, it simply means that they will not be subject to intervention through the mechanism of criminal law. Ideas about the precise age at which human beings acquire criminal capacity vary significantly over time and between countries. In England and Wales the official age is currently ten, in Belgium 18 and in Scotland eight.² Other human beings who are regarded as lacking criminal capacity include those adjudged to be insane at the time they committed an act which would otherwise be an offence.

The other significant entity which is subject to the regulation of contemporary criminal law (since around the middle of the nineteenth century) is the corporation: a legal person with no physical existence (Ormerod, 2005: 235). The development of the idea that a corporate body has duties to comply with the rules of criminal law and can be prosecuted and punished for failure to comply is bound up with the fact that, in modern society, a great deal of harm and injury results from the actions of corporate bodies. Perhaps less obviously, it seems to be bound up with the notion that these bodies have minds of their own, which are not reducible to the minds of individual human beings who contribute to corporate activity. As such, they are considered to be entities which are capable of being addressed by the law (see Chapter 6).

For those entities which have criminal capacity, a further question arises of whether they should be held responsible for engaging in conduct prohibited by criminal law given the circumstances under which they engaged in it. The key issue here tends to be the extent to which the person whose conduct is in question had a reasonable opportunity to do something other than the act which – it is alleged – is a criminal offence. So, for instance, human beings are animals that respond instinctively to physical stimuli. Sometimes, instinctive or almost instinctive bodily movements may result in the sorts of ‘conduct’ that criminal law prohibits. For example, if a person (D) is walking near the edge of a cliff and slips and is about to fall off the edge, it is virtually instinctive to grab something that will prevent them from falling. If that something is another person (V), and if as a result V is pulled over the cliff edge and dies, but D somehow survives, then the question arises of whether D (presuming their story is believed) should be able to avoid criminal liability for the death of V. D’s argument, in essence, would be that because their conduct was instinctive it was involuntary and so without fault and that it should not therefore be condemned as criminal.³

The above example is fairly straightforward; although various complexities could be introduced. (For instance, if D had ignored various warnings that walking near the edge of this particular cliff was highly dangerous and not allowed, does D’s ‘prior fault’ affect their criminal liability for V’s death? Is D’s argument one of necessity rather than involuntariness, and if so can necessity ever be a defence where the charge concerns killing? See Chapter 4.) There are however, much more complex situations encountered by criminal law. A person will often engage in conduct prohibited by criminal law but argue that they had no reasonable opportunity to behave otherwi...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• 1 Criminal Law and its Critics
• 2 The Formation of Criminal Justice
• 3 The Modernization of Criminal Justice
• 4 Law, Criminology and Responsibility
• 5 Responsibility and Homicide
• 6 White-collar and Corporate Crime and the Law
• 7 Proving Criminal Guilt
• 8 Punishment
• 9 State Crime and Criminal Law
• Conclusion
• Glossary
• A Note on Cases
• References
• Index of Cases
• Index