Understanding Criminal Justice

Sociological Perspectives

Philip Smith,Kristin Natalier

• Publisher: SAGE Publications Ltd
• Year: 2004
• ISBN:
  9781446236550
• Edition: 1
• Topic: Sciences sociales
• Subtopic: Criminologie

?This book traverses an impressive array of topics and problems central to law and criminal justice. Its accessibility, contemporary themes and sensitivity to issues of inequality make it a perfect text for students and teachers of sociology, law, criminology, legal studies and other related areas. It is rare to find a book that takes the sociological imagination so successfully into fields that are often viewed as the domain for legal professionals only. The well-chosen examples also make it a valuable resource for scholars with experiences of different justice systems? - Sharyn L Roach Anleu, Flinders University

`Smith and Natalier have produced an accessible, wide-ranging and lucid text which sets the major questions of criminal justice within the broad framework of classical and contemporary sociological theory. It represents a significant step forward among teaching texts in the field, synthesising some difficult material without over-simplifying it, and providing a broad-overview without losing sight of the texture of discreet issues? - Professor Nicola Lacey, London School of Economics

Is there really an intrinsic link between the law and our criminal justice system? What exactly is it and can an understanding of wider sociological issues tell us anything about this relationship?

Understanding Criminal Justice addresses the fundamental relationship between law and the criminal justice system, and the ways in which both are intimately connected with wider social forces.

The book provides an essential introduction coverering classic themes, debates and literatures to ground the student before moving on to contemporary themes such as globalisation, internet regulation and the media. The subject matter is contextualised within the wider social framework by calling into play the historical, political, community and cultural inputs that impact upon concrete policies and practice. The authors integrate theory with data and examples from the UK, USA and Australia.

Through the inclusion of the following pedagogical devices, the student is encouraged to more fully and independently develop their understanding of key questions and issues:

"review questions and exercises

"further reading lists

"suggested internet sites

"highlighted key terms

"bullets to summarise key points

"boxed sections on themes, definitions and case studies

This comprehensive overview is ideal for 1st and 2nd year undergraduates in Criminology, Criminal Justice Studies, Law, Legal Studies, Sociology, Social Work and Policing. Having used this text the reader will come to appreciate the myriad paths through which law and the criminal justice system play a vital, if contested, role in our society.

1 Theoretical Approaches to Law and Criminal Justice

Introduction

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From the perspective of sociology, the analysis of law and criminal justice is not only an empirical issue. We can never understand what is going on simply by collecting and sifting through more and more facts, statistics, policy evaluations and accounts. What are also required are theoretical frames. Only when we have these can we move beyond the study of disconnected specifics towards a big picture understanding of law and criminal justice as social institutions embedded in culture, history and a wider social structure. Some thirty years ago the noted theorist Alvin Gouldner observed that ‘all studies of crime and deviance, however deeply entrenched in their own technical traditions, are inevitably grounded in larger, more general social theories which are always present, even as unspoken silences’ (1973: ix). This point still holds today. Theoretical awareness is urgently needed so researchers can uncover the hidden presuppositions behind their work and realize a broader and more powerful vision in their research enterprise. Reflexive and careful attention to questions of social theory will allow us to develop abstract and generally applicable models that help us to think about law, punishment and regulation in a more comprehensive and critical way. By critical we do not necessarily mean making criticisms or challenging the status quo, but rather moving beyond common-sense thinking. Consequently, in this chapter we will be asking, and perhaps answering, the following questions:

• What is the purpose of the criminal justice system?
• How do law and criminal justice fit with the wider organization of modern society?
• Whose interests are served by legal codes and institutions?
• How does our broader culture and system of beliefs influence the administration of justice?

The major approaches to these questions have conventionally been divided into two camps: those influenced by consensus theory and those espousing conflict theory. The arguments of the former generally stress the benefits of law and criminal justice for society in bringing order and stability. They see them as underpinned by widely shared values and as an expression of common sentiments. By contrast, conflict arguments claim that legal and justice systems favour the interests of dominant groups. The focus in this perspective tends to be on the repressive dimensions of power and its exercise. In recent years this kind of binary classification of theories has become less common. A greater emphasis is now placed on pivotal concepts and middle-level theory rather than sweeping debates and denunciations – a result reflected, for example, in the rise of left realism (see pp. 24–25). Since the 1970s influences from feminism and post-structuralism have also complicated the picture. Although positioned on the ‘conflict’ side of the field, they have suggested that the image of the powerful and powerless needs to be revised in decisive ways from that advocated by classical Marxist criminology with its emphasis on a binary class struggle. In the remainder of this chapter we unpack the chest of theoretical tools that sociologists have been using to make sense of law and criminal justice. Our major concern here, of course, is not to advocate any one position as superior, but rather to provide a balanced summary and appraisal of core thinkers and approaches. We will look at a range of theories, some concerned more with law, others with criminal justice issues and some with both. By the end of the chapter the reader will have acquired an intellectual foundation that will enable them to engage with the subsequent, more empirical material in this book with greater sophistication and insight.

Social Order and Modernity

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In order to start our journey in this chapter we need to introduce the problem of social order. This refers to the requirement that all societies have to ensure a basic level of stability, to maintain peace and to ‘function’ in a more or less efficient way so that basic human needs can be met. A society that cannot solve this problem will soon cease to exist. It will descend into anarchy and be unable to reproduce itself day after day, year after year. In general, social order is maintained through culture and power. Culture allocates roles and identities, provides motivations and expectations, and sets out norms and boundaries that mark out acceptable and non-acceptable behaviours. Power provides enforcement mechanisms that can be brought into play against those breaking cultural rules. Positive sanctions are sets of rewards that operate as inducements to conform. These can include things like social approval, a pay rise or a medal from the Queen. Likewise socialization contributes to social order. From the day we are born, our identities are shaped by our culture. We internalize shared value patterns and norms so that we know right from wrong (as our culture defines these); we acquire motivations as to what we want out of life and we acquire expectations about appropriate ways to behave. The vast bulk of the work involved in maintaining social order in everyday life is carried out by positive sanctions and socialization. For the most part, most people conform most of the time and are mostly happy to do so.

Deviant acts are those that offend against norms and are held to threaten the maintenance of social order. If detected, these incur negative sanctions that are intended as a punishment and to act as a deterrent. Most deviant acts are dealt with by small-scale, informal negative sanctions such as ostracism by the group or a critical comment by a friend. Think, for example, of what happens if someone cheats at Scrabble or breaks wind in the car or stubs their toe and swears in church. More serious, though less common, are infractions against the social order that lead to formal negative sanctions. These involve the summoning of authority, the invocation of written rules and the handing out of clearly specified punishments. This book is essentially about these formal, negative sanctions in the contemporary social world – more specifically, those regulated and administered by the state. We explore their nature, ask how they are changing, investigate how they are influenced by culture and serve particular social interests – in short, we provide a theoretical and empirical account of a set of institutions pivotal to social control today.

In order to fully understand what is unique or interesting about this object of inquiry, it is useful to turn towards findings from the discipline of anthropology and gain some perspective. For much of human history we have lived in small-scale band societies. Evidence from these suggests that social order is maintained through informal means or with reference to supernatural powers rather than through differentiated and secular mechanisms for adjudication and enforcement. In his study of the Mbuti pygmies, who live in the rainforests of equatorial Africa, Colin Turnbull discusses the existence of a spontaneous and collective form of justice. Within the face-to-face group ‘everything settles itself with apparent lack of organization’ (1961: 115). The group as a whole exercises sanctions such as ostracism, gossip, beatings and ridicule to bring offenders back into line and to demonstrate public disapproval. According to Turnbull, the Mbuti are of a sociable disposition and fear of contempt and isolation keeps most of them in line. They have a precarious existence where survival depends on collective hunting strategies and close cooperation, so unity is a key social value. This helps explain why ‘disputes are generally settled with little reference to the alleged rights and wrongs of the case, but more with the sole intention of restoring peace to the community’ (ibid.: 110). Such a system places an emphasis on the rapid resolution of disputes and maintenance of group solidarity. There are clear affinities between this way of maintaining social order and contemporary initiatives such as ‘alternative dispute resolution’ and ‘reintegrative shaming’ (see pp. 154–159 and 189–190).

Another African culture, that of the Azande of the Southern Sudan, can be used to illustrate the centrality of supernatural powers and divination to the maintenance of social order in traditional societies. Within this society, oracles are part of the self-help system of village justice. They are believed to be able to reveal the truth and are consulted by individuals to find out the causes of their misfortune. For example, one might use the oracle to check up on suspected adultery, to discover the identity of the witch bringing sickness or to find out who has been stealing from a granary. The most important of these investigative tools is the poison oracle. This consists of strychnine being given to a chicken. As this is done, questions are asked about what has been happening. The survival or death of the fowl provides a ‘yes’ or ‘no’ answer accordingly. As the anthropologist E.E. Evans-Pritchard (1976: 124) puts it, the oracle ‘was itself the greater part of what we know as the rules of evidence, judge, jury and witnesses’. Although such a system might seem to an outsider to be unfair or liable to be quickly discredited by contradictory results, Evans-Pritchard reports that this is not the case. The Azande have an elaborate network of beliefs that allows them to account for inconsistencies in the oracle (the question was not phrased correctly, a witch has tampered with the poison, etc.) and prefer using it to the European justice alternative introduced by the colonial British.

These anthropological studies point to the role of what generally is referred to as ‘non-legal social control’. This persists in complex societies in the myriad ways that individuals, communities and organizations investigate and punish wrongs and try to resolve their disputes without involving state authorities or invoking the law. Governmental systems of social control have been superimposed upon this but have not fully replaced it. Donald Black (1976) has proposed a theory of the relationship between these two systems, asserting that the law and governmental intervention are more likely where other forms of control and self-help are weak. These include not only customs and traditions, but also bureaucracies and professions that have formal systems for self-regulation. This theory looks attractive but has some problems (Roach Anleu, 2000: 141–2). Studies of ‘collective efficacy’ suggest that strong communities are more likely to organize themselves against wrong doing and work with law enforcement than those where ‘nobody cares’. The major variable predicting whether individuals or organizations report crime is the seriousness of the offence, not the strength of their community ties or self-help mechanisms. Black is nothing if not a positivist, so consideration of how individuals interpret events, think of the police and the law and decide what steps to take is precluded from his rather mechanistic analysis. Clearly these have to come into the frame with phenomena such as sexual assault or victimless crime or in situations where there is community suspicion of the justice system. But we are getting away from our main point. This is that rational, bureaucratic, secular legal social control by the state is just one of the many possible solutions to the problem of social order. For most of human history, communities have used informal ‘non-rational’ means to ensure conformity and have done so quite successfully. Even today legal social control exists alongside a raft of alternatives. In explaining how it came onto the scene in the first place, we need to think about the rise of modernity. The shift from a rural agricultural, local, religious society towards an urban, industrial, state-regulated, secular one had profound implications for the emergence of contemporary forms of social control. Social theorists were one group of people to engage in this task. The political philosophers of the seventeenth and eighteenth centuries were another, and it is to them that we turn next.

Contract Theory

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Contract theory provided the first developed set of conceptual tools for thinking through the relationship between the rise of modernity and the emerging rule of law. Appearing in the seventeenth century following the collapse of the medieval world-view, contract theory was very much concerned with providing a philosophical foundation for the existence and power of the modern state (Held, 1984). Contract theorists argue that the state is necessary to protect the interests of its subjects and maintain social order. Without an over-arching authority things would be very unpleasant, or as Thomas Hobbes put it in Leviathan (1991 [1615]), a ‘warre of everyone against everyone’ in which the typical life was ‘nasty, brutish and short’. The social contract was the term used to describe the arrangement whereby individuals gave up some of their liberties and powers to the state (or sovereign monarch) in return for physical security. The state would offer protection to all, operate justly and maintain peace by the impartial administration of the law and the enforcement, if need be, of order. In this vision the law was to regulate the relationship of citizens towards each other as well as the tie between citizens and the state. Over time the Hobbesian version of the social contract gave way to the subtly different liberal world-view of John Locke. This gave the state a role as the preserver of ‘natural rights’ to life, liberty and property and placed an even stronger emphasis on consent as the foundation of the legitimate power. According to Locke (1936 [1690]), the law was essential for democracy and free association among people, famously writing that ‘Wherever Law ends Tyranny begins’. For Locke, then, law and criminal justice are seen as more than just necessary for peace. They are also essential for maintaining basic human freedoms. The work of Jean-Jacques Rousseau in The Social Contract (1968 [1762])pushed this line of thinking even further, suggesting that (in the ideal case at least), laws were the expression of a ‘general will’ arrived at through public debate and eventual agreement. The overall picture of contract theory, then, is of law and criminal justice as a form of social regulation that provides common social goods and has broad popular consent. It is important, however, to observe that there are subtle differences between each theory, reflecting the fact that they emerged in different historical epochs. Hobbes gives an emphasis to questions of peaceful coexistence, reflecting the fact that he was writing during the transition from an unruly medieval epoch. Locke’s main concern seems to be property rights – an issue pivotal to an era of mercantile expansion and its growing middle class. Rousseau links the social contract to popular sovereignty – a concern of republican thinking during the Enlightenment.

Contract theory has been particularly important in the field of political science and has been nearly as influential for theoretical discussions of the law within jurisprudence. Such writings often revolve around concepts such as freedom, democracy, consent and the state. Nevertheless the approach has not been without its critics and, indeed, much of the literature today seems to be devoted to spelling out just what is wrong with contract theory. Many suggest it is hopelessly naïve on matters of power. The state might better be seen as imposing laws on behalf of certain social groups (or even itself) rather than expressing a popular will. Marxism, for example, understands the state as operating in the interests of the ruling class (see pp. 19–24). Moreover, we never really see people entering into a ‘contract’. Indigenous peoples and right-wing separatist extremists alike have found that as citizens we have little choice but to accept the laws of the state in which we are born. There is no real chance of opting out or refusing the contract, setting up our own laws and defining our own independent territories. In effect, then, the social contract is a philosophical and ideological fiction, not something that has ever really existed. Critics have also suggested that contract theorists were products of their time and consequently more interested in justifying the privileges of free men rather than those of slaves and dependent women. In effect, the contract was a deal struck between affluent men – a masculine ideology that served to reinforce their power and exclude minorities from political and economic participation. Notwithstanding these criticisms, or perhaps because of them, contract theory does have the merit of drawing our attention to the question of popular consent for the law and its administration. It also highlights the fact that a specifically political process is at the heart of law and criminal justice in modern societies with the state and state power at its core. For all these virtues, contract theory has had a limited impact in sociology and mainstream criminology. In these disciplines the most significant thinker to paint the criminal justice system in a positive light was Emile Durkheim.

Emile Durkheim

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As we approach the centenary of his death, Emile Durkheim has become increasingly acknowledged as one of the most profound thinkers on the law, justice and punishment. A founder of sociology, Durkheim (1858–1917) lived and worked in France. Capable of brilliant twists of counter-intuitive thinking, Durkheim saw that in order to truly understand criminal and legal process we have to view it as intimately tied up with morality, sentiment and emotion and as reflecting the wider organization of society. Durkheim’s writing on these topics is mostly to be found in his work from the 1890s, especially his doctoral dissertation The Division of Labour in Society (1984 [1893]) and in Moral Education (1973).

At the core of Durkheim’s thinking is functionalism. This argues that we have to understand society as a system. Its constituent elements, whether they are roles, institutions, patterns of activity, values or individuals, need to be read in terms of their relation to that system and the contribution they make to its survival and stability. Ideas taken from biology have often proven central to this model. The component parts of society are thought to support the whole, just as the various organs and muscles of an animal enable it to survive. Each contributes...