Essay, What Is Crime Essay PDF

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What is Crime? 0 – Introduction The definitions of what is a crime are contested. The significance of posing such as question is that it will help determine the remit of criminological study; it is therefore a question linked to epistemology. In this essay I will argue that the black letter approach, although attractive due to its succinct and “tidy” nature is ultimately underwhelming and circular, rather a more fruitful study of crime would be yielded by a crime as a social construction approach. 1 - The Black Letter Approach There are a set of traditional scholars who had defined crime in relation to the criminal law, this is known as the black letter approach. -Tappan v Sutherland Tappan argued that crime refers to an intentional act which has been labelled and processed by the criminal justice system (CJS). However, we know that some crimes do not actually require “intention” as their mens rea such as gross negligence manslaughter. Sutherland and Cressey argue that crime is an expression of liberal democracy in that the law as to what is a crime is created by the elected government. However, this approach is descriptive, as it describes what a liberal democracy wants to achieve, such that it lacks explanatory power. Sutherland understood crime through the social injury which it causes, the problem here is that this then overlaps with civil law, however, Sutherland acknowledged this. HLA Hart: Crimes are defined by the law making body (Similar to Sutherlands Liberal democracy approach) BUT fact that something is defined as a crime doesn’t make it immoral. Glanville Williams supported this stating that “it is essential that one never forgets that no matter how immoral, reprehensible, damaging or dangerous an act it is not a crime unless it is made such by the authorities of the state”. Michael and Adler: Crime is behaviour “which is prohibited by the criminal code – this is known as the black letter approach. The problem here is that it would appear that the cause of crime is the criminal law in terms of defining acts as crimes (Muncie). Lacey et al: Criticises the black letter approach and explains that a more nuanced approach is needed requiring a consideration of why some deviance is criminalized and other forms are not. The black letter law approach divorces the definition of crime from political, economic and social context (which realists would argue. For instance Charles Murray (American Neo-Conservative Social Policy Analyst) was of the view that the increased crime = caused by breakdown in family relationships and growth of illegitimacy – this sort of approach seeks to relate crime to forms of “deviance” and immorality (linked to right realism) – thus legal definitions of crime are only the “tip of the iceberg” (The Audit Commission) as one needs to consider the social/political context of crime as realists would argue. It also fails to capture the court’s interpretation process of the law (and the role of “public policy” consideration”) (Muncie).

Another type of black letter approach would be the religious black letter: Augustine refers to crime in “the city of God” i.e. crime as a contravention of Gods rules. But with the separation of Church from state we have moved from the city of God to the “city of man” thus criminologists tend to focus now on ideological definitions of crime rather than religious ones, however Knepper was of the view that criminologists should not exclusively seek to understand crime from a secular approach as many of the origins of crime rest in religions which could in themselves be deemed social constructs that reflect contemporaneous power structures.

2: Crime as a social construct. Phillipson: “There is nothing intrinsic to any behaviour which makes it criminal” but rather crime can be deemed a social construct. Both Sellin and Durkheim viewed crime as a violation of social values. Durkheim through the concept of the “collective consciousness”, the notion that there are shared norms and values within society, forms of deviance which contravene these values are criminalised. The function of the criminal law is to serve as a moral nervous system as it acts as a form of boundary control punishing that which is contrary to the norms and values of the collective consciousness. There are several problems with these approaches, firstly Muncie in “The problem of crime” points out that Sellin did not actually tell us what these Universal values are. Hagan: unlikely there even are universal values, indeed conflict theorists argue that there are no Universal values as society is in conflict in regards to class, age, gender and ethnicity. Simmons: Deviance is also a word that lacks universal meaning.

Further Criticism of Durkheim: Interactionist: Mead: No singular body of societal norms because social order consists of a pluralist of social groups so such perspective is seriously limited – so behaviour may be labelled criminal but for the interactionists it is not the behaviour which is criminal but crime is defined through social interactions/reactions and perceptions – as such the reactions (e.g. of agents of law) is the “commission of the act” (Ditton) thus crime is a social construct (Hester and Eglin).

Becker opted for the deviancy approach which attempted to focus on understanding why certain behaviours are labelled as crimes. It accepts that crime is a social construct that varies based on time and space (e.g. in regards to views on homosexuals, rape, and marriage).

The problem with this approach according to Liazos is that it is based on pluralistic notions of power which change based on time and space and who holds power, thus any understanding of crime through this approach cannot claim to be universal. Hillyard further criticises this approach stating that the labelling approach fails because there is no universal list of properties as to what constitutes a crime.

Crime understood as having an ideological function: Box: Crime performs an ideological function which serves to tell us who to fear in society. Box further highlights that because of the current ideological use of the definition of a crime it is difficult for people to acknowledge corporate crime, as it runs contrary to the dominant ideology. No discussion of crime and its ideological function would be complete without the Marxist approach considered; that the ruling class (the bourgeoisie) create the law so as to defend their own interests, such as maintaining their current position by criminalising a violent revolution by the subordinate class (the proletariat) and also protecting private property. Halls study of the theft act shows the role of economic power and criminalisation. Galliher: in 18th Century law concerned with preservation of morality but in the 19th century concerned with preservation of property. Chambliss goes on to explain that that which is defined as a crime is used to prevent “class consciousness” (i.e. the subservient class realising the nature of their exploitation which would then catalyse revolution). Sumner: Agrees with this but explains that the description of crime cannot be reduced to class relations and class conflict, he prefers to look at Crime and Deviance as a matter of political and moral judgment.

The Human Rights Approach Schewendinger understood crime through the lens of human rights, thus that which transgresses human rights is deemed to be a crime. Henry and Milovanovic, crime = power to deny others, to render a person powerless to maintain and express their humanity.However, Cohen points out that firstly we need to have a universal understanding of human rights which arguably does not exist (China cf America). Moreover far too many things would then be deemed crimes making the concept of crime somewhat meaningless, thus Hulsman states that following the Human rights approach would mean that “crime has no Ontological reality”

To conclude: The black letter approach is overwhelmingly useless so far as achieving “Verstehen” is concerned (“understanding” a concept often attributed to Weber and the Interactionists who opposed the positivist pro-scientific approach). It is therefore submitted that any understanding of “what is crime?” must consider broader factors, to do so would help to deal with the natural follow up

question “what causes crime?”, to which the black letter approach can only conclude...the criminal law itself, once again an answer lacking in Verstehen....