Jurisprudence Criminal Law

“…we must not say that an action shocks the common conscience because it is criminal, but rather that it is criminal because it shocks the common conscience.”

The Division of Labour in society – by Emile Durkheim.

“The purpose of criminal law is to forbid conduct that unjustifiably inflicts or threatens substantial harm to the individual or to the public interest.”

Principles of Irish Law – by Brian Doolan.

Discuss these contrasting views of criminality and criminal law.

INTRODUCTION

The Act of Union

was passed in 1800 fully integrating Ireland within the United Kingdom, a

situation which remained until the Irish Constitution was sanctioned in 1922

with Article 73 perpetuating many accepted traits of English Common Law. This

was reinforced in 1937 by the later Constitution based on the fundamental

rights associated with the concept of natural law and revealed in Articles 40

to 44 of the 1937 Constitution (Whelan, 2005). Any unconstitutional legislation

was enabled to be constrained by the Courts if it contravened freedom of

expression, religion or education with specific equal rights fulfilled within

the law. Brian Doolan’s interpretation of criminal law has been defined within

these precepts, based on natural law and the concept associated with one of the

major theories of criminology, that of classicism (Doolan, 2003).

Durkheimian

positivism was described by Devlin as ‘the cement of society‘, an

observation taken up by Hart (Tebbitt, 2000: 42) who, focussing on the

individual, considered that society’s development might be held back by law

perpetuating moral rules, the corollary of the

natural law theory which considers that only laws conforming to a higher form

of law, encompassing morality, can be genuinely called law. St Thomas Aquinas

considered that natural law is developed from society’s own values which are

eventually incorporated into law, as epitomised in the Republic of Ireland.

Aquinas defined law as: ‘nothing else than an ordinance of reason for the

common good, made by him who has the care of the community, and promulgated‘

(McCoubrey and White, 1999: 321).

This essay

briefly traces the various theories of jurisprudence associated with the two

main concepts of criminological study, vis–vis classicism realised through

natural justice as propounded by Brian Doolan in his treatise on ‘The

Principles of Irish Law’ and the positivist notions of Durkheim according to

‘The Division of Labour in Society’. Control theory is examined, along with various

other theories, after which this essay attempts to reconcile these various

aspects with the contrasting views of criminality and criminal law as envisaged

by Doolan and Durkheim.

DISCUSSION

Auguste Compte

initiated the term ‘sociology’ for the study of politics and social reforms

related to the expedience of society (Pampel, 2000: 52), or the the

practical art of government through rules (Cotterrell, 1989: 4-5). The

social significance of law was realised through an analysis of its conceptual

structures, being both ‘prescriptive and technical‘ and concerned

with the whole range of significant forms of social relationships (Cotterrell, 1989: 5). Tebbit (2000: 42)

observes that ‘….laws must have a bare minimum of moral content if they

are to serve their function as laws at all‘. Hart acknowledges this

dilemma through his categorisation of secondary rules, the most basic of which

he describes as ‘the rule of recognition‘ (Tebbit, Mark (2000:

44). Parliamentary sovereignty in English law incorporates Hart’s ‘rule of

recognition which . happens to be the rule that ‘what the Queen in

Parliament enacts is law‘, a concept of Austin’s Command Theory (Tebbit,

2000: 45). It is through this ‘rule of recognition‘ that Hart both

substantiates Austin’s command theory and refutes it.

Correlation between Classicism and Positivism

Natural lawyers looked at law as it ought to be,

considering whether it was right and just – and if it was not, referring the

laws back to a higher authority – particularly relevant today since the

ratification of the EU Directive on Human Rights. Positivism, however,

is recognised as having a critical impact on people’s lives (Blakemore, 1998:

5). Hunt correlates Durkheimian positivism with the subjectivism of Max Weber

and suggests that, together, they form the relationship between social

values and social actions and institutions (Hunt, 1978: 139).

The divergence of positivism from its precursor,

classicism, was described by Austin as ‘a rule laid down for the guidance of

an intelligent being by an intelligent being having power over him’. (Austin,

1995: 9). This positive philosophy is a disparate variation from

classicism, and was introduced into criminological theory by Lombroso, Ferri

and Garofolo (Williams and McShane, 1991: 35). These distinct theories have

been recognised in criminological studies as the two major hypotheses in the

science of penology which concede criminal anthropology as inherent in

identifying criminals through their genetic structure, likening it to atavism

(Lombroso, 1876).

All people are

considered equal according to classicist precepts and governments are created

by those individuals to protect the people’s rights through the recognition of

a social contract (McCoubrey and White, 1999: 60 – 84). Classicists aspire

towards civil rights realised through the law as a system of due process. It

is this emphasis on the social contract that compounds the deviance as a moral

offence against society. Punishment is proportional to the seriousness of the

offence and can only be justified to preserve the social contract and deter

others (Williams, 1997: 8).

The constrained

concept of Classicism identifies as autonomous a person who is the result of

their environment. Positivism, however, has been documented as either

internal, [assuming an atavistic involvement of the psychological or biological

aspect], or a sociological aspect of positivism which is outside an

individual’s control (Hopkins, 2001: 272) and assumes a dependency in

individuals. Positivists approach deviance from a scientific perspective which

enables deviance to be rectified through a combination of power and knowledge.

The correlation between positivism and criminological theory identified criminals

through an inherent genetic structure, perceived as atavistic features edifying

villainous characteristics which could be identified through isolationist

principles and surveillance experiments and through case studies (Lombroso,

1876 in Williams and McShane, 1991: 35).

These

sociological studies exhibited reciprocity which was attributed to specific

social order, the deviation from which society recognised as a criminal act.

Positivist theory attributed this deviation to an abnormality that could be

treated, with the hypothesis suggesting that criminals could be reformed. As

the final result was intended to protect society from harm, punishment was

sanctioned to provide treatment, not to punish, with cognitive treatments

involving group therapy sessions and the use of drug therapies to achieve these

objectives. Conversely, Bentham and Beccaria propounded the classical theory

of fundamental rights associated with natural law. Their utilitarian

principles of autonomy, liberty and rationality acknowledged deviance as a

rational act against the rules of society and from which these miscreants

needed to be dissuaded through the application of punishments (Burke Hopkins,

2001: 270).

The focus on

positivism was determined in respect of initiating a general objective which

resulted in specific evidence through quantifiable statistics utilised to

obtain information about social types and social phenomena, whereas the

utilitarian approach focussed on Bentham’s concept of pain and pleasure which

ultimately prevented individuals from deviating (McCoubrey and White, 1999: 29).

The positivist approach focussed on causation rather than action,

differentiating people or social groups according to objective categories which

are liable to determine their behaviour according to biological, psychological

or social precepts.

According to

classicists, however, miscreants who needed punishment should accept that it

was designed to prevent a greater evil that it produced and should equate to

pleasures derived from the criminal act from which he derived a system of

sanctions based on physical, political, moral or religious criteria. In terms

of positivism the outcome was realised in crime prevention and reformation

whilst the classicist objective was in reforms being applied to the criminal

law and public crime control policies to become incorporated into law as a

political science which sought to control through deterrence (McCoubrey and

White, 1999: 29).

Criminological Theories

Hobbes

observation of human actions being ultimately self-serving, including the

concept of morality, related cognisance to a state of nature which guarantees

the survival of the fittest. Classicists such as Hobbes, Bentham and Beccaria

considered that deviance is an inherent characteristic in the psyche of all

individuals (Gottfredson and Hirshi, 1990), displayed as an expression of human

rationality towards the presence of bad laws (Beccaria, 1963). Beccaria

suggested that punishments should be consistent and logical and bound within

the legal system.

From the basis

on non-conformity to society’s rules, deviance has been regarded as a

miscreant’s response to temptation and the exercise of their power over

others. Use of a structural method elucidates relationships between a

hierarchy of individuals and groups which have been considered to be inherent

within the structural approach to criminology and, equally important, society’s

reactions to criminal behaviour. Crime tends to exhibit specific reactions

against deviance, evidence of which can be seen with the Labelling Theory

(Becker, 1963; Lemert, 1967) which focuses attention on the hierarchical role

of crimes in society.

Control theory,

meanwhile, unearths links between individuals and institutions, for example

family background and upbringing and corresponding behavioural actions and

reactions. Hagan relates this philosophy to what he terms the structural

study of crime (Hagan, 1988: 3) and the Power-Control Theory which plays

a significant role in explaining the social distribution of delinquent

behaviour through the social reproduction of gender relations (Hagan,

1988: 1 – 287) and affects the social distribution of delinquency. Moreover,

one important aspect of this theory is the ethics associated with crime and

delinquency, for example, the effects of gender on criminality. Gottfredson

and Hirschi (1990) suggest that classicism is revealed through the control theories

which exhibit consequences painful to the individual. (Gottfredson and

Hirschi 1990)

Positivism in

relation to criminology, meanwhile, depended on the scale of rationality

between free will and determinism according to precepts of Cesare Lombroso

whose explanations of criminal behaviour resulted in the ‘criminal born’ man or

woman who exhibited physical attributes leading to their recognition as

criminals, a situation not supported by Durkheim. Too many variables made

Lombroso’s theory precarious but his typologies were correlated between certain

offenders committing certain kinds of crime (Gottfreddson 1990). A number of

other theories exist to explain a psychological or sociological basis to the

science of criminology. Bandura and Eysenk studied observational learning,

conditioning and personality traits, whilst the Strain Theory and the Anomie

Theory of Merton blame environmental pressures on deviance, with the Subculture

Theory attributing lack of attainment to society’s expectations to be at the

heart of offending.

Social Control Theory

Gottfredson and

Hirschi conclude from many of their studies that crimes are committed in

pursuit of pleasure and avoidance of pain (Gottfredson and Hirschi, 1990),

which they publicise as their General Theory of Crime. Gottfredson and Hirschi

argue that differences in self control probably outweigh differences in

supervision in accounting for racial or ethnic variations

Durkheim

observed the role of social control in relation to a corresponding

identification of law (Hunt, 1978: 143), involving himself with issues of

social order from the viewpoint of the individual and relating that to the

position social order exuded within communities (Pampel, 2000: 24). Studies

undertaken by Durkheim into the division of labour within both simple and

complex societies resulted in his observance of the value an individual was

attributed within the simpler community, whilst the greater complexity

denigrated the personal contribution in favour of more collective and less

individualistic contributions (Pampel, 2000: 44).

The outcome of

this investigation was in recognising a basic need within society for both

social order and moral behaviour, and problems caused through

non-conformity (Pampel, 2000: 44). Durkheim noted that a prerequisite to

conformity was a personal willingness to enter into a social contract as social

exchanges depend on the duty people have to the larger groups to which they

belong(Pampel, 2000:57). He explains that social co-operation comes

about ‘through shared social values and that the unit of analysis became the

group rather than the individual‘ (Pampel, 2000: 57).

Durkheim

observed one of the most original and important insights in the history of

sociology (Pampel, 2000: 57). This insight elucidated that once a group

(or society) came into being, then it continued – even after the original

member had left, and new members joined (Pampel, 2000: 57) laying the

foundation for Durkheim’s social realism. As a result of this, Durkheim argued

that it was society not law, that imposed morality on individuals (Pampel,

2000: 57), i.e peer pressure, and outside influence, whilst law was the tool

that preserved morality (Lanser and Vanstone, 1998: 83). These ‘social

facts‘ encouraged Durkheim to interpret the differences in morality across

societies (Pampel, 2000: 58), thereby enabling him to understand the individual

(Pampel, 2000: 58), although, as Professor Hart suggests, codes of morality in

the guise of law could, in effect, preclude a society from evolving (Elliott

and Quinn, 1998: 449).

Durkheim

investigated the division of labour amongst members of various communities in

which he noted a greater degree of dependency within simple societies.

Durkheim named this dependence ‘mechanical solidarity‘, which was

dependent upon a ‘collective conscience‘ of common beliefs being held

within that society which exerted a strong influence on behaviour (Pampel, 2000: 57). He also noted a different dependence, ‘organic

solidarity‘, existed in more differentiated societies which he correlated

with the strength of punishments and the nature of law in operation (Pampel,

2000: 66). This, he reiterated, weakened when shared beliefs declined (Pampel,

2000: 67).

CONCLUSION

A large number of theories abound, all attempting

to explain the reasons behind criminal actions. These theories investigate the

backgrounds of criminals, their psychological and physical attributes and their

positions in society together with their abilities to cope with expectations

placed on them by society. As yet there has been no definitive answer and, due

to so many variables, there possibly never will be.

Controversially,

Durkheim believed that a certain amount of crime failed to harm society and was normal and valuable in a healthy society (Cotterell, 1992: 159), with

the ideas of right and wrong being reaffirmed through the existence of crime

and punishment (Pampel, 2000: 59). This reflects a natural result of shared

morality without which rules would lack meaning (Pampel, 2000: 67),

promoting the concept of the durability of social life inevitably assuming

a definite form.

Over the years society has reflected a changing

morality which has led to changes in the law to reflect this, none more so than

in Ireland in recent times. Doolan writes that the latest edition of his book

reflects the changing nature of legislation in Ireland (Doolan, Preface to 6^th edition: 2003: v). Doolan observes the fundamental rights incorporated into

Ireland’s Constitution, the integrity of which was vehemently maintained when

the Irish public voted against ratification of the Treaty of Nice until

amendments were incorporated to continue to acknowledge an individual’s rights

are real and paramount (Doolan, 2003: 67).

Doolan considers that the purpose of criminal law is to forbid conduct that

unjustifiably inflicts or threatens substantial harm to the individual or to

the public interest which, although at first

glance this does not correlate with the above statement, reveals the epitome of

the natural law concept that deviance should be punished according to the due

process of the law and that the public should be protected in order to

guarantee the freedom of the individual. Durkheim, however, reveals that …we

must not say that an action shocks the common conscience because it is

criminal, but rather that it is criminal because it shocks the common

conscience, upholding the positivist concept that Llewellyn describes as

‘exaggerated positivism’.

Whilst it fails to acknowledge that society’s

standards change and what was unacceptable behaviour fifty years ago, and

considered deviant then, today’s society is comfortable with and acknowledges

this alteration as progress. Other formats of deviance now shock the common

conscience. Exaggerated positivism it might be, but in this respect it does,

however, appear that Durkheim’s insight into behaviour being criminal because

it shocks the common conscience could well be an acceptable aspect of

criminological studies.

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Articles

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Online Resources

• • Whelan, Darius (2005): Guide to Irish Law. [Online]Available at http://www.ucc.ie/law/irishlaw/guide.htm