6   Conclusion


Law, Criminal Justice and the Sociological Perspective

Here at the end of this book, we are in a position to return to the themes of the Introduction. Having read the previous chapters, readers will be able to judge for themselves the statements and speculations we wish to make in closing. At the outset we made the case that a sociological perspective is necessary for a more complete understanding of law and the criminal justice system. But just what is this ‘sociological perspective’? Fundamentally, it is about explanations, not descriptions or doctrines. Sociologists cast a critical eye over the social world. They re-evaluate taken-for-granted presumptions, irrespective of whether these are found in commonsense perspectives, political claims or the knowledge bases of other disciplines. This activity does not always entail rejecting prior conclusions, but by and large sociologists hold that insights into the ways the world works should always be tested with empirical evidence and that our understanding must be rooted in systematically collected data. Thinking ‘how could it be otherwise?’ also furthers re-evaluation. This activity, often fostered by theoretical models and a comparative perspective, allows us to challenge assumptions by stretching our minds to other, potentially more insightful or interesting possibilities (see Willis, 1995: 78–80). Such intellectual practice allows us to debunk the received wisdom that often guides thoughts and action. Debunking means that we contest the ways in which people generally think; in the words of Peter Berger (1963), we ‘see through’ popular opinion and official explanation. As both Willis (1995: 82–3) and Berger point out, at times this can lead to controversial and unpopular conclusions and recommendations. But it also has the potential to generate exciting and innovative ways of viewing and confronting our world. In this book we have attempted to provide the resources necessary for this activity. Our ambition has been to not only to provide information but also to destabilize complacent certainties and to encourage both scepticism and creative, critical thinking. Let us review how a sociological perspective can accomplish this task.

As you have read this book it has no doubt become clear to you that sociological visions are plural and contested. However, they also share some family resemblances, a set of frequently encountered properties that crop up time and time again, regardless of paradigm disputes. These commonalities have anchored many of the lessons we have tried to present in this book with respect to the issue of ‘how to think’ about law and criminal justice. First, we have pointed to an imperative to move beyond explanations that ground outcomes in individual and collective volitions and plans. In other words, sociologists generally hold that things do not come about simply because people, groups or organizations want them or think they are a good idea. Explanations cannot be found just by looking in people’s heads. There are structural forces and cultural forms that make their choices possible and thinkable. The prison, for example, did not emerge simply because in the eighteenth century Caesare Beccaria and others like him came to the conclusion there was a need for humane, predictable punishments to replace prior barbarisms. We need to consider the origins of the culture that shaped this vision: the Enlightenment rationalism and the ‘civilizing process’ identified by Elias (pp. 37–39; Prett, 2002); the presence of religious traditions, architectural forms, technologies and know-how that made prisons a workable option for the relevant bodies (pp. 169–172); the centralization of regulatory power in the state that enabled such large-scale enterprises to replace local forms of justice (pp. 36–37); and the wholesale transformation of forms of power towards those of a disciplinary society (pp. 28–31). The efforts of people and their initiatives always have the potential to make a difference, but this is a human agency that takes place in a wider socio-historical context of which the actors might be unaware.

The next, related point is that the sociological perspective tends to be structural rather than individual. Whereas psychologists are interested in explaining how people act with reference to brain function and personality, the sociologist is more concerned with the network of relationships into which they are embedded, their roles, their membership in aggregate categories such as those of race and gender, and their location within a broader social structure of which they may have only a limited, practical awareness. Arguing for a science of society, Emile Durkheim called these supra-individual determinants of human actions and possibilities ‘social facts’ and argued that the task of sociology was to uncover their form and function. Such a vision sees individuals as less sovereign, less in control of their destinies than we might imagine. Rather, their identities and actions are shaped by forces of a more collective stamp. In the contents of this book we can see such a perspective at work. The actions and attitudes of the police, for example, were shown to be shaped by their social role as order maintainers and occupational socialization into a police culture (pp. 88–93). To explain how they behave, we need to look at these social facts, not at the individual lives and personalities of the millions of police officers around the world. Likewise we can understand what goes on in the prison by pointing to theoretical understandings from Goffman on total institutions, Foucault on discipline or Sykes on inmate roles (see pp. 27–28, 28–32, 178–179). In the work of each of these authors the individual is displaced from the centre of analysis. Indeed, the very sense of self that the inmate has is shown to have been socially constructed by the processes and cultures of the institution. To begin an explanation by pointing to individuals and without taking into account how they are themselves shaped by social forces would be to misrecognize what is in fact a dependent variable. As a concrete example, sexual assault does not take place in prisons because they are full of predatory homosexuals. Rather, it is the setting of the prison, its inmate roles and its organization that generate the patterns of violent sexual activity (pp. 180–182).

A third property we often find in sociological explanations is an appreciation of the unintended consequences of action. This can lead to a strongly ironic vision in which outcomes of actions eventuate that are the opposite of those wished for. In a diluted and more common form, we find arguments that the results of action are often simply unanticipated or that the actions make less difference than their initiators might suppose. There are several reasons why this could be so. Actors cannot know how others will respond to their strategies. They might be ignorant of some facts or blinded by ideologies or common sense to the systemic implications of their choices and strategies. This book has been replete with examples of such a process. For example, the Kansas City Patrol Experiment demonstrated that although the police believed routine motorized patrol reduced crime and fear of crime, it made no difference to either (pp. 98–99); racial disparities in sentencing appear to arise as an unintended consequence of the application of informal decision-making rules as judges attempt to be fair (pp. 129–133); well-intentioned efforts to get Battered Woman Syndrome accepted by the courts may have perpetuated stereotypes of women as not fully rational (pp. 67–68, 136). The lesson here is to investigate the outcomes of actions rather than to assume that these align neatly with the intentions of their sponsors.

The characteristics listed above are part of a search for higher order explanation. This involves developing theoretical models that can recognize common underlying social patterns even as they identify and account for diverse particulars across cases. This is a complex task, one that requires digging a little deeper than what Charles Tilly (2000) calls the ‘standard stories’ of everyday explanation in the effort to identify the true causes of actions and outcomes. While ‘standard stories’ involve visions of motivated actors and deliberate decisions, sociological explanations point to structural relationships and hidden social forces. Let’s illustrate this. A classic case of an analytic framework allowing for higher order explanation is Marxism, with its claim that class struggle and material interests underlie phenomena as diverse as the operation of police discretion, the drafting of legislation and the practice of mass imprisonment (pp. 19–24, 103–104, 177–178). To have accounted for these in terms of, respectively, the latest policy initiative from the police chief, the desire of parliamentarians to control crime and the actions of judges in the court system might have intuitive appeal but it would stop short of the full story. From the Marxist perspective, each of these more immediate causes can be better understood as simply the concrete mechanism of an underlying set of determining structures: the role of the legal and criminal justice systems as a state apparatus responsible for ensuring favourable conditions for the reproduction of capitalism and controlling dissent. Mobilizing these kinds of higher order accounts, perhaps using Marxism, perhaps rival paradigms, enables us to look at situations in new ways. We can now ask questions that take us beyond the myriad details of the particular issues and personalities at stake such as we might find in a newspaper account and insert these into a more comprehensive vision of social order and history. We gain a critical distance, an altitude from which we start to see the outline of the forest and not just a tree here and a tree there.

In searching for these higher order explanations, sociologists are aware that an account or description, no matter how elegant, is not the same as a truly convincing explanation. Empirical research allows suppositions to be tested and contributes to a solid empirical foundation for knowledge. It hammers theory against the bedrock of reality, and thus ensures that we do more than tell plausible stories. Some sociologists are positivists, arguing that research should be scientific and allow us to collect a set of verifiable, objective data. Others claim that meaning is fundamental to our inquiry and that our methods must come to terms with this by interpreting human actions and cultural systems. These contrasting positions mirror differences in how people understand knowledge – this is known as epistemology – but both reflect the sociological need to explain the workings of society with reference to empirical facts, rather than simply trade in ideas from the comfort of an armchair. The means of collecting the data we need are diverse. Through your reading you may have identified two broad approaches within sociology. The first uses qualitative methods, gathering information that is not easily transformed into numerical data, often with the aim of translating and distilling the interpretive frameworks of the subjects. There are multiple ways in which this project can proceed. Some researchers have committed to ethnographic projects, observing social life ‘in the field’ where interactions between sociologists and their subjects are less formally structured than in most other research contexts. Erving Goffman’s Asylums