THEORETICAL APPROACHES TO LAW AND CRIMINAL JUSTICE
1 Theoretical Approaches to Law and Criminal Justice
Introduction
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
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
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
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 something indispensable to the whole and this function explains its existence. Pivotal to Durkheim’s functionalist view of society was the idea that it was held together primarily by shared sentiments known as the collective conscience. He saw feelings of morality and belonging as a core feature of human beings in society. Crime, according to Durkheim, is an activity that confronts and transgresses the collective conscience and generates intense emotions such as outrage. Consequently, the law could be understood as a ‘visible symbol’ (1984: 24) of the collective conscience and punishment as ‘an act of vengeance, since it is an expiation. What we are avenging, and what the criminal is expiating, is the outrage to morality’ (ibid.: 47). Such a definition places collective meanings at the centre of our understanding of social responses to crime.
Perhaps surprisingly, given these views, Durkheim’s view of crime was not entirely negative. Indeed, he argues with great consistency that crime was sometimes good for society. First, he pointed out that many reformers, such as the Greek philosopher Socrates, had been considered to be criminals. Durkheim suggested that in contexts such as this, crime had helped innovation and change to take place by pushing moral boundaries and enabling new understandings to be established. Without such crime we would have a static and inflexible society. More important, however, was a second argument. In Durkheim’s view, crime was a good thing because it entailed punishment, and punishment, in turn, had beneficial social consequences. Durkheim argued that by denouncing crime and criminals in punishment activity, society was able to reaffirm and make concrete diffuse ideas about morality. Through such action the collective conscience could be strengthened and individuals reminded of their shared obligations and sentiments. Durkheim even went so far as to say that crime would have to be invented if it did not exist. Hence deviance arises due to social needs and the level of perceived deviance tends to remain constant. Thus, in a monastery, he notes, events that are trivial can be elevated to the status of major sins because even here moral boundaries need to be ritually established.
Of course there were limits to how far Durkheim was prepared to advocate deviance as a social good. He distinguished between normal and pathological deviance. The former made a positive net contribution to society and was not too extensive while the latter was fundamentally threatening to the social order. Indeed, pathological deviance could be an indicator of anomie – a situation in which the moral regulation of society had broken down.
One of Durkheim’s major contributions was to provide a detailed account of the historical evolution of legal regulations and punishment and to point to the ties between the emergence of modernity and the forms of contemporary criminal justice. In his view, the ‘law reproduces the main forms of social solidarity’ (1984: 28) and could be used to explore how this solidarity had changed over time. He argued that ‘primitive’ societies had almost no division of labour – people did the same jobs such as hunting and collecting. As a result, he (wrongly) believed members all thought the same way. This meant there was little tolerance for diversity – a situation Durkheim thought of as mechanical solidarity. Offending was met with harsh, retributive punishments. By contrast in complex (i.e. modern) societies there were specialized tasks, people were more individualized and, as a result, the collective conscience had developed a greater tolerance for difference. Durkheim describes this as organic solidarity. This is because social cohesion is ensured by the components of society working together like the organs of the body. In such a situation punishments tended to be restorative – that is to say, they try to reintegrate people into the community. Durkheim tried to demonstrate this shift by looking at legal codes as these had changed over history, for example, those described in the Bible or those among the Romans. Although his account is plagued by nineteenth-century evolutionist thinking and has been shown by anthropological research to be empirically wrong (‘primitive’ societies tend, in fact, to be quite forgiving), it is a pioneering effort. Notably it suggests that punishment shifts over time need to be understood in a context of wider social (differentiation and complexity) and cultural (collective conscience) change. Here, then, is the core of a strongly sociological explanation of law and justice. To summarize, what lessons about law and criminal justice can we distil from Durkheim’s work?
- We need to think about the criminal justice system in terms of its contribution to the wider problem of social order and its location in an encompassing social system. It is a serious mistake to take law and criminal justice as autonomous spheres of life that go their own merry way without inputs from broader shifts in culture and society. This important point, we suggest, holds whether or not one subscribes to Durkheim’s functionalist world-view and, indeed, alternative accounts on this theme will be provided in the rest of this chapter.
- The law and criminal justice system can be thought of as products of a collective conscience and as underpinned by moral codes and emotions. Because they reflect deeply held beliefs and values, it is a mistake to see laws and punishments only as the dry product of cool and calculating reason. Certainly, we have to pay attention to the way that public opinion and wider social values have determinate impacts upon what goes on.
- In the process of marking out the good from the bad, processes of punishment become symbolic. They have ritual properties and are directed to the wider citizenry, not just the individual criminal. In a sense, they are semiotic or signalling activities in which a message about, say, justice and morality is spelled out. In Durkheim, then, we find the germ of a strongly cultural understanding of punishment. Only in recent years have we begun to pay attention to this dimension of his work.
Having acknowledged these benefits, there are clearly a number of problems with Durkheim’s work. He often assumes rather than demonstrates a social consensus. Indeed, some critics argue that modern societies cohere without consensus rather than because one is present. Themes of power and inequality are also notably absent from his work. Crime seems to be punished simply because society feels outraged. There is no awareness that criminal justice might not be a level playing field with dominant groups advantaged at the expense of others. There are also serious problems when it comes to issues of causality. Durkheim’s functionalist position sees criminals punished and laws enacted because of abstract social needs and the diffuse swirling sentiments of the collective conscience. Many argue that this is too vague a conceptualization of how things really happen and that an adequate explanation needs to be able to identify real actors who make real decisions. Finally, we note that only some crimes and criminal justice actions fit Durkheim’s model very well. Popular responses towards paedophiles and serial killers, for example, clearly demonstrate that collective morality and emotions are at play. Similarly, executions match broadly with Durkheim’s understanding of punishment as a kind of ritualized morality lesson. In other cases his template does not seem so applicable. Nobody seems to care very much about parking tickets, speeding or tax evasion. Contrary to Durkheim’s emphasis on punishment as a public display of outrage, many punishments are conducted without an audience and without any obvious public lesson being drawn. Prisons, for example, are shut off from wider society and few people particularly care what goes on there. This reality confronts Durkheim’s understanding of punishment as a dramatic display of law and morality and suggests there might be a dull, instrumental reason that drives its implementation – perhaps power, perhaps simply inertia.
Elaborations from Durkheim
Durkheim’s thinking that cultural forces drive the criminal justice system has been elaborated in a number of ways. Some have looked at his ideas on the links between the collective conscience and the identification of deviance within a functionalist framework. The book Wayward Puritans by Kai Erikson (1966) is probably the best-known work in this genre. Erikson looked at three ‘crime waves’ and responses to these in the criminal justice system of the colony of Massachusetts during the seventeenth century. The first of these involved attacks on a minority religious sect, the second the persecution of Quakers, and the third the famous Salem witch trials. Erikson argues that the deviance was to all intents and purposes invented. Often there was no evidence of serious wrongdoing. Witches, for example, were identified on the basis of testimony from a group of hysterical girls or from confessions derived under torture. In other cases, the Puritan majority became obsessed with trivial differences from the norm. Hence Quakers were prosecuted for having long hair. Using Durkheim’s ideas, Erikson suggests that a process of boundary maintenance was at work. In order to define who they were and what their mission was, the Puritans had to act against deviance – even if it was an imagined or exaggerated rather than a real threat. Such a finding is consistent with Durkheim’s observation, mentioned on a previous page, that deviance might need to be invented, even in a monastery.
Erikson believes that a broader climate of social change was behind the various ‘crime waves’. The moral boundaries of the Puritan settlement were under threat not so much because of the activities of deviants, but rather because of the unfolding of culture and history. Wider contexts included the loss of political support from English Puritans, internal fighting over land, the migration of non-Puritans into the colony and a declining sense of mission among the settlers. Erikson sees the episodes he identifies as having some socially beneficial effects – for the wider community if not for the victims. They provided ground rules for living and enabled the colony to retain and develop a sense of purpose in this changing world. Such ideas are similar to those on moral panics that we review later in this chapter, in that social responses to deviance are taken to be driven by factors that have little to do with crime and punishment narrowly conceived. However, the moral panics literature tends to have a more negative view of such episodes. Erikson, by contrast, takes a lead from Durkheim’s belief that the identification and punishment of deviants reaffirm the collective conscience.
It is instructive to compare Wayward Puritans with Stanley Cohen’s (1973) Folk Devils and Moral Panics, which was written around the same time. Very loosely and indirectly influenced by Durkheim, this text also drew upon labelling theory and critical criminology (see pp. 26–27) to explore societal reactions to crime, and especially the media treatment of criminality. The issue in focus was a series of seaside disturbances in Britain during the 1960s. These involved motorbike-riding youths, fighting and vandalism. Cohen noted an exaggerated response to these events, with sensationalist newspaper coverage, television debates and questions in Parliament following hot on the heels of what was really a very minor crime episode. Cohen designated the event a moral panic. When this occurs: ‘A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylised and stereotypical fashion by the mass media, the moral barricades are manned by editors, bishops, politicians and other right thinking people’ (1973: 9). Like Erikson, Cohen observes the disproportionate nature of the response to crime, but he does not have a functionalist logic to his inquiry. Cohen’s interest is more in middle-range institutional responses to crime in the media, politics and the criminal justice system as well as themes related to elites and power. His text was to provide an important resource for later, more Marxist accounts of moral panics as well as subsequent work looking at the role of the media in framing crime and delinquency (see pp. 23–24).
More recently, discussions on the ritual and dramaturgical dimensions of punishment have also started to come out of the Durkheimian stable. These have been influenced by his last major work The Elementary Forms of Religious Life, where Durkheim (1968 [1912]) noted the centrality of ritual and the sacred to social life. Current work has fused this model with his earlier work on law, crime and justice. Responding to criticisms about idealism and conservatism, these more recent Durkheimian analyses have tended to move away from the functionalist thinking of The Division of Labour in Society. The judicial process is seen as a contested signifying act in which themes of morality, the sacred and profane are at stake within a wider political environment where power and control are also at play. The work of one of the authors of this book falls into this camp and can serve as an illustration. Philip Smith (1996) looked at the history of public executions and understands them as a ritual event in which dominant elites attempted to transmit moral codes. During the eighteenth century it was hoped that the execution would be a kind of morality play in which the evil of the criminal was exposed and the power of the state dramatized. Accounts of executions, especially at Tyburn in London, indicated that things were not working out as planned. Victims died in diverse ways that undermined the official narrative. Some were highly religious and looked like martyrs in the face of death. Others showed bravado and cracked jokes, thus expressing contempt for the law. The audience for such events was usually drunk, bawdy or engaged in petty crime, looking upon the whole episode as an excuse for a riotous day out. For elites, such behaviour suggested their ritual was failing as a form of civic education – to the contrary, it seemed to be encouraging crime and dissent. Using pamphlets and other documents published by reformers at the time Smith is able to show that the subsequent movement of executions from a public to a hidden arena was a damage control exercise – in effect, an attempt to patch up a ritual that had gone badly wrong.
Finally, it is worth noting the movement of Durkheim’s legal theory into twentieth-century structural functionalism. In the systems theory of Talcott Parsons (1970), society was made up of subsystems (the economy, politics, etc.), which each contributed in a specific and positive way to its overall needs. The law was the subsystem allocated the task of ensuring social integration by regulating and preventing conflict. Within this vision the law was invested with a general moral authority and served, in turn, to ensure that the values and needs of the wider community were upheld by other subsystems and their actors. In common with Durkheim’s perspective in The Division of Labour in Society, that of Parsons points usefully to the fact that the law is more than a bunch of formal rules and regulations that are just a nuisance or simply expressions of power; it has ties to wider symbolic and cultural patterns. In our society, for example, there is a strong emphasis placed on highly abstract values such as universalism (everybody should be treated equally), freedom and achievement because these are core aspects of modernity. Legal codes are expected to uphold these values, in effect, translating them into more concrete codes for human action as ‘an integrated system of universalistic norms’ (1967: 510). Evidence for this cultural foundation to the law can be seen in the fact that statutes which appear to violate our core values are denounced as unfair by those on the left and right alike.
Drawing on Weber (see pp. 36–37), Parsons also pointed to the ties between the law and modernity from a more historical perspective. These views are best expressed in an essay called ‘Evolutionary Universals in Society’ (Parsons, 1967). Here, he suggests that by promoting universalism, the law had provided the basis for the calculability and social stability that sustained entrepreneurial attitudes, investment and innovation. Hence he remarks that: ‘The development of the English Common Law … not only constituted the most advanced case of universalistic normative order, but probably was decisive for the modern world … it is no accident that the Industrial Revolution first occurred in England’ (1967: 514). Importantly, the law had autonomy from other social systems and was ‘relatively independent of both religious agencies … and vested interest groups.’ This structural location ensured the law had broad support, would be free from capricious interference and could serve as a platform for democracy and the emergence of modern ideas about rights and citizenship. The law, then, helps us to maintain a form of social order consistent with our value patterns and organization. Some scholars argue this emphasis on the positive contribution of the law to social life is mistaken. They suggest, contra Parsons, that it is controlled by certain groups and that its universalism is a cloak for power. We move on to explore these arguments in the next sections as we shift from consensus to conflict theories of law and criminal justice. In the next chapter we look in more detail at arguments that specifically attack universalistic ideas of reason and justice as these are embodied in the law.
The Marxist Tradition
Surprisingly the great philosopher, political economist, historian and founder of communism Karl Marx (1818–1883) did not write much about crime or criminal justice in his major works such as Das Kapital (1962 [1867]). Nevertheless his broader perspective has proven to be highly influential. Before moving on to specifics relating to law and criminal justice, we need to briefly review the Marxist vision of social life. Durkheim, as we have seen, asserted that society was a broadly cooperative enterprise held together by common sentiments and moral codes. For Marx, by contrast, conflict is at the heart of the social order. Struggles exist between classes and are driven by inequalities. Hence Marx’s vision of social life privileges economic life. Indeed, the economy (base) broadly determines whatever else goes on in politics or culture (superstructure) – a position sometimes thought of as economic determinism or the base/superstructure model.
According to Marx, every society, to put it simply, is divided into two classes. In the contemporary world the owners of property, or bourgeoisie, are the dominant class and control the ‘means of production’ (factories, farms, etc.) while workers are the subordinate class and can sell only their labour power. The interests of owners and workers are always at odds. The former want more profit and the latter more wages. Conflict is inevitable, leading to a society where order is primarily maintained by power and force, supported by ideology. This term refers to the system of ideas that masks inequality and justifies forms of social organization associated with oppression. Over the years the Marxist model has undergone considerable elaborations and refinements with an increasing emphasis placed on the role of ideology in sustaining a capitalist society that is in permanent ‘crisis’. However, the core argument has remained that we live in a world based on injustice and power and that dominant groups exploit subordinate groups. The Marxist approach to law and criminal justice builds on this platform, suggesting that they are two among many instruments through which the state works to support the interests of the dominant class. Pivotal functions include allowing economic exploitation, legitimating the use of force in controlling political dissent and protecting the property of the rich.
We can see the basics of such an approach in fragments written by Marx and his collaborator Friedrich Engels. Hence in The German Ideology, Marx and Engels (1964 [1846]) have a discussion of the relationship between property, the state and the law. In contrast to theorists of the social contract (see pp. 12–13) who took the state to represent universal interests, Marx and Engels describe it as ‘nothing more than the form of organization which the bourgeois necessarily adopt both for internal and external purposes, for the mutual guarantee of their property and interests’ (ibid.: 79). Consequently, they assert that the idea that the law is based upon the general will or a popular mandate is simply a juridical illusion. To the contrary, because ‘civil law develops simultaneously with private property’ and ‘the state mediates in the formation of all common institutions’ (ibid.: 80), both are better understood as partners in a process of domination, in this case, ensuring the property rights of the dominant class.
It is all too easy to imagine the state writing whatever laws it wishes to blatantly support the interests of the powerful. However, Marx and Engels suggested that the relationship of law to economic and political life is not as straightforward as we might think. The need for the law to be internally non-contradictory and to appear universalistic (in effect, to exhibit the characteristics identified by Parsons, above) means legal codes reflect the class system in subtle and indirect ways. These might elude common sense and a routine, uncritical jurisprudential analysis. Hence in his letter of 27 October 1890, to Conrad Schmidt, Engels argued that: ‘In a modern state law must not only correspond to the general economic condition and be its expression, but must also be an internally consistent one’ (1969: 442). Consequently it rarely ‘happens that a code of law is the blunt, unmitigated, unadulterated expression of the domination of a class – this in itself would offend the “conception of right”’ (ibid.: 442–3).
Developments within the Marxist Tradition
Today the majority of Marxist criminologists and legal theorists follow this line in deciphering the subtle ways in which the law operates as an instrument of political and ideological control. However, the most important early work tied criminal justice to a broadly orthodox Marxian political economy. Punishment and Social Structure