Home Law Defining Crime: A Critique of the Concept and Its Implication
Concerning the Definition of Crime
Crime is a key concept within the discipline of criminology. Periodically, criminologists examine the definition of crime, and recent studies have examined variations in crime due to the use of different data sources (Mosher, Miethe, and Hart 2011). Those inspections are scattered throughout the criminological literature and can be traced back in time to the early beginnings of modern criminological thought. In 1847, for example, John Robertson suggested that scholars interested in the scientific study of crime must answer the question “What is crime?” before criminology can develop as a science (p. 9). Yet, surprisingly, more than 160 years later, most criminologists who engage in the study of crime do so with the simple understanding that crime is found in the criminal code, that it is, simply put, a violation of the criminal law—a concept that Robertson opposed. Nevertheless, despite widespread agreement in the criminological literature that crime is a violation of the criminal law, the question “What is crime?” remains relatively understudied with a few notable exceptions (e.g., Lanier and Henry 2001; Quinney 1970; Schwendinger and Schwendinger 1977; Sutherland 1949; Tappan 1946). In this work, we demonstrate that understanding how the definition of crime impacts the field of criminology is still essential to the scientific study of crime, and that concept must be closely examined. Ignoring the basic question “What is crime?” is dangerous because, absent such an examination, criminology may become an ideological tool of oppression (see Lynch 2000; Sokovic and Vasiljevic 2007). This is precisely what Robertson (1847, 9) feared in his day, that criminology had degenerated into the study of “how to imprison, how to banish and how to execute” (emphasis added, see also the works of Foucault 1979). Today, criminologists continue to voice Robertson’s concerns in various formats and forums, and some call for criminology to pay attention to issues of power as power impacts the definition of crime presented in the political construction of the criminal law. Limiting the definition of crime to a violation of the criminal law rules out the legitimate criminological study of certain kinds of harmful behaviors that have the same characteristics and effects as behaviors defined as crime by the criminal law. As Ruggiero (2007, 174) observes, “Research on the crimes of the powerful is difficult without a willingness to expand one’s sample well beyond the legal definitions of crime.”
Despite this type of observation concerning the potential deleterious impacts of ignoring the criminological definition of crime, studies examining the definition of crime are relatively scarce. And while most criminologists would be hard pressed to find any introductory criminological text that does not contain a section entitled “defining crime,” those discussions continue to focus on the distinction between crimes that are male in se (those acts that are wrong by nature) and mala prohibita (those acts that a state defines as wrong) and the idea that crime is a violation of the criminal law. The distinction, however, of only focusing on those acts that are defined by the state as wrong does little to reveal the enormous role that political and economic structures play in shaping criminal definitions, public perceptions, and therefore the field of criminology itself (Quinney 1970). This is, as we argue through this book, problematic for a number of reasons will we examine.
It is clear that there is serious disagreement among the public, policymakers, and economic elite about what should be treated as criminal. Recent surveys suggest, for instance, that nearly 81 percent of the general population would like to see “tougher laws and regulation to protect the environment” (e.g., Maguire 2013a) even while the political and social elite do not share that view (Harvey 2005). Attitudes about what constitutes crime also vary by race and class. For example, Shelley, Chiricos, and Gertz (2011) studied public perceptions of different types of harm among a national sample of US adults and found significant differences in how diverse people viewed the seriousness of the harm described—that is, the researchers found that whites not only see environmental harm and/or crime as less serious than nonwhites but also tend to see drug use— such as marijuana use—as a more “serious” crime than nonwhites (Maguire 2013b). Other scholars, such as Ruggiero (2007), make similar arguments about corporate crime and street crime—that is, economically powerful classes shape definitions of crime despite the opinion of those around them. This is an important observation to the extent that the powerful use their economic and political influence to translate their interests in ways that shape the criminal law and hence the definition of crime that criminologists tend to employ most often.
Once the definition of crime has been briefly explored, most criminal justice textbooks proceed by studying crime and the criminal justice system from the legal perspective. Alternative definitions of crime and whether those concepts are valid then fall by the wayside. There are several major works that challenge the state’s definition of crime—many of which appeared during major political-economic turning points in history (e.g., Hillyard and Tombs 2007; Platt 1974; Quinney 1970; Schwendinger and Schwendinger 1977; Spitzer 1975) and come at a time when major political-economic changes are occurring as more state actors take up neoliberal policies around the globe (see Harvey 2005).
It is difficult to constantly think about the issue “What is crime?” In many disciplines, these kinds of core definitional concerns are well addressed and settled, and there is little debate in those disciplines about their core concepts. For example, geologists produce entire books defining something the average person would seem to have common knowledge about—rocks (Fettes and Desmons 2007; Le Maitre et al. 2005). The reason geologists do so is that the scientific concept of a rock is different than its common definition and because geologists need to share a common definition of a rock in order to study rocks within the confines of a shared, scientifically constructed language that defines the term “rock” (Le Maitre et al. 2005). As a result, it is important to establish the difference between the common use of the term “rock” and its scientific distinctions so that geologists agree about the properties of a rock and how to measure them empirically in ways that are consistent, unchanging, and shared. The construct “rock” cannot change if a scientific literature about rocks is to emerge. In short, this literature has led to a definitive definition of the term “rock,” and the scientific properties that make a rock a rock are known and identifiable empirically. However, the concept of crime—which has been critiqued on a number of grounds, especially by those who do research in the area of radical criminology (Lasslett 2010; Lynch and Michalowski 2006), corporate crime (Friedrichs 2009), state crime, and state-corporate crime (Kramer, Michalowski, and Kauzlarich 2002)—is generally left to stand on its own as something we all understand, as common knowledge. As Hillyard and Tombs (2007, 11) suggest,
Criminology has largely failed to be self-reflective regarding the dominant, state-defined notion of, “crime”. This is so much the case that when textbooks, journal articles, conference and seminar presentations and the like address crime, there is rarely considered any need to define what is meant by the term—it is an unproblematic concept, the basis for (then contested) arguments about measurement, claims regarding causation, critiques of core arguments for various forms of control, and so on. That is, debates about crime are keenly contested. The issue of what crime is, is rarely stated, simply assumed.
Thus, given this condition and in the absence of extensive study about the concept of “crime,” the authors argue that there is no scientific understanding of what constitutes crime. From this observation, we suggest that this that means that the definition of crime requires new, critical analysis that can lead to a new scientific framework for defining crime. In contrast to that view of crime, many suggest that the search for a definition of crime cannot be founded in any type of scientific definition. As a result, Hillyard and Tombs (2007) call for the harms approach when studying crime. Lasslett (2010, 11-12) also suggests that criminologists must give up the nonscientific search for an answer to the question “What is crime?” and focus on identifiable harms and ecological problems that serve to disrupt the reproduction of humans or their environment (see also Stretesky, Long, and Lynch 2013).
To date, the most widely employed definition of crime in the criminological literature is a behavior that violates the criminal law. When we say that this definition of crime is widely shared, what we mean is that most criminologists accept that crime is a violation of the criminal law and few object to that definition of crime or investigate its validity. As a result, most criminologists examine behaviors that are violations of the criminal law. Since not everyone agrees that this is the best way to define crime, we will, therefore, refer to the criminal-law definition of crime as the “traditional” or “orthodox” definition of crime, since it is widely used and accepted in criminological discourse.
There are many reasons some criminologists reject the traditional definition of crime. In large part, those arguments share a common assertion—the traditional definition of crime is biased because it excludes a number of similar harms from its scope (Hillyard and Tombs 2007; Reiman and Leighton 2012). Often, the argument is made that the biases in the traditional definition of crime mean that criminology fails to address behaviors that appear to be the same as crimes but that also appear to be omitted from the purview of the criminal law because of the status of the offenders who engage in those behaviors (Reiman and Leighton 2012). This is an important argument, one that we will return to later in this work.
In short, what we can say about the definition of crime in criminology is that the criminal-l aw definition of crime is privileged within criminology and criminal justice. And as noted, most criminologists spend little effort discussing the criminal-law definition of crime or assessing its benefits and weaknesses (see as an example, Tappan 1946). The criminal-1 aw definition is beneficial for criminologists because it can be easily measured, and the criminal justice apparatus produces numerous statistical indicators of criminal law violations that can be employed for the purposes of empirical research on crime as defined by the law. These observations are weak defenses of the criminal-law definition of crime (Reiman and Leighton 2012). As a result, what we want to know about the definition of criminal law is its utility as a concept, not its utility for empirical purposes.
As noted, a few “wayward” criminologists challenge the legal definition of crime and question the privileged position that the legal definition of crime occupies as central to thinking in the discipline of criminology. G. Peter Hoefnagels’s (1973) work makes up one of those few detailed challenges. In The Other Side of Criminology: An Inversion of the Concept of Crime, Hoefnagels takes up several important questions about the concept of crime that demand more attention in the discipline. Hoefnagels’s views on crime are not widely cited, but he does ask an important question: why does the discipline of criminology give preference to the legal definition of crime? In addressing that issue, he also asks why criminology ignores large-scale, serious harms that cost far more than the street crimes the criminal law designates as crimes. As Hoefnagels points out, these are important questions because the tendency for criminologists to accept the criminal-law definition of crime shapes the study of crime and the discipline of criminology and excludes the study of many types of behavior that appear similar in nature to crime. Specifically, Hoefnagels (1973, 12) notes that “a criminology which fails to ask whether criminalization is right or wrong is not guided by science but by the legislators and the police. Such criminology is not a science, but goose-stepping accompanied by more or less perfect arithmetical rolling of drums. Science does not think by authority, but about or not withstanding authority.” Hoefnagels’s point is an important one. If, as a discipline, criminology begins with the authoritative assertions made by law about crime by politicians through the political construction of the concept “crime,” then as a science of the study of crime, criminology has failed in part of its mission to develop a concept of crime independently (i.e., objectively) from the criminal law. This issue and the problems that arise from the failure of criminology to develop a scientific concept of crime independent of the vicissitudes of the political construction of criminal law is the subject of this book.
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