Home Law Defining Crime: A Critique of the Concept and Its Implication
Limitations to Criminology as a Science
One of the factors limiting criminology as a science is its widespread acceptance of the legal definition of crime. This, we believe, is true because the legal concept of crime varies in ways that criminologists have not addressed. This makes the legal definition of crime a bad measure of crime and a bad choice for a dependent variable.
Given the variability of the legal definition of crime, the use of the legal definition of crime as a measure employed to test explanations of the causes of crime are highly problematic for three reasons. First, if, for example, our goal is to explain the causes of drug crimes, we run into a serious problem because drug crime has no consistent definition across jurisdictions, and thus the use of cross-state, and cross-national data becomes problematic. Because the legal definition of drug crimes varies across time and location, the data used to measure drug offenses varies as well. That variability is problematic because it affects what is counted as crime but also because the variability in the count of those crimes is not necessarily simply a reflection of variability in the behavior that we are attempting to explain. Rather, the legal definition of drug crime is as much a measure of the variability of law and the factors that cause law to vary as it is of behavior. Therefore, political variables have an important impact on the legal measurement of crime. Given this condition, individual-level studies that include data on individuals from different locations may produce inaccurate estimates of the individual-level causes of crime unless those studies somehow control for the effect of political process variables on the measurement of crime. Few individual-level studies take this measurement issue into account, challenging the validity of those studies. Even when a study is conducted using one jurisdiction, researchers would still encounter a significant limitation: that the generalizability of results is questionable, since the law itself does not generalize because it is a variable related to the construction of law.
Second, since the crime count is influenced by the nature of the criminal law, studies of populations from specific locations may not generalize to other locations. This is true, since the criminal law varies in content from place to place, and that variability in law affects the way crime is counted. We know of no individual-level study that has recognized this deficiency in research, and we caution against generalizing the results of research from one location to another on this account.
Third, if crime is defined by the criminal law and therefore the counting of crime varies from place to place, then the behaviors being studied in different locations are not technically the same behavior. Thus when we apply an explanation to a given location or test it across locations with different legal structures, the results may be invalid and constitute inappropriate tests of the explanation of crime. Criminologists worry about that problem in relation to independent variables but often remain mute on that issue with respect to the legal definition of crime. We shall discuss this problem in greater detail in a later section.
Criminologists—both microlevel and many macrolevel—have made these errors when it comes to defining crime using the criminal-law definition of crime. As a result of this historically long-term error, we have no real idea what amount of prior research on the causes of crime is actually assessing the relevance of factors identified as causes of crime or some set of factors that cause the definition and measurement of crime to vary across time and place and how that variation impacts the results of tests of explanations of crime.
This requires further assessment. In the following sections, we examine this significant problem in greater detail with reference to the very common assumption that orthodox criminology makes about the traditional definition of crime. This assumption is often made implicitly rather than explicitly and involves an assumption about the criminal-law definition of crime. That assumption is that the criminal-law definition of crime is objective. As we argue later and have hinted at previously, this assumption is questionable.
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