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Is the Criminal Law Objective?

At issue is the question of whether the criminal law provides an objective measure and definition of crime (see generally, Greenwalt 1992), which overlaps with, but is not the same as, assessing the truth of law (Patterson 1996) or arguments about the intersection of law and morality (Hart 1958). Other than Tappan’s (1947) argument that makes the statement that the criminal law is an objective reference point for defining crime, criminologists rarely make this assumption explicit. This discussion has been more prevalent in the legal literature (Fuller 1958; Green 2008; Hart 1958; for related foundational issue see, Rousseau 1762). One can assume from the widespread use of the legal definition of crime, however, that criminologists believe that the criminal law has objective characteristics, since they also define their discipline as a scientific endeavor.

In contrast to these assertions concerning the criminal law’s objectivity, there is little empirical evidence that would support such a contention about the nature of law. Empirically, there are numerous reasons to reject the assumption that the criminal law provides an objective measure of crime. These concerns involve issues of law and politics and compose the remainder of this chapter.

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