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Variations in the Criminal Law

While there are aspects of criminal law that are shared between countries, it is also well known that criminal law is not identical across nations or even within nations and that the law also changes over time. We have pointed out some of these contradictions. To our knowledge, the central assumption about the nature of law provided by the consensus view has not been empirically addressed by, for example, measuring the similarities and differences in the criminal law across US states. On this point, we provided a number of examples of the variability of the criminal law across US states related to gambling, drug laws, rape, same-sex marriage, vehicular homicide, and guns laws. There are likely a number of other deviations in the criminal law that suggest that the law is not identical from place to place. Therefore, the norms and values the laws represent must also vary, so perhaps the correspondence between the criminal law and the norms and values of society are not so closely aligned as consensus theory suggests.

Consensus researchers, however, might suggest that these variations in law prove the point that the criminal law indeed represents norms and values shared by individuals within political jurisdictions, since the variability in law can be assumed to represent the variability in norms and values from place to place. Even if this evidence can be taken as support for the consensus explanation of law, it fails to support the contention that the criminal law is an objective measure of crime because the content of the criminal law can vary from place to place.

The examples provided previously indicate that consensus concerning the behaviors that the criminal law ought to recognize as crime is not as widespread as the consensus explanation suggests. If consensus was widespread, we would have reason to believe that the criminal law provided an objective measure of crime.

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