Home Law Defining Crime: A Critique of the Concept and Its Implication
The Changing Nature of Crime
The current state of criminology suggests that criminologists study the etiology of behavior that is constantly being redefined outside of the discipline of criminology. We have set forth some of the limitations of this view earlier—and used the example of the color blue in Chapter 3 to illustrate the difference between defining color scientifically and with respect to perception. Let us reaffirm that the perception of crime as a violation of the law is a perception created by lawmakers and is constantly changing without regard to any scientific rule(s) that can be established independently of the decisions rendered by lawmakers.
As noted, the legal definition of crime is far from being a scientific concept. In order to be scientifically valid, we would first need some way to ascertain the rule of law and to determine whether those rules are applied consistently in the identification of behaviors the criminal law calls crime. This is an empirical question, one that has yet to be examined in the criminological literature. We know that such rules do not exist, and one can guess that it is highly unlikely that such rules could be derived from the content of the criminal law alone. The second possible path would be to examine all the behaviors in the world and to determine their characteristics and then label these behaviors in different ways. It is only by first knowing what crime is that the validity of the criminal law as a mechanism that defines crime can be assessed. While it might seem absurd to argue that this knowledge must be derived by studying and classifying all behaviors when that classification work appears to have been accomplished by the criminal law, we are indeed arguing that if criminology were scientific, it would need to do so. This involves a philosophical/metaphysical issue of importance since Plato. It cannot be accepted that the criminal law, simply because it exists, has performed this task or has performed it adequately. This is a concern because we know that the criminal law is a political construction that varies considerably over time and place.
One reason that the criminal law itself is not scientific is because there is no overarching conceptual definition of crime that guides the behavior that will be labelled as crime by lawmakers—though sometimes the concept of “harm” is used by lawmakers as identifying what acts will become illegal. In short, all we can extract from the criminal law is a list of the behaviors that it does label as crime. The questions that must be answered for the criminal law to have scientific validity are as follows: Why are these behaviors crimes? What makes them crimes? Do they possess some characteristic that makes them crimes?
We can consider these points further by considering a hypothetical example that illustrates the problem of using the law as the scientific definition of crime. Say, for example, that a man who is now 50 years of age has chewed a piece of gum every day since he was 12. In the past 38 years, he has chewed 13,870 pieces of gum. A new law is passed that makes gum chewing illegal, and it goes into effect the day after this man turns 50. He can no longer chew gum legally because that act is now prohibited by law. The man’s behavioral act—chewing gum—was the same before and after the law that made the chewing of gum illegal existed. The man’s behavior did not change; rather, the law changed. Because the law changed, criminologists are suddenly interested in the man’s behavior. What makes this man chew gum? Perhaps it is his weak social bonds, lack of self-control, life course, or low socioeconomic status. Whatever the cause, the criminologists studying gum chewing will adapt to this new definition of crime and begin to study the predictors of that behavior. However, the criminologist is now studying a behavior that has never before been imagined as crime. Suddenly, however, those who make the law decided that chewing gum was so morally reprehensible that it should be labelled as a crime in the criminal law. Now it is a legitimate criminological question because it violates the law.
Previously, we have purposefully chosen a rather extreme example of the effect of the changing structure of law on the definition of crime. The law changes with regularity and those changes impact the definition of crime and what criminologists study. Even the measurement of crime changes and thus impacts what criminologists study. Recently, for example, the Federal Bureau of Investigation announced that it will now record instances of human trafficking under the direction of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. Does this mean human trafficking did not exist before this change in the law and this change in the recording of human trafficking? That this behavior was previously nonexistent and therefore not a useful aspect of measuring crime? The point is that there are few scientific disciplines that allow themselves to be subjected to the manipulations of outsiders in the ways outsiders interfere with the study of crime.
New laws that define crime are made; old laws defining crime are unmade. When new laws are made, sometimes behaviors that were acceptable slip, instantaneously, into the realm of the unacceptable and vice versa. Other disciplines may grapple with social change, but they are different because they actually study social change and therefore do not have this problem with their core concept. For example, there are no laws that we are aware of that could be passed to erase the atom from the physical sciences (though politicians in the United States have attempted to outlaw the study of climate change, Harish 2012 and following).
Because criminologists study behavior, it is a serious problem that the legal definition of crime as behavior is in constant flux and redefines the behaviors that count as crimes at any given moment in history and in any particular place. Criminologists attempt to overcome that limitation by lumping crime statistics produced by different jurisdictions into similar offense categories, but in doing so, they do not address the behaviors outside the criminal law that are the same or similar to the offenses they are counting as crimes. That has implications not only for the conceptual definition of crime but for the operational definition of crime as well. It means that findings cannot be readily compared over time or place and therefore the discipline of criminology cannot ever create a base of scientific knowledge. Scientific concepts should not shift abruptly based on the influence of external factors that are created beyond the control of those who practice in a scientific field—which in this case is the legal definition of crime. A good contemporary example of this point is climate change. If one follows the debate about climate change, they will notice a few important facts that ought to make a dent in the consciousness of criminologists. Climate change is a scientific concept and certainly has some limitations with respect to its measurement and efforts to forecast its future trajectory. Yet nevertheless, if one reads the scientific literature, despite some disagreement about measuring climate change and predicting climate change, the vast majority of scientific research published on this topic (estimated as 97 percent agreement) supports the contention that the current pattern of climate change has anthropogenic origins. Generally, those who disagree with this observation are not scientists, and in the United States, significant efforts to disrupt the policy implications of climate science from being instituted include the efforts of climate change deniers/skeptics made up of politicians and climate change denial interest groups funded, for example, by Koch Industries and ExxonMobil (Fischer 2013; Lynch, Burns, and Stretesky 2010). In some places in the United States, lawmakers have attempted to use the law to make the behavior of scientists who study climate change a crime (Lynch 2010; Revkin 2010). Some states have even filed criminal charges against climate scientists for fraud (Lynch 2010). In these cases, lawmakers have defined climate science and the study of climate change to be a crime or at least have attempted to do so. Are those efforts by lawmakers sufficient to make the behavior of climate scientists crimes? If so, then criminologists had better huddle up and begin to study the potentially illegal behaviors of climate scientists.
Science and scientific concepts do not change because of the law, although throughout history, lawmakers have attempted to make science illegal and have used the law to punish scientists for practicing science (McMillan 2005). To be sure, scientific concepts change from time to time as scientists make new discoveries. Science, however, is not dictated by the law.
When science changes and defines or modifies its concepts, it often changes because there are logical, rational, and/or empirical arguments made that promote change. The core definitions of science, therefore, do not change without cause. Science and its subject matter tend to be consistent and persistent and to be constructed in ways that allow scientists to define their concepts in objective, unchanging ways. This is done so that scientists in different places and at different times can share a scientific concept that has surety and well-defined characteristics. Those kinds of concepts make science possible. If we consider the concreteness of the scientific definition of water, for example, we can see that a scientist studying water in 1910 begins with the same conceptual definition of water as the scientists studying water in 2010. Conceptually, water is a liquid that is found in the oceans, streams, lakes, rain, and all living things. Water can be operationalized in terms of its formula, boiling point, and melting point. These operational definitions have not changed over time. Objectively and scientifically, water is a molecule made up of two hydrogen atoms and one oxygen atom. Nothing else is water. In 1910, water was made up of hydrogen and oxygen in the same way as it was in 2010. Water is water in 1910 and in 2010. The boiling point of water in ideal conditions is 100° Celsius—it has not changed over time. Where the boiling point of water does change—for example, according to elevation—there are precise empirical formulas that calculate the temperature where the vapor pressure of the water is equal to the surrounding air pressure. Thus the definition of water is objective, scientific and stable, and extracted from the properties of water. An understanding of the phenomena of water comes from scientists (e.g., chemist Henry Cavendish in 1781) as opposed to lawmakers.
None of this is true for the concept of crime that criminologists use when they refer to the criminal law as the basis for their definition of crime. The criminal law of 1910 is not the same as the criminal law of 2010, and hence the crimes of 1910 are not the same as the crimes of 2010. Over time there may be more crime. This may simply be the result of the fact that there is more law in 2010 than in 1910. Things that were illegal in 1910 no longer count in 2010, and things that are illegal in 2010 did not appear in the laws of 1910. This problem also emerges across locations. Jurisdictions do not have the same laws, and any research undertaken by criminologists that cannot take these time or jurisdictional matters into account and control for variability in crime produced by the law and the legal definition of crime lacks validity. When, for example, contemporary researchers refer to studies of crime performed in the 1930s, none ever comment that the results of those studies may be invalid because of the effect of the era on the legal definition of crime, or because the locations in which those studies were conducted differed from those of more modern studies. These issues escape criminological attention, yet they are core scientific concerns that threaten the validity of the concept, definition, and measure of crime and the results produced by criminological research.
To be more concrete, let us say that we refer to a number of studies that focused on the effects of one’s bonds to their family on crime in the 1950s. Let us say that 70 percent of those studies found a statistically significant relationship between delinquency and family bonding patterns. Can we apply those results to 2013? What happens if we retest those assumptions in 2013 and find that they do not work? Is the explanation bad? Or did the definition of crime change? That is, did the criminal law change enough to affect how the criminologists in 2013 measured crime? And does that change in measuring crime alter the outcome?
The point is that because the criminal law changes, the definition of crime changes, and as a result, criminologists cannot really compare their empirical findings to other research. Other research may have been conducted in a different location where the law is different or in a different era where the law was different.
Criminologists attempt to solve this kind of problem by performing multiple tests of hypothesized relationships. In the literature, there are likely to be other studies on related topics or hypotheses. All the prior research results could be collected and analyzed through meta-analysis. Meta-analysis contains rules for ensuring that the independent variables used to estimate the outcome are as similar as possible. They do not contain rules, however, which direct criminologists to ensure that the dependent variable is made up of violations of the same set of laws. How does meta-analysis deal with the fact that research taken from the 1970s, 1980s, 1990s, and so on is based on a different set of legal rules that define crime? While we are not experts in this methodological area, no one appears to address the effects of the historical or cross-sectional variations in crime that may influence the results being included in the meta-analysis.
Perhaps this is true because in the fields in which meta-analysis was invented, the dependent variable has a consistent, scientific basis and does not change based on the whims of those who make the law.
If any portion of the previous argument is valid, we have a problem within criminology. If the criminal-law definition of crime changes over time and place, then we must be concerned with the validity of those studies. For example, studies of individual- level correlates of crime may not be comparable over time and place. As in the previous example, crime in 1910 may be different than crime in 2010 because law is different in 1910 than in 2010, and thus the measure of crime taken in 1910 is inconsistent with the measure of crime taken in 2010. If this is indeed true, then criminologists should not treat empirical tests of explanations of crime as if they are comparable if they come from different locations or different period of time, unless they can assure us that the measure of crime is identical.
The bigger problem here is what all this means for generalization and for efforts to build integrated theories from prior research. Criminologists should be careful with generalization of their results. In addition, they should be cautious when using prior studies as valid indicators of the causes of crime for the purpose of generating integrated theories.
At this point, most criminologists are—or should be—rolling their eyes either as a negative response to this assessment or because they realize what this assessment means. At this point, this assessment means that we should have little scientific faith in anything criminology has produced by relying on the legal definition of crime because the validity and scientific value of that definition of crime are in doubt.
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