Home Law Defining Crime: A Critique of the Concept and Its Implication
Explicit Microlevel Explanations
Approaches that belong to the explicit, microlevel explanation of crime define crime by providing a fairly specific definition. Some of those approaches appear to provide alternatives to the traditional legal definition of crime. For instance, consider the idea of self-control in the work of Gottfredson and Hirschi (1990). In that view, crime is defined by the characteristics Gottfredson and Hirschi claim are part of the “nature” of crime. The idea that crime has a nature stresses the importance of metaphysical thinking in criminology. Thus Maxwell would suggest that Gottfredson and Hirschi have started their examination of crime correctly, with the metaphysical issue related to defining crime. And while there are a number of reasons some criminologists might question Gottfredson and Hirschi’s definition of crime, they begin by developing a concept of crime (i.e., crime is the use of force and fraud) that is independent of criminal law.5 As a result, Gottfredson and Hirschi have moved beyond the arbitrary definition of crime presented in the criminal law by identifying what they claim is the nature of crime. That definition of crime, then, is independent in that it applies to all behaviors that contain force and/or fraud regardless of the content of the criminal law. While Hirschi and Gottfredson adhere to independence to initiate their argument (i.e., the approach we have already argued for), they fail to translate their discussion of the causes of crime into an empirical format—that is, the behaviors of force and fraud do not have to be violations of the criminal law to satisfy the definition of crime. Hirschi and Gottfredson could study any crime of force and fraud, regardless of whether it makes any specific reference to the criminal law. Nevertheless, in the criminological literature, the majority of work performed to test Hirschi and Gott- fredson’s claims have employed data that represent a violation of the legal definitions of crime.
One could argue that all behaviors that violate the criminal law meet this “force and fraud” definition of crime—that is, one could argue that all behaviors that involve force or fraud violate the criminal law. This, however, is not the case, since some force and fraud is not illegal. If force and fraud were equivalent to crime, then this would represent a tautology (see Marcus 2004) and violate the rules of parsimony in theory and scientific assessments of theory (Lynch, Long, and Stretesky 2013). Of course the term “fraud” is introduced for a reason other than to simply substitute for the term “crime.” That reason—as we have just suggested—would seem to suggest that in the self-control explanation of crime the term “fraud” is an important concept, one with a meaning that is not simply captured by the term “crime.” We have reason to believe that this is indeed true given discussions of the relationship between self-control and various forms of fraud, including forms of fraud that are not currently within the purview of the criminal-law definition of crimes. If we begin with an explicit identification and definition of crime as “fraud,” for example, then we study all those observations of fraud and not just the ones that violate the legal definition of crime. If this is not done, the theory cannot be adequately tested.
Ordinarily, criminologists who study crime might construct an empirical examination of social control by taking a sample of offenders and nonoffenders. However, if researchers employ a legal definition of crime, they will not be able to separate out offenders from nonoffenders based on that original concept—that is, there could be individuals that engage in fraud that are included in the nonoffender sample and many forms of fraud that are not defined as crime under the criminal law will be excluded from the offender sample. In short, if a criminologist were to study self-control by dividing a sample into offenders and nonoffenders based on the legal definition of crime, then the use of “fraud” would (1) be misleading (and therefore unnecessary), since it only includes acts that violate the law, and (2) exclude forms of fraud the criminal law ignores. Moreover, individuals defined as offenders under self-control theory could appear in the nonoffender sample. The result would be an invalid measure of the concept of crime as fraud and the same old measure criminologists ordinarily employ—crime as a violation of the criminal law. And in effect, what has happened is that we have turned the new concept of crime expressed in self-control into the old concept of crime as measured by examining behavior that violates the criminal law. We, unfortunately, cannot be sure that we are measuring things that are and are not frauds, nor can we be sure that we are putting those who engaged in frauds in the correct place.
We demonstrate this problem with white-collar crime. For example, many white-collar crimes involve fraud, and Hirschi and Gott- fredson (1987) have directly addressed this issue. The criminal law does not—despite assertions in a variety of criminological studies to the contrary that assert that criminal statistics include measures of white-collar offending—include all the forms of white-collar fraud people commit. The criminal law does include something that some researchers and agencies of control refer to as white-collar crime—acts such as embezzlement and even a crime called fraud— but the people found in these statistics are not always classified as white-collar offenders because they are not, as Sutherland suggested, people of high social status who have used their occupation to commit the offense. Thus the criminal law itself does not contain a sufficient number of white-collar crimes or white-collar offenders or even, perhaps, acts that are white-collar crimes as defined within the tradition of white-collar crime research. Data on those offenders can, however, be located outside of the criminal justice system. We could, if we really wanted to, measure fraud by asking people about behaviors they have engaged in that constitute fraud and relate that behavior to their profession. We do not need the criminal law to do that type of analysis. We might ask, “Have you ever engaged in a financial fraud against others using your access to your occupation?” Part of doing so might involve providing examples as guidelines for responses. Now part of the problem with doing so is that prior research indicates that people engaged in such activities at work are not likely to interpret their behavior as a fraud if they already believe that frauds are widespread in their occupations and that fraud is a normal behavior in their line of work (Steffensmeier 1989). This complicates the measurement of fraud, but it does not mean that we ought to simply give up and use the criminal-law definition. It means that if we really want to measure the thing we identify as crime, we have to work at creating an appropriate measure.
We must also realize that the criminal law will include behaviors as violation of the law that are not frauds. What, for example, is fraudulent about drug use? The same could be said for other behaviors such as gambling, which in itself is not a fraud but rather could be described as an effort to be among the winners—to be “lucky.” It is unclear, especially if there is no law related to this behavior, why gambling should be considered a fraud. Someone other than the gambler involved in the act of gambling may be involved in a fraud when, for instance, they fix a horse race. This does not mean that the person placing a bet on a horse engages in fraud. As described earlier, there is significant variation in the criminal law related to the definition of gambling and drug use across jurisdictions. So, legally some forms of gambling are criminal while the same behavior committed elsewhere is not. But this does not mean that the behavior is a fraud.
The issues previously described are not necessarily very common—criminologists do not often propose a new concept they call “crime” and then attempt to measure it empirically. In the orthodox tradition, more often than not crime is defined as a violation of the criminal law. This creates its own set of problems, some of which were described in earlier chapters. In the section that follows, we turn our attention to the majority of studies, those that employ a legal definition of crime or that implicitly define crime without necessarily creating or describing the concept of crime as a special and important criminological concept that requires explanation.
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