The Nature of Deviance, Crime, and the Law
It is well known that not all acts considered deviant within a society become labeled as crimes in the criminal law. Society is willing to accept some amount of deviance and to treat those forms of deviance with informal social responses. In making this point, we must draw attention to two important distinctions. First, all crimes belong to the universe of deviant acts. Second, deviant acts are made up of three kinds of acts: those that the law does not address, those forms of deviance identified as transgressions by noncriminal law, and those forms of deviance that are defined as criminal harms in the criminal law. If we think of deviance in this way, we can conceptualize the universe of deviant acts as a rectangle labeled Figure 6.1. That rectangle can be divided into three parts: squares A, B, and C. Square A includes the acts of deviance officially recognized as offenses in noncriminal forms of law, including civil, regulatory, and administrative law. Square B includes only those forms of deviance that are defined as crimes in the criminal law, and Square C
Figure 6.1 Forms of deviance and law
includes deviant acts that are not addressed in either the criminal or noncriminal laws.
When criminologists think about the relationships between these forms of deviance, they are likely to view squares A, B, and C as separate spaces within the plane of deviance. This conceptualization of crime, however, has its limitations. As we noted earlier, there are a number of environmental laws that criminologists treat as being civil, regulatory, and administrative forms of law, and hence as defining part of the content of A. The offenses defined by environmental law, however, are not defined exclusively in those laws themselves as civil, administrative, or regulatory violations. A number of environmental laws provide those who enforce the law with the discretion to file either civil, administrative, or criminal charges. Thus some of the behaviors in A are also behaviors that may be labeled crime. As a result, it is much more accurate and realistic to view this diagram of deviance as including some overlap between A and B. How much they should overlap is an empirical question, one which has not been raised in the literature or for which there is no accurate estimate. So while we ought to conceptualize this overlap so that we are accurately depicting reality, we have no idea of the actual extent of the overlap.
With this diagram in mind, we stand at the crossroad of exploring a significant issue. Given that criminology is supposed to be a scientific discipline, choosing the direction we take ought to represent the outcome of data-driven decisions that are informed by the philosophy of science to ensure its scientific nature.
First, we must first decide whether to explain something we call crime or something we call deviance. Should criminology have anything to say about deviance? Or should it confine itself to discussions of crime alone? There are costs to making this decision. If criminologists confine themselves to the study of crime alone, then they will be unable to answer questions that relate to the differences between crime and deviance, or why, at any point in time or place, some act crosses from deviance to crime or from crime into the realm of deviance.
Second, we must also decide on the definition of crime. We have described the reasons for making that decision and some of the problems associated with choosing to define crime as a violation of the criminal law. In Figure 6.1, we suggested one of those issues is that A and B overlap, and the choice of selecting only B as the kinds of crimes criminologists will study clearly has implications for the forms of crime in A that get left out. In deciding to leave out some crimes even though they are violations of the law, criminologists must be willing to offer objective rationale for making this choice. On this issue, our own preference is to be much more critical of the choice criminology makes when its selects B, because in doing so, it has not simply left out the forms of A that are also violations of the criminal law. It has specifically left out many of the crimes that are committed by the economically powerful. Making that choice tells us something about the nature of criminology and the form of criminology that is created when criminologists choose to adhere to the unscientific assertion that crime is a violation of the criminal law.
Third, we must also decide whether we will attempt to explain why some acts of deviance become labeled as crimes by the criminal law while others are omitted. This is important because it forces the criminologist to acknowledge that the political construction of crime has a direct impact on what criminologists study and that as a result, the political construction of crime, and not criminologists, defines the content of criminology. At this crossroad we are faced with the fact that crime and deviance are qualitatively and conceptually different things. In the orthodox tradition, that difference is widely accepted as being created by the political machinery that writes the criminal law and defines crime. This is not a decision criminologists make themselves but one that is forced on them by the ways in which the criminal law is politically constructed.
If the criminal law opposes a behavior and labels it as a crime, then orthodox criminology accepts the decision rendered by the law and lawmakers on this point. As a result, it is the law and lawmakers, not criminologists, who have the power to differentiate crime from deviance. Criminologists appear content to allow the law and lawmakers to make that decision and accept how lawmakers exert their discretion in choosing what will and will not be crime. What criminologists are deciding to give up here is control over the core concept of their discipline and control over their claims to have constructed a scientific field of inquiry. Instead of building a scientific field of study, they are building a field of research that uses science to serve the state by reinforcing the state’s definitional choices and by arranging the entire analytic power of criminology around the state’s political act of defining crime in a given way.