Home Law Defining Crime: A Critique of the Concept and Its Implication
As used here, the term expropriation may be conceived as both an act (i.e., the taking of the property of another in ways consistent with the remaining elements of our definition of crime) and as a quality of the act. As a quality of an act, acts of expropriation can involve a variety of methods that facilitate taking, not all of which are currently defined as criminal in the criminal law. Consistent with our argument, the criminal law does not offer an objective definition of when expropriation should be a crime but merely identifies its existence in that it specifically labels certain behaviors as expropriation, such as theft. Expropriation is the most controversial aspect of our definition of crime because it allows certain forms of routine behaviors to be labeled as crimes.
In the most straightforward sense, the ambiguity and controversy introduced by the term “expropriation” can be minimized by qualifying the act of taking as a violation of property laws, property regulations, and property rights. In this limited view of expropriation, these acts are similar to the forms of property crime as currently defined in the criminal law and in various forms of business and security laws. Since the definition of expropriation is not confined to the criminal-law definition of property crimes, the universe of behaviors that count as crimes can be drawn with reference to other forms of laws that make forms of expropriation illegal. In this narrower sense, we make reference to noncriminal laws for two reasons. First, not all acts of expropriation are defined in the criminal law, and there is no objective reason to exclude similar acts from consideration simply because they are defined by noncriminal statutes and regulations. Second, we also consider noncriminal statues because entities can be identified as offenders when it comes to acts of expropriation.
When entities engage in acts of expropriation, their behavior is defined as illegal and illegitimate by noncriminal laws and regulations. Sometimes this involves the need to invoke civil-law property rights. As an example, the state may sometimes expropriate private property, believing that it has the right to do so. In such a case, the state’s actions are not judged directly by the identification of the specific conditions in which the state cannot do so. Rather, this is a matter of how the law will apply in a given instance that first requires the private-property owner to file a complaint such as a civil action against the state. And while the state is often privileged in such civil cases by the nature of the legal process and has actively engaged in constructing laws that promote its ability to expropriate private property (e.g., eminent domain) for the common good, it is the outcome of the civil procedure that establishes whether any specific act of state expropriation is legal or illegal. The state does not often lose these kinds of civil claims (Kelly 2006), but when it does lose such cases, it is unclear why the behavior of the state should not be counted as a crime. When the state takes property illegally and is forced to remedy its actions by the law, it should not mater that the violation is not a crime in the criminal law. In constructing the definition of crime, it is likely that the agents of the state protect the state from being labeled as a criminal to repel questions regarding its legitimacy. What we have in the case of state expropriation of private property is a very clear case of the subjective biases of law. Many laws exclude the state as an offender, and this exclusion has everything to do with the status of the offender and nothing whatsoever to do with the nature of the offense. What we have here is a behavior that may be judged as illegal, which in its nature is therefore the same as acts of expropriation defined as illegal in the criminal law but is excluded from the criminal-law definition of crime.
The criminal law does not tell us why the state cannot be an offender. Instead, the criminal law simply omits from its list of offenses the crimes that the state commits. This raises an important question that state crime and state-corporate crime research addresses: why is it that the state cannot commit a criminal offense as defined by the law—or even outside the law—as a crime defined by criminology? On this point, the orthodox criminologist is stuck, as before, with its routine, tautological response: “Because the criminal law says so.” Criminologists should worry about such answers. They should worry that criminology has no rational, logical, or objective answer to this question. They should worry that this answer makes it appear as if criminology is not a scientific field of research devoted to the study of crime but rather an extension of the state and its power.
Expropriation as a violation of the law does have some merit. The limitations of this view relate to the problems associated with the nature of law. Even though the concept of expropriation as a violation of law gets us beyond the criminal-law definition of crime, it is nevertheless restricted by the nature of other forms of law that may contain the same biases as the criminal law. This reference to law of any type is not the only way to define expropriation, and the alternative possibility is much more controversial. The position we shall take up is not controversial in all fields and has been incorporated into a variety of disciplines. Within criminology, this concept has been viewed as ideological. It is possible to define expropriation as a crime within the context of the critique of capitalism and its organizational features. Within criminology, following the theoretical model analyzing capitalism and issues such as expropriation and exploitation in Marxist terms is frequently viewed as ideological to the extent that Marx’s vast theoretical works are viewed as an ideology rather than as the scientifically derived system of economic analysis he intended to create—that is, if we ignore Marx’s actual work, his method of analysis, his painstaking derivation of his theoretical system, and his effort to create an objective-scientific analysis of capitalism and how capitalism works and can be analyzed (which also includes mathematical descriptions of the process of capitalism), it is possible in that context of deficient knowledge and understanding of Marx to suggest that his theory is nothing more than ideology. On this point, orthodox criminology long ago asserted, without justification or any explicitly valid rationale, that Marx’s theoretical system was simply an elaborate ideology (see discussions in Lynch and Michalowski 2006; Lynch and Stretesky 2011). Why the critique of capitalism should be viewed as ideology within criminology has not been sufficiently explained and also illustrates the tendency of orthodox criminology to take up conservative intellectual positions that tend to justify existing social, economic, and political arrangements as important subjects of analysis and to define crime in ways that promote the interests of capital and the state (Lynch 2000). Orthodox criminology must view the radical economic explanation of Marx as ideological in order to promote its view of crime as a violation of the criminal law and to reinforce the importance of the state in the political construction of the criminal law and crime. This is part of the mechanism that promotes the use of the legal definition of crime and prohibits the development of critiques of the criminal-law definition of crime.
Understanding the history of the state and the codevelopment of the state and capitalism is crucial for understanding this argument. The structural and historical connection between the state and capitalism means that the state’s interests are also tied to the interests of capital. While this is not the place to expound the entire complex nature of Marx’s theory of capitalism or the significant empirical support for many of Marx’s economic descriptions of the inner workings of capitalism (e.g., Cockshott and Cottrell 2005, 2003; Shaikh 1998; Zachariah 2006), we will state that there is nothing more ideological about Marx’s work and assumptions than there is about Adam Smith’s or Milton Friedman’s work about the positive aspects of capitalism. In contrast to Marx, Smith and Freidman accept that societies should be divided into classes, that such divisions are good for people, that some people deserve more than others, and that capitalism is the “most natural” form of relationship on which to base a society. Ignored in the defense of capitalism is the fact that capitalism is not the dominant means of organizing society historically, and that as far as a “natural practices” are concerned, it was not among the first choices humans made about how to organize society and production. Capitalism was largely spread by force and domination—two features of capitalism that its defenders ignore.
Returning to expropriation, our point is that it is entirely possible to define expropriation as crime through the use of political economic explanations derived from Marx’s analysis of capitalism. Expropriation can be defined as an act that is discordant with the rights of citizens, as Marx suggests in The Economic and Philosophic Manuscripts (2012 ). In that approach, expropriation is antithetical to and in conflict with human nature and rights. In that view, the structural and operational tendencies of capitalism are explored by contrasting the nature and consequences of class- based economic, social, and political relations consistent within the capitalist system of production to an assessment of natural human rights and relations. In making that argument and expanding on that analysis in his latter works such as German Ideology (with Engels 1965), the numerous volumes of Capital (1992 ; 1993 ; 1993 ), and other works, Marx, and those who followed, explored how the state and the law come to accept and reinforce exploitation and expropriation as appropriate, and in doing so, they reproduce the structural requirements for the continuation of capitalism in law.
Marx’s central claim about capitalism was that it is based on class inequality. Marx establishes objective, empirical measures that can be employed to assess this claim, such as the rate of exploitation, the empirical measure of the exploitation of the working class, and the expropriation of surplus labor. In Marxian economics, class inequality is a concept that summarizes the various empirical manifestations that forms of inequality acquire through a capitalist economic, social, and political system. This includes examining the distribution of wealth, ownership, income, and outcomes such as access to political power, which increasingly takes on an economic form as capitalism becomes ubiquitous. Marx does not begin his analysis of capitalism with the assumption of inequality; rather, he derived that concept from his analysis of capitalism.
It is sufficient to note here that in this system, the empirical basis for class inequality is derived from measures of the distribution of the ownership of the means of production, how that pattern of ownership is historically conditioned, and how the exploitation of labor promotes and maintains class inequality.8 Our point is that it would be entirely plausible to define crimes of expropriation from a Marxian economic perspective and to do so using the kinds of empirical criteria that the orthodox definition of crime fails to employ when it relies on the criminal law. Given that possibility, it bears mention that the position taken in radical criminology on this point (Lynch 1987) can be employed to critique the more limited version of expropriation described earlier. In the Marxian view, labor must be exploited in the labor process to produce surplus value, which is a key feature of capitalism that promotes economic growth and the production and unequal accumulation of profit. In objective terms, surplus value is the ratio of the value of labor time or its monetary equivalent to the labor value or monetary value of production once nonwage capital costs are excluded. The process of capitalism must, by its very definition, produce surplus value, and it must do so by adding labor to the production process in ways that cause labor to produce values in excess of wages through labor’s exploitation. The rate of surplus value, then, provides an objective measure of the process of exploitation. It also exposes the fact that the surplus that is produced and retained by the capitalist class is the result of not only exploitation but also the expropriation of the labor value of the working class. In order for capitalism to work, the workers must be exploited and their labor expropriated in the work process. If one accepts the rationale of Marx’s arguments about human nature and natural social and economic relations, then he or she could define the routine forms of expropriation capitalism produces and requires—and that reinforce and extend economic, social, and political inequality—as crimes against natural human relations. Perhaps somewhat ironically, the derivation of this alternative is well described by Marx and can be measured empirically, something that cannot be said about the legal definition of crime and its derivation. As a result, we could view expropriation broadly to include a variety of methods that facilitate taking. Clearly all of these forms of taking are not defined as criminal in the criminal law.
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