Testing Crime or Lawmaking?
Addressing the factors that affect the social and political construction of law is also important for another reason. It is entirely possible that the perceptions of crime that lawmakers employ when constructing the definition of crime impact the definition of crime. What if those perceptions about crime are the same as the factors that criminologists posit as the causes of crime? The complication introduced by this possibility should be obvious. When criminologists test an explanation of crime with a dependent variable that represents the behavior of lawmakers (i.e., the crimes in the criminal law), we must now consider the results of the empirical test in a new light. It is entirely possible that the test is not measuring the factors that cause crime but rather is assessing the effect of those factors on the making of law—or even a combination of the causes of crime and the causes of the definition of crime. This would be true if lawmakers design laws to address certain “problem” populations, since the effect of their definition of a problem population would impact how the law is constructed. Those “problem” populations may have the same characteristics criminologists posit as the causes of crime. If this is indeed the case, then the test of the explanation of crime will be more likely to produce significant results even if the factors identified by the criminologists as a cause of crime are not causes of crime but rather are causes of the structure of the definition of crime. We know of no criminological study that has addressed this concern. What we have posed is a hypothesis about a potential problem and not a theory about reality—that is, in any given study, the significant effect of particular variables on crime may not be a measure of those things that are associated with the causes of crime but rather are indicators of the way the definition of crime is produced and therefore measured.
This brings us back to the definition of crime. As we have previously discussed, the concept of crime that criminologists employ is not independent of the criminal law and its construction. Thus the problems that result relate to the scientific validity of that concept, how that concept affects the measurement of crime, and how that concept and measurement impact the assessment of “theories” of crime as described here. Thus we can say that it is the concept of crime, its measurement, and the interpretation of the empirical results of tests of explanations of crime that all are problematic.
That orthodox criminology makes this choice is no small matter. The entire nature of criminology, the kind of science it produces, is a reflection of the choice made about the definition and measurement of crime. If, therefore, there is reason to be concerned with how crime is defined and the validity of the legal definition of crime, then there is also a reason to be concerned with the entire substance of the knowledge that criminologists have produced. Since the legal definition of crime focuses on street crimes, criminology generally produces knowledge about street crimes. Maybe that is all criminologists have ever hoped to do, and our assumption that criminology ought to do more than this is simply a concern shared by small number of criminologists. Maybe criminology is, after all, simply a science of street crime and does not attempt to be anything more than an explanation of why the economically and socially disadvantaged commit crime. Clearly, if the majority of the criminal population is made up of the economically and socially disadvantaged, it would seem that the logical conclusion is that economic and social disadvantage must play a significant role in explaining crime. Perhaps all that criminologists want to know is why some but not all of the socially and economically disadvantaged commit crime while others do not. Even if this is the question that concerns criminologists, they still need a valid, scientific concept of crime independent of the time and place variations in crime produced by the construction of the criminal law.
Whether or not we agree with the idea that criminologists are or should only be concerned with explaining why there is variability in criminal offending among the socially and economically disadvantaged in society, this focus does not mean that they should be unconcerned with the core concepts of their discipline and, in particular, the most meaningful core concept of the discipline of criminology, the definition of crime. Whether or not criminologists have recognized this important issue, one of the problems we have drawn attention to is that the nature of criminology changes when the law changes, since it is the law that drives the core concept of criminology. Because the criminal-law definition of crime is in a constant state of flux, what counts as crime changes constantly across time and place, and that is problematic when it comes to testing theoretical explanations of crime that are dependent on a variable that changes independently of processes used to predict that change. In the section that follows, we explore this issue in a historical context related to the emergence of criminal law and what that tells us about the orthodox concept of crime.