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Home arrow Law arrow Defining Crime: A Critique of the Concept and Its Implication

Considering History and Crime

Whatever heinous behaviors have existed throughout history, at some point humans created laws to address some portion of those offenses. The date for the first appearance of purely criminal laws is generally accepted to be the Code of Hammurabi in 1772 BC. In contrast, humans have long existed, either around 200,000 years if we use the emergence of Homo sapiens or 50,000 years if we accept the measure of modern behavioral adaptations as a required portion of the definition of humans. Since Homo sapiens began the acts of colonizing other locations around 125,000 years ago, we could also accept this date (Bower 2011). The criminal law has been constructed by humans for a rather short period of time, for somewhere between 1.8 percent (200,000-year estimate), 3.0 percent (125,000- year estimate), or 7.6 percent (50,000-year estimate) of the history of the human race, depending on which definition of “human” we draw on from existing literature.

If we follow the logic of the orthodox definition of crime and link crime to the criminal law, there was, therefore, no crime during the vast majority of human history, or somewhere between 92.4 and 98.2 percent of human existence. Suddenly, the instant the criminal law appeared, all this changed. There was, quite abruptly, a behavior that society suddenly called crime. If we follow this logic, then we can say that the vast majority of the history of the human race was untouched by crime, that crime is a modern behavior, and if this is true, it must be caused by the conditions of modern life.

Stated in this way, this idea seems quite illogical and impossible. Humans have managed to live, if we follow the orthodox definition of crime, crime free for most of their existence. For most of their existence, there was no criminal law, and thus one must assume no crime if we take orthodox criminology at its word and define crime as a behavior identified by the criminal law. Crime did not exist until the day the Code of Hammurabi went into effect. There were no crimes the day before, and with the establishment of the Code of Hammurabi, there were now and—if we count the behaviors that counted as crimes in that law—282 different types of criminal offenses the day that code went into effect. Thus we might image, without human behavior having changed significantly from one day to the next, crime suddenly appeared. The behavior that was not a crime the day before, now was. Thus the appearance of crime cannot be explained as a result of changes in the way people behaved. Crime was, at some point in history, created through a political construction. The behaviors called crime may well have been committed before the political construct of the criminal law was created and apparently must have been, otherwise there would not have been a need to create criminal law in an effort to control those behaviors. In short, the criminal law created crime and did so by politically constructing a behavior—crime—that would allow the state to punish those engaged in acts that were now identified as criminal behaviors.

Throughout history, the legal definition of crime has changed, and the criminal law has both expanded and contracted over the course of human history. Moreover, in the course of that history, criminal laws have emerged in new places, and we could guess that, while similar, these criminal laws are not identical. Thus the behavior the orthodox criminologist calls crime changes rather constantly and, in terms of the history of this concept, is a moving target for the criminologist, since as the law changes, the behavior the criminologist must study changes as well. As an example, in the only recent studies we could locate on this point, which is not restricted to the criminal law proper, Baker and Bennett (2004) and Baker (2008) placed the number of crimes listed in the US federal code at more than 4,000 in 2003 and more than 4,450 by 2007. In an earlier study, Baker reported that the US Department of Justice placed the number of federal laws at 3,000 in 1980. Thus, between 1980 and 2007, there was an increase in the number of behaviors identified as crime of 48 percent. For criminologists, there was now “more crime”— significantly more crime—with respect to the scope of the definition of crime. And that happened without criminologists changing the definition of crime—that is, without criminologists purposefully choosing to change what they meant by crime. The universe of crime expanded, not as a result of changing the meaning of crime within criminology, but as a result of the political redefinition of crime.

Given that the orthodox criminologist defines crime as the violation of the criminal law, the history of the concept of crime must include change within it, and that point is illustrated through the prior examples. One might expect, therefore, that as the social and political construction of the criminal law changes, then so too would we expect to see that the nature of the explanation of crime might change as well. Historically, however, the explanations of the causes of crime have tended to remain relatively stagnant—that is not to say that explanations of crime don’t change very much but rather that they change extremely slowly. The criminal law changes much more rapidly than the explanation of crime. That is permissible so long as the nature of crime has not changed and that new crimes added to the law are essentially the same in their causes as those already contained in the law. We have no idea if that is true, and this issue has yet to be examined by criminologists.

Another issue that must be considered here is that the changing nature of the criminal law changes the counting of crime. Logically, the more criminal laws there are, the more crimes one can expect to discover, at least in terms of the number of behaviors that count as crime. This does not necessarily mean that there are more crimes to count but that there are certainly more types of crime to count. If, for example, there were, as previously reported, fewer federal laws in 1980 as opposed to 2007, then one would expect that the distribution of crimes across a population being studied at those two different points in time would be different as a consequence of the nature of the criminal law—that is, the political construction of crime changed without the criminologists changing what they mean by crime. Indeed, since there were 48 percent more federal laws in 2007 than in 1980, this would impact the counting of crime and the distribution of crime across individuals perhaps quite independently of anything that changes the behavior of people or leads them to commit crime. That there are 48 percent more crimes in 2007 than in 1980 tells us that the definition of crime as a violation of the law changes the counting of crime and caused crimes that did not exist in the 1980s to become part of the count and concept of crime. Unless all those new crimes—48 percent more—can all be assumed to have the same causes as the behaviors defined as crimes in 1980, then one might expect the explanation of crime to change, since there are now new behaviors that also require explanation. Again, in making this observation, we have no data or analysis from which we can draw any inferences. Our observation that the changing nature of law might change the results of any given test of an explanation of crime across either time or place is an empirical question, one that has not been addressed in the extant criminological literature. Could the changes in the political construction of law change the kinds of things that cause crime? Possibly. Do we know whether this is true? No. Do we need to know if this is true to have some idea if the causes of crime possibly change over time? Yes. This kind of study has the potential to change what criminologists believe they know about what causes crime. This raises questions that the criminological community has not addressed. If the law changes and includes new behaviors, and potentially the explanation of crime changes, does that impact the potential generalizability of research results that test theories of crime? Yes, it would.

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