Thank you very much. As Sebastian said, my name is Jens van der Wegart and this is Christoph
van der Wieber from the University of Ghent. We're going to give a presentation about critical
criminological perspectives on the construction of criminal law. I'm afraid this will be the
dull and classic version of a presentation, unlike math. We are not going to use any songs
of Bob Dylan. We are going to discuss four different paradigms. First, the consensus
paradigm, then the plurist paradigm, the conflict paradigm, and the neo-Marxist paradigm. However,
I will first try to convince you of the relevance of the subject and after that Christoph will give
you some information of the reasons of the scant interest in the construction of criminal law.
Criminal behavior can be viewed in many ways. According to the positivist paradigm,
delinquency is inherent to an individual. If you follow this train of thought, there's little or
no reason to discuss the construction of criminal law. However, according to symbolic
interactionists, delinquency is a definition of certain types of behavior. These definitions
are the outcome of a complex social, political, and economic process. If you follow this train
of thought, it becomes necessary for any criminologist to gain an understanding in the construction of
criminal law in order to gain a better insight in crime itself and the etiology of crime.
And I will now give the word to Christoph. Sorry for the interruptions each time we'll
change. So, Jens said that Altodor is, yeah, there is ample evidence that the study of the
development and the evolution of the construction of criminal law is of criminological relevance.
Nonetheless, the interest of criminologists for this field of study remains limited. And I've
done some armchair reflections on why this might be the case and we've come up with several reasons
which we'll discuss. One of the first potential reasons is the positivist domination of criminological
research. By assessing the positivist paradigm, we gain insight in why the positivist domination
limits the interest in the construction of criminal law. Criminal behavior is approached as
a trait of substantially different persons and it can be studied without paying much attention to
the specific context or the reaction that precedes the behavior. In addition, positivist criminology
approaches the criminal as fundamentally different from the non-criminal. The study of the construction
of criminal law might undermine this ontological principle as everyone can be redefined a criminal
or can be considered as a potential criminal and the dichotomy, criminal, non-criminal, cannot be
upheld. The positivist criminologist is interested in predicting future criminal behavior and the study
of the construction and the evolution of criminal law cannot gain any insight in this goal. And
finally, a closer look at the positivist view and practice shows us that the positivist criminologist
considers himself a part of the prevention, the fight against, the punishment of, and the treatment
of criminality. By paying attention to the construction and the evolution of criminal law,
the positivist criminologist might undermine and might be confronted with his own involvement in
the construction and the development of crime and criminal law. Another potential reason can
be found in what Bauman states as liquid modernity. Civilians from liquid societies are being
confronted with ontological anxiety and governments are being confronted with a waning power.
Governments are losing their grip on society and they fall back on strategies of control that help
to create delusion that the governments are still, play still a pivotal function in society. Holding
to a positivist approach, to put everything in the right perspective, to positivist approach of
crime and criminal law implies that the criminal and criminal law is essential part of the answer
on crime. However, by paying attention to the construction of criminal law, this ontological
principle and this, this perspective even might undermine the belief in the necessity of the
strategies of control and thus further endanger the position of governments in liquid societies.
This introduces even more insecurity and anxiety and this is just something what liquid modern
citizens and governments want to avoid. The criminology politics nexus entails another
potential reason. Certain criminologists are involved in politics and deliver much-needed
safety advice. However, politicians have by means of the funding of scientific research and the so
called output financing of higher education institutions a considerable influence on science
in general and criminology in particular. If this is put in the light of liquid modernity then it
should not be surprising at all that political sphere uses its influence to block the research
on the construction of criminal law. On the other hand, it should also not be surprising that those
criminologists who enjoy a privileged position in the government and in the state do not have the
critical attitude toward their bosses or their own involvement in the construction of criminal law.
Doing so might effectively undermine the privileged position. And finally, another potential reason
can be found in the individualization and responsibleization strategies that are
characteristic for neoliberal societies. Social problems are redefined as individual problems,
shared responsibility is redefined as individual responsibility. For instance, with regard to
crime prevention, citizens are being encouraged to develop their own strategies and take up
responsibility. Criminal behavior is also effectively redefined as an individual problem
and responsibility. This discourse might be challenged by paying attention to the construction
of criminal law. Individual problems might in fact be redefined as social problems with
a shared responsibility. After this long introduction, we will start by discussing
the different paradigms and we will start with the consensus paradigm. According to this
perspective, society is founded on shared values and rules. The content of criminal law reflects
the most fundamental collective values and rules. However, this perspective suffers from
some serious flaws. The first flaw we can discover is the lack of empirical support. Empirical
research points at the existence of different ideologies. The second flaw is related to the
false premise of an homogenous society and states that it ignores the existence of conflict and the
unequal distribution of power. Thirdly, this scientific approach contributes to the stigmatization,
exclusion and secondary deviance by labeling the delinquents as different from the so-called
homogenous society. The pluralist paradigm sees society as diverse and recognizes the presence
of conflict in society. However, conflict is only in a limited amount present in society and is
mediated by the legal system in society. The legal system is, according to this paradigm,
believed to be value neutral and does not reflect conflict present in society. By recognizing
conflict, this paradigm enables the shift towards the conflict paradigm. However, in light of Matt's
presentation, we should note that there's no linear revolution in these paradigms. Still,
this paradigm is severely flawed as both society and the legal system are believed to be value
neutral and additionally, the suppressive role of the criminal law is ignored and the complexity
of the construction and the enforcement is underestimated. Two separate approaches can
be discerned within the conflict paradigm. The symbolic interactionist approach and the conflict
theory approach. Nonetheless, both approaches are connected by the principal role that conflict
and power fulfills in these approaches. Within the conflict paradigms, society is seen as a
heterogeneous collection of social groups with different values and differing opinions. Society
is characterized by an unequal distribution of power. The conflict that is present in society
is rooted in this unequal distribution of power. Criminal law is no longer believed to be value
neutral. Criminal law is approached as a means to safeguard the different power distributions
and different power positions in society. Criminal law, this reflects the conflict that is present in
society. According to symbolic interactionism, criminal law is a social construction,
influential individuals and groups, also known as moral entrepreneurs, have the necessary
political power to shape the contents of the law. Criminal law, this holds a reflection of the values
of the most dominant groups in society. According to Becker, a law is a very specific and unambiguous
rule. These rules are meant to be guidelines in specific situations. They are deducted from values
which are more vague. Because of this fakeness, they can't be a guideline in a very specific
situation. Values can conflict with each other and one value can produce conflicting rules. However,
this chronological sequence isn't always respected. Sometimes a rule is created and afterwards a value
is created to serve that rule. If you'll evaluate this perspective, you can distinguish a few very
positive aspects. Symbolic interactionism focuses on the attention of the unequal distribution of
power. Secondly, it gives a very detailed description of the process of criminalization. However,
symbolic interaction is mostly ignored in economical context and a class structure of society. In a
description of the legalization of the marijuana tax act, which I'm sure you all know, Becker
recognizes the fact that a producer of birth seats, which will become illegal in earlier
drawings of the law, has more means to perpetuate his interests than the disorganized marijuana users.
However, he fails to put weight of this interest in a larger, more economic context and focuses
on the process of the defining behavior. Not only the economic context, but a large number of driving
factors fail to be distinguished by this paradigm. Also, the source of this political power of the
marijuana entrepreneur isn't touched by symbolic interactionism, which can be linked to the non
approach of the economic context. Furthermore, the role of the states is mostly neglected and by
extension, the role of criminal law. In conclusion, we can say that symbolic interactionism does a very
good job explaining how the criminalization process occurs, but it can't explain why.
The conflict theory approach is rooted in complex sociology and states that society is characterized
by social stratification and an unequal distribution of power. Criminal law is constructed as a result
of the ensuing conflict. Criminal law mirrors the values of the powerful group in society and we
will elaborate on this approach by means of Chambliss article on formulation of criminal law
and the role of the state. First, Chambliss recognizes that the construction of criminal law
is complex and is rooted in the unequal distribution of power and the ensuing conflicts. With regards
to the distribution of power in society and the construction of criminal law, Chambliss states that
the classes that control the economical resources of society play the most important role with
regards to the construction of criminal law. Their interests are most prominently reflected
in criminal law and they are able to influence the construction and the development of criminal
law in several ways. In a direct way, in a more obscured way, and he illustrates this by
reconstructing the influence of the child savers movement in late 19th and early 20th century
America. Even in a seemingly conflicting way, this is being illustrated by means of the development
of self-regulation in the American meat packaging industry in the early 20th century of America.
Additionally, this class benefits from an inherent bias in society which Chambliss uses the concept
of mobilization of bias. The social elite controls several key positions in society and as a
consequence, deliberate or not, the interests of the social elite will dominate the content of
criminal law. Their goal is to safeguard their position of power. He illustrates the important
role of the economical elite by reconstructing the evolution of the vagrancy laws in England,
which I hope everyone already know or have heard of because it's a very, very interesting analysis.
However, there are also other groups that are able to influence the content of criminal law. For
instance, bureaucracies have an impact on the content of criminal law and by constructing
criminal law, they aim to maintain their position of power in society or hope to expand to their
power in society. He states that the American drug laws are an example of the impact of
bureaucracies on criminal law. Lobby groups, which are rooted in desire of the middle class to
ameliorate their position of power in society, also have an impact on the content of criminal law
and he illustrates the influence of lobby groups with formulation of the prohibition laws in early
20th century America. Conflict plays, of course, an important role, otherwise it would not be called
conflict theory. When conflict remains latent, the social and economical elites will be able to
safeguard their interest through the formulation of criminal law. However, when conflict surface,
the polity will try to safeguard the status quo in society and will create illusion that the origin
of the conflict is dealt with. The less powerful groups will only be able to advance their position
in society in between conflicts. An evaluation of this approach gives several interesting insights.
The approach recognizes the complexity of the construction of criminal law and enjoys a large
empirical support and we refer to Chandler's article for the sum of all the empirical support.
Power and conflict are explicitly recognized, however, this approach overemphasizes the political
dimension. Too much attention is paid to the suppressive function of the criminal law,
which in turn leads to the denial of the ideological function of the criminal law. Although the state
and criminal law are no longer seen as neutral, both are portrayed as easy to manipulate instruments
in the hands of the economical elite. A critique that is also applicable to the next approach.
We will now start with the neo-Marxist paradigm. I'll give you a quick refreshment of Marxism,
very quick and very brief. According to Marxism, the lies and elements of the superstructure which
is shaped by the base. The base consists of the means and relations of production. In return,
the superstructure maintains and legitimates the base. The ruling capitalist class controls
the content of criminal law and uses it to strive towards their interests. This will often result
in controlling the means and relations of production in order to create a desired economic
order which maintains their beneficial position in society. The first neo-Marxist perspective
we will discuss is instrumental neo-Marxism. According to instrumental neo-Marxism, criminal
law is an instrument used by the capitalist elite in order to secure their interest and to perpetuate
the economic order and social stratification by oppressing and controlling the powerless class.
That was a mouthful. The legitimate is actions by creating an illusion of equal protection. In fact,
criminal law is created to protect capitalist institutions like private property and is only
beneficial for the interests of a capitalist elite because the goal of criminal law is to
control the powerless, its content is systematically disadvantageous to them. Slaving
process can create a consensus and labels the powerless as more criminal than a capitalist
elite. This comes in handy to neutralize the opposition to the unequal distribution of power.
Even when it apparently is irrelevant or disadvantage to the interest of the capitalist
elite, Hepburn states that the law is still in their interest. Rules that do harm the interest
of the capitalist elite are mostly regulated in civil law. I found a quick example in the
Belgian Code of Criminal Law. You can read it with me. Theft will be punished with a prison
sentence ranging from one month to five years. However, the next article states that the prison
sentence will be at least three months if the thief is an employee or a paid servant.
There's no aggravating circumstance if an employer materially disadvantages an employee.
It's not my intention to start a deontological discussion on the matter,
but it's my opinion that this can have an equal impact as served by an employee.
If you evaluate this perspective, we can appreciate the new emphasis that is put on
capitalist interest. However, they think that the capitalist interest is the only source of
the criminalization process, and this is a too narrow view and it's not historical at all.
Furthermore, instrumentalism pays little or no attention to the mechanism of criminalization.
The process is thought to happen almost automatically. However, criminal law isn't
that easily manipulated, as is stated in this perspective. Next, it is unlikely that within
the capitalist elite a consensus exists, and there are no conflicting interests or no conflicting
views on how to achieve those interests. To end, I have a quote from Hepburn, and it says
that the powerless are not completely without power. Even the most powerless have power,
because in Marxism, the lower classes are in the possession of a mean of production, labor.
Although the capitalist elite strives to deprive them of this power, they aren't always successful
in its mission, as we can see when people strike. Furthermore, in a society that has embraced
consumerism, often the material wealth of the population must be increased to keep the economy
running. The next perspective I will discuss is structuralist neo-Marxism. In this perspective,
the state is seen as relatively autonomous from the logic of capitalism. The state has developed
itself to fulfill certain tasks that aren't covered by the logic of capitalism. The goal
of the criminalization process isn't to control, but to consolidate the prior conditions of the
capitalist system and the accumulation of capital. The function of criminal law is a double one. First,
it has to promote the willingness to work, and secondly, it has to promote an ideology which
supports hard labor. The content of criminal law isn't solely influenced by the capitalist elite.
Other classes can also control the outcome of the criminalization process to some extent.
An evaluation of this perspective also delivers some interesting insights.
This approach of the construction of criminal law has made a significant theoretical leap
by acknowledging that the state is relatively autonomous. By recognizing that the capitalist
elite isn't only potent and embraces a more dialectic approach, it can do a much better
job in explaining why certain changes in the economy have delayed an influence on the criminal
law and the formation of criminal law, which is incompatible with the interest of the capitalist
elite. This perspective provides a more complex approach to the criminalization process, and by
doing that, it leaves room for a more historical approach. However, we do think that it still
overemphasizes the economical interests. The concept hegemony is central in this
approach. The ruling elite establishes a political and ideological hegemony by controlling the content
of criminal law. The goal of this political and ideological hegemony is one, uniting the
capitalist class, and two, conforming the dominated classes. Hegemony is established by allowing a
limited pluralism with regards to the construction of criminal law. Although the interests of the
capitalist elite dominate the content of criminal law, there is room to adopt some of the limitations
of the dominated classes, as long as they don't conflict with the interest of the capitalist elite.
We'll elaborate in this approach by means of Stuart Hall's article on the legislation of consent.
Stuart Hall adopts a Gramsian perspective in a study of the so-called legislation of consent,
which refers to a double period in England where moral, social, and sexual reforms were adopted,
and Hall identifies a double taxonomy in the legislation of consent. On the one hand, he
identifies more governmental control, and on the other hand, he identifies a selective privatization
of certain moral issues in society. The aim of the reforms is, according to Hall, quite clear, redefining
the feminine role in English in society. The objectives of the reforms in the first period
was to establish the post-World War II mass consumption ideal in the English family,
and the aim of the reforms in the second period was to safeguard the link between womanhood
and the sexual and social reproduction. The preconditions of these reforms are rooted in
changing economical, social, and political structures. New economical ideals need to be
established in the English society. In the social fields, a progressive reform-oriented middle
classes establishes social hegemony, and in the political field, both conservatives and the labor
party want to establish political hegemony by appealing to the new middle classes. This makes
it possible that certain reform-oriented segments of these political parties establish a short-lived
hegemony in their respective political parties. This approach pays attention to the mechanism
that determines the form of the criminal law. Hegemony is elaborated, discussed by Hall,
and empirical evidence is delivered. Nonetheless, only scant attention is paid to the historical
context and the ensuing causes for the construction of criminal law. This approach overemphasizes the
economical interest and their impact on the content of criminal law. And to conclude,
we can say that no theoretical approach is able to deliver a full understanding of the construction
of criminal law. As I've mentioned in the beginning, only scant attention is paid to the
construction of criminal law, and we are convinced that this situation is not fruitful to the
theoretical advancement of the criminological discipline. We wonder whether after this
presentation, more critical criminologists are convinced of the criminological necessity
and relevance of the subject, and acknowledge the necessity of the study of the construction
of criminal law. And we hope that in the near future, critical criminology or criminology
in general will rediscover this field of study. Thank you for your attention.