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Jurisprudence Criminal Law | Free Law Essay

"...we must not say that an action shocks the common conscience because it is criminal, but rather that it is criminal because it shocks the common conscience."

The Division of Labour in society - by Emile Durkheim.

"The purpose of criminal law is to forbid conduct that unjustifiably inflicts or threatens substantial harm to the individual or to the public interest."

Principles of Irish Law - by Brian Doolan.

Discuss these contrasting views of criminality and criminal law.


The Act of Union was passed in 1800 fully integrating Ireland within the United Kingdom, a situation which remained until the Irish Constitution was sanctioned in 1922 with Article 73 perpetuating many accepted traits of English Common Law. This was reinforced in 1937 by the later Constitution based on the fundamental rights associated with the concept of natural law and revealed in Articles 40 to 44 of the 1937 Constitution (Whelan, 2005). Any unconstitutional legislation was enabled to be constrained by the Courts if it contravened freedom of expression, religion or education with specific equal rights fulfilled within the law. Brian Doolan's interpretation of criminal law has been defined within these precepts, based on natural law and the concept associated with one of the major theories of criminology, that of classicism (Doolan, 2003).

Durkheimian positivism was described by Devlin as 'the cement of society', an observation taken up by Hart (Tebbitt, 2000: 42) who, focussing on the individual, considered that society's development might be held back by law perpetuating moral rules, the corollary of the natural law theory which considers that only laws conforming to a higher form of law, encompassing morality, can be genuinely called law. St Thomas Aquinas considered that natural law is developed from society's own values which are eventually incorporated into law, as epitomised in the Republic of Ireland. Aquinas defined law as: 'nothing else than an ordinance of reason for the common good, made by him who has the care of the community, and promulgated'

(McCoubrey and White, 1999: 321).

This essay briefly traces the various theories of jurisprudence associated with the two main concepts of criminological study, vis--vis classicism realised through natural justice as propounded by Brian Doolan in his treatise on 'The Principles of Irish Law' and the positivist notions of Durkheim according to 'The Division of Labour in Society'. Control theory is examined, along with various other theories, after which this essay attempts to reconcile these various aspects with the contrasting views of criminality and criminal law as envisaged by Doolan and Durkheim.


Auguste Compte initiated the term 'sociology' for the study of politics and social reforms related to the expedience of society (Pampel, 2000: 52), or the the practical art of government through rules (Cotterrell, 1989: 4-5). The social significance of law was realised through an analysis of its conceptual structures, being both 'prescriptive and technical' and concerned with the whole range of significant forms of social relationships (Cotterrell, 1989: 5). Tebbit (2000: 42) observes that '....laws must have a bare minimum of moral content if they are to serve their function as laws at all'. Hart acknowledges this dilemma through his categorisation of secondary rules, the most basic of which he describes as 'the rule of recognition' (Tebbit, Mark (2000: 44). Parliamentary sovereignty in English law incorporates Hart's 'rule of recognition which . happens to be the rule that 'what the Queen in Parliament enacts is law', a concept of Austin's Command Theory (Tebbit, 2000: 45). It is through this 'rule of recognition' that Hart both substantiates Austin's command theory and refutes it.

Correlation between Classicism and Positivism

Natural lawyers looked at law as it ought to be, considering whether it was right and just - and if it was not, referring the laws back to a higher authority - particularly relevant today since the ratification of the EU Directive on Human Rights. Positivism, however, is recognised as having a critical impact on people's lives (Blakemore, 1998: 5). Hunt correlates Durkheimian positivism with the subjectivism of Max Weber and suggests that, together, they form the relationship between social values and social actions and institutions (Hunt, 1978: 139).

The divergence of positivism from its precursor, classicism, was described by Austin as 'a rule laid down for the guidance of an intelligent being by an intelligent being having power over him'. (Austin, 1995: 9). This positive philosophy is a disparate variation from classicism, and was introduced into criminological theory by Lombroso, Ferri and Garofolo (Williams and McShane, 1991: 35). These distinct theories have been recognised in criminological studies as the two major hypotheses in the science of penology which concede criminal anthropology as inherent in identifying criminals through their genetic structure, likening it to atavism (Lombroso, 1876).

All people are considered equal according to classicist precepts and governments are created by those individuals to protect the people's rights through the recognition of a social contract (McCoubrey and White, 1999: 60 - 84). Classicists aspire towards civil rights realised through the law as a system of due process. It is this emphasis on the social contract that compounds the deviance as a moral offence against society. Punishment is proportional to the seriousness of the offence and can only be justified to preserve the social contract and deter others (Williams, 1997: 8).

The constrained concept of Classicism identifies as autonomous a person who is the result of their environment. Positivism, however, has been documented as either internal, [assuming an atavistic involvement of the psychological or biological aspect], or a sociological aspect of positivism which is outside an individual's control (Hopkins, 2001: 272) and assumes a dependency in individuals. Positivists approach deviance from a scientific perspective which enables deviance to be rectified through a combination of power and knowledge. The correlation between positivism and criminological theory identified criminals through an inherent genetic structure, perceived as atavistic features edifying villainous characteristics which could be identified through isolationist principles and surveillance experiments and through case studies (Lombroso, 1876 in Williams and McShane, 1991: 35).

These sociological studies exhibited reciprocity which was attributed to specific social order, the deviation from which society recognised as a criminal act. Positivist theory attributed this deviation to an abnormality that could be treated, with the hypothesis suggesting that criminals could be reformed. As the final result was intended to protect society from harm, punishment was sanctioned to provide treatment, not to punish, with cognitive treatments involving group therapy sessions and the use of drug therapies to achieve these objectives. Conversely, Bentham and Beccaria propounded the classical theory of fundamental rights associated with natural law. Their utilitarian principles of autonomy, liberty and rationality acknowledged deviance as a rational act against the rules of society and from which these miscreants needed to be dissuaded through the application of punishments (Burke Hopkins, 2001: 270).

The focus on positivism was determined in respect of initiating a general objective which resulted in specific evidence through quantifiable statistics utilised to obtain information about social types and social phenomena, whereas the utilitarian approach focussed on Bentham's concept of pain and pleasure which ultimately prevented individuals from deviating (McCoubrey and White, 1999: 29). The positivist approach focussed on causation rather than action, differentiating people or social groups according to objective categories which are liable to determine their behaviour according to biological, psychological or social precepts.

According to classicists, however, miscreants who needed punishment should accept that it was designed to prevent a greater evil that it produced and should equate to pleasures derived from the criminal act from which he derived a system of sanctions based on physical, political, moral or religious criteria. In terms of positivism the outcome was realised in crime prevention and reformation whilst the classicist objective was in reforms being applied to the criminal law and public crime control policies to become incorporated into law as a political science which sought to control through deterrence (McCoubrey and White, 1999: 29).

Criminological Theories

Hobbes observation of human actions being ultimately self-serving, including the concept of morality, related cognisance to a state of nature which guarantees the survival of the fittest. Classicists such as Hobbes, Bentham and Beccaria considered that deviance is an inherent characteristic in the psyche of all individuals (Gottfredson and Hirshi, 1990), displayed as an expression of human rationality towards the presence of bad laws (Beccaria, 1963). Beccaria suggested that punishments should be consistent and logical and bound within the legal system.

From the basis on non-conformity to society's rules, deviance has been regarded as a miscreant's response to temptation and the exercise of their power over others. Use of a structural method elucidates relationships between a hierarchy of individuals and groups which have been considered to be inherent within the structural approach to criminology and, equally important, society's reactions to criminal behaviour. Crime tends to exhibit specific reactions against deviance, evidence of which can be seen with the Labelling Theory (Becker, 1963; Lemert, 1967) which focuses attention on the hierarchical role of crimes in society.

Control theory, meanwhile, unearths links between individuals and institutions, for example family background and upbringing and corresponding behavioural actions and reactions. Hagan relates this philosophy to what he terms the structural study of crime (Hagan, 1988: 3) and the Power-Control Theory which plays a significant role in explaining the social distribution of delinquent behaviour through the social reproduction of gender relations (Hagan, 1988: 1 - 287) and affects the social distribution of delinquency. Moreover, one important aspect of this theory is the ethics associated with crime and delinquency, for example, the effects of gender on criminality. Gottfredson and Hirschi (1990) suggest that classicism is revealed through the control theories which exhibit consequences painful to the individual. (Gottfredson and Hirschi 1990)

Positivism in relation to criminology, meanwhile, depended on the scale of rationality between free will and determinism according to precepts of Cesare Lombroso whose explanations of criminal behaviour resulted in the 'criminal born' man or woman who exhibited physical attributes leading to their recognition as criminals, a situation not supported by Durkheim. Too many variables made Lombroso's theory precarious but his typologies were correlated between certain offenders committing certain kinds of crime (Gottfreddson 1990). A number of other theories exist to explain a psychological or sociological basis to the science of criminology. Bandura and Eysenk studied observational learning, conditioning and personality traits, whilst the Strain Theory and the Anomie Theory of Merton blame environmental pressures on deviance, with the Subculture Theory attributing lack of attainment to society's expectations to be at the heart of offending.

Social Control Theory

Gottfredson and Hirschi conclude from many of their studies that crimes are committed in pursuit of pleasure and avoidance of pain (Gottfredson and Hirschi, 1990), which they publicise as their General Theory of Crime. Gottfredson and Hirschi argue that differences in self control probably outweigh differences in supervision in accounting for racial or ethnic variations

Durkheim observed the role of social control in relation to a corresponding identification of law (Hunt, 1978: 143), involving himself with issues of social order from the viewpoint of the individual and relating that to the position social order exuded within communities (Pampel, 2000: 24). Studies undertaken by Durkheim into the division of labour within both simple and complex societies resulted in his observance of the value an individual was attributed within the simpler community, whilst the greater complexity denigrated the personal contribution in favour of more collective and less individualistic contributions (Pampel, 2000: 44).

The outcome of this investigation was in recognising a basic need within society for both social order and moral behaviour, and problems caused through non-conformity (Pampel, 2000: 44). Durkheim noted that a prerequisite to conformity was a personal willingness to enter into a social contract as social exchanges depend on the duty people have to the larger groups to which they belong(Pampel, 2000:57). He explains that social co-operation comes about 'through shared social values and that the unit of analysis became the group rather than the individual' (Pampel, 2000: 57).

Durkheim observed one of the most original and important insights in the history of sociology (Pampel, 2000: 57). This insight elucidated that once a group (or society) came into being, then it continued - even after the original member had left, and new members joined (Pampel, 2000: 57) laying the foundation for Durkheim's social realism. As a result of this, Durkheim argued that it was society not law, that imposed morality on individuals (Pampel, 2000: 57), i.e peer pressure, and outside influence, whilst law was the tool that preserved morality (Lanser and Vanstone, 1998: 83). These 'social facts' encouraged Durkheim to interpret the differences in morality across societies (Pampel, 2000: 58), thereby enabling him to understand the individual (Pampel, 2000: 58), although, as Professor Hart suggests, codes of morality in the guise of law could, in effect, preclude a society from evolving (Elliott and Quinn, 1998: 449).

Durkheim investigated the division of labour amongst members of various communities in which he noted a greater degree of dependency within simple societies. Durkheim named this dependence 'mechanical solidarity', which was dependent upon a 'collective conscience' of common beliefs being held within that society which exerted a strong influence on behaviour (Pampel, 2000: 57). He also noted a different dependence, 'organic solidarity', existed in more differentiated societies which he correlated with the strength of punishments and the nature of law in operation (Pampel, 2000: 66). This, he reiterated, weakened when shared beliefs declined (Pampel, 2000: 67).


A large number of theories abound, all attempting to explain the reasons behind criminal actions. These theories investigate the backgrounds of criminals, their psychological and physical attributes and their positions in society together with their abilities to cope with expectations placed on them by society. As yet there has been no definitive answer and, due to so many variables, there possibly never will be.

Controversially, Durkheim believed that a certain amount of crime failed to harm society and was normal and valuable in a healthy society (Cotterell, 1992: 159), with the ideas of right and wrong being reaffirmed through the existence of crime and punishment (Pampel, 2000: 59). This reflects a natural result of shared morality without which rules would lack meaning (Pampel, 2000: 67), promoting the concept of the durability of social life inevitably assuming a definite form.

Over the years society has reflected a changing morality which has led to changes in the law to reflect this, none more so than in Ireland in recent times. Doolan writes that the latest edition of his book reflects the changing nature of legislation in Ireland (Doolan, Preface to 6th edition: 2003: v). Doolan observes the fundamental rights incorporated into Ireland's Constitution, the integrity of which was vehemently maintained when the Irish public voted against ratification of the Treaty of Nice until amendments were incorporated to continue to acknowledge an individual's rights are real and paramount (Doolan, 2003: 67).

Doolan considers that the purpose of criminal law is to forbid conduct that unjustifiably inflicts or threatens substantial harm to the individual or to the public interest which, although at first glance this does not correlate with the above statement, reveals the epitome of the natural law concept that deviance should be punished according to the due process of the law and that the public should be protected in order to guarantee the freedom of the individual. Durkheim, however, reveals that ...we must not say that an action shocks the common conscience because it is criminal, but rather that it is criminal because it shocks the common conscience, upholding the positivist concept that Llewellyn describes as 'exaggerated positivism'.

Whilst it fails to acknowledge that society's standards change and what was unacceptable behaviour fifty years ago, and considered deviant then, today's society is comfortable with and acknowledges this alteration as progress. Other formats of deviance now shock the common conscience. Exaggerated positivism it might be, but in this respect it does, however, appear that Durkheim's insight into behaviour being criminal because it shocks the common conscience could well be an acceptable aspect of criminological studies.


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Online Resources

  • Whelan, Darius (2005): Guide to Irish Law. [Online] Available at

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