“…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).
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).
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.
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
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).
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).
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,
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.
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).
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.
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
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
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
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).
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).
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,
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.
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
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
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