Criminology and the dilemma of values
By Thomas Gilly
(Paper presented at
the 4th Annual Conference of the European society of Criminology
I
Prologue
The
subject of my intervention is criminology and the dilemma of values”.
I have already discussed this subject in the first issue of our journal
and we will continue to discuss this issue in the ERCES journal.
Instead of anticipating forthcoming discussion within the ERCES journal,
I would like to discuss criminology’s embarrassment about values in a concrete
manner, not in a substantial systematic way. This assumes that my discussion
will provide a focal centre on three significant examples.
1)
Criminology’s embarrassment about
values can be thought as of the inherent ethical problems in criminology’s and
in deviance theory’s crime definition and paradigms.
2)
Criminology’s embarrassment is
translated on the level of epistemology, as a deontological dilemma. This dilemma
has something to do with criminology’s difficulty to provide for substantial
discussion about the nature of a discourse that advocates the need for a moral
renaissance in public opinion by deriving it from the decline in morals. This
discourse is thought by
3)
It is translated as criminology’s
embarrassment about terrorism and about the investigation of the relation
between material and formal signifier of crime.
As all these points mentioned above are intertwined. I will neither
discuss them successively. I will treat them as aspects that are inherent of
the same problem and explore their interaction.
II
Introduction
Let
me introduce my discussion with this acknowledgment:
Coleman
(1990: 24) asserts that sociological theory proceeds in general without raising
at some point the question of why and how norms come into existence. In the
eyes of Coleman the most important consequence of this lack is that the most
unsolved sociological problem - to explain behavior without
raising at some point the question of why and how norm come into existence -
is considered least important.
Given
that modern social deviancy-theory, but also older streams in criminological
thought and theory, (for example the Italian positivist school), attempt to
explain deviance and crime by applying to these issues the sociological method,
It is not difficult to imagine that Coleman’s observation would also be valid
for criminology and modern deviance theory. For argument’s sake acknowledge
that these sciences attempt to explain social facts or social behavior as
figures which suppose the transgression of the legal norm.
1.
The Problem: Norms being taken as
given. From the explanation of crime to the explanation of criminology’s behavior
Instead of investigating the problem of how
norms come into existence with regards to the explanation of (criminal)
behavior, I will focus on the problem that norms are taken as given. And I will
discuss this problem as an issue that is relevant to social science’s behavior,
namely the behavior of criminologists and deviance-theorists. This assumes that
I will analyze this issue as an inherent problem in criminology’s
epistemology
To resume my purpose is to show that criminology’s and deviance
theorists are embarrassed about values because they think certain norms as
given. Let me briefly develop this issue:
If it is right to assume that criminologists are embarrassed about
values because they take certain norms as given, then it is also legitimate to
assume that these norms somewhat prevent them from considering values as
figures that are relevant for
criminology.
2. Which norms are taken as
given?
Among
the norms that are taken as given in criminology and deviance theory we can
distinguish between two major norms:
a) The norm that provides for the precept that sciences, and social
sciences in particular, have to be absolutely free from normative or
axiological adulteration of any kind: values and norms, excepted those that are
defining the scientific process, have no place in sciences. This norm goes back
to the precept that facts (what is) must be distinguished from norms (what
ought to be). According to Hume and Kant it is impossible to derive what is
from what ought to be and it is also impossible to test the verity or falsity
of axiological proposals (Gilly 2004).
This epistemological norm is currently thought as the guarantee for
scientific and objective empirical knowledge. It is accepted because the
scientific program as it is defined by the inherent norms in empirical
positivism and critical rationalism are also accepted. And they are accepted
because they derive from an epistemology that guarantees sciences against the
invasion of norms and values – because they are scientifically legitimate. The
transgression of the basic norm constitutes a serious offence against the dogma
of the normative and axiological neutrality; it is sanctioned with the label of
‘pre- or non- scientific investigation’, and this label is currently associated
with a polemical sense of theory and/or social philosophy.
b) Among the norms that are taken as given, there is one that should
receive more consideration than any other. It is the legal norm that defines
crime. In contrast to the former that commands that norms and values have to be
banished from social sciences, the legal definition of crime, as far as it is
an inherent part in the system of the positivist law, provides, in an indirect
way, for the principle to take, without any exception, itself as given: it
prohibits all citizens, without exception and regardless from
socio-professional status, from referring to any kind of definition that would
not be given by the norms of the positive law. Thus the norm that requires for
the need to take the legal definition of crime as given derives directly from
the positivist nature of the legal system - in other words: it derives from the
fundamental norm which, by providing for the positivist nature of law, puts
that legal norms are valid by virtue of the legally established institution
which have the power to create them (Kelsen 1960)
In addition to this specific norm which derives from the positive nature
of the legal system, we should mention another normative origin of the precept
to take the legal definition of crime as given.
Indeed, much if not all contemporary criminologists and
deviance-theorists agree with the opinion that, to investigate crime and
deviance, one must refer to the legal definition of crime, regardless of the
question how these sciences would have undertaken the construction of their
subject.
Thus in the norm which constraint
criminologists and deviance -theorist to take the legal definition of crime as
given can be considered from an epistemological or methodological necessity, as
a derivation from the epistemological norm I discussed first.
This explains contemporary mainstream criminology’s but also traditional
deviance theory’s hostility[1] towards a material
definition or notion of crime The
advocacy for primacy of the formal legal definition of crime upon a material
notion is based on the following
core-arguments: a)Attempts made by the pioneers of criminology (e.g. Ferrri and
Garolalo), but also in radical critical criminology to construct the
criminological fact with reference to a material criterion failed, b) a
material notion of crime dissolves crime into a fluid and vague broad range
invaded by normative and axiological considerations; c) the scientific
explanation of crime as it is defined in empirical positivism and critical
rationalism requires for a certain stability and certainty of crime as subject
of explanation; only the legal definition provides for such a scientific
security( Kaiser 1993:566-70). Mainstream criminology advocates the absolute
primacy of the legal
definition of crime and the “domestic security” of scientific explanation upon
the dynamics and “instability” that are inherent within the “criminological
definition” (Kaiser 1993: 566-70). According to this opinion, the material
criterion is the gate through which enters ideology and invades empirical
sciences.[2]
By respecting each of both norms criminologists and social deviance
theorists resolved the problem of values. Insofar they are not embarrassed
about it.
And yet the discussion of each norm shows that this solution is not
really an appropriate way to resolve the problem. The respect of these norms
engenders embarrassment about values. I will now come to the principal part of
my discussion.
III
Criminology’s Embarrassment about
Values
I have discussed elsewhere the
inherent ethical problems of the epistemological program that goes back to the
distinction between facts and norms (2004). For my purpose it is not necessary
to pick up the whole debate. Here are only some highlights of the
criminological relevance of this ethical case.
1.
Criminology’s openness to values – a
case for ethics
According to Nagel, Putnam and
other authors, proposals that contain moral appreciation, judgment or
evaluation can be right or wrong. This assumes that the epistemological
requirement for the absolute distinction between facts and norms / values can
no longer be thought in absolute terms. Axiological and empirical certainties
can be thought of the same origin or even the same nature. Suppose furthermore
that proposals such as “slavery is bad or morally deplorable”, “death – penalty
is bad / good”, “murder is evil” etc, can be tested by means of the same
process of verification / falsification that is applied to descriptive
proposals (facts). As long as criminology and deviance theory is the tributary
of an image of empirical sciences that refers to Hume’s and Kant’s precept
criminologists are embarrassed about the investigation of such axiological
facts. In turn, the possibility to think this epistemological precept as of a
relative figure engenders a new challenge for criminology. It becomes possible
indeed to provide for empirical investigation of the ethical or moral signifier
of deviance and crime.
The
major problem that is involved in traditional criminology’s openness to values
is that criminologists and deviance theorists are likely to loose orientation.
Should they provide a focal centre on crime as a social and legal construct or
fact or should they rather focus on crime as a figure of morally deplorable /
desirable behavior? In a context that is characteristic of post-modern crime
talk (
This
new openness is somewhat the criminological reminiscence to Thomas Kuhn’s
concept of external history: it is also the epistemological condition for the
successful realization of a scientific program that provides for empirical
investigation of convergence and difference between the axiological and the
legal signifier of crime and deviance. Cloning of human cells, euthanasia,
abortion and even homosexuality are issues that came to the fore of the ethical
debate. On this account the most important challenge that criminology and
deviance theory must face is the question to which degree these sciences can
participate in the ethical debate and whether and to which degree this new
program enables these sciences to provide the process of law making, namely the
process of criminalization with scientific legitimacy.
This
problem is not only a scientific problem; in the final analysis it is a case
for ethics.
2
– The inherent ethical dilemma within
the material and formal notion/ signifier of crime
As mentioned already
mainstream criminology, but also traditional deviance theory is extremely
hostile towards a material notion of crime.
2.1
Criminology and the formal legal criterion:
What happens when the criminological notion of
crime is defined with reference to the formal legal one? In other words what
happen when criminologists construct crime with reference to the formal legal
definition of crime? It is likely that criminology and penal law, but also
penal policy become good bedfellows. When this reference is hyper-emphasized
then criminology might be suspected of complicity. Criminologists might be
indeed suspected to explain the legal qualification of an act as criminal
(criminalization), not crime. “Complicity prevention” is at the heart of
criminology’s original program. According to the pioneers of criminology, the
“criminological fact”[3] is the opposite of the
formal legal definition of crime (Garland 1986: 109 - 137; Piers 1979; 24 -
46).
The
second important practical consequence is that criminology reproduces the
inherent value-system of the positivist legal system. It is in the nature of
this value-system to provide for the principle that the law is valid without
any reference to values. The legal norm is valid and legitimate not by virtue
of morals, but by virtue of the legally established institutions which have the
power to create norms. This assumes that resistance against a totalitarian
state or a non democratic legal system is criminal from a strict legal
positivist viewpoint. It is clear that such a solution engenders consequences
that may be questioned from an ethical viewpoint:
The
Resistance against the Nazi and
The
consequence is a selective treatment of crime figures that is ethically
inadmissible. In the final analysis, this ethical problem engenders the
confusion between situations that have nothing to do one with each other, e.g.
the resistance during the Nazi regime and the
It
is easy to draw an analogy between this historical example and events that have
come to the fore of the public debate of our times.
For
instance consider the case of
The
last example provides us also with a good illustration for the ethical and
humanitarian case of international law: Those who hold the opinion that the
Let
me point at the ethically deplorable morals of this “case”: Criminologists
would provide for the criminalization of the law of the majority. And yet, this
democratic fundamental is the cause and the origin of their behavior!
2.2
Democracy and Human Rights: a case for ethics
This problem’s first solution
consists in the following acknowledgment: to be successful criminology supposes
open democratic societies (LaFree 2003: 1-5). This assumes that the study of
crime is only possible in open democratic societies and that criminology has a
natural predilection for the investigation of those acts and types of behavior
that are defined and sanctioned as criminal offences by a democratic law-maker,
i.e. the inherent legal system in a state with a democratic constitution.
The
history of criminology teaches that criminology, in totalitarian states, is
utopia. Insofar as the solution refers to empirical evidence, this is only one
of the reasons that provide its advocacy with legitimacy. If the values of democracy, pluralism and
liberty are thought as of the parameter and main reference, it becomes possible
to think and study the resistance against a totalitarian non democratic regime
as a legitimate fight against the institutionalized criminal offence against
these values. Therefore criminologists can provide a focal centre on
totalitarian criminal states and regimes.
But
even this solution involves considerable ethical problems. Let me explain this
through two examples:
The
first fundamental problem results from the question whether and to which degree
the goal might justify the means that are used to reach this goal. In our
example the goal is synonymous with the inherent values in democracy. The means
to reach this goal (to realize these values) is the resistance against an
oppressive totalitarian non democratic sate or government. Similar figures, e.
g. emancipation in post-colonialism, national self determination etc can be
thought as of the same scheme. In
general the means-goal (end) relation is defined with reference to the
criterion of equilibrium. This assumes that the means that are used in order to
reach the goals must be appropriate. In other words, they must be in conformity
with the values or with the value system to which they refer. Otherwise it is
impossible to think the means as legitimate means.
This
is the reason for UN’s condemnation of terrorism as means to reach inherent
values in modern democracy[4]. Given the circumstance
that violence as means to realize emancipation, auto-democracy is in general
associated with a legitimating discourse of Human Rights, we easily can
understand what we experience in daily life: In public opinion, but also in
political, legal and intellectual circles this very official and formal condemnation
is underpinned by an informal “comprehension” of inadmissible means, if not by
a sorts of implicit complicity.
“After
all they fight for human rights” – this slogan that is familiar to all of us
has long been the focus of mass media’s comments. This slogan is a case for
ethics. I will later discuss this issue in depth. Let me only acknowledge that
this slogan – however controversial it is – can be thought of the inherent
ethical conflict in human rights. And it can explain, to a large degree, the circumstance
that powerful and prominent NGO’s, e/G. Human Right Watch, Amnesty
International and “Medecins sans frontiers” were so late in defining and
condemning human bombs as of crimes against humanity[5].
Anyway this issue as well as all the other problems I
discussed should not be missed in the explanation of criminology’s
embarrassment with terrorism, and in particular the study of human bombs.
Suppose
that the criterion of the democratic liberal state is applied to the resistance
against an oppressive totalitarian regime. The legitimacy of resistance against
oppression is then associated with the fight for the just cause (democracy).
The problem which is raised is as follows: How the value of democracy is
understood and defined. Is it defined with reference to material criteria or
with reference to formal criteria?
Democracy is defined with reference to the law of the majority, this is
a formal legal criterion and from the viewpoint of democracy it is the only one
that is acceptable. Insofar my question is irrelevant. On the other hand we
have all made the experience that democracy is an extendible notion.
This
fluid semantic has something to do with the fact that democracy can be thought
and effectively is often thought as of a process. The question which is
associated with the dynamic nature of democracy is as follows: Is there a
starting point in democracy? When? Is there somewhat a culmination in the
dynamics of democracy? Obviously the answer to this question depends on a large
degree on the nature of the criteria (formal / material) that serve as
references, but it depends also on the evaluation of the degree of democratic
development and the historical context of this evaluation. It is always
possible to argue that such a question has lost its relevance with the creation
of the modern liberal constitutional state. Thus our question is relevant only
for history.
I
do not want to discuss in detail this complicated issue. For my purpose it is
sufficient to show in an example that this problem came effectively to the fore
of the 19th century criminological debate about the famous “criminal type”[6]. This original
criminological debate shows the inherent limits of the material criterion. It
focused on the controversial issue of the nature of crime.
The
Italian positivists were confronted with a serious problem:
Let me pick up a second example for the extensive nature of the notion
of democracy.
In
public opinion and everyday life the discourse that criticizes democracy in the
name of justice, liberty and emancipation has never lost prominence. We have
also acknowledged that such critics are often associated with human rights.
Even if human rights are an issue that is ranged under the general heading of
the positivist law, it would be an error to ignore Human rights’ reference to
natural law and justice. Indeed we are all likely to associate human rights to
a super-legality that is somewhat the incarnation of the moral consciousness of
the positivist law. Thus human rights is an issue that favors criticism and
providers it with democratic legitimacy
The
notion of human rights implies that democracy is thought as of its inherent
dualism. The same observation applies to law and justice. Human rights imply
that democracy is a project in process rather than a definitive figure. It
implies also that democracy is virtually, but always the focus of two
conflicting forces that are inherent in democracy. By this I mean that human rights refer to and
actualize the inherent conflict - potential in democracy. That what is involved
in human rights is the conflict between formal and material democracy, formal
positivist and material justice.
2.3
The material criterion:
The primacy of the concept of
material democracy and material justice upon formal democracy and justice may
engender and really has engendered consequences that are inadmissible –
ethically and from the viewpoint of democracy. It is in the nature of the
material signifier to provide virtually all offences that threat the formal
justice and democracy with legitimacy. Why? Because the material signifier
implies that the rules of formal democracy are potentially oppressive rules.
This assumes that a definition
of crime that would refer to material criteria, not to the formal, is for
exactly the same reasons problematic. And yet the material notion of crime can
be thought and, to a certain degree, was really thought as a means to resolve
the inherent ethical problem within the formal legal concept of crime.
Thus
the second solution of criminology’s embarrassment about values consists in the
advocacy for the primacy of the material notion of crime upon the formal legal.
What
happens when criminology refers to the material notion of crime and emphasizes
the material criterion in an exaggerated manner? At a first glance the ethical
problem I have discussed in the beginning is resolved. The material signifier
of crime enables criminology to study and investigate resistance against an
oppressive totalitarian State as the reaction of a victim of State crime; not
as a figure of terrorism. Moreover it
becomes possible to apply a different treatment to different contexts and
situations (resistance against the Nazi regime – Islamic fundamentalism).
But
this “ethical” solution engenders ethical problems: Indeed this “ethical”
solution implies that the legal definition of crime, the sanction system, the
criminal instruction and finally the whole process of law-making and
criminalization are potentially criminal. It is clear that in modern democracy
such hypothesis can not be thought. And it is also obvious that criminologists
who would adopt this vision would loose the subject (crime) that criminology is
committed to study.
This
explains why the material notion of crime is the favorite subject of critical
criminologists and radical criminology, not of criminologists.
Given
the prominence of terrorism’s self image, criminology’s and deviance theory’s
embarrassment with terrorism is easily understandable. It is indeed in the
nature of terrorism to provide for a romantic self-image that is constructed
with reference to human fight and the fight for the just cause.
In
the following part of my discussion I will briefly explain that and to which
degree the embarrassment about terrorism is somewhat a derivation from the
inherent ethical problems of the material and the formal legal notion of crime.
2.4
Criminology’s and deviance theory’s embarrassment with terrorism
G. Lafree and L Dugan 2002; 2004) are among
the few scholars who have taken this issue to the fore of the criminological
debate. These scholars are somewhat disappointed about criminology’s little
contribution to the study of terrorism. “Although the research literature on
terrorism has expanded dramatically since the 1970s, with few exceptions little
of this work has been done by criminologists or has appeared in criminology
journals. This is surprising because breaking of laws and reactions to the
breaking of law has long been central concerns of criminology and terrorism is
closely related to both of these concerns” (2004).
My
first comment is that this situation is surprising as long as we do not
question the nature of the law that is broken. Which law – the positivist law
or a quasi natural one?
As
we have seen before, criminologists privilege a crime notion that is defined
with reference to the formal legal definition of crime. Critical criminology
and deviance theory adopt a notion that is constructed with reference to
material criteria. On this account it is hardly likely that is is a a great surprise for radical
criminologists and critical deviance theorists to hear that little of the works
about terrorism had been done by criminologists. Obviously criminologists
express surprise about this situation. The reason is that they can not accept
or simply refuse to accept that crime is superficially constructed with
reference to a material, namely an ethical signifier. And yet this ethical
dimension is – however controversial – inherent of terrorism’s ideological
construction.
What is about people in everyday life crime
talk?) The legal definition of crime is
not always prominent in public opinion. And there are many examples that prove
that people are likely to privilege the material criterion. Terrorists know
this very well.
Given
the nature of terrorism’s self-image and its prominence we understand why
terrorism was and still is a favorite subject of critical criminology, not of
criminology.
The
third comment I address is that critical and radical criminology’s attempts to
investigate terrorism must fail as the investigation and analysis is
necessarily tautological. It is tautological because it reproduces, to a large
degree, terrorism’s criminal crime ethics (ideology) without questioning it at
some point. The complex relation between the fact and its ideological
representation, instead of being investigated, is thought as of a unity wherein
both aspects are confused. And this figure is thought in radical and critical
criminology and deviance theory as given. It is somewhat the premises.
The
material criterion implies, I said before, that the legal definition of crime,
the sanction system, the criminal instruction and finally the whole process of
law-making and criminalization are potentially oppressive, if not criminal. The
circumstance that terrorism, in critical criminology, is genuinely thought as
an inherent aspect of the oppressive State or government derives directly from
this scheme. According to this scheme, terrorism is always State or
Governmental terrorism. This assumes that radical criminology and critical
deviance theory are likely to hyper-emphasize the moral and /romantic
transfiguration of non governmental or not State sponsored terrorism. The
figure engenders the complete isolation of terrorism from the terrorist
network.
Critical
Criminology and social deviance theory provide for an approach that is
traditionally associated with constructivism. Schematically crime, in deviance
theory and critical criminology, is thought as a legal construction.
Constructivism implies that an act that is criminalized today must not be
criminalized tomorrow and that an act that is criminalized in a special cultural
and historical context is not necessarily an offence sanctioned by law in
another context. It assumes the heterogeneous nature of the legal
qualification. And yet this heterogeneity is contradicted in international law
by the various conventions about terrorism and UN’s universal condemnation of
terrorism. Insofar the constructivist approach cannot be applied; it can only
be applied to the extra-legal construction of terrorism. Given the inherent
normative dilemma of this construction (Gurr 1979:24; Wilkenson 1977:52; Cruise
O Brian1982:346; Ferracuti 1982; 129-140; Szabo 1982: 231seq), critical
criminology and social deviance theory is likely to supplant the ideology that
is inherent of the critics of the terrorist and oppressive Sate and Government
by that which is inherent in the selective and finally normative “solution” of
the normative dilemma.
As
for criminology, the inherent ethical dilemma in the crime definition
constraints criminologists to provide for an equal treatment of situations that
is different by virtue of their nature, not by means of the positivist legal
system. The lack in investigating State sponsored or governmental terror and,
in turn, the hyper-emphasis of non governmental terrorism engenders here again
the impossibility to study terrorism’s network.
Organized
crime is an issue that somewhat escapes from traditional criminological
interpretation schemes and paradigms. Neither the concept of the criminal
personality nor the reduction of crime to the legal definition can be successfully
applied to the interaction between legality and illegality that is so typical
for organized crime (Scheinost 2004; Brodeur 1998:188-223). As far as terrorism
must be thought of as organized crime criminology meets serious difficulties to
study terrorism. Obviously this observation applies also to radical criminology
and critical deviance theory.
These
are only some of the practical problems that derive from the ethical problem that is inherent of the
modalities of crime definition. To this inherent ethical problem of crime
definitions and criminological paradigms is added another that refers to the
transition from modern to post-modern societies[7].
3. Crime Definition and the Transition from
Modernity to Postmodernity.
The shifting from legal to
moral, social, political crime talk is analyzed in the literature as one of the
most important consequences of this transition. This shifting is interpreted as
a process that supplants the traditional academic crime talk and institutional
settings by that of non academic talk and institutions (
3.1
Postmodernity, the material signifier and the “ethical”solution”
On this account and given the
increasing importance of human rights, postmodern society may be thought as the
privileged field for the application of the material crime notion to social
problems as deviance and crime, all the more so as the transition analyzed as
the process that supplants virtually the formal legal reference of crime talk
by that of morals and ethics. The result is the dissolution of a strict and
rigid concept of the legality of crime and punishment (“nullum crimen sine lege” / “nulla poena
sine lege”) into a fluid and vague “legality” that refer to political, social
and moral considerations rather than to law. This shifting is virtually the
death threat to the inherent value in the positivist legal system, it is the
death threat to the principle that the legal norm is valid and legitimate
independently from morals and other axiological considerations.
The
danger that is inherent of such shifting is that moral crime talk becomes
increasingly popular and applies to serious crime. The “ethical solution” that
provides for the distinction between resistance against the Nazi or Stalin
regime and Islamic fundamentalism and which offers a different treatment is in
fact counter-productive; indeed it produces the inverse of what it is expected
to realize. The confusion between both is the result. However deplorable it is,
the romantic transfiguration of Islamic Fundamentalism and other serious
figures of terrorism is very prominent in public opinion and its association
with the fight for the just cause (resistance against “US oppressive
imperialism”) is unfortunately somewhat a figure of “intellectual correctness”
(Cottee 2004) Obviously the shift from moral crime talk to criminal crime
ethics is quickly done. Given criminology’s traditional hostility towards a
notion of crime that refers to material criteria, we easily understand that
such a romantic interpretation scheme has strongly influenced critical social
sciences’ and radical criminology’s analysis of the 9/11 attacks.
3.
2 Human rights and cultural essentialism
Human rights are an inherent
figure of the modern legal and political culture. At a first glance, the
circumstance that human rights have become increasingly important in post or
late-modern society is somewhat paradoxical. According to the literature that
provides for critical discussion on post-modernity, post-modern societies are
societies that are in war against the inherent values of political and .legal
modern culture (Young 2003! 593-613; Antonio 2001: 40 – 87: Anthias 1995:
279-301; Bauman 1995). This war against modern culture is often associated with
the renewal of anachronistic forms of social, political and economical order.
To
resolve the paradox a first solution consists in the following
acknowledgment: human rights can be
thought as the means to defend modern values in a context that is hostile
towards them. Thus human rights can be thought being an efficacious arm in the
fight against societies that are in war against universals (emancipation,
liberty, equality) (Antonio 200: 40 – 87), that supplant the concept of
multiculturality be that of multiculturalism (Anthias 1995: 298) and biological
essentialism by that of cultural essentialism (Bauman 1995: 188). Such a solution – however desirable and necessary
it may be – is somewhat contradicted by the circumstance that human rights are
an issue that is used, to a certain degree, in order to provide these
anachronisms with legitimacy and ideological support. Those who define human
rights as a means to develop emancipation, liberty and equality all over the
world would not hesitate to define such a legitimization as a misuse of human
rights. And yet such a qualification –however legitimate it may be - does not
affect the circumstance that the requirement for cultural difference and
ethical identity is more than eve before associated with a human rights’
discourse. Even if it is possible to interpret such a misuse as of an inherent
risk in the semantics of human rights, it is clear that such a think-figure can
never engender the negation of human rights. And yet it cannot be denied that
inter-ethnical conflicts and violence and other anachronistic figures of social
life are increasingly associated by those who are involved in these conflicts
with human rights.
The
question whether and to which degree the construction of cultural essentialism
and other anachronistic forms of social life by means of values that are
inherent of the modern culture is ethically inadmissible and irrelevant to
social sciences is one of the most important questions of our times. But it is
also one of the greatest challenges that must be faced by social sciences and
deviance-theory rather than by criminology.
3.3
Crime / deviance and disembedded market economy
In post-modern societies
anomie has become a normal situation.[8] In the critics of post-modern
societies, this observation is often associated with institutional anomie.
Here
is not the place to discuss the relevance or irrelevance of anomie theory for
post or late-modern societies. For our discussion, it is sufficient to
acknowledge that during the last decade, after a reverse, a revival of anomie
theory (Bernburg 2002: 729-742) is observable. For
this author one of the most important reasons that explain this renewal is the
striking resemblance between the actual state of society and the social and
economical context of 19th century England, as it was described by Polanyi, and with the situation of the French society
during the late 19th and beginning 20th century as it was analyzed by Durkheim.
The core – paradigm that is common to both approaches is the lack of economy’s
embedment in a situation of social change. Institutional anomie theory, as Messmer and
Rosenfeld have developed it, goes back to Durkheim and Polanyi.
In many regards this theoretical stream is at the opposite of the criminological
tradition of anomie-theory that goers back to Merton[9].
Suppose
that there is really a striking resemblance between the actual state of society
and the 19th century French and English context. The fundamental
theoretical problem that criminologists and deviance theorists must face and
have to resolve is which of the two anomie theory traditions – the tradition
that goes back to Durkheim and culminates in institutional anomie theory or the
criminological tradition of anomie theory that goes back to Merton – is the
most appropriated one for the analysis of the actual state of society.
The first one is referring to the ill -
conceived goals that are thought as inherent aspects in the contradictions of
modern individual society. Thus this theoretical stream is an inherent part of
a tradition which is committed to investigating in a critical way that what in
Merton’s theory and in the criminological version of anomie-theory is thought
as given: the goals of modern culture (Orrù 1987:119). Given the actual state
of our societies (anomie as normal situation, non economical institutions
invaded by the neo-liberal market economy, institutional anomie), the question
whether and to which degree the goals of modern culture can still be thought as
given is worth to be discussed. From the answer to this question derives the
solution of another important problem: Whether and to which degree the actual
state of society requires for a process that supplants the traditional
criminological approach to social problems by that that is inherent in cultural
critics. Can we continue to think and study crime and deviance without
questioning the values to which refer the goals of modern culture? What is post-modernity if not the culmination
of a radical questioning of modern values?
3.
4 The deontological dilemma
The
question whether and to which degree social sciences can be free from values
was a very controversial issue in the past. The value controversy came to the
fore of the debate during the 1960’s and 70’s. This controversy was the result
of critical theory’s attempt to deconstruct the image of normatively neutral
social sciences as it was advocated by empirical positivists and critical
rationalists. The program was picked up by critical and neo-Marxist deviance
theory as means to de-construct mainstream criminology. The controversy can be
thought as the epistemological and theoretical reflect of the inherent
antagonism in modern political culture. Universals (emancipation, liberty,
equality etc) are the most important of the values that are inherent in the
modern narrative.
With the transition from modernity to post-modernity universals fall
into decline. Given the cultural reference of the 1960 and 70 value
controversy, this issue can no longer be thought as relevant.
And yet the analysis of the literature that picks up the theme of
post-modernity provides for its critics and bring it to the fore of the debate
in deviance theory and continues to refer to critical modern theory and applies
this inherent interpretation –scheme in the modern narrative to phenomena that
are thought in the same literature as characteristic for post-modern societies.
For argument’s sake acknowledge the striking resemblance between the
analysis of the 1970’s terrorism and Islamic fundamentalist terrorism.
Given the transition from modernity to post-modernity this issue merits
examination.
Closely connected to this problem is the more important question whether
and to which degree the modern concept of empirical sciences as it applies to
criminology and deviance theory can be thought as relevant to post-modern
society. In other words the problem that should be raised is whether and to
which degree the basic norms to which refer this modern concept has not become
irrelevant.
Given criminology’s disappointment about the paradox - increasing
criminological knowledge at the one hand, decreasing influence of criminology
on security and penal policy issue on the other, this question is worthy of
exploration, all the more so as the transition from modernity to post-modernity
is currently associated with the shifting of crime talk from traditional
academic institutions and interpretation schemes to other. This paradoxical
situation assumes that the is somewhat a discrepancy between a criminology as a
science that continues to refer to modern scientific culture and a penal policy
and security policy that would no longer require for scientific legitimization.
For
According to these authors the populist penal
and security politics and policies are the result of a renewal of “reactionary
morals’. There is an ethical problem in this attitude requiring resolution: the
criminological deontology would require an equal consideration of all settings
of crime talk, its concrete application and its relevance to practice is
ethically problematic. Can this talk about crime, security and public
protection be relevant to rational decision making in security and end politics
and policies? Given the rational referent (rationalist conception of legitimacy)
and the morals of
What happens when the liberty rationale is
hyper-emphasized? Concerns for security tend then to become a case for populism
– an artificial construction which is inherent part in that which, according to
the morals advocated by
The fundamental ethical problem that is
engendered in security issues, in particular security and safety policy
associated with the feeling of insecurity, is associated with the question of
whether and to which degree a rationalist conception of legitimacy and
legitimization can be considered from an absolute principle. The degree to
which this concept applies to issues that show a strong emotional coloration is
practically possible and politically and ethically desirable. What are the
normative references and parameters which determine the final choice?
[1] Contra this argument deviance theorists might argue that the inherent constructivism
of deviance theory’s core-paradigm prevents them from taking the legal norm as
given. For argument’s sake they may acknowledge that the legal norm is thought
in deviance theory as of a constitutive element of crime. This assumes that
crime can not be defined with reference to a nature or an essence of criminal
behavior, but with reference to the legal definition. And yet this definition
varies from one country and cultural context to another and from one period to
another. The construction of crime by means of the legal definition or
qualification supposes therefore that the legal norm is not taken as given.
Nonetheless this observation is valid only to a certain degree; it is valid
within the limits of theory on deviance, in other word within the limits of the
discourse about deviance (object – discourse or object –language). It cannot be
applied to the level of meta-discourse. Indeed the legal norm is taken as given
as it is thought in deviance theory as an epistemological key:
It is the categorical reference (or parameter)
which allows deviance theorists to think and analyze variation and changing in
the legal qualification of crime. This assumes that these variations can only
be thought as of variations within the legal definition. This is the first
reason why the legal norm is taken as given. The second reason is that the
inherent sociological approach of deviance-theory requires for the primacy of a
formal legal notion of crime upon a notion that refers to material criteria,
e-g; common consciousness or supra-individual values. “An act is criminal
because it hurts common consciousness“– this crime definition which is based on
the material criterion is common to the
[2] G. Kaiser reflects:
“In criminology, a relative notion of
crime that takes under account the various historical, cultural and national
contexts and that depends on the diversity of social and legal norms, was
thought, during a long period, as insufficient and not appropriate.”….” This
relative nature explains the requirement for a timeless notion of crime. Since
the beginning of the 19th century….criminologists were seeking for a
materiel or criminological notion of crime. Namely Garofalo who tried to
combine he tradition of natural law with social –Darwinism, was engaged in the
constitution of a timeless basic crime catalogue. His efforts engendered the
concept of the “natural crime”. But the theory he developed in his book
“Criminologia” (1889) was devoid of empirical evidence and logical
legitimization (1993: 566-67).
These critical observations apply also to the attempts made by other
scientists in order to classify acts and behavior sanctioned by law into the
two opposite groups of offences against natural law and offences against
positive law. Such a re-appraisal of the classic natural legal doctrine that
distinguishes between the “delicta per se” and the “delicta mere prohibita” did
not survey the state of Garofalo’s theory.”( Kaiser 1993: 567)
And yet, Kaiser acknowledges, criminologists have never given up the
idea of a material or criminological notion of crime, and the enterprise to
construct a criminological concept, either by referring to natural legal
tradition or to anthropological influences, has not lost much of its former
prominence.
Among the contemporary approaches, the labeling approach and other
critical approaches are, in the opinion of Kaiser, the most significant
examples that prove the actuality of this theory.
His critics apply to the whole of the various attempts to construct a
“sure” material concept and led him come to his final conclusion that
“The legal definition of crime is
the only one which can make us sure about the extent and the contents of the
criminal law that is valid”.
Therefore “all criminology constitutes its notion of crime
by referring to the criminal law” (Kaiser 1993:569)
[3] According to Ferri, who was a
scholar of Lombroso, the criminological fact was synonymous with the scientific
concept of crime. This concept is the result of the positivist definition and understanding
of criminology, i. e: the application of the experimental method to the study
of offences and penalties (Ferri 1905: 25).
In his famous book “Sociology of
Crime”, Ferri explained the innovative approach of the school as follows:
“The new school constitutes a complete innovation of the scientific
method, and there is no place for any sorts of compromise: the offence is
either thought as of an abstract legal figure
(a syllogism) or thought and studied as a natural phenomenon. Since”
this innovative method is accepted, all the rest follows, automatically and
definitively, as a result of the observation of facts ( Ferri 1905;25)[3]
Garofalo, in
“Criminology”(1905) developed the same idea. He highlighted the principle that
the scientific or criminological logic is the opposite of the legal normative
logic. For this scholar these logics excluded each other.
“In my precious legal studies, he said, I began to question myself: How
is it possible to imagine that the law-maker would have been able to know and
to define exactly which group and which degree of the criminal penalties and
sanctions should apply to each crime or offence? How the law-maker could make
sure that, for example, 11 years of imprisonment is the just penalty for
qualified robbery, that two years are sufficient for simple robbery or for
fraud? How did he proceed to evaluate the value of this or that extenuating
circumstances or to….rise up or decrease for a period of six months, one year,
five or even ten years the duration of imprisonment.
I have had the ingenuity to believe that the author of the criminal
legal code had proceeded in an experimental manner – this was the reason of my
admiration and my curiosity. But later I understood that the law-maker did not
care about for establishing these rules and testing their efficiency” ( 1905:
V)[3]
[4] See the “International Convention for
the Suppression of Terrorist Bombings“ , adopted by UNO’s General Assembly in By
adopting in December 1997 A list of all UNO conventions about terrorism
can be called from the UNO web-site: .
[5] By adopting in December 1997 the “International Convention for the Suppression
of Terrorist Bombings“ UNO’s General Assembly has condemned definitively, in the
clearest and strongest manner, all acts of terrorism. Thus we must felicitate
the United Nations for the successful solution to this problem. And yet NGOs as
for example Human Rights Watch, Amnesty International or “Medecins sans
frontiers” were late in condemning human
bombs. And for many years the requirement for defining human bombs as of crime
against humanity passed unnoticed; these NGO’s adopted the idea to think and
condemn human bombs as crime against humanity only in 2003. And even today this
solution – however desirable and fortunate – is not accepted by all actors and
always. Given this lateness and the controversial nature of this issue, it
might be argued that the inherent ethical problem within human rights continues
to trouble the minds.
[6] The Italian positivists in general, and Garofalo in particular,
established the universal criteria of crime by referring to its nature. By
referring to the concept of nature, they developed a typology of criminals and
crime. The controversy about this issue, also known as controversy about the
”criminal type”[6],
where the French school of the “milieu social” was opposed to the Italian
positivists, is a significant illustration of how ambiguous this concept was
and is. Apart from this example, the ambiguous nature of this construction was
raised
Tarde referred also to the criteria
of the nature of crime, although he agreed with the opinion that crime is not
the same in all cultures and countries of the world. Tarde put that the
universal nature of crime did not result from its contingency, but from the
evidence that murder and theft constitute the authentic expression of the
universal nature of crime. In other words, for Tarde it was evident, that
murder and theft, whenever and wherever people commit them, were considered as
crime, regardless of cultural differences and historical contexts. This seems
to be in contradiction with the fact that Tarde introduced a kind of social or
cultural determinism of crime (with the effect that the nature of crime was
virtually thought as a relative or contingent and not absolute figure). The
answer to the question which is why this cultural relativism did not preclude
the concept of the universal nature of crime, is that this relativism was
itself thought of as a figure of evolutionary theory and that its concrete
application might be identified as a sign of “cultural imperialism”.
In order to define the category of
the interdiction, Tarde referred to the relation or interaction which exists
between the offender and the social group. In fact, for Tarde the relative
nature of crime results from the social and cultural determinism of the
interdiction; therefore it cannot be seen independently from the various social
groups to whom an individual might belong. That this sociological relativism
did not preclude he concept of the universal nature of crime needs therefore an
explanation. For instance, in the eyes of Trade, it lays in the nature of
civilization to expand the universality (of values and therefore of crime) over
the limits of the social context or group they originally belong to. This
explanation might be considered as an illustration of a theory which is closed
to evolutionary theory and cultural imperialism. That which was thought in
theory and conceived as the principal difference with the Italian school had no
practical relevance: Laccasagne
[7] According to Jock Young ‘the transition from modernity to
late-modernity is clearly recognized and paralleled by a whole gamut of social
commentations from all parts of the political spectrum ‘(2003: 593). The author continues (
2003, p. 593 note 1): ″ See for example , on the left, David Harvey’s The
Condition of Postmodernity ( 1989) and Eric Hobsbam’s The Age of extremes ‚1994), from the right
James O. Wilson’s Thinking about crime ‚
1985) and On Character (1994), while
)while from the communitarian third
way Ammitai Etzioni’s The New Golden Rule ( 1997) and Francis
Fukkuyama’s Great Disruption ‚ 1999).″ .
On the critical reception and analysis of postmodern thought and theory
incriminology and deviance theory see for example Young 2000:603-11; Garland and Sparks: 2000: 189 – 204; Brodeur 1993: 73
– 120.
[8] Stratton (1996: 80) observed that ”in modernity
anomie was an extraordinary experience. In postmodernity this is no longer the
case. With the loss of a moral consensus, anomie is becoming normalized”
[9] For the criminological anomie
stream, which goes back to Merton and which attempts to explain individual variations in deviance, ( Agnew 1992,
1997; Menard 1995, 1997), normlessness refers to regulating goal achievement.
In this case, the normlessness of goal - achievement is thought as the result
of a culture that hyper-emphasizes the achievement of particular ends, while
de-emphasizing the importance of the ways in which these goals are pursued.
This imbalance between means and goals, if combined with unequal
opportunity-structures, can explain individual variations in deviance. For
Durkheim, but also for Messmer and Rosenfeld anomie is the normlessness of
goals. Anomie develops as a result of either the lack of authority or the
unattainable nature of prescribed goals. According to Bernburg in this second
case of anomie the ends are not undefined, but limitless; the disembodied
economy is the source of this type of anomie. According to Messmer and
Rosenfeld the disembedded market economy is the source and the cause of
institutional anomie. By this they understand that the social institutions
which traditionally provide normative limits on particular ends, can no longer
achieve this goal.
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