The Social-Reaction Perspective, and Criminalization

Every theory considered so far takes the criminal law as given and asks what produces the person who breaks it. That has an unnoticed cost: it treats the boundary of the criminal law as a natural fact rather than as something made, and so it cannot explain the phenomena that most obviously need explaining — that the same conduct is criminal here and not there, that the frontier moves, and that enforcement falls unevenly across race, gender, class, age and place of residence.

The social-reaction perspective reverses the question. Its starting point is that crime is a product of definition and of response, and that the study of those definitions and responses is as much a part of criminology as the study of offenders.

Durkheim's argument that crime is normal supplies the foundation. Crime is inevitable because there is no clearly marked dividing line between behaviours considered criminal and those considered morally reprehensible or merely in bad taste; if there is a decrease in behaviours designated criminal, there is a tendency to move behaviours previously designated merely reprehensible into the criminal category. His illustration is exact: if traditional forms of burglary and robbery decrease, there may be an associated increase in the tendency to define various forms of white-collar deception as crime. Those behaviours may always have been considered morally reprehensible, and in that sense violated the collective conscience; they were simply not considered crimes, and society moves them into the crime category because criminal sanctions are the strongest tool available to maintain social solidarity.

The corollary is the society of saints. In a perfect cloister of exemplary individuals, crimes properly so called would be unknown, but faults venial to the layman would create the same scandal that an ordinary offence creates in ordinary consciousnesses; and if that society has power to judge and punish, it will define those acts as criminal and treat them as such. A society without crime is therefore impossible: if all the behaviours presently defined as criminal ceased, new behaviours would be placed in the crime category.

Erikson reformulated Durkheim's argument through a study of the Puritan colony in seventeenth-century Massachusetts. The colony maintained a relatively constant level of punishment throughout the century despite three crime waves attributed to Antinomians, Quakers and witches. His conclusion is the sharpest statement of the position: when a community calibrates its control machinery to handle a certain volume of deviant behaviour, it tends to adjust its legal definitions of the problem in such a way that this volume is realised.

Blumstein and colleagues attempted to demonstrate a similar process in modern societies, examining imprisonment rates in the United States from 1924 to 1974, in Canada from 1880 to 1959 and in Norway from 1880 to 1964, arguing that the rates remained stable and that stability was maintained by adjusting the types of behaviour that resulted in imprisonment.

The two objections are the examinable part.

• Chambliss's objection to Erikson. His conclusion is hardly supported by the data he presents. Each of the three crime waves occurred when the power and authority of the ruling groups were threatened. Deviance was indeed created for the consequences it had, but the consequences were not to establish moral boundaries; they aided those in power to maintain their position. Erikson gives no evidence that any of these crime waves actually increased social solidarity except through the elimination of alternative centres of authority or power.
• The imprisonment figures. Durkheim's theory does not predict that punishment in modern industrial societies will remain constant, since those are not mechanical societies, so the American, Canadian and Norwegian studies neither support nor challenge it. And in any event the explosion of incarceration in the United States associated with the get-tough era has demonstrated that punishment there is no longer stable, if it ever was: before 1970 the imprisonment rate had generally remained somewhere around 100 prisoners for every 100,000 people whether crime rates were high or low; by 2000 it was 478 per 100,000.

Durkheim predicted that in the transition from mechanical to organic society there would be a vast expansion of functional law to regulate the interactions of the emerging society. Gurr's case study of four cities from 1800 to the present found exactly that — a veritable explosion of laws and administrative codes designed to regulate day-to-day interactions in domains as dissimilar as trade, public demeanour and traffic.

But Gurr found more than functional regulation. A great deal of other legislation defined and proscribed new kinds of offences against morality and against collective behaviour such as riots and protests. The new offences against morality arose primarily from the effort to apply middle-class values to all social groups; the offences against collective behaviour arose from efforts of elite groups to maintain their power. That finding is the empirical bridge between the social-reaction perspective and the conflict tradition.

Wolfgang, meanwhile, thought contemporary American society illustrated Durkheim's other prediction, that a greater variety of behaviours would be tolerated: an expansion of the acceptability of deviance and a corresponding contraction of what we define as crime.

Lacey's contribution is to give the perspective a name and a working frame. She argues that criminalization is the appropriate conceptual framework within which to gather the constellation of social practices that form the subject matter of criminology, criminal law and criminal justice studies.

Its advantages are these. Escaping the notion of crimes as given, the idea of criminalization captures the dynamic nature of the field as a set of interlocking practices in which the moments of defining and responding to crime can rarely be completely distinguished. It accommodates the full range of relevant institutions and the disciplines that might be brought to bear; it allows both the instrumental and the symbolic aspects of the field to be addressed; and it embraces empirical, interpretive and normative projects, and questions about offenders and victims, individuals and collectivities, state and society.

Within it we may accommodate the practices of citizens, the media, the police, prosecution agencies, courts, judges and lawyers, social workers, probation officers and those working in the penal and mental health systems, legislators, and key members of the executive — and the relevance of sociology, psychology, political science, economics, legal studies, moral and political philosophy and anthropology. That can be done without collapsing the study into a chaotic mass, and without falling prey to fantasies about a unitary synthesis of different approaches; the study of criminalization is less intellectually tidy than the all-encompassing theories of criminal justice that have been fashionable since the 1960s, and that is an eminently worthwhile sacrifice.

Criminal law, as an overtly coercive state practice in societies that think of themselves as liberal, confronts a serious challenge of legitimation, which it meets by normative claims about both its substance and its procedure.

• On substance, it appeals first to the objective, timeless normative status of its standards — hard to reconcile with the political manipulation of the frontiers of criminality by legislative changes and executive decisions criminalizing hitherto lawful activities or decriminalizing prohibited ones. It appeals second to common, shared understandings — hard to reconcile with pervasive social conflict about particular criminal norms, from the propriety of criminalizing forms of sexual behaviour and commercial conduct to disagreement about the proper standard of fault in homicide.
• On procedure, it presents itself as the fair and even-handed application of rules to subjects conceptualised in terms of their capacities for understanding and self-control. That claim must be reconciled with statistics on disparate patterns of enforcement along lines of race or ethnicity, gender, socio-economic status, age and place of residence; with the pervasiveness of plea bargaining, driven by the relative power of particular actors and by managerialist concerns about the cost-efficient disposal of cases; and with the indeterminacy of the fault standards themselves.

These legitimating strategies are heavily dependent on criminal law's capacity to sustain the aura of its separateness from the politics and practicalities of the criminal process — and many principles central to the common sense of doctrinal criminal law look fragile once that separateness is eroded by a little knowledge of criminal justice.

Kelman's work shows the same thing from inside the doctrine. He scrutinised the basis of the mens rea doctrine and showed that it veers in an unprincipled way between subjective standards, where responsibility depends on what the defendant actually intended or contemplated, and objective standards such as negligence, which impute the state of mind of the reasonable man; from which it follows that criminal law doctrine evinces no consistent commitment to either a free-will or a determinist model of human behaviour. Critical scholars further showed that the framework of conduct, fault and defence is manipulable: the issue of mistake can be located with equal doctrinal propriety in any of the three, and since the choice sometimes affects the outcome, doctrinal rules are not as determinate as the conventional theory assumes. And the outcome may turn on the time frame: whether a person is regarded as negligent may depend on what range of conduct the court can examine, since an unreasonable lapse judged in itself may look more reasonable if evidence about its history is admitted.

• It can slide into reductionism. The objection to socio-legal approaches has always been that they underestimate or obscure the specificity of legal techniques and argumentation, reducing legal regulation to the exercise of political or economic power and assuming legal decision-making to be explicable in terms of some crude set of personal, economic or political causes. American legal realism and Chicago-style law and economics are the standard examples.
• It can ask the wrong questions, judging law by its instrumental functions rather than its symbolic dimensions.
• It explains definitions better than conduct. Nothing in it tells you why this defendant did what he did; a complete criminology needs both halves.

- On the nature and scope of criminology, this is the answer to the framing question of consensus, conflict and interactionist perspectives, and it is the best available justification for treating criminology and criminal law as a single field rather than two. - On white-collar crime, use Durkheim's own illustration of the migration of white-collar deception into the crime category, and Sutherland's closing point that part of criminological study should be about why certain normal learned behaviours are criminalised and others are not. - On the police and the criminal justice system, use the legitimation argument: patterns of enforcement, plea bargaining and prosecutorial selection are not administrative details but part of what makes conduct criminal in practice. - State the limit honestly. The perspective is at its most powerful on the making and the application of the criminal law, and at its weakest as an account of why particular individuals offend. </content>