Introduction
In this contemporary era, many issues about morality have been undertaken. It is believed that the context of morality has been the key for enlightening the minds of the authorities regarding what law should be implemented and how these policies should be taken. The concept of morality can be seen in the crime and penal policies imposed thereto. From looking at the British legal system it is clear that the foundations of law lie within moral claims, as such it can be seen that morality and criminal law are intrinsically linked.
Primarily two approaches have risen towards the relation between law and morality, some believe that morality is an essential character of law, that the morals which lie behind the law are derived from the sense of right and wrong which dwell in a community as a whole; where as others are more inclined to say that the only purpose for rightfully exercising power on a person against his will is in order to avoid harm to others, thus there is an illusory line between moral action that the law may interfere with and those with which it may not.
Criminal Law and Morality
Towards the end of the twelfth century an important shift in the emphasis of criminal law began to occur, where people were regarded as moral agents, people who can assume responsibility for their actions, as opposed to instruments of harm. Clarkson (2001) attributes this change to the combination of “the growing importance of the canon law with its emphasis on moral guilt, and the revived Roman Law with its stress on the physical element of blame in criminal liability.
The function of criminal law and penal policies is establish a set of standards of what is or is not permissible and it is a form of social control. Criminal law can be seen as a body of rules, with sets of sanctions, aimed at controlling behaviour. When looking at criminal law, it is important to explore the set framework that evolves around what conduct should be prohibited by the criminal law. In addition to the reasons behind the punishment of those who break the rules of criminal law.
Over the years the development of the law has been influenced by
morals, this influence can be demonstrated by monitoring the way in which certain legal systems have evolved (Castellano & McGarrell 1991). Take the English system for instance, it has moved from using a standard that depended on the counting of heads, to that of the reasonable man. This “reasonable man” standard is that of “an ordinary citizen… [It] is based on what a reasonable person might be expected to do…”-law dictionary, oxford. Before Parliament, the judges used to use this standard, in the days before Parliament was so active, when they laid down rules of public policy. Judges sometimes rely on either a community’s social morality or independent standard of what is morally right, this occurs when the materials of a legal tradition are not specified. It can also be said that morality has, in a way, determined the course of law either through the judicial process or through legislation.
Not only are the law’s foundations morally connected, but morality
also depends on law to a certain extent. Meaning that it could not be maintained with out the use of instruments such as teaching and training, through doctrine, exhortation and the use of enforcement, which is the law. Moreover, the development of morality has also been influenced by law to a certain degree. It is also believed that criminal law can be seen as a statement of what will happen to people if they misbehave rather than a statement of how people ought to behave.
It can be said that even though the law is the ultimate authority within a society, it still only demands some degree of moral obligation. The law claims obedience, but it does not dictate the actions of those subject to it. However, there are legal duties which are norms that create a certain amount of fear of formal penalties, and a guidance of minimally accepted social behaviour. The law often does demand behaviour prescribed by legal duty, and these demands commonly carry moral weight, but does this mean that a citizen should always attach some moral weight in favour of obedience. At times morality can be a significant basis for a person to engage in behaviour that a law requires.
Nevertheless, there is always the possibility that an individual, himself believes, that his moral rights are being violated by that which the law requires or permits. If this occurs then he might decide to resort to illegal physical force against those who are infringing his rights. Here, we enter into the need for the law to recognize the use of force in order to protect ones rights. There are many difficulties in deciding when force is warranted. Greenawalt (1995) contends that if the violations of moral rights are extreme, then force even deadly force may be justifiable. Take for example, the United States which permits a woman to defend herself in case of attempted rape, to the extreme of killing the rapist and will not necessarily be prosecuted with manslaughter.
Here the deprivation of a moral right is a result of the wrongful acts of an isolated individual. This shows a clear relationship between law and morality, as due to the infringed moral right, the law steps in and punishes the rapist on her moral behalf, and not her. This begs the question of whether her response was moral or not, because depending on this it can be decided whether the law was acting within moral grounds.
There are times when the law supersedes morality. For instance, take
the question of whether only immoral acts punishable? Some do not believe this to be so as in a few cases there are times when morality is punished. Taking the example of a woman stealing to feed her famished children, here the law would punish her for theft, for doing what she believes to be morally right. However, this case is a rare finding. It is generally agreed that in order to keep social control, a society need to abide by the concept of utilitarianism, where the law seeks the greater happiness and safety of the greater number of people. So even though in a specific case it might be right but in general it is prohibited for the general good of a community as a whole.
Devlin (1959) believes, based on historical observations that societies tend to disintegrate more frequently from within than by external pressures. As a result “the loosening of moral bonds is often the first stage of disintegration. Furthermore, one can not have a society with a moral deficiency; therefore the law can be used as an instrument to enforce morality, since it is something that is essential to a society.
Contemporary View of Criminology
At its simplest, criminology can be defined as the systematic study of the nature, extent, cause, and control of law-breaking behavior. Criminology is an applied social science in which criminologists work to establish knowledge about crime and its control based on empirical research. This research forms the basis for understanding, explanation, prediction, prevention, and criminal justice policy. Ever since the term criminology was coined in 1885 by Raffaele Garofalo (1914), the content and scope of the field have been controversial. Critics and commentators have raised several questions about its academic standing.
Criminology has many meanings but at its widest and most commonly accepted it is taken to be the scientific understanding of crime and criminals. But such a definition will really not get us very far. For hidden within the term there come many different topics, different approaches to ‘science’ and different disciplines. Much criminology stays firmly within the existing confines of the criminal law. Modern Criminology is defined as the scientific study of the nature, extent, cause and control of criminal behavior (Williams, 2004)
Criminology explores the bases and implications of criminal laws – how they emerge, how they work, how they get violated and what happens to violators. But we know that laws vary from time to time and from place to place. Laws are relative, and always historically shaped. Even something as seemingly universally condemned as killing others has its moments when it is acceptable (e.g. in war). Many criminologists believe therefore that they should not be confined by the bounds of law – this would make criminology a very traditional, orthodox and even conservative discipline. Rather, criminologists should also be able and willing to take on wider matters.
As mentioned, one of the issues faced by criminology is the context on how morality has changed the view for crime and penal policies imposed in different legal systems. Penal policies can be simply defined as ‘a legally approved method designed to facilitate the task of crime control’ (Garland, 1990:18). However, the fact that punishment causes pain, suffering and harm raises important ethical and oftentimes moral dilemmas. Consequently, the punishment of offenders requires moral justification, for as Nicola Lacey (1988:14) points out, the power to punish derives from the legal authority of the state to do things that would otherwise be ‘prima facie morally wrongful’.
Moral philosophy is the contemporary branch of thinking that concerns itself with distinguishing between the age-old questions of identifying what is ‘right’ and ‘wrong’ and establishing ‘good’ and ‘evil’ through defining what ought to be the proper goals of punishment. Such questions are explicitly normative in that they ask what aims and values a system of punishment must fulfill if it is to be morally acceptable. The moral reasons to comply with law include reasons independent of it for doing what the law requires (e.g., the moral reasons against killing innocent people) and reasons that derive from the interposition of the law. At least in a society with a decent political and legal order, the law’s requirement of certain behavior may be a significant moral basis for engaging in that behavior.
There are many theorists who have been devoted to understand the whole concept of criminology and the issue about crime, policies and even morality. One of these is consensus theorists who try to get around the problem of variations in the law by tying the definition of crime to social morality. They draw on the ideas of the nineteenth-century French sociologist Emile Durkheim who believed that in the kind of integrated community that preceded industrialization, people were held together by common religious beliefs and traditions and similar worldviews .The similarity between people acted as”social glue” that bonded them to each other in a shared morality.
Thus, the consensus position states that crimes are acts that shock the common conscience, or collective morality, producing intense moral outrage in people. Thus, for Burgess (1950), “A lack of public outrage, stigma, and official punishment, attached to social action indicates that such action is not a violation of society’s rules, independent of whether it is legally punishable” (Green, 1990: 9). Current supporters of this position claim there is a “consensus,” or agreement, between most people of all economic, social, and political positions about what behaviors are unacceptable and what should be labeled criminal .Indeed, echoing Durkheim some recent commentators, such as Roshier (1989: 76), define crime “as only identifiable by the discouraging response it evokes.”
This is the ability to whip up moral consensus around an issue that affects some individuals or a minority and to recruit support from the majority by convincing them it is in their interests to support the issue too. Creating a public harm often involves identifying and signifying offensive behavior and then attempting to influence legislators to ban it officially. Becker (1963) argued that behavior that is unacceptable in society depends on what people first label as such and whether they can successfully apply the label to those designated “offend.
Other existing theory is the conflict theory which is based on the idea that rather than being similar, people are different and struggle over their differences. According to this theory, society is made up of groups that compete with one another over scarce resources. The conflict over different interests produces differing definitions of crime. These definitions are determined by the group in power and are used to further its needs and consolidate its power. Powerless groups are generally the victims of oppressive laws
Another recent reassessment of the definition of crime that takes account of the total context of powerful relations and the situational context comes from postmodernist-influenced constitutive criminologists. Postmodernism is a perspective that rejects claims that any body of knowledge is true or can be true. Instead, its advocates believe that “claims to know” are simply power plays by some to dominate others (Walklate, 2003).
These theorists advocate anarchy of knowledge giving the oppressed, marginalized, and excluded their own voice to define what harms them, rather than having others claim to know how to protect them. For example, consistent with the important place given to power, Henry and Milovanovic see constitutive criminology as “the framework for reconnecting crime and its control with the society from which it is conceptually and institutionally constructed by human agents. Crime is both in and of society” (1991).
They define crime as an agency’s ability to make a negative difference to others. Thus, they assert, “Crimes are nothing less than moments in the expression of power such that those who are subjected to these expressions are denied their own contribution to the encounter and often to future encounters (Henry & Milovanovic, 1994). Crime then is the power to deny others … in which those subject to the power of another, suffer the pain of being denied their own humanity, the power to make a difference” (Muncie, 1999).
It is clear that criminological approaches to crime have come a long way from the simplistic idea that crime is behavior defined by law. Recent ideas suggest that far more is involved than law. These ideas resurrect the central role of harm, the victim, and the context. Importantly, they even suggest that law itself can create crime, not merely by definition but by its use of power over others. Together, these definitions express the increasingly broad range of conceptions of crime that criminologists now share. Even though the division between consensus and conflict theory is helpful to gain an overall sense of different definitions, it does not present an integrated approach. But there is one attempt to define crime that, with modification, helps us overcome many of the difficulties so far identified.
Criminologists of the twentieth century have been greatly influenced by the work of sociologists like Durkheim; by the psychological theories of Freud and his followers; and by the case-study approach inspired by Freud and first used by criminologists in the 1920s on juvenile delinquency work, where possible environmental and genetic causes of criminal behavior were examined (Walters, 1992).
In the 1930s, Edwin H. Sutherland brought forward his theory of differential association, which attributed the origins of criminality to the social environment of the offender (Walters, 1992). Sutherland believed that criminal behavior is learned and that persons who live in an environment that contains more criminals than law-abiding citizens are likely to become criminals themselves. This line of thought led Sutherland and his followers to believe that some transformation of the social structure is necessary in order to eliminate the origin of the causes of crime.
The only current of thought in the criminological sphere which came close to the real meaning of the term ‘school’ was the Marxist interpretation of criminology and criminal policy. This school of thought emerged in the mid-nineteenth century and at first concerned itself primarily with the impact of economic conditions on crime within the context of societies which were the product of a capitalistic regime (Radzinowicz, 1999). Theorists of the radical, or Marxist, school of criminology believe that the ruling classes designate certain types of behavior as criminal in an attempt to secure the capitalist system. Thus, the criminal justice system is in their eyes largely as a means to maintain the status quo by suppressing the working class or the public masses. This school, like that of Sutherland and his followers, also calls for change in the social structure in order to eliminate crime.
Another social structural theory, called the labeling theory, relates to the manner in which criminal law is enforced and is primarily concerned with the explanation of juvenile delinquency and the commission of status offenses – that is, acts that are considered to be criminal if they are committed by an adult (Ferrel & Websdale, 1999). Running away, for example, is a status offense. Enforcement of the punishment for a status offence, it was found, could lead to a juvenile’s committing further and more serious offenses. In effect, enforcement of the law created rather than prevented the crime. This theory has influenced the decriminalization of most status offenses, although decriminalization has produced its own problems.
While some academics are beginning to mourn the demise of criminology as a discipline, the size of the crime control industry and the number of students studying criminology in many countries around the world is rapidly growing (Matthews & Pitts, 2001).
Conclusion
Law and morality play an important role within society today, as the
law has had many influences in the way in which the society does certain things. However law has also influenced people’s morals. As a result both law
and moralities overlap which attributes to the issues faced by the policies imposed especially when it comes to the committed crime. It can be concluded that criminology and its modern and contemporary practices can be connected to the context of morality however, in different degrees and levels. Herein, it can be concluded that even in this contemporary age of criminology, morality matters because each of us have reputations to protect, co-operative tasks to carry out, legacies to live, others to love and careers to follow.’
People now are so accustomed with the paradox that is included in the contemporary society and with the increasing individualism and libertarianism in the moral sphere and at the same time with the inflated economic and materialistic association that the government has. This convention was the main agent of the moral changes in people’s lives and made morality so thoroughly relativised and most of all subjective.
The changes within the society have created huge competition, loss of social cohesion and loss of trust. The cooperative climate that existed earlier has now vanished and people have set widely accepted morals, however they mostly follow the ones that keep pace with their self-interest. People have become used to the disposition of responsibility from the individual to society and from the criminal to economic and social conditions that are the disrespectful causes of contemporary morality.
Criminologists are still needed in present-day societies. Crime is an on-going problem in all societies and must be solved in a long-term fashion rather than using short-term fixes. Societies and governments can utilize the theories of criminology to reduce crimes. The government can reduce crime by increasing punishment to deter criminals and increasing the detection rate of crime. The governments could also reduce the cost of crime by attempting to reduce unemployment
Reference
Castellano, Thomas C. and Edmund F. McGarrell. (1991). “The politics of law and order: Case study evidence for a conflict model of the criminal law formation process.” Journal of Research in Crime and Delinquency, 28, 304-329.
Becker, 1963 cited in Cohen, S. (1972) Folk Devils and Moral Panics:
the Creation of the Mods and Rockers. St. Martin’s Press, New York.
Clarkson, C.M.V. 2001. Understanding Criminal Law. Sweet & Maxwell Ltd.
Devlin, Lord Patrick 1959/65, The Enforcement of Morals, Oxford University press.
Ferrell, J. & Websdale, N. 1999. Making Trouble: Cultural Constructions of Crime, Deviance and Control. Aldine De Gruyter.
Garland, D. (1990) Punishment and Modern Society: A Study in Social Theory Oxford: Oxford University Press.
Garofalo, R. 1885. Criminologia. Translated by R.W. Millar (1914).
Greenawalt, K., 1995, Private Consciences and Public Reasons, Oxford: Oxford University Press.
Henry, S. and Milovanovic, D. 1991. “Constitutive Criminology.” Criminology 29 (2): 293-316.
Henry, S. and Milovanovic, D., 1994. “The Constitution of Constitutive Criminology: A Postmodern Approach to Criminological Theory.” In D. Nelken (ed.), The Futures of Criminology. London: Sage.
Henry, S. and Milovanovic, D., 1996. Constitutive Criminology: Beyond Postmodernism. London: Sage.
Lacey, N. 1988, State Punishment: Political Principles and Community Values. Pocket, Routledge.
Matthews, R. & Pitts, J. 2001. Crime, Disorder, and Community Safety: A New Agenda? Routledge.
Muncie, J. 1999, Youth and Crime: a Critical Introduction. London: Sage Publications.
Radzinowicz, L. 1999. Adventures in Criminology. Routledge.
Roshier, Bob. 1989. Controlling Crime: the Classical Perspective in Criminology. Lyceum Press
Walters, G.D. 1992. Foundations of Criminal Science: The Development of Knowledge Vol.1. Praeger Publishers.
Walklate, S. 2003, Understanding Criminology, Second edition, Open
University press: Buckingham.
Williams, S. 2004. Textbook on Criminology, Fifth edition, Oxford
University Press.
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