A. The Making of Law
Although Beccaria had a clearly formulated theory of lawmaking, we have not seen much concern with this topic in this account of the development of criminology.Whereas the theory of law has not been a focus of criminology, the making of law has been. Criminology in all of its primary forms is concerned with lawbreaking. However, we know that criminal law is not a scientific concept; instead, it is a legal or political creation. No other science is like criminology in that its basic object of study is defined external to the field of study. Legislatures do not define elements of the atom, groups, interactions, or economic behavior, but they do define crime and those definitions vary through time and space. To some people this means that a science of criminology is not possible; to others, it simply defines another set of issues for criminology to address, including “What is crime?” Three distinct approaches to answering this question are found in the history of criminology: (1) legalistic, (2) sociological, and (3) social legal.
During most of the time that the field of criminology was being developed, people assumed that crime was behavior that had been judged to be a violation of the criminal law—the legalistic approach. This was perhaps most clearly expressed by Paul Tappan (1947) when he observed that “Crime is an intentional act in violation of the criminal law (statutory and case law), committed without defense or excuse, and penalized by the state as a felony or misdemeanor” (p. 12). Related to this approach to defining crime is the position that the criminal is only known when a “duly constituted authority of the state” (Tappan, 1947) determines that the person has violated the law. Only when convicted is a person a criminal. Thus, any behavior that was prohibited by statute and judged to have occurred by a duly constituted authority was deemed a crime and the object of criminological study. Obviously, in this approach crime is empirically easy to measure but suffers from the relativity of the criminal law and the operation of the criminal justice system. Explanations of crime would have to be relative to the legal system and historical period and could not have the standing of scientific (i.e., universal) explanations.
During the period when sociology dominated criminology, another approach was suggested that was thought to avoid the political and relative nature of criminal law—the sociological approach. Most clearly articulated by Thorsten Sellin (1938), the approach suggests that criminology should broaden its scope and consider all conduct norm violations. Sellin observed that “confinement to the study of crime and criminals and the acceptance of categories of specific forms of crime and criminal as laid down in law renders criminological research invalid from the point of view of science” (p. 4). He suggested that instead criminologists should seek to understand any variation from normative behavior. Although this approach avoided the political nature of law, it introduced an even more relative dependent variable for the field and all but eliminated the connection between studies of causation and crime prevention and control. Needless to say, this approach has not been widely followed in criminology.
The social legal approach offers a way to avoid the problems of the other two approaches to defining crime and the object of criminological study. It begins with the observation that some behaviors must be controlled by the state if society is to function and exist. Killing, sexually and otherwise assaulting, and stealing between citizens must be controlled if a society is to exist. Edwin Lemert (1972) observed the following:
Thus, criminal laws can be divided into at least two categories: (1) those that seek to control behaviors that must be controlled if the society is to exist (e.g., homicide) and (2) those whose regulation reflects the values and political decisions at a certain place and time (e.g., drug offenses). Criminologists are not terribly concerned with the origins of the former, but they are very much interested in understanding why other behaviors are criminalized and whether criminalizing these behaviors contributes to more or less crime. Connected to social legal approach to the definition of crime is the contention that the best way to measure crime and criminals is by direct observation or questioning.You do not rely on the criminal justice system to measure the level of crime (e.g., from reports to police) but instead ask the public directly about their experiences with crime (e.g., victimization studies). Similarly, you do not determine who is criminal by the operation of the criminal justice system(e.g., arrest or conviction) but instead by seeking direct evidence of the behavior (e.g., self-report studies). This is particularly important to the task of studying the differential application of the law to segments of the population. What is labeled here the social legal approach to law and crime is the dominant view in criminology today, although much criminological research violates this perspective and accepts the easier means of measurement: official data.