CRIMINOLOGICAL PARADIGMS

Overview of Law/Crime and Development of Criminological Paradigms

by David H. Kessel

(The following is an outline of material from Vold and Bernard's Theoretical Criminology with portions from Siegel's Criminology: Theories, Patterns, and Typologies, 7th Edition)

TWO MEGA- EXPLANATIONS/PERSPECTIVES OF CRIME

-----Both are Ancient and Modern in origin
-----Intertwined up to this day

1. Spiritual Explanations (other-worldly) (not = untrue)

2. Natural Explanations (this-worldly) (not = true)

EARLY LEGAL CODES: BOTH SPIRITUAL AND NATURAL

1. 2000 BC--King Dungi of Sumer

2. Most famous: Hammurabi's Code (1792-1750 BC)
-------written code
-------Punishment based on lex talionis (eye for eye, tooth for tooth)

3. Mosaic Code of the Isrealites (1200 BC)
-------Ten Commandments
-------Substantial basis for U.S. legal code of today

4. Roman Twelve Tables
-------to equalize relation between haves and have-nots

5. Greeks
-------emphasis on naturalism (early idea of materialism)

6. German Codes

7. English Common Law --------Another substantial influence on U.S. legal code (more on it below)

DURING THE DARK AGES/MIDDLE AGES

Much of the earlier Codes were lost and unknown

During Early Feudalism:

-------1. Crime and Punishment were determined by:
-----------superstition
-----------fear of magic
-----------satanic influences
-----------local custom

-------2. Crime was largely a personal/private affair
-----------victim or family sought revenge directly on offender or offender's family
-----------Blood Feuds continued on and on

-------3. Spiritual Explanations dominated views on criminal acitivity

SPIRITUAL EXPLANATIONS

-------Sought answers to events in other-worldly realities and sources
-------Famines, floods, plagues…were equal to Punishments for wrong-doings
-------Non-Scientific explanations
-----------could not be disproven… not able to subject to falsification tests

MIDDLE AGES: AGE OF FEUDALISM

Beginnings of a "criminal justice system" in rudimentary form

Feudal Lords and Monarchs (Social and Political organizations)

-------united the Spiritual Explanations with their own Authority
-----------became THE way for God to indicate the innocent from the guilty
-----------Crime became a " community" matter, NOT just personal affair anymore
-----------Revenge wasn't done away with…it was institutionalized (patterned)

THREE MAJOR WAYS OF SPIRITUAL EXPLANATIONS

1. Trial by Battle

-----------accused fights with victim or family of victim
-----------Winner of battle was God's decision of innocence
-----------Thus, no continuing grounds for vengenance
-----------But…gave license to the stronger, better fighter to do anything
--------------knowing they would most likely win every time
-----------Might…literally…became Right (law)

2. Trial by Ordeal

-----------the accused would be subjected to an ordeal…IF survived they were "innocent"
---------------God had protected them BECAUSE they were innocent
-----------i.e. submerged in water
-----------i.e. running the gauntlet
-----------i.e. walking on fire
-----------i.e. burned by fire in some way
-----------Banned in 1215 by the Fourth Lateran Council of the Roman Catholic Church

3. Compurgation

-----------means purifying or purging
-----------Accused had to gather group of 12-25 reputable people to swear to their innocence
---------------Based on idea that no one would lie under oath for fear of punishment by God
-----------JURY (from Latin…jurati…to be sworn)
---------------First…only to swear/bear witness
---------------Later…to be the deciders of innocence or guilt

Spiritual Explanations continue in Europe during the development of English Common Law

-------Were transferred to the "New World"
-------As we'll see…linked to "Classical Criminology" (although is a "Natural Explanation" view)

Meanwhile: Anglo-Saxon legal codes (and later through the Norman Conquest) developed into English Common Law

-------Primary Point: Common Law was JUDGE-MADE law…case law
-----------stare decisis (to stand by decided cases)
-----------later became joined with Statutory (legislative) Law
--------------generally reflected existing social conditions and certain morality issues
-------Development was uneven and chaotic for some time
-------English Common Law was transferred to America and adapted & modified after the Revolution

NATURAL EXPLANATIONS

-------Making use of objects/events in the material/physical world to understand things
------- Originally: a search for "natural laws" (the "nature of things"...as a given)
------- Later: an investigation into just what that "nature" was and wasn't
-------EITHER way: seeking explanations within THIS world, not other-worldly
------- Was the actual beginning of Criminology...the STUDY of crime

Within the Natural Explanations: Three different "Frames of Reference"

-------"Frames of Reference" (by any other name) are PARADIGMS
-----------Each is based on a different way of "thinking about crime"
-----------Each provides different definitions of "crime" and of a "criminal"
-----------Each has different conceptions of the "basic problem for Criminology"
-----------They have little common ground for communication between them
-----------Each is a PARTIAL/LIMITED VIEW with its own "image" of reality
--------------Each is based on a very different set of assumptions and premises
--------------YET, they are not equally partial or limited
-----------Most of the work in Criminology…since the mid-18th century…has been done within them

-------The first TWO, although very different, focus on the BEHAVIOR OF CRIMINALS

-------The THIRD focuses on the BEHAVIOR OF THOSE WHO WRITE AND ENFORCE LAWS

1. CRIMINAL BEHAVIOR AS FREELY CHOSEN Paradigm


Its development began in the mid-18th century (1750's) and in THAT context/period it was:

-------a liberalizing of the way crime and criminals were handled
-------a more moderate and just approach (again, relative to what came before and was at the time)
-------a reaction to the arbitrary and very brutal handling of criminal realities

Premised on UTILITARIANISM (a "rational" approach based on what "works")

-------Crime and Punishment should be in "balance"
-----------John Mill
-----------Jeremy Bentham
-----------Cesare Beccaria
-------Societies should be formed rationally as to the "good" way of living

Human behavior is based on Intelligence and Rationality

-------as…fundamental human characteristics
-------"intelligent behavior" = behavior as the result of careful training and education
-------Humans can understand themselves and promote their own best interests
-----------can calculate achieving (maximizing) Pleasure and avoiding (diminishing) Pain
-------Each human is the master of own fate---possessed of FREE WILL to choose
-----------NOT driven or directed by spirits or devils of any sort

This is the paradigm for the basis of CLASSICAL CRIMINOLOGY

-------and…much of Philosophy, Poltical Science, and especially, Economics
-------dominated early Criminology for the first 100 years…till mid 19th century
-------Lessened the use of Capital Punishment…especially the arbritrary use of it
-------Spawned the beginning of the Prison System
-----------a connection with the Spiritual Explanations (Paradigm)
-----------1790---America---Quakers---1st Penitentiary
--------------Isolate criminals so they become "penitent" and reflect on wrongs of the past
--------------Provide them with hard work, 3 square meals a day, and…a Bible

Crime and Criminals defined from a strictly LEGAL POINT OF VIEW

-------Crime =
-----------Commission of any act prohibited by Law
-----------Omission of any act required by Law
-------i.e. actus reus (the criminal act itself)
-----------act is Voluntary and a legal duty to do or not to do

-------Criminal = an individual who commits or omits according to the Law

Crime is thus the product of free choice of the individual

-------AFTER a rational calculation of POTENTIAL BENEFITS (pleasures) and POTENTIAL COSTS (pain)

Rational Response of Society should be:
-------Increase Costs/Pain of committing/omitting
-------Decrease Benefits/Pleasure
-------Thus…DETERRENCE is the main response
-----------Severe, Certain, Swift Punishments

Basic Problem (task) for Criminology

-------Design/Test systems of Punishment that results in minimal occurrence and reoccurrence of crime

2. CRIMINAL BEHAVIOR AS CAUSED Paradigm


It developed in the mid-late 19th century
Full-blown Enlightenment: Science and Scientific Method

Reaction to "failure" of Classical Criminology and Deterrence
-------Crime had NOT diminished...as promised

A very MIXED and DIVERSE paradigm
-------Contains many opposing theories

YET...despite the differences:

-------All are premised on stance that BEHAVIOR IS DETERMINED BY FACTORS BEYOND INDIVIDUAL'S CONTROL

Humans are NOT self-determining agents "free" to do as they wish and as their intelligence directs

RATHER: can ONLY behave as they have already been determined to do

-------Evolutionary in focus
-----------humans change in slow evolutionary process
-----------NOT because intelligence leads them to increasingly rational choices

Thinking and Reasoning:
-------processes of rationalization to justify predetermined courses of action

The paradigm of POSITIVIST CRIMINOLOGY

-------POSITIVISM: the philosophy that knowledge is accessible, apparent, observable (senses), measurable, and NOT in need of any negating to get to
-------Scientific search for CAUSES of crime and criminality
-----------Crime = determined behavior of people
-----------Criminal = individual who is "product" of determining conditions

Deterrence/Punishment will have NO effect...IF behavior is "beyond the control" of individuals
-------Thus: is a CRITIQUE OF CLASSICAL CRIMINOLOGY

Development of Paradigm's Focus

1st FOCUS: BIOLOGICAL CAUSES

-------Physiogamy (facial features)
-------Phrenology (shape of skull and bumps)
-------Cesare Lombroso: the BORN CRIMINAL
-----------examined dead "criminals" (those who died in prison)
-----------they had inherited traits (Criminal Anthropology)
-----------were ATAVISTIC ANOMALIES (throwbacks to savages)
-----------Also: indirectly inherited from "degenerate families"
-------Theoretical and Methodological Problems abound

2nd FOCUS: PSYCHOLOGICAL CAUSES

-------Coverage in Textbook and in Class

3rd FOCUS: SOCIOLOGICAL CAUSES

-------EARLY: Quetelet (1794-1874)--Mathematician

-------Cartographic School of Criminology
----------beginning of Criminal Statistics
----------"mapping" of social factors correlated with crime
------------season, climate, population and composition, sex, age, poverty

PRIMARY: Emile Durkheim...beginning of Sociology

-------Crime is normal and necessary
-------Crime (deviance from norms) has always been
-----------linked to "differences" in society
-----------different solutions from different people
-------Crime (deviance) presupposes that "change is possible"
-------Crime is even beneficial: helps focus on problems...reaffirms norms
-------ANOMIE (normlessness) gives rise to deviance

LATER: Chicago School of Positivism

-------Social Ecological School (urban settings)
-------Social Disorganization (breakdown of institutions)
-------Social Psychological dimension (failure of socialization process)

CRIME: emphasis away FROM Legal Definitions...TO "natural" definitions

-------focus on the "nature" of the behavior itself
-------LAW has its own categories which don't necessarily match or correspond to the behaviors defined as "criminal"

3. BEHAVIOR OF THE CRIMINAL LAW Paradigm


Focus is on the DEFINING PROCESSES through the social/political/economic institutions of society

Came to prominence in and since the 1960's
-------Although around for long time before that

The paradigm of CRITICAL/CONFLICT/RADICAL/MARXIST CRIMINOLOGY
-------Very different questions asked and addressed

CRIME & CRIMINALS

-------analyze processes by which these labels are attached and applied to certain people and certain events by law enactment and enforcement officials
-----------NOT take "system" and its concerns for granted

BASIC CRIMINOLOGICAL PROBLEM

-------to explain the distribution of official crime rates among various groups in society
-----------focus on the processes by which humans create the social world in which they live
-----------processes by which particular types and sets of people are defined as criminal at particular times and places (and others are not)
-----------Why certain activities are selected for definition as crimes while at times similar activities are not
-------Study of the SYSTEMATIC DIFFERENCES in the enforcement of laws
-----------Which results in disproportionate representation in the Criminal Justice System

This paradigm SUGGESTS:

-------Volume of crime and characteristics of criminals are determined primarily by HOW the law is written/enforced
-----------i.e. most people convicted of crimes are poor, but not because poverty causes crime
-----------RATHER: actions typical of poor people are more likely to be legally defined as crimes... more strictly enforced
------THUS: differences in crime rates for rich and poor may reflect differences in behavior of the Criminal Law rather than behaviors of indiviiduals or groups

SUMMARY AND CONCLUSIONS


1. An explanation of crime depends on which Paradigm is being used

2. Each Paradigm sees itself as self-sufficient...each is self-satisfying
-------SPIRITUAL EXPLANATIONS should be viewed as a Paradigm itself

3. Each Paradigm is a bounded...partial/limited view
-------like a physical "window" in a room (lets you "see" only that which it can because of its frame)
-------BUT...each is not equally limited as the others
-------i.e. different size "windows" give differeing amounts of "view"

4. Each Paradigm will have Theories & Methods consistent with its own "view"
-------i.e. its own "image of the subject matter"

5. SUMMARY TABLE

PARADIGM....................CRIMINOLOGY

Spiritual.........................Pre-Classical
Free Will........................Classical
Caused..........................Positivist
Criminal Law.................Critical/Radical

PARADIGM....................THEORETICAL

Spiritual.........................Order/Consensus
Free Will........................Order/Consensus
Caused..........................Order and Conflict
Criminal Law.................Order & Conflict & Interactionsim

PARADIGM....................LEVEL OF ANALYSIS

Spiritual.........................Micro(up)/Macro(down)
Free Will........................Micro(up)
Caused..........................Micro(up)/Meso(down)/Macro(down)
Criminal Law.................Micro/Meso/Macro(up/down)

6. IMPLICATIONS

.....Each Paradigm reveals SOME aspect(s) of the reality of crime
.....Goal is not to simply choose one and reject the others
.....What is the "truth" of each Paradigm? .....Must "release" that "truth" from the boundaries of its paradigm
.....What would a "non-paradigmatic" view of crime be like?
-------OR...an "integrated paradigm"?

7. SOME FURTHER QUESTIONS

.......1. Is there any such thing as a "free" will?
.......2. Is "rational" equal to mere or simple "calculating"?
.......3. Is there anything that is UNconditioned?
.......4. What types or kinds of "conditioning" is there?
.......5. Are "conditions" the same as "causes"?
.......6. Does the type of crime depend on the values of a society?
.......7. What is the difference between an "excuse" and a "reason"?
.......8. With which of the other three paradigms is the Spiritual Paradigm the most consistent?
.......9. Is it possible to be "non-paradigmatic"?
......10. Which of the four paradigms could best incorporate the other three?