Defenders of order or guardians of human rights ?

Abstract

CRIME, MOST MODERN SOCIOLOGISTS AGREE, IS BEHAVIOR THAT IS DEFINED BY THE legal codes and sanctioned by the institutions of criminal justice. It is generally agreed, moreover, that the legal definitions of crime and the criminal ultimate standards for deciding whether a scholarly work should be considered criminological. (1) Because of this, the contention that imperialist war and racism crimes is not only considered an unjustifiable imposition of values, but also an incompetent use of the notion of crime. In order to challenge this prevailing judgment, it is necessary to critically review some of the complex issues involved in a thirty-year-old controversy about the definition of crime. I. The Thirty-Year-Old Controversy Toward the end of the Great Depression, sociologists became involved in a controversy about legal definitions of crime and criminals. At least two developments stimulated the issue raised at the time: the rapid growth of a corporate liberal, sociological empiricism and the socially critical interest in white collar crime. The former gave rise to what was primarily a scientific, methodological critique of the traditional legal definition. The second generated a substantive and ethical criticism. The positivist, reformist, and traditionalist aspects of this controversy will be selectively reviewed, as were represented by three of the chief participants: Thorsten Sellin (1938), Edwin Sutherland (1945), and Paul Tappan (1947). A. Positivism and the Definition of Crime In the controversy, American sociologists and lawyers argued furiously about definitions that distinguish crimes from other types of behavior and criminals from other types of persons. It was observed that traditionally, criminologists used definitions provided by the criminal and, as a result, the domain of criminology was restricted to the study of behavior encompassed by that However, one sociologist, Thorsten Sellin, declared in 1937 that if the criminologist is interested in developing a science of criminal behavior, he must rid himself of the shackles forged by criminal Criminologists, Sellin added, should not permit nonscientists (e.g., lawyers or legislators) to fix the terms and boundaries of the scientific study of crime. Scientists have their own unique goals that include the achievement of causal theories of criminal behavior. In evaluating the usefulness of legal definitions for scientific purposes, Sellin noted that such definitions merely denote external similarities rather than natural properties of criminal behavior. The legal definitions, therefore, do not arise from the intrinsic nature of the subject matter at hand. They are, in Sellin's view, inappropriate as scientific definitions of crime (1938, 20-21). How can scientific definitions be developed? In an effort to answer this, Sellin pointed out that scientists interested in universal relationships. Since represent such relationships (they are found wherever groups found), studies of conduct norms afford a sounder basis for the development of scientific categories than a study of crime as defined by the criminal law. Such a study, Sellin added, would involve the isolation and classification of norms into universal categories, transcending political and other boundaries, a necessity imposed by the logic of science. Conduct norms transcend any concrete group or institution such as the state, in Sellin's opinion, because they not the creation of any normative group; not confined within political boundaries; not necessarily embodied in the law (1937, 30). Sellin's argument, it should be noted, was organized around the assumption that scientific definitions determined by the goals and methods of the scientist qua scientist. The limits of Sellin's critique, consequently, focused primarily on the achievement of scientific explanations. …