Class 1: Themes
Substantive criminal laws: Legal definitions of offences and excuses
Criminal procedure/"adjectival" law: Mechanisms which process some those suspected of offences
through to guilty verdicts and filter out others before a conviction is registered.
Pre-trial process:
Substantive criminal laws
o Applied by members of the public
Behaviour and whether or not to report to the police
Whether certain ambiguous behaviour goes against the criminal law
o Law enforcement agencies
Decisions made about the extent of enforcement, nature of charges
o Crown prosecutors
Decisions what charges to lay in an indictment following committal proceedings
Committal proceedings: In the cases of more serious offences, whether there is
sufficient evidence go require the defendant to stand trial
o Not all cases get to court
o Substantive reinterpretation of the law by non-police enforcement agencies
Imposition of own fault requirements
Emphasis on the discretionary aspects of the process
o Influence of pressures and tendencies due to demographics (class, gender, cultural, etc.)
Affects how discretion and selective application are exercised
o Decisions are often structured and institutionalised, not arbitrary
3 Aims of codification of the criminal law, pg 19:
Open to interpretation
1. Comprehensibility: Ensure that the law is easily understood
2. Consistency: Including the removal of inconsistent principles and policies
3. Certainty
Trial, pg 20:
Decision not to appeal may be due to:
o Counsel being overly cautious in challenging well-established rules
o Limited opportunities to appeal
o Limited economic resources
o Reluctance of appeal court to question jury verdicts
Jury's understanding of the judge's directions is unknown
"merciful" verdict vs "perverse" verdict
Populism: A political philosophy that supports the rights and power of the people in their struggle
against the privileged elite
Penal Populism: Process whereby major political parties fight to be tougher on crime
,Class 2: Criminalisation: Introduction, Defining Crime, Moral Panics
Class aims:
To examine the concept of criminalisation, how crime is constituted and why certain forms of
behaviour are proscribed and dealt with as criminal
To understand how criminal law is historically contingent, culturally specific and socially
constructed through race, class and gender
To understand how social reactions to particular forms of behaviour shape popular
understandings of crime
Concept of penalty
Goes beyond punishment
Concerned with social meaning and cultural significance of punishment and its broader social,
political and economic effects
What is criminal, what ought to be criminal, what factors affect the processes of criminalisation
2 perspectives:
1. Crime is defined by behaviour
2. Crime is defined by society (social response)
Lacey, "Legal constructions of crime":
What constitutes are crime should not be taken for granted since it is difficult to define and is
affected by societal constructions of crime which changes over time and context
According to Cohen, what are some of the problems with criminalisation?
Cohen, "Against Criminology", pg 48:
Problems with the theory of criminalisation:
1. The determination of certain behaviours is influenced by judging situations and conflicts
differently
i. 3 common assumption about power
1. Power is centrally-focused - always based on the privilege position of the
state
2. Power is a property
3. Power always operates in negative & repressive terms
2. The way criminalisation relates to the overall exercise of power in modern society
Criminalisation
o Process of identifying an act deemed dangerous to the dominant social order and
designating it as criminally punishable
o Unlike social norms that we know as subtle, continuous, and negotiable, we start to talk
about a dichotomous variable, crime/non-crime
o In principle... an act cannot be demonstrate a little of both properties. Strictly speaking,
there cannot be degrees of criminality
o The more clearly the social danger is exposed, the more difficult it is to use solely the
criminal law as a weapon in attacking the social danger
o Defining a problem in terms of crime provides a notion of what counts as a solution
Either no crime or less crime
Overcriminalisation: Making too many things criminal/Overuse of the criminal law
What does Husak means by overcriminalisation and what are his objections to it?
Husak, "Overcriminalisation: The Limits of the Criminal Law", pg 49:
, Overcriminalisation: Imposing criminal sanctions on too many behaviours, including those that
should not be criminalised
Objections:
o Overcriminalisation results in too much punishment i.e. punishment that is unjust
o A significant amount of punishments are unjust because they are imposed on conduct
that should not be criminalised
o Defendants should be informed whether their conduct is criminal
Increase certainty and predictability as to whether their conduct would incur penal
liability
Law exists to guide behaviour
o Significant amount of opportunity costs
Resources such as money and manpower are diverted from other uses
o Lack of respect for the law
Certain rules and regulations are viewed as redundant and stupid
Decrease in public confidence in the criminal justice system
As the scope of criminal liability widens, stigma associated with people convicted
of criminal offences would be eroded - Decrease in deterrence ability
o Widening the scope of criminal liability is worrisome, even without resulting in
convictions and punishment
Arrest is punishment
o Erosion of the rule of law
Quantity of criminal law undermines the principle of legality
Behaviour condemned by criminal law requires looking at noncriminal laws
Commonsense approach: Notion that everyone knows a crime if they see one.
Limits to commonsense approach to defining crime:
Hogg & Brown, Rethinking Law and Order, p51:
Key assumptions that form the foundation of public and policy debate around crime are
unquestioned and viewed as unquestionable
o There is reliance on practical methodologies and understanding of the issues and
commonly deny the need or worth of research or of any more rigorous analysis of social
reality
o Definitions are created based on the assumptions
Definitions establish the problem, identify the main issues and actors, provide the
solution
"hierarchy of creditability' - Highlights how, in any hierarchical situation or
society , the right to define reality is not equally distributed
Derives from differences of power and status within particular institutional
settings
Not unfixed and unchanging
Commonsense embodies tacit judgments and assumptions that are harboured prior to
evidence being gathered
Any limits to 'core wrongs' idea?
'Core wrongs' idea: Idea that they are certain wrongs which are self evidently blameworthy
Cross-cultural influence on commonsense:
Cultural ideology and values affect commonsense
Geertz, Local Knowledge, p56:
o Law is local knowledge in the sense that it reflects the characteristics of the locals and is
constructive of social life, not reflective
, o Difficult to understand another person's way of thinking
o There is a difference between understanding a phenomenon by ignoring the
assumptions embedded and understanding that a phenomenon can only be understood
by reflecting on the assumptions by including them
There is a need to make the assumptions, language, etc. part of the study of the phenomenon
o Power and knowledge and interlinked
E.g. The court hierarchy - hierarchy of authority and power in terms of the
doctrine of precedent and of binding authority
Hogg, "Perspectives on the criminal justice system", p57
o Routinely produced knowledge about crime and the crime-fighting role of the agencies
provides the material for & shapes the commonsense centre of the theories of criminal
justice
o Power operates in and alongside he processes of knowledge formation, designating
certain objects of knowledge, blocking others, restraining the analyses that might be
constructed
o Knowledge is only possible though certain material practices which are invested with
power relations
o Crime is not external to the practices of criminal justice and we are only able to know it
through these practices
o Unable to understand the processes of knowledge/power if it is assumed that the
subject matter of knowledge exist externally
o There is a common framework in which most criminal justice research is conducted
Criminal justice system is treated as a system with a set of institutions and linked
processes within which power is localised and exercised upon external objects
Lee, Inventing Fear of Crime, p58
o Fear of the feedback loop
Research into the fear of crime produces the information which informs the
citizens that they are indeed fearful
Politicians use the information to justify a tougher approach on crime which feeds
the fear
Pratt, Penal Populism, p53:
Penal populism:
o Product of deep social and cultural changes
o Reflection of a shift in the focus of current penal power brought about by changes
Rise of penal populism
o Lead to people being less willing to leave questions, including penal questions, up to the
government
o Increase in populist organisations and increase in support for them
o Creation of expectations of security and order dues to the incorporation of concerns
about efficiency, economy and humanitarianism in penal strategy and thought
Usually disappointed
Historical relativity & change:
There were changes in the definition of the legal subject for the purposes of attaching criminal
responsibility can be traced back to infancy, the unborn, mental disability, marital status,
group and corporate liability
Concept of "state crime" challenges the predominant view that criminality refers to the
behaviour of individuals
Conclusion:
Substantive criminal laws: Legal definitions of offences and excuses
Criminal procedure/"adjectival" law: Mechanisms which process some those suspected of offences
through to guilty verdicts and filter out others before a conviction is registered.
Pre-trial process:
Substantive criminal laws
o Applied by members of the public
Behaviour and whether or not to report to the police
Whether certain ambiguous behaviour goes against the criminal law
o Law enforcement agencies
Decisions made about the extent of enforcement, nature of charges
o Crown prosecutors
Decisions what charges to lay in an indictment following committal proceedings
Committal proceedings: In the cases of more serious offences, whether there is
sufficient evidence go require the defendant to stand trial
o Not all cases get to court
o Substantive reinterpretation of the law by non-police enforcement agencies
Imposition of own fault requirements
Emphasis on the discretionary aspects of the process
o Influence of pressures and tendencies due to demographics (class, gender, cultural, etc.)
Affects how discretion and selective application are exercised
o Decisions are often structured and institutionalised, not arbitrary
3 Aims of codification of the criminal law, pg 19:
Open to interpretation
1. Comprehensibility: Ensure that the law is easily understood
2. Consistency: Including the removal of inconsistent principles and policies
3. Certainty
Trial, pg 20:
Decision not to appeal may be due to:
o Counsel being overly cautious in challenging well-established rules
o Limited opportunities to appeal
o Limited economic resources
o Reluctance of appeal court to question jury verdicts
Jury's understanding of the judge's directions is unknown
"merciful" verdict vs "perverse" verdict
Populism: A political philosophy that supports the rights and power of the people in their struggle
against the privileged elite
Penal Populism: Process whereby major political parties fight to be tougher on crime
,Class 2: Criminalisation: Introduction, Defining Crime, Moral Panics
Class aims:
To examine the concept of criminalisation, how crime is constituted and why certain forms of
behaviour are proscribed and dealt with as criminal
To understand how criminal law is historically contingent, culturally specific and socially
constructed through race, class and gender
To understand how social reactions to particular forms of behaviour shape popular
understandings of crime
Concept of penalty
Goes beyond punishment
Concerned with social meaning and cultural significance of punishment and its broader social,
political and economic effects
What is criminal, what ought to be criminal, what factors affect the processes of criminalisation
2 perspectives:
1. Crime is defined by behaviour
2. Crime is defined by society (social response)
Lacey, "Legal constructions of crime":
What constitutes are crime should not be taken for granted since it is difficult to define and is
affected by societal constructions of crime which changes over time and context
According to Cohen, what are some of the problems with criminalisation?
Cohen, "Against Criminology", pg 48:
Problems with the theory of criminalisation:
1. The determination of certain behaviours is influenced by judging situations and conflicts
differently
i. 3 common assumption about power
1. Power is centrally-focused - always based on the privilege position of the
state
2. Power is a property
3. Power always operates in negative & repressive terms
2. The way criminalisation relates to the overall exercise of power in modern society
Criminalisation
o Process of identifying an act deemed dangerous to the dominant social order and
designating it as criminally punishable
o Unlike social norms that we know as subtle, continuous, and negotiable, we start to talk
about a dichotomous variable, crime/non-crime
o In principle... an act cannot be demonstrate a little of both properties. Strictly speaking,
there cannot be degrees of criminality
o The more clearly the social danger is exposed, the more difficult it is to use solely the
criminal law as a weapon in attacking the social danger
o Defining a problem in terms of crime provides a notion of what counts as a solution
Either no crime or less crime
Overcriminalisation: Making too many things criminal/Overuse of the criminal law
What does Husak means by overcriminalisation and what are his objections to it?
Husak, "Overcriminalisation: The Limits of the Criminal Law", pg 49:
, Overcriminalisation: Imposing criminal sanctions on too many behaviours, including those that
should not be criminalised
Objections:
o Overcriminalisation results in too much punishment i.e. punishment that is unjust
o A significant amount of punishments are unjust because they are imposed on conduct
that should not be criminalised
o Defendants should be informed whether their conduct is criminal
Increase certainty and predictability as to whether their conduct would incur penal
liability
Law exists to guide behaviour
o Significant amount of opportunity costs
Resources such as money and manpower are diverted from other uses
o Lack of respect for the law
Certain rules and regulations are viewed as redundant and stupid
Decrease in public confidence in the criminal justice system
As the scope of criminal liability widens, stigma associated with people convicted
of criminal offences would be eroded - Decrease in deterrence ability
o Widening the scope of criminal liability is worrisome, even without resulting in
convictions and punishment
Arrest is punishment
o Erosion of the rule of law
Quantity of criminal law undermines the principle of legality
Behaviour condemned by criminal law requires looking at noncriminal laws
Commonsense approach: Notion that everyone knows a crime if they see one.
Limits to commonsense approach to defining crime:
Hogg & Brown, Rethinking Law and Order, p51:
Key assumptions that form the foundation of public and policy debate around crime are
unquestioned and viewed as unquestionable
o There is reliance on practical methodologies and understanding of the issues and
commonly deny the need or worth of research or of any more rigorous analysis of social
reality
o Definitions are created based on the assumptions
Definitions establish the problem, identify the main issues and actors, provide the
solution
"hierarchy of creditability' - Highlights how, in any hierarchical situation or
society , the right to define reality is not equally distributed
Derives from differences of power and status within particular institutional
settings
Not unfixed and unchanging
Commonsense embodies tacit judgments and assumptions that are harboured prior to
evidence being gathered
Any limits to 'core wrongs' idea?
'Core wrongs' idea: Idea that they are certain wrongs which are self evidently blameworthy
Cross-cultural influence on commonsense:
Cultural ideology and values affect commonsense
Geertz, Local Knowledge, p56:
o Law is local knowledge in the sense that it reflects the characteristics of the locals and is
constructive of social life, not reflective
, o Difficult to understand another person's way of thinking
o There is a difference between understanding a phenomenon by ignoring the
assumptions embedded and understanding that a phenomenon can only be understood
by reflecting on the assumptions by including them
There is a need to make the assumptions, language, etc. part of the study of the phenomenon
o Power and knowledge and interlinked
E.g. The court hierarchy - hierarchy of authority and power in terms of the
doctrine of precedent and of binding authority
Hogg, "Perspectives on the criminal justice system", p57
o Routinely produced knowledge about crime and the crime-fighting role of the agencies
provides the material for & shapes the commonsense centre of the theories of criminal
justice
o Power operates in and alongside he processes of knowledge formation, designating
certain objects of knowledge, blocking others, restraining the analyses that might be
constructed
o Knowledge is only possible though certain material practices which are invested with
power relations
o Crime is not external to the practices of criminal justice and we are only able to know it
through these practices
o Unable to understand the processes of knowledge/power if it is assumed that the
subject matter of knowledge exist externally
o There is a common framework in which most criminal justice research is conducted
Criminal justice system is treated as a system with a set of institutions and linked
processes within which power is localised and exercised upon external objects
Lee, Inventing Fear of Crime, p58
o Fear of the feedback loop
Research into the fear of crime produces the information which informs the
citizens that they are indeed fearful
Politicians use the information to justify a tougher approach on crime which feeds
the fear
Pratt, Penal Populism, p53:
Penal populism:
o Product of deep social and cultural changes
o Reflection of a shift in the focus of current penal power brought about by changes
Rise of penal populism
o Lead to people being less willing to leave questions, including penal questions, up to the
government
o Increase in populist organisations and increase in support for them
o Creation of expectations of security and order dues to the incorporation of concerns
about efficiency, economy and humanitarianism in penal strategy and thought
Usually disappointed
Historical relativity & change:
There were changes in the definition of the legal subject for the purposes of attaching criminal
responsibility can be traced back to infancy, the unborn, mental disability, marital status,
group and corporate liability
Concept of "state crime" challenges the predominant view that criminality refers to the
behaviour of individuals
Conclusion:
