So-called “criminal profiling” also has its roots in the history of western criminal law. Before modern forensic science, sociologists lined up on both sides of the question: What makes a criminal? Is it society? Poverty? Association with other bad people?
This article is in two parts: Part 1 is a history of western criminal law, its origins, and the development of our jury system, followed by a short discussion of the two schools of criminal sociology. Part 2 is a short discussion of other views of crime and criminality as discussed in Erich Goode’s study of “Deviant Behavior.”
Part 1 – A history
Western criminal law has its origins in social customs evolving as society became ever more complex and evolved into its current codified penal system. As people began living together for protection in increasingly larger groups, grievances were principally resolved by vendettas and revenge. These early groups were extremely homogeneous and usually had agreed upon moral and social codes.
As society became more complex, laws and rules were needed to regulate revenge. Life expectancy was low, and no community could flourish with its members conducting unrestricted revenge. There was also the Hebrew tradition and the law of Moses, where the belief was that retribution must be taken towards law breakers in order to avoid the wrath of God. This retribution most often initiated upon the complaint of the victim (or family of the victim) frequently took the form of a fine. As the European nation states developed, laws also developed that protected the interests of the state.
Early criminal law was based largely on religious belief. Sin was crime, and crime was sin. Until 1215 the Catholic clergy in Europe were an integral part of the penal system where the accused was put to the test of torture and oaths as a test of guilt or innocence. The Fourth Lateran Council, among other things, resulted in the Church’s banning clergy participation in the judicial system. This was partly due to reformers’ recognizing that ordeals and tortures were a particularly unsatisfactory way to conduct the judicial system.
The origin of the jury system in England is not known. Significantly, England departed from the European model and eventually developed a system more attuned to rights of the accused. The Europeans continued to maintain their inquisitional system where the court basically controlled the inquiry process. England’s system developed from appointed groups of grand juries to investigate crimes and indict wrongdoers. The next step was the development of so-called petty juries convened to judge the guilt or innocence of accused criminals.
The guiding principles of English criminal law reside in what is known as Common Law. As cases were adjudicated, recorded, and filed in the legal archives of London, the principles were published and deemed to binding in future similar cases. Common Law, in short, is a system of laws and legal precedents and was the basis of the legal systems exported by Great Britain to its colonies. (Ironically, it was the British Crown’s denial of the American colonists’ rights as British subjects under the Common Law that was a cause of the American Revolution.)
Another significant development in the development of criminal law was the Magna Carta. About the same time of the Fourth Lateran Council, there were a group of British Barons who were fed up with the way they were being treated by the Crown. The nobles successfully forced King John to grant concessions and rights which placed limits on the king’s power and increased the prerogatives of the Parliament, strengthened and codified the court system, protected foreign merchants, and granted certain citizen rights that were eventually extended to all. Because of the Magna Carta, noblemen had no special rights in British law and any freeman had access to the courts. Moreover, the crown was forced to abide by court decisions, the Court of Common Pleas became the final authority.
Against this background of continually developing Common Law and society’s need to cope with criminal behavior, nineteenth century thinkers began to develop theories of criminal deviance, principal among which were:
The Free Will or Classical School. This view held that people, criminals included, tend to behave according to their own strict self-interests. Free will advocates believed that punishments should be applied equally for the same crime, regardless of the situation of the offender. This model holds that the way to “ensure conformity to society’s norms and lawsis to apprehend and punish offenders, thereby making the pain following a violation greater than the pleasure derived from it.” (Goode, 67)
The Positive School. This is the view that crime and criminal behavior are things that could be scientifically studied. According to Erich Goode, Positivism was the dominant scientific perspective in the second half of the nineteenth century. Positivists like Cesare Lombroso believed that criminals were biologically predisposed to commit crime, hence, the notion of determinism. Positivists advocated the concept of letting the punishment fit the offender, often with indeterminate sentences.
Each of the foregoing theories has contributed to the modern criminal justice system. One result of the Free Will/Classical School was the development of penal codes and a systematic formal training of judges. The Positive School’s contributions included a classification system for criminals and crime prevention measures such as lighted streets and police patrols.
Part 2 – Theories of crime and deviance
Finally, the text discusses a number of theories explaining crime/deviance. These theories are briefly described, and a short critique follows each:
Social pathology argued that society is like an organism and deviance is like a disease. This late 19th/early 20th century moralistic and scientific view that middle class values were “normal” and deviance was almost exclusively an “underclass” phenomenon. This view proved inadequate in a society of growing industrialism and poverty.
The social disorganization school regarded the community rather than the individual as the source of norm violations. The Chicago School argued that entire neighborhoods “become so disorganized that adapting to them entailed engaging in deviant behavior.” (74) This theory does well in explaining “street” crime, but it falls short for other forms of deviance that are not seriously criminal. (78)
Anomie theory argues that deviance is a product of “disjunction or contradiction between the culture and the social and economic structure.” This theory argues that a condition of stress results when those in our society who are left behind are forced into one of an “array of deviant adaptations.” (95) Anomie theory also embraces views that deviants must function within their own realm and suffer from phenomena such as status frustration and “illegitimate opportunities” to flourish in the social underclass. The text engages in some rather complicated (and at times equivocating) critique. Anomie theory is a useful tool in which to examine individual phenomena, such as gangs. On the other hand, Anomie theory appears to remove much of the blame for deviant behavior from the criminal and transfers it to society.
Differential association (Learning theory) holds that criminal behavior is learned by face-to-face interaction between people who are close or intimate with one another. This theory explains why crime rates vary among different groups of people and the role of endemic crime in certain social circles. The theory holds that a person “becomes delinquent or criminal because definitions favorable to the violation of the law exceed definitions unfavorable to the violation of the law.” (88) The author points out that the theory has been criticized for being vague and untestable and does not hold up as an explanation of many kinds of crime. Also, the author continues “learning is not necessarily a cause of much deviant behavior” (89)
Control Theory studies why people DO NOT engage in deviance. This theory holds that what causes deviant behavior is the absence of social controls. Instead of focusing on why criminals break the law, this approach focuses on the rest of society, who do not break the rules. Further, control theory looks at phenomena of attachment, commitment, involvement, and the individual’s belief in the norms of conventional institutions. “The stronger these bonds or attachments, the more conventional one’s behavior” (91) This theory provides an effective tool for studying crime, deviance, and delinquency, but doesn’t do much for the study of personality disorders and mental illness.
Self-control theory states simply that people violate norms and the law because they lack self-control, tend to be insensitive, self-centered, impulsive, and, among other things, are relatively unintelligent. Interestingly, this self-evident (and refreshingly commonsense) approach, is saved for last in the author’s presentation. His main criticism is that advocates of this approach argue that other perspectives are “completely incompatible with the facts of the crime.” Goode further (and almost in a cavalier manner, in my opinion) says that it is “too early to assess the validity of self-control theory in anything like a definitive fashion.” (95)
The Control and Self-control theories would appear to provide the most effective tools for studying and explaining deviancy and criminal behavior. Control Theory focuses on the positive things society does to ensure conformity and law abiding behavior and deter crime. Self-control theory focuses on the unsatisfactory personal behavior and personality traits which influence deviant behavior. Although both theories do not provide a comprehensive explanation for all deviant behavior (e.g., mental illness), control theory “represents one of the more powerful approaches we have to explain crime” (92), and self-control theory places much of the blame for the deviant behavior on the perpetrator.
Goode, Erich. “Deviant Behavior,” 5th ed. Englewood Cliffs, NJ: Prentice Hall, 1997