construction and deconstruction of crime

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The construction and deconstruction of crime
1.3 The construction and deconstruction of crime
John Muncie
Defining crime
What is crime? The Oxford English Dictionary states
that crime is:
An act punishable by law, as being forbidden by
statute or injurious to the public welfare…. An
evil or injurious act; an offence, a sin; esp. of a
grave character.
At first sight, such a definition appears straightforward and uncontroversial: a crime is an illegal act.
However, on closer examination things are not
so simple. […]
To appreciate fully the complexities of the
question ‘what is crime’, we need to broaden our
enquiry to include some understanding of criminal
law, social mores and social order.
Crime as crimina/law violation
The most common and frequently applied definition of crime is that which links it to substantive
criminal law. In other words, an act is only a crime
when it violates the prevailing legal code of the
jurisdiction in which it occurs. Michael and Adler
are thus able to argue that the most precise and
least ambiguous definition of crime is ‘behavior
which is prohibited by the criminal code’ (Michael
and Adler, 1933, p.S) (DEFINITION 1). […]
This logic was taken to its extreme by
Tappan’s argument that: ‘Only those are criminals
who have been adjudicated as such by the courts.
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’ (Tappan, 1947,
p.lOO) (DEFINITION 2). This black letter law
approach – that the application of a legal sanction
through court processes and practices must be pursued before a crime can be formally established to
have occurred- maintains that no act can be considered criminal before and unless a court has
meted out some penalty.
Again, this may appear clear-cut and uncontroversial, but two important consequences flow
from such formulations. First, there would be no
crime without criminal law. No behavior can be
considered criminal unless a formal sanction exists
to prohibit it. Michael and Adler (1933, p.S) contend that: ‘if crime is merely an instance of
conduct which is proscribed by the criminal code,
it follows that the criminal law is the formal cause
of crime’. Second, there would be no crime until
an offender is caught, tried, convicted and punished. No behavior or individual can be considered
criminal until formally decided upon by the criminal justice system.
By drawing these lines of argument together,
Sutherland and Cressey proposed a definition of
crime which (at least up to the 1960s) was adopted
by most social scientists and legal scholars:
Criminal behavior is behavior in violation of
the criminal law … it is not a crime unless it is
prohibited by the criminal law. The criminal
law, in turn, is defined conventionally as a body
of specific rules regarding human conduct
which have been promulgated by political
authority, which apply uniformly to all members of the classes to which the rules refer and
which are enforced by punishment administered by the state.
(Sutherland and Cressey, 1924/1970, p.4)
(DEFINITION 3)
In a similar vein, a number of conditions must be
met before an act can be legally defined as a crime:
111 The act must be legally prohibited at the time it
is committed.
111 The perpetrator must have criminal intent
(mens rea).
e The perpetrator must have acted voluntarily
(actus rea).
e There must be some legally prescribed
punishment for committal of the act.
What this means is that we can only understand
crime by identifying the distinctive procedural
rules of evidence, burdens and standards of proof
and particular forms of trial established within
criminal law. It also assumes that people act with
free will and should be made responsible for their
actions. Yet the argument is circular: criminal law
and court procedures claim to respond to crime,
yet crime can only be defined by looking to the
. 1. Understanding crime and criminology
criminal law itself. Lacey et al. suggest that, in
order to break out of this impasse and move
towards a more adequate answer to the apparently
straightforward question, ‘what is crime?’, ‘we
must enter upon some broader reflection about
how our society comes to define “deviance”; how
it comes to be decided which deviance calls for a
legal response; and what determines that legal
response as a criminal as opposed to, or as well as,
a civil response’ (Lacey etal., 1990, pp. 2-3). […]
We can identify a number of other issues and
consequences that flow from legally based
definitions:
• An act can only be considered a ‘crime’ once it
is identified as such by law- thus criminals can
only be identified once processed and convicted
by the courts. But not all of those who break
criminal laws are caught and prosecuted. The
study of criminal behavior is thus severely
hampered, and may be particularly onedimensional if restricted only to those persons
who are convicted of offences.
o The approach neglects the basic issues of why
and how some acts are legislated as criminal,
while others may remain subject only to
informal control or rebuke.
o A black letter law approach tends to refer only
to the formal constitution and enactment of law
and underplays the different ways in which it is
enforced. It divorces the criminal process from
its social context, masking the ways in which
the law is not simply applied by the courts, but
is actively made and interpreted by key court
personnel (for example, in plea bargaining, the
quality of legal representation, and judicial
discretion). In turn, this may have important
consequences for what kinds of behavior should
be regarded as truly criminal. Are theft and
violence more serious than violations of health
and safety codes in the work place? Both may be
dealt with by the criminal law, but the tendency
to view the former as ‘real crime’ and the latter
as ‘regulatory offences’ may only lead us
(unjustifiably?) to exclude these latter behaviors
from our legitimate subject matter.
Crime as violation ofmoral codes
Sellin (1938) argued that the concept of crime
should be extended beyond legal violations of
moral and social codes. He contended that every
society has its own standards of behavior or ‘conduct norms’, but that not all these standards are
necessarily reflected in law. In this context, terms
such as ‘deviance’, ‘non-conformity’ and ‘antisocial conduct’ are preferred to that of ‘crime’,
because the latter is incapable of encompassing all
acts of wrong-doing. […]
Although clearly a social, rather than a legal,
category, [the term deviance] suffers from an
extreme cultural relativism and is inextricably
related to difficulties in establishing what is ‘normal’. As Simmons (1969, p.3) found in public
responses to the question, ‘who’s deviant?’, the
concept can be as readily applied to Christians,
pacifists, divorcees, ‘know-it-all’ professors and the
president of the United States as it can to criminals
and law-breakers. […]
Sutherland’s (1949) research into unethical
practices among corporate managers in the USA
found that, despite their serious and injurious nature,
such practices were often considered non-criminal: as
violations of civil, rather than criminal, law. As a
result, he argued that crime should be defined not on
the basis of criminal law, but on the more abstract
notions of ‘social injury’ and ‘social harm’. Thus:
The essential characteristic of crime is that it is
behavior which is prohibited by the state as an
injury to the state … The two abstract criteria …
as necessary elements in a definition of crime
are legal descriptions of an act as socially Jwrmfitl
and legal provision of a penalty for the act.
(Sutherland, 1949, p.31, emphasis added)
(DEFINITION 4)
Sutherland implied that some moral criteria of
social injury must be applied before any comprehensive definition of crime can be formulated.
However, whether morality has any more an objective status than law also remains disputed.
Subsequent moral ‘readings’ of crime have
been most forcibly put by those on the right of the
political spectrum but not confined to them. The
American neo-conservative social policy analyst
Charles Murray, for example, has maintained that
increases in crime are directly the result of a breakdown in family relationships and a growth in
illegitimacy (Murray, 1990). […]
Behaviors such as taking the life of another,
sexual violence and stealing for personal gain may
be considered to be particularly heinous and abhorrent. Each though has at some time also been
considered quite legitimate. Criminal laws are never
static or permanent features of any society. […]
As Wilkins (1964, p.46) warns: ‘there are no
absolute standards. At some time or another, some
form of society or another has defined almost all
forms of behavior that we now call”criminal” as
desirable for the functioning of that form of society’. The temporal and cultural relativity of ‘crime’
ensures that ‘there is no one behavioral entity
which we can call crime, there is no behavior
which is always and everywhere criminal’
(Phillipson, 1971, p.S). Similarly, if there are no
clear and unambiguous rules to decide which
actions should be subject to moral and legal sanction, can it be argued that any consensus exists in
society? Can the law or moral codes be relied upon
to reveal any such consensus?
Crime as social construct
A vast array of behaviors have been (or can be)
deemed ‘deviant’ or ‘criminal’ because they violate
legal or normative prescriptions. But there is no
common behavioral denominator that ties all of
these acts together. Propositions, such as society is
based upon a moral consensus or that the criminal
law is merely a reflection of that consensus, also
remain contentious. The interactionist school of
sociology, for example, argues that there is no
underlying or enduring consensus in society. […]
Rather, crime is viewed as a consequence of social
interaction: that is, as a result of a negotiated process
that involves the rule-violator, the police, the
courts, lawyers and the law-makers who define a
person’s behavior as criminal.
Behavior may be labelled criminal, but it is
not this behavior in itself that constitutes crime.
Rather, behavior is criminalized by a process of
social perception and reaction as applied and interpreted by agents of the law. Crime exists only
when the label and the law are successfully applied
to an individual’s behavior. It is not what people
do, but how they are perceived and evaluated by
others, that constitutes crime. Whereas law-violation approaches argue that the existence of ‘crime’
depends on the prior existence of criminal law,
interactionism logically contends that, without the
enforcement and enactment of criminal law (or social
reaction to certain behaviors), there would be
no crime.[…]
Social groups create deviance by making the
rules whose infraction constitutes deviance, and
by applying those rules to particular people and
labelling them as outsiders. From this point of
The construction and deconstruction of crime
view deviance is not a quality of the act a person commits, but rather a consequence of the
application by others of rules and sanctions to
an ‘offender’. The deviant is one to whom that
label has been successfully applied; deviant
behavior is behavior that people so label.
(Becker, 1963, p.9) (DEFINITION 5)
Thus ‘crime’ has no universal or objective existence, but is relative to the subjective
contingencies of social and historical circumstance.
This in turn opens up and expands the range of
criminological inquiry away from behavioral questions -Why did they do it? -towards definitional
issues -Why is that rule there? Who created it? In
whose interests? How is it enforced? What are the
consequences of this enforcement? (Cohen, 1973a,
p.623). It implies that we will only come to understand why an action is regarded as criminal by
examining both the processes of rule creation and
law enforcement. […]
The interactionist approach refutes the
notion that criminality is driven by some peculiar
motivation or that criminals are a species apart.
Rather, it contends that criminality is ordinary,
natural and widespread and as a result requires no
more explanation than that which might be
attached to any ‘ordinary’ activity. However, what
does require explanation is the complex process by
which agencies of social control are able to
construct a public identification of certain people
as criminal, and how social reaction and labelling
are able to produce and reproduce a recognizable
criminal population.[…]
Crime as ideological censure
Conflict-based analyses of the social order have
expanded on the basic premise of interactionism –
that crime only exists through the labelling of certain behaviors as such – by arguing that it is
essential to ground such generalities in specific
relations of power and domination. It is not a simple question of interest groups acting in
competition with each other (as the interactionists
would argue), but of the systematic and consistent
empowerment of some groups to the detriment
of others. […]
In developing a Marxist theory of crime and
criminal law, Chambliss (1975, p.152) argues that
acts are defined as criminal only when it is in the
interest of the ruling class to define them so. Crime
is a reality which exists only as it is created by
1 · Understanding crime and criminology
those in society whose interests are served by its
presence. In capitalist societies, ‘crime’ performs
the vital function of diverting the lower classes’
attention away from the conditions and source of
their exploitation, and enables the bourgeoisie to
expand penal law in their efforts to coerce the proletariat into submission. Behaviors are criminalized
in order to maintain political control and to
counter any perceived threat to the legitimacy of
the ruling class (the clearest examples of such a
process being the creation of public order offences
to curtail political demonstration and trade union
legislation to prevent ‘wildcat’ strikes):
Criminality is simply not something that people
have or don’t have; crime is not something
some people do and others don’t. Crime is a
matter of who can pin the label on whom, and
underlying this socio-political process is the
structure of social relations determined by the
political economy.
(Chambliss, 1975, p.165) (DEFINITION 6)
Sumner (1990) presents a development of this line
of argument which continues to recognize how
criminal law (and thus crime) can be a crucial
instrument of class power, but also argues that it
cannot be simply reduced to class relations and
class conflict. He prefers to treat crime and
deviance as matters of moral and political judgement – as social censures rooted in particular
ideologies. The concept of crime, then, is neither a
behavioral nor a legal category, but an expression
of particular cultural and political conditions.
Neither is ‘crime’ simply a label, but a generic term
to describe a series of ‘negative ideological categories with specific historical applications …
categories of denunciation or abuse lodged within
very complex, historically loaded practical conflicts
and moral debates … these negative categories of
moral ideology are social censures’ (Sumner, 1990,
pp.26, 28) (DEFINITION 7).
Crime as historical invention
Troublesome behaviors have been called ‘crimes’
(whether or not recognized in law) for so long that
the term is habitually used to condemn ‘unwanted’
or ‘undesirable’ acts or people. If ‘crime’ is intrinsically tied to ‘criminal law’, as various definitions
assume, then we only discover the origins of crime
in the development of criminal law in the eighteenth century. Up till then, the newly emergent
nation states in Europe lacked the resources to
invest in the wholesale formulation and enforcement of state law. At the time, many behaviors that
are today deemed criminal were governed by civil
law and religion. In other words, there was less
‘crime’ and more ‘sin’, ‘civil wrongs’ and ‘private
disputes’. The terms in which crime might be construed as a problem had not yet been formed. […]
Many explanations of the origins of criminal
law have pointed to the symbiotic relationship that
existed between economic power and the forging of
new legislation tailored to protect the unique interests of dominant groups. Chambliss (1964)
demonstrates how vagrancy laws find their origins
in economic circumstance and class power: originating in 1349, these laws made it a crime to give alms
to unemployed people. The law was passed following a chronic labour shortage experienced by
landowners as a consequence of the Black Death of
1348. The traditional custom of migratory and free
labour was criminalized in order to ensure an abundant supply of local, cheap labour. Agricultural
labourers could no longer move from county to
county to seek higher wages. Once the labour market was full, the laws fell into disuse, but were
revived in 1530 to protect the interests of the new
mercantile class. The emphasis shifted to controlling
the movement of ‘rogues’ and ‘vagabonds’ in order
to reduce the risk of robberies of commercial goods
while in transit. By 1743, a person could be liable
for prosecution if unable to give a ‘good account of
themselves’. The legislation was designed to serve
the interests of powerful interest groups who needed
a stable and static workforce to fill the fields and the
emergent factories. […]
From such analyses, ‘crime’ has been defined
as ‘human conduct that is created by authorised
agents in a politically organised society’ and used
to describe ‘behaviors that conflict with the interests of the segments of the society that have the
power to shape public policy’ (Quinney, 1970,
pp.15-16) (DEFINITION 8). This definition suggests that the identification and delineation of
‘crime’ is an inherently political process. The law
(and thus crime) is created and applied by those
who have the power to translate their private interests into public policy. Criminal law is coercive and
partial, its political neutrality a myth. Developing
this line of argument, De Haan claims that ‘crime’
is an ideological concept which ‘serves to maintain
political power relations; justifies inequality and
serves to distract public attention from more serious problems and injustices’ (De Haan, 1991,
p.207) (DEFINITION 9). In a similar vein, the his
torian, E.P. Thompson (1975, p.194), has asserted
that ‘crime’ is a disabling and moralistic category.
To restrict the analysis of crime to those definitions
constructed by property owners and the state can
only hinder accurate historical research and produce pre-given moral interpretations.
Crime as social harm
In the section ‘Crime as violation of moral codes’
we noted that Sutherland’s (1949) pathbreaking
study of corporate malpractices led to a recognition among criminologists of the need to move
beyond legally defined conceptions of crime if the
existence of other more damaging forms of ‘injury’
or ‘social harm’ are to be recognized and incorporated into the criminological agenda. By the 1970s,
the critical criminologists, the Schwendingers, for
example, expanded the list of potentially injurious
practices to include the systematic violation of
basic human rights. Working within a theoretical
tradition which maintains that capitalist and imperialist social orders (and their state practices)
contain their own criminogenic tendencies, they
promoted a definition -of crime based on a conception of the denial of basic fundamental human
rights:
The abrogation of these rights certainly limits
the individual’s chance to fulfil himself in many
spheres of life. It can be stated that individuals
who deny these rights to others are criminal.
Likewise social relationships and social systems
which regularly cause the abrogation of these
rights are also criminal. If the terms imperialism, racism, sexism and poverty are abbreviated
signs for theories of social relationships or social
systems which cause the systematic abrogation
of basic rights, then imperialism, racism, sexism
and poverty can be called crimes.
(Schwendinger and Schwendinger, 1970, p.l48)
(DEFINITION 10)
And in the 1990s, a whole range of ‘injurious practices’ or ‘non-crimes’ such as the failure to enforce
health and safety standards at work, the deliberate
marketing of known faulty products, the ‘culpable
negligence’ of tobacco and food companies knowingly promoting unsafe and life-threatening
substances, the international dumping of toxic
waste, the abuse involved in the transportation of
live animals, the extent of violence in the home or
the systematic flouting of export controls to certain countries by arms manufacturers not only
The construction and deconstruction at crime
came to enter public idiom as ‘crime’, but also
began to be taken seriously by academic criminologists. What all such cases reveal is that a legal
concept of ‘crime’ is not only partial but that many
of the most harmful acts are actually supported by
the law (Tifft, 1994/5). They also suggest that
victimization is far more prevalent and widespread
than official definitions would have us believe.
To tackle such partiality, some authors have
begun to place ‘crime’ within a broader context of
social harm in which the visible and the obscured,
the legally recognized and the legally sanctioned
can be included in a comprehensive, continuous
and integrated vision of criminal and harmful acts.
Henry and Milovanovic (1996, p.l-16), for example, work within a broad conception of ‘crime’ as
the ‘power to deny others’: ‘crime is the expression
of some agency’s energy to make a difference on
others and it is the exclusion of those others who
in the instant are rendered powerless to maintain
and express their humanity’ (DEFINITION 11).
For others, given the vast diversity of behaviors or
acts that have been (or can be) considered ‘criminal’, there remains no sense in retaining the
concept of ‘crime’ at all. Hulsman (1986, p.71), for
example, has argued that ‘crime has no ontological
reality. Crime is not the object but the product of
criminal policy.’ He prefers to work with the less
emotionally charged concepts of ‘trouble’, ‘problematic situation’ and ‘undesirable occurrence’. In
a similar vein, De Haan (1991, p.208) contends
that ‘what we need is not a better theory of crime,
but a more powerful critique of crime.’ Again, this
requires an a! ternative series of conceptualizations:
‘unfortunate events’; ‘more or less serious troubles’;
‘conflicts which can result in suffering, harm or
damage’. The key point is that ‘crime’ can never be
defined in any consistent or conclusive manner.
‘What is crime?’ will always remain ‘essentially
contested’. […]
Definitions of crime are neither objectively
right nor wrong: they do, however, point out the
elusive and the contested nature of our subject matter. […] The strength of explanations based on
crime of law prescription is that they provide an
objective criteria by which ‘crime’ can be reliably
identified: ‘crime’ is whatever the law deems to be
illegal at particular times and in particular jurisdictions. Such a definition does, nevertheless, bind us
to state-generated notions of lawbreaking. It narrows our attention to formulations enshrined in
legal statutes, and, while it may assume a greater
objectivity, it overlooks the fact that ‘the law’ itself
1·Understanding crime and criminology
is deeply problematic, as a site of struggle, dispute,
construction and contestation. In addition, a legalbased definition systematically excludes notions of
harm, deviance, anti-social conduct, injustices and
rule-breaking. We lose sight of how and why it is
only certain behaviors that come to be considered
deviant and how and why it is only some harmful
practices that are ultimately subject to criminal
sanction. In short, we lose sight of ‘crime’ as a forever shifting concept, as a morally and politically
loaded term.
Importantly, the various conceptions of
crime appear to be generated from competing
accounts of the social order. If that order is considered consensual (as we discussed earlier), ‘crime’
can be defined as the infraction of legal, moral or
conduct norms. When the social order is consid·
ered pluralist or conflict based (as we showed in
‘Crime as social construct’ and ‘Crime as ideologiReferences
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behaviors, but to the social and political processes
whereby those actions are subjected to criminalization. Accordingly, it can be argued that any
definition of crime rests on prior assumptions
about the nature of social order and how that
order is conceived and maintained. Indeed, this
has led some to argue that crime only comes to be
a problem when order is a problem. Our key problematic then may not be ‘crime’, but the ‘struggle
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which are crime and criminal justice’ (Shearing,
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