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Chapter

This chapter discusses how theories from biology and psychology can help in understanding crime. It studies individual positivism: that is, those aspects of positivist criminological explanations that look for differences between criminal and non-criminal populations. Biological and psychological positivists believe that by measuring biological and psychological differences between offenders and non-offenders they will discover a clear explanation of criminal behaviour, a truth that explains criminal actions. When researchers discovered physical or biological differences between offenders and non-offenders they tended to assume that those characteristics were causative and explained the behaviour. However, there is a big jump between finding differences and assuming that the difference explains the behaviour. The chapter traces the journey of biological and psychological positivist thinking from its roots in the 19th century through to the approaches in the 21st century where these biological and psychological traits are merely seen as one factor which may increase the likelihood of criminality rather than causing it.

Chapter

This chapter explores classical positivism. The discussions cover Bentham’s concept of jurisprudence; Bentham and Austin’s command theory of law; the attachment of sanctions; Kelsen’s pure theory of law; and the significance of classical positivist theories.

Chapter

Andrew Sanders, Richard Young, and Mandy Burton

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter examines, from both an historical and a contemporary perspective, the assertion that there are biological explanations for crime. It first discusses the birth of positivism and new ideas in biological positivism, and then considers the genetic basis of crime and criminality, covering family studies, twin studies, and adoption studies.

Chapter

H. L. A. Hart

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This Postscript attempts to reply to some of the criticisms urged by R. M. Dworkin in many of the seminal articles collected in his Taking Rights Seriously (1977) and A Matter of Principle (1985) and in his book Law's Empire (1986). The focus is on Dworkin's criticisms because he has not only argued that nearly all the distinctive theses of this book are radically mistaken, but he has called in question the whole conception of legal theory and of what it should do which is implicit in the book. The first part of the Postscript is concerned with Dworkin's arguments. The second part considers the claims of a number of other critics that, in the author's exposition of some of his theses, there are not only obscurities and inaccuracies but at certain points actual incoherence and contradiction.

Chapter

This chapter discusses in detail the two major themes in the formation of criminological thinking. The tension between these two traditions has existed since the development of positivism in the nineteenth century, and is still of considerable importance in present-day debates about crime and ‘law and order’. It is common to single out France as typifying all that was bad with the administration of the criminal law in pre-eighteenth-century Europe. France provided an extreme example of what passed as criminal ‘justice’ throughout most of Europe. It was generally believed that crime was the consequence of evil. In some cases, it was assumed that the Devil or demons had taken over individuals and directed them to perform wicked acts. Alternatively, people whose faith in God was weak might have yielded to temptation and made a pact with the Devil.

Chapter

This chapter examines the theories of the foremost legal positivists of the nineteenth century: Jeremy Bentham and John Austin. Bentham is best known as a utilitarian and law reformer, but who insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence, respectively. Austin was equally emphatic in maintaining this distinction, but his analysis is generally regarded as much narrower in scope and objective than Bentham’s. A number of key concepts analysed by both of these theorists are examined and compared, including their definitions of law, commands, sovereignty, and sanctions.

Chapter

This chapter discusses the essential elements of Dworkin’s theory of law. It focuses on Dworkin’s assault on positivism. Dworkin denies the positivist separation between law and morals; rejects the proposition that judges either do or should make law; argues that judges must seek ‘the soundest theory of law’ on which to decide hard cases; and concludes that, since judges (who are unelected officials) do not make law, the judicial role is democratic and prospective. A central aspect of his theory is the importance of individual rights based on the idea that everyone is entitled to equal concern and respect. This leads him to analyse closely the concept of equality and its relation to liberty.

Chapter

This chapter discusses the essential elements of Dworkin’s theory of law. It focuses on Dworkin’s assault on positivism and his insistence upon the close relationship between morals and the law. By denying the positivist separation between law and morals, he expounds a theory that rejects the proposition that judges either do or should make law, and contends instead that judges have an obligation to find and express ‘the soundest theory of law’ on which to decide hard cases; and concludes that, since judges (who are unelected officials) do not make law, the judicial role is democratic and prospective. His approach is based on the notion that only by adopting this view of the judicial function can the law take rights seriously.

Chapter

This chapter examines the important theory of legal positivism that has long dominated jurisprudence. It explains the core ideas of the theory, and then considers the leading proponents of classical legal positivism, especially the leading nineteenth century philosophers, Jeremy Bentham and John Austin. Bentham is best known as a utilitarian and law reformer, but he insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence, respectively. Austin was equally emphatic in maintaining this distinction, but his analysis is generally regarded as much narrower in scope and objective than Bentham’s.

Chapter

This chapter discusses in detail the two major themes in the formation of criminological thinking. The tension between these two traditions has existed since the development of positivism in the nineteenth century and is still of considerable importance in present-day debates about crime and ‘law and order’. It is common to single out France as typifying all that was bad with the administration of the criminal law in pre-eighteenth-century Europe. France provided an extreme example of what passed as criminal ‘justice’ throughout most of Europe. It was generally believed that crime was the consequence of evil. In some cases, it was assumed that the Devil or demons had taken over individuals and directed them to perform wicked acts. Alternatively, people whose faith in God was weak might have yielded to temptation and made a pact with the Devil.

Chapter

This chapter explores the works of some of the leading exponents of contemporary legal positivism: HLA Hart, Hans Kelsen, Joseph Raz, Jules Coleman, Scott Shapiro, and others. Hart staked out the borders of modern legal theory by applying the techniques of analytical (and especially linguistic) philosophy to the study of law. Kelsen may be the least understood and most misrepresented of all legal theorists. To the extent that he insisted on the separation of law and morals, what ‘is’ (sein) and what ‘ought to be’ (sollen), Kelsen may legitimately be characterized as a legal positivist, but he is a good deal more. Raz argues that the identity and existence of a legal system may be tested by reference to three elements: efficacy, institutional character, and sources. Thus, law is autonomous: we can identify its content without recourse to morality.

Chapter

This chapter explores the works of some of the leading exponents of contemporary legal positivism: H. L. A. Hart, Hans Kelsen, Joseph Raz, Jules Coleman, Scott Shapiro, and others. Hart staked out the borders of modern legal theory by applying the techniques of analytical (and especially linguistic) philosophy to the study of law. Kelsen may be the least understood and most misrepresented of all legal theorists. To the extent that he insisted on the separation of law and morals, what ‘is’ (sein) and what ‘ought to be’ (sollen), Kelsen may legitimately be characterized as a legal positivist, but he is a good deal more. Raz argues that the identity and existence of a legal system may be tested by reference to three elements: efficacy, institutional character, and sources. Thus, law is autonomous: we can identify its content without recourse to morality.

Chapter

13. Biological and psychological positivism  

Determined to predetermine

This chapter examines the contribution of biology and psychology to our understanding of crime and its causes from the perspective of individual positivism — those aspects of positivist criminological explanations that look for diffrences between criminal and non-criminal populations. It traces the development of biological and psychological positivist thinking from its roots in the nineteenth century through to more modern approaches in the twenty-first century where these biological and psychological traits are merely seen as one factor which may increase the likelihood of criminality rather than causing it. The chapter identifies the main biological and psychological theories relating to criminology and discusses the arguments of positivists regarding punishment and rehabilitation as a means to deal with offenders or criminals. It concludes with an analysis of learning theories that see most criminality as a product of learned behaviour.

Book

Steve Case, Phil Johnson, David Manlow, Roger Smith, and Kate Williams

Criminology is a core, introductory textbook on the field of crime and criminology. It starts by looking at what crime is and the theories that try to explain it. It then considers society's response to crime. It shows how to carry out independent research and plan first steps in a career. The critical, applied approach is emphasized through some of the many features that are integrated throughout the book. These include conversations with authentic voices from the field, compelling personal insights, and challenges to the reader to question assumptions, apply knowledge, and critically reflect on their personal viewpoints. Topics covered include crime statistics, the media, victimology, youth crime, sociological positivism, crime control, punishment, and rehabilitation. The last part of the text applies theories of criminology to the real world and introduces the reader to what might be involved in a career in criminology research.

Chapter

15. Critical criminology—part 1  

Challenging the ‘usual suspects’

This chapter examines a range of criminological perspectives which are collectively known as critical criminology, with particular emphasis on labelling perspectives, Marxist inspired critical theories, and feminist perspectives. It begins with an overview of the four main ideas of positivism (in either its biological, psychological, or sociological forms): determinism, scientism, consensus, and treatment/rehabilitation. It then considers the philosophical and political arguments that underpin critical criminologies, along with the different foundational strands within critical criminology. It also discusses the importance of the ideas of social construction, power and power relations to critical criminology, as well as the problems of ‘deviance’ and its interpretation and control. Finally, it explores the development of critical criminology in Britain, the rise of the ‘new’ criminology, Taylor et al's (1973) notion of a ‘fully social theory’ of crime and deviance, and the issue of violence in relation to gender.

Chapter

This chapter focuses on criminology's obsession with the causes of crime, especially in light of problems in defining crime. It first considers the reasons why we search for the causes of crime in criminology, with particular emphasis on positivism, which pursues an epistemology based on gathering data in the social world to form the basis of universal laws of behaviour. It then discusses the definitional issues relating to the concepts of crime, as well as the implications of these issues for producing valid and reliable responses to crime. It also explores the dynamic and socially constructed nature of crime when exploring the search for the causes of crime; the culture of causality in explanatory theory; and the use of scientific experiments and survey research to explore the causes of crime. Finally, it looks at the rebirth of experimental criminology in the twenty-first century as well as chaos theory.

Chapter

H. L. A. Hart

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter examines the relations between law and morals. It analyses what lies between Natural Law and Legal Positivism. It considers, in the form of five truisms, the salient characteristics of human nature upon which the minimum content of Natural Law rests. These truisms are: human vulnerability, approximate equality, limited altruism, limited resources, and limited understanding and strength of will. The chapter concludes by examining six forms of the claim that there is some further way in which law must conform to morals beyond that which has been exhibited as the minimum content of Natural Law.

Chapter

This chapter presents a brief history of international law. It proceeds chronologically, beginning with an overview of the ancient world, followed by a more detailed discussion of the great era of natural law in the European Middle Ages. The classical period (1600–1815) witnessed the emergence of a dualistic view of international law, with the law of nature and the law of nations co-existing (more or less amicably). In the nineteenth century—the least-known part of international law—doctrinaire positivism was the prevailing viewpoint, though not the exclusive one. For the inter-war years, developments both inside and outside the League of Nations are considered. The chapter concludes with some historically oriented comments on international law during the post-1945 period.

Chapter

Keith Hayward and Wayne Morrison

This chapter offers a comprehensive introduction to how criminological theory has developed and is used. It presents a series of theoretical vignettes, each of which provides both an accessible introduction to a particular theory and informed signposts to more detailed readings. The discussions cover criminology's two founding doctrines: the ‘classical’ and ‘positivist’ approaches to the study of crime; biological, genetic, and psychological explanations of crime; the Chicago School of sociology; the ‘labelling’ perspective; Marxist/radical criminology; criminological realism; control theory; and cultural criminology.

Chapter

This chapter provides an introduction to legal reasoning. It first outlines the skills to analyse how judges decide cases. There are various points of view that judges can (and do) take in deciding the outcomes of cases, so the chapter introduces some of the theory behind judicial reasoning before moving on to show how judges reason in practice, how one case can give rise to multiple judgments, and the importance of legal ethics.