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.
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16. Biological and psychological positivism
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3. Classical Legal Positivism: Bentham, Austin, and Kelsen
J. E. Penner and E. Melissaris
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.
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Postscript
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.
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4. The classical and positivist traditions
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.
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3. Classical legal positivism
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.
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5. Dworkin and law’s moral claims
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.
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4. Modern legal positivism
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.
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12. Legal reasoning and ethics
This chapter introduces 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.
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12. Legal reasoning and ethics
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.
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A Short History of International Law
Stephen C Neff
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.
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IX. Laws and Morals
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.
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4. Theoretical criminology: a starting point
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.
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1. A Short History of International Law
Stephen C Neff
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 coexisting (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 interwar 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.
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1. The nature of international law and the international legal system
This chapter briefly discusses the nature of the international legal system. The premise is that the structure of the international legal system is fundamentally different from that of national legal order: contrary to the vertical structure encountered in domestic settings, in international law the structure is horizontal. States enjoy sovereign equality, while both international law-making and international adjudication are based on the consent of the States. There are various theories that have attempted to describe the nature of the international law, including naturalism, positivism, formalism, and realism. Also significant is the the existence of a certain hierarchy in the international legal system, in the sense that there are some peremptory norms of international law, such as the prohibition of torture and genocide, to which there is no derogation.
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17. Sociological positivism
This chapter examines sociological positivism, studying how society or social processes might affect behaviour. Decisions by governments and companies and sociological issues (such as poverty) affect individuals but may also affect whole communities; they may influence the likelihood of many people to choose to offend or be law-abiding. Therefore, the health of the economy or the rate of unemployment, for example, may influence the behaviour of an entire population not just one individual and so may lead to a rise or fall in criminal behaviour. If we can identify which factors in society influence crime, and how they do so, it may be possible to alter those social factors and so decrease criminal behaviour. The chapter looks at three types of sociological theory: social interaction or social process theories, social structural theories, and social conflict theories.
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20. Right and left realism
This chapter focuses on realist criminologies which emerged in the late 1970s and early 1980s. The two main strands were right realism and left realism, so called because of the political leanings that influenced them. Realist criminologies were, in basic terms, theoretical developments grounded in and informed by sociological positivism (right realism) and critical criminologies (left realism). Realism itself is an important social scientific concept, developed to try to provide a basis for understanding social realities which are not directly observable or precisely measurable, but undoubtedly have material substance and affect human behaviour, such as the law. More recently, we have seen a further variation emerge in the form of ‘ultra-realist’ criminology, which seeks to challenge and extend the definition of ‘crime’ to encompass the idea of ‘social harm’, thereby making a connection with concerns about the environment or damaging state and corporate activity.
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22. Searching for the causes of crime
This chapter addresses the causes of crime, the exploration of which has been a high priority within criminology as the main way of explaining crime and of informing responses to crime. The chapter begins by considering how criminologists understand crime and the causes of crime, comparing interpretivism with positivism as ways of exploring and thinking about crime. A central motivation for identifying causes is to validate the factors targeted through criminological responses such as sentencing, crime reduction and prevention activity, and policy. The dominance of positivist experimentation within criminology and the associated search for causes has been re-animated in the 21st century by the growing popularity of experimental criminology in the US, most notably the ‘what works’ experimental method of evaluating crime prevention programmes. The chapter then looks at contemporary challenges to the experimental ‘what works’ approach, namely realistic evaluation, the theory of change model, and chaos theory.
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18. Rethinking comparative criminal justice
David Nelken
This much revised chapter on studying criminal justice comparatively begins by asking why we do such research and what approaches we can draw on. It considers the goals of studying comparative criminal justice and the contributions that are made by the positivist search for explaining variation, the interpretive effort to grasp meaning, and the legal approach that gives full attention to what legal actors say and think they are doing. It goes on to examine problems in identifying relevant similarities and differences, comparing like with like, and bringing new places into perspective. Following this, it examines the challenges that increasing transnational and global links between nation states pose to the field. Last, but not least, it discusses different strategies for gathering data and how this needs to change with the growth of transnational criminal justice.
