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Chapter 2

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Carleton University
LAWS 2301

Chapter 2Perspectives on Criminal LawNotesIntroductionCriminal law is a reflection of the views and perspectives of policymakers on what they want the law to accomplish It is also a reflection of their views on human nature and human activity as well as a statement about the potential of the state to interfere in social conflicts and to control human behaviour in a meaningful and effective manner Difficulty in defining the term law Problem of the use of terminology in looking at approaches to law 21 Traditional Legal PerspectivesThe traditional approach within law is one which takes the law as given and fails to explore the social or political dimensions of the institutions agents processes and activities of lawIt is an approach that concentrates on the written formal aspects of law and that assumes that the law is a neutral force to be used and manipulated by the state and the individual legally constituted agentsLawcentred in that law is seen as good in and of itself to be put to a myriad of uses and purposes which can bring about social change and real progressFormalistic and rule and processorientedAssumes a high degree of consensus and argues that these rules and processes reflect shared values and concernsAlso assumes that law operates primarily for the benefit of the system as opposed to the interests of any particular individual or groupExamples of this approach found in policy responses of the state to social problemsoLimited to a technical reformation or revision of the criminal law to make it better more efficient and more accommodatingoThe state must not ignore or avoid other more social responses to the issuesoThe state uses criminal law to provide a full answer to a social problem in a manner which allows the state to silence or manage complaints and to avoid dealing with the root cause of a situationoExample In the area of sexual assault we have to look beyond changes in the criminal law and attempt to rid society of sexist and patriarchal structures relations and attitudes both within the criminal justice system and society as a wholeoProstitutionlegal changes in the law simply tend to make it easier to arrest and convict prostitutes oDrunk drivingpenalties have become more and more harsh in recent years oVictims of crimestate response has often been cheap and largely symbolicTraditional legal approach focuses almost exclusively on notions of individual guilt and responsibility on the formal aspects of the process and rights which allegedly attach to the individual and on the rules and regulations that make up the criminal law in its most basic sense Doctrinala term that emphasizes the selfcontained and tautological nature of the enterpriseoFocus on what the doctrine and institutions of law are not the contradictions and debates which are inherent in the formation and implementation of lawoIgnores the social process of producing and reproducing social structures and social relations Legal fetishismaccurately describes the intellectual orientation of and emotional attachment to the approachLaw is representing a value consensus in society Law is seen as fundamental to social orderLaw is a unique phenomenon which constitutes a discrete focus of study 22 Law in the Social SciencesKarl MarxoEmphasized the role of criminal law in smoothing the transition to capitalism by educating people to the new idea of the value of private property and by eliminating or restricting the notion of common or collective rights from the criminal lawoThe transition from one economic system to another required a shift to a legal system which was better adapted to the requirements of the pursuit of profit
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