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LAWS 2301
Ronald Saunders

Chapter 2Pgs 4359Perspectives on Criminal LawIntroductionThe approaches to and theoretical perspectives on criminal law and criminal justice and many and varied yet ones approach or perspective colours the way one sees criminal law in a very fundamental way Criminal law contrary to what some traditional legalistic approaches to it might claim it is not a thing derived from heaven from the past from custom or from nature it is a reflection of the views and perspectives of policy makers on what they want the law and specifically criminal law to accomplishIt 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 effective mannerWhat is one talking about when they use the word lawAre they referring to the actual rules or laws which make up a body we collectively call law or are they talking about something wider than this something we would encompass broader and more ambiguous principles or rights such as those encompassed in the Rule of Law or those found in socalled natural law doctrinesHow writers define law and its institutions is an important factor in determining the scope and method of their inquiry into an understanding of law and reformThere is also the problem of the use of terminology generally in looking at approaches to law and criminal lawTo begin there are conflicting definitions and terms within law itself depending upon the particular school of thought one adoptsThere is also the challenge of communicating across disciplines and of understanding the terminology and methodology of other fields of expertise and studyFor the most part the mainstream of legal studies has maintained an unhealthy and even antiintellectual insularity as to other disciplines approaches to lawThe result has been a lack of rigour and of depth in the work and research which is produced in legal academia notably when comparisons are made to the body of knowledge and writing in other disciplinesThis is especially true in the area of criminal law where the traditional doctrinal approach of lawyers and legal writers has too often been limited to a narrow analysis of the cases legislation and processes related to criminal justiceThis approach has been criticised as sterile circular and selfcontained and as having very little to offer in the way of substantive policy choices and effective meaningful critiquesIn the last 25 years feminist writers and researchers have made an enormous contribution to our theoretical understanding of law and to the design and implantation of strategies of resistance and reformThere are many variants of feminismHowever these are linked by the common themes of the inequality of power and of gender bias discrimination and injustice in the values and practices of the criminal law21 Traditional Legal PerspectivesThere are several common themes and positions in traditional orthodox approaches to law in general and criminal law in particular even though there are many variants and schools within the traditional approachesThe 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 the 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 usually for good by the state and by individual legally constituted agentsIt is lawcentred in that law is seen as a good in and of itself to be put to a myriad of uses and purposes which can bring about social change and real progressWhile there are differences within the various schools of liberal and conservative thought the essential approach is one which is formalistic and rule and processorientedIt assumes a high degree of social consensus and argues that these rules and processes reflect shared values and concernsIt also assumes that law operates primarily for the benefit of the system as opposed to the interests of any of particular individual or groupToo often the response of the state has been limited to a technical reformation or revision of the criminal law to make it better more efficient and more accommodating While the criminal law should fulfill these demands the state must not ignore or avoid other more social and often more costly responses to the problems seen within the criminal justice systemWhat we see again and again on the part of the state is the use of 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 causes of a situationThe point to remember is that the complex social dimensions of the problems surrounding criminal law must not and cannot be forgotten yet they often are in a traditional legal approach which 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 though arguably not its most importantA term which has been used to describe this orthodox approach is doctrinal a term that emphasizes the selfcontained and tautological nature of the enterpriseThe debates which are inherent in the formation and implementation of the lawThis approach ignores the social process of producing and reproducing social structures and social relations
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