Sessar Porto Problems criminology has with criminal law

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6 5. Criminology as an observing science. Undoubtedly, criminology has generated an impressive corpus of knowledge which is, more precisely: would be able to alter some of the legally bound perceptions of reality. A few examples had already been given. They signaled first systems-specific differences of how to handle the crime problem. Further examples are scientifically directed against some obvious counterproductive elements of criminal policy and its application in criminal law. They refer, among others, to the poor rehabilitating effects of imprisonment (nothing or almost nothing works in the actual prison systems); especially the detrimental effects of severe penalties on juvenile delinquents in view of the establishment of criminal careers; the spiral between punishment - social exclusion - recidivism – harsher punishment - further exclusion – and so forth; the criminalization of drug use with the consequence of drug related offences for procuring drugs (this is much less so in Portugal, see above); the (as I once called it) “tertiary victimization” of crime victims (Sessar 1990) or their manipulation (Elias 1993) should they be roped in for general law-and-order campaigns, and this against the victims’ repeatedly found rational attitudes towards punishment. The old adage “fiat justitia, pereat mundus” fits perfectly into what is perceived as a strictly closed social system. Findings of this kind are intended to alter the penal systems internally, or to open it from within, that is, even the most spirited studies remain a part of the systems they criticize; they need them. There is no higher gratification available than to see one’s own insights being accepted by official policy. Therefore, for being heard it is advisable not to deviate too much from the ruling penal philosophies which in turn could mean to be swallowed by them. Should criminology desire to stop oscillating between acceptance and rejection, between participation and exclusion, between up one minute and down the next, then it has to develop its own interests and conceptions in systemic opposition to those of the penal systems (see van Swaaningen 1997, 192-193; 1999, 7-8). In fact, quite a number of efforts exist to work on criminology as an independent scientific subsystem within the thematic field of crime and its definitions. One main example of such endeavours was the emergence of critical criminology. A fundamental version of this branch of criminology demanded that essential changes to the penal system take place, with a strong emphasis on the abolition of imprisonment. A rational justification of punishment was generally disputed (van Swaaningen 1997, 206) and the idea that violence can be overcome by the use of state violence was rejected. Indeed, “to simply respond by the use of counter-force is no less use of a power even under the title ‘resistance’, and leads us to very slippery arguments about ‘justifiable’ violence, wars, and homicides" (Henry, Milovanovic 1996, 220). A lively replacement discourse arose from such attitudes. To this discourse belonged various forms of civil reparation, conflict resolution, dispute settlement or restorative justice, with abolitionism being the point of reference for many of these substituting measures. Unnoticed by many of its representatives, abolitionism has mainly been discussed at a moral or idealistic level, not at an empirical level, and therefore it would have been "fruitful to elaborate abolitionism's theoretical foundation" (van Swaaningen 1997, 206). Critical criminology is closely associated with the labeling approach or the social-reaction approach. Some branches of labeling theory had a somewhat Marxist orientation; the criminal justice system was considered to be an instrument of the ruling classes to maintain the existing social and economic order (Quinney 1974; Sack 1974; Henry, Milovanovic 1996, 141, with further references). One peg was the common experience that suspects from the lower classes were more frequently (and severely) prosecuted and punished than suspects from the upper classes. Regardless of its ideological lopsidedness this approach placed the generation of crime into the realm of crime control while neglecting (sometimes even denying) all forms of traditional crime causation.
7 For its scientific architecture criminology needs more than political foundation. In fact, labeling theory incorporates a far-reaching epistemological core which was not overlooked but was largely dispensed with by political interests (see Bourdieu 2003, 75). The theoretical background is, among other things, symbolic interactionism which deals with the construction of reality through the assignment of meaning and sense to objects, persons, actions or decisions (Blumer 1969). The physical reality of objects is not questioned, but they are meaningless without an attributed meaning; a city, for example, is neither safe nor unsafe by itself, it must be experienced and designated by the inhabitants to become safe or unsafe. This is also true with crime and criminals. The unequal treatment of offenders of different classes was not only the discovery of inequity; it was also, maybe in the first place, the cornerstone of a new kind of epistemology: The property “offender” must be ascribed in a constituting way in order to come into existence (Sessar 2004, 63-66). Processes of this kind have been outlined as follows: “Deviance is not a property inherent in certain forms of behavior; it is a property conferred upon these forms by the audiences which directly or indirectly witness it” (Erikson 1962, 308). In other words, “crime is a socially constructed and discursively constituted category” (Henry, Milovanovic 1996, 115), with the criminal justice system being the main constructor and as such being passed to criminology for further investigations from an external standpoint. The next step is to give the labeling approach an additional drive by introducing a theory of observation. Observation in this context is more than just a scientific method; it is the systems’ operation to make a distinction between two sides of what is observed. Observation is structured by the aforementioned binary codes such as true/untrue in science or legal/illegal in law. Through its observing theories and investigations science distinguishes between, and thereby produces, “correct” as opposed to “false” (or vice versa); through its observing decisions law distinguishes between, and thereby produces, “right” as “opposed” to wrong (or vice versa). All distinctions based on observations are “self-made”. They are systems-specific constructions, that is, they do not refer to any external principles or universalistic theories. As such they are necessarily contingent; they are implying alternatives, variations, styles, selections. They do not detect realities - they form them - with the consequence that different versions of reality are established (Luhmann 1992, 332; 1998, 46-50). The acceptance of a theory of observation leads to some kind of epistemological bifurcation in criminology. Traditional criminology observes criminal behaviour through the investigation of structures, psyche and circumstances (Pease 2002, 948-949) by using different – and differentiating – kinds of disciplines, theories and methodologies. Modern criminology observes the behaviour of law with regard to crime and criminal behaviour through the study of the criteria employed to construct crime and to prosecute and punish persons defined as criminals. Sociologically seen: Criminology can observe the restrictions forced on law by its own mode of operation; “it can observe the horizons of the observed system so that what they exclude becomes evident” (Luhmann 1989, 23). If crime is the outcome of self-referential processes within the criminal law system, then similar systems-specific processes within economy, medicine, politics or in the media must be expected should they be confronted with what is elsewhere called “crime”. One might even detect that certain crimes will be assigned functional tasks in accordance with the functional necessities of the respective systems, e. g., by way of debilitating blockages or impasses. More precisely: They may legally be crimes but are structural elements in the respective systems and must thus be protected against possible legal irritations. Areas of such functional operations are profit maximization in the economy (or in sport as an economic subcategory), defining enemies in order to combat them in politics, experiments on humans in medicine or methods of questioning in the police. Corruption is a bad thing but might keep a company alive and thereby help to secure jobs. Torture, even homicide, are in some countries (also
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Sessar Porto Problems criminology has with criminal law

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