Sessar Porto Problems criminology has with criminal law

The problems criminology has with criminal law and its
criminal policy. Some theoretical considerations. *
Klaus Sessar, Universität Hamburg
1. Introduction.
There is nothing a government hates more
than to be well-informed; for it makes the
process of arriving at decisions much more
complicated and difficult.
John Maynard Keynes
The topic of this contribution is the interrelationship between criminology and criminal policy
as found in criminal law and its application. Certainly, criminal policy is a matter of politics
whereby legislative programs structure and organize the area of crime reduction through –
mostly – repressive means. But criminal policy is also part of criminal law, in theory regarding
the purposes and goals of sanctioning and in practice by transforming legal rules into implementable
rules – the well-known distinction between law in the books and law in action.
Therefore, special attention will be given to the area of penalties as they trigger many normative
reflections inside and cognitive reflections outside the criminal justice system. In view of
the great variety of criminal and penal policy schemes across nations (and considering quite
different criminological orientations and organisations), I am restricted to proceed from an
abstract level, in an attempt to access the theoretical relationships that exist between the fields
in question.
One main reason to deal with this topic is based on the repeated attempts of criminologists to
exert influence on criminal policy both theoretically and empirically. The question is of how
to integrate scientific knowledge into normative fields which – according to criminological
conviction – need scientifically gained insights and findings. In fact, many of them are eminently
suited to give policy- or decision-making processes a more rational basis both at a micro-
and macro-level. The micro-level refers, among others, to the whole range of sentencing
practices especially with regard to the question of success. The macro-level aims at the revision
of the entrenched picture of the crime and the criminal as exceptional and thereby eradicable
or at least minimizable phenomena. Nothing seems to be more complicated than to acknowledge
that crime is an intrinsic part of social life furnished and fed with qualities inherent
in that social life. Accordingly, criminals are not a particular human species but people like
you and me, at least in most cases. Of course, law is aware of the steady “recurrence of human
evil“, in Germany in the form of about 6.5 Million registered offences every year (without
traffic offences; this number could easily be multiplied if non-registered offences could be
included). But in spite of these accessible observations, penal norms insist on “counterfactually
stabilised behavioural expectations” which are maintained even in the case of expectable
disappointments (deviancy); “the expressive function of maintaining expectations has primacy
over the instrumental function of success” (Luhmann 1985, 33, 118).
Our subject can be approached from a number of different angles. I am observing, amongst
others, a policy-abstinent criminology, a policy-based (or state-based) criminology, a form of
* Vortrag am 15. Januar 2009 an der Universität Porto/Portugal im Rahmen einer Tagung mit dem Thema
„Scientific Research and Public Policy“.

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criminology in empirical conflict with policy and a form of criminology as an observer of
policy. It is especially these last two forms that I want to address.
The purpose of the following remarks is to depict some of the difficulties that criminal justice
systems may have in attuning their legal principles to compelling social determinants of decision-making
or in accepting empirically disclosed realities which are contradicting normative
realities as they are cultivated in the legal programs. By drawing on systems theory, the assumed
difficulties are theoretically transformed into problems of communication that the
functions systems of “science” (criminology) and “law” (criminal law) have among each other.
Empirical experiences.
Empirical observations that the severity of punishment does not (or only in exceptional cases)
have a deterrent effect are almost uncontested in criminology (von Hirsch et al. 1999; Entorf,
Spengler 2008). In contrast, criminal law continues to justify severe punishments with their
purported deterrent properties regarding the general population (general deterrence, in Germany
“negative general prevention”) and individual offenders to prevent them from committing
further crimes (special deterrence or special prevention). An additional preventive goal
has been formulated in German criminal law as punishment is said to strengthen the citizens’
confidence in the law and its enforcement; this is called “positive general prevention”. This
concept, which is not a theory in our sense, is therefore neither verifiable nor falsifiable in
empirical terms, but is part of the self-referential operations of the closed legal system. The
conclusion from this is: Psychologically and sociologically grounded preventive sanctions on
the individual and the collective level mirror the modern, science-based type of criminal law.
They demonstrate that law conceives itself as part of society, acknowledging the society’s
expectations in terms of guarantying safety by means of crime reduction. This is the one side
of the coin. On the other side criminal law will adopt such utilitarian profiles only as long as
they comply with its own internal – non-utilitarian – principles which require the law’s restoration
in case of unlawful behaviour through retributive punishment. Thus, retribution and
deterrence are both parts of the old self-sustaining repressive ideal which gets by without validating
causal relationships. A judge who is convinced that punishment does not deter must
not change his habitual sentencing practice as deterrence is hardly more than an empirical
looking label of traditional legal goals (this is regularly misunderstood by criminologists).
Another example of the criminal justice system’s refusal to follow criminological findings
refers to the attitudes of people towards restituição (Wiedergutmachung, redress, reparación,
réparation, Schadevergoedingsmaatregel) as an alternative to traditional punishment. In many
investigations, including my own in Hamburg, the willingness of the population to accept
restitution instead of punishment was very large, either on the whole or dependent on the type
of offense, the concrete social context, the relationship between offender and victim, etc.
(Sessar, 1992; Boers, Sessar 1991). This also applies to the vast majority of victims of a crime
(exceptions are victims of serious violent crimes). If we add that victims of crime (again excluding
cases of multiple or serious violent victimization), do not display higher degrees of
fear of crime than non-victims, then one arrives at the conclusion that the "'victim' does not
provide a very suitable justification for a policy of harsh punishment' (Boers 2003, 14). The
reaction of the German legislature to such results has been interesting. New statutes were enacted
which allowed for a mitigation of punishment or even the dismissal of the case under
the precondition that a prior victim-offender reconciliation process be carried out. The judiciary
responded either by neglecting the rule or by establishing harsh requirements for the offender
to consider his restituting efforts as being satisfactory, so that very few cases could
actually benefit from such forms of restitution. In other words, a marked reluctance was demonstrated
towards sanctions that do not follow traditional punitive standards. The findings

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provoked some unease within the judiciary (which was included in the survey) when it became
apparent that judges, and especially prosecutors, were more punitive than the public (on
the basis of the Hamburg survey four groups were formed, male and female judges and male
and female prosecutors; the expected largest discrepancy existed between male prosecutors
with the highest and female judges with the lowest level of punitivity, Sessar 1992, 226-232).
Sometimes, however, criminological results are in perfect harmony with the justice system’s
need to master its daily workload. For example, after thorough investigations of the development
of juvenile delinquency over time, especially of the “aging-out phenomenon”, criminologists
formulated a triad of normalcy in the sense of almost ubiquitous occasional delinquent
behaviour during adolescence, the rare discovery of minor delinquents and their expectable
autonomous desistence from delinquent acts even in the many cases of nondiscovery
(Sessar 1997). Insights of this kind helped to introduce what is called "Diversion"
through which a formal criminal sentence is replaced by the dismissal of the case, with or
without preceding informal educational measures, mostly at the pre-trial level, sometimes in
court. (Of course, juveniles committing serious offences are not included in the program.) For
instance, in 2006 two thirds of juvenile proceedings in Germany involving chargeable minors
were dealt with in this matter (in Hamburg the figure was over 80%). As one can see, criminological
findings are accepted as long as they suit the legal system’s requirements – whether
these be of a theoretical or, regarding case-load problems, practical nature.
Another positive example is provided by Portuguese drug policy: on the basis of recommendations
provided by a commission of experts the whole area surrounding illegal drugs has
seen a trend towards significant decriminalization (Law 30/2000 of 29 November 2000, entered
into force in July 2001). Even the possession of hard drugs for personal use in the first
ten days is exempt from formal punishment. The fear expressed by some that Portugal would
turn into a paradise for drug addicts has not materialized, and both the number of drug related
deaths and HIV-infections was down 50% between 2000 and 2003. Cândido da Agra plausibly
labeled this a "Requiem pour la guerre à la drogue" (2009; see also Quintas 2006). In the
absence of further information it will be assumed that the mass of accumulated evidence concerning
the social misery and the many crimes that were generated by the costly war on drugs
finally lead to a re-orientation of the political system, more precisely, to a change from opinion-based
policy to evidence-based policy (Davies 2004). This, indeed, is a rare event and
merits much attention from other countries
3. Theoretical experiments.
These small examples of different degrees of acceptance displayed by the agencies of crime
control to the results of criminological research seem to lack a consistent picture. It would be
difficult to find an explanation which unites the divergent observations in a satisfying way.
Beyond this is the much larger question as to how and to what degree criminology is accepted
outside of itself that is, by crime-related disciplines outside of its own field, and in which way.
In an effort to bring theory-based clarity to this situation, an analytical differentiation will be
made between criminology as part of the scientific field and criminal law with its policies as
part of the legal (and the political) field. The dividing line is found in societal systems or
fields. To this end I refer to two sociologists from Germany and France, Niklas Luhmann and
Pierre Bourdieu, who each individually developed comparable concepts to approaching the
systems character of science and law (and politics).
The foundation of modern systems theory is built on, though emancipated from, the structural-functional
theory of Talcott Parsons. Society is composed of functional – closed - systems
such as science, politics and law (alongside economy, medicine, education, art etc.).
None of these systems are of greater or lesser importance than the others; that is, they are not
hierarchically ordered. A system in this context is seen as developing a relatively autonomous,

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“self-regulating existence that then provides the elements out of which it continuously reconstructs
itself”; this is called autopoiesis or the autopoietic principle of the social system
(Milovanovic 2003, 155, 167). Furthermore, by constituting and organizing itself selfreferentially,
a line is drawn between the system and its environment; for instance, the environment
of law would include all other functional systems as well as society itself. Every exchange
that takes place between the systems, for instance about moral questions, is an exchange
through communication; moreover, those questions are generated only through communication
(see Nietzsche). The problem is that “function systems structure their communication
through the use of binary codes that divide the world into two values” (Bednarz 1989,
xiv), for example “true/untrue” in the case of science, “legal/illegal” in the case of law, etc.;
Luhmann 1989, 44-50). Thus, if science interacts with law or politics, completely diverse
codes of perception, cognitive and normative structures, semantics and moral positions meet.
Morality - with its distinction between good and evil - is no longer a kind of “supercode”
which binds the functional domains to a set of universal moral rules. Rather it is linked to the
function systems, thus forming systems-specific (economic, scientific, juridical, political etc.)
modes of morality (Luhmann 1990). For scientists as scientists it is therefore often hard to
understand the “legal habitus” (Bourdieu 1987) and the normative rigidity of law just as, on
the other side, lawyers fear the complexity of scientific results as they may undermine their
closed normative principles.
This theory of self-referentially closed and thereby open social systems entails considerable
problems. Firstly, the reductions in communication dictate how the world will be viewed; law
will view it according to the aspect of justice and science will view it according to the aspect
of scientific truth. Secondly, no system can adopt the standpoint of another system; science,
for example, cannot view the world through the eyes of the law (of course a social scientist is
free to partake in legal discourses; however in so doing he has crossed the border to the other
system). Thirdly, this means that if one system desires to be “heard” by another system then
its knowledge, experiences, impulses, demands, warnings, etc. must be converted into the
modes of communication of the other system; the law must make scientific findings legally
legible in order to understand and possibly adopt them.
At this point a citation taken from Pierre Bourdieu’s “Méditations pascaliennes” will prove
invaluable in helping to clarify some key points of his (and Luhmann’s) work, though it is to
be noted that Bourdieu does not speak of “systems” but of “fields” (champs):
“The process of differentiation of the social world which leads to the existence of autonomous
fields concerns both being and knowledge. In differentiating itself, the social world produces
differentiation of the modes of knowledge of the world. To each of the fields there corresponds
a fundamental point of view on the world which creates its own object and finds in
itself the principle of understanding and explanation appropriate to that object. To say … that
‘the point of view creates the object’ means that the same ‘reality’ is the object of plurality of
representations that are socially recognised but partially irreducible to each other – like the
points of view socially instituted in the fields which they are the product – although they have
in common a claim of universality. … The principle of vision and division and the mode of
knowledge (religious, philosophical, juridical, scientific, artistic, etc. ) which prevails in a
field, in association with a specific form of expression, can only be known and understood in
relation to the specific legality of that field as a social microcosm” (Bourdieu 2000, 99).
These forms of relative closure are not new, they now however form an intrinsic part of systems
theory. Bourdieu quotes Blaise Pascal that “la loi, c’est la loi, et rien davantage” , adding
that it is “irréductible et incommensurable” with the principles “d’un autre champ et au régime
de vérité qu’il impose”. This is similar to sayings such as “l’art pour l’art” or “les affaires
sont les affaires”; we are dealing in other words with tautologies (Bourdieu 2003, 139-

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140; Luhmann 1989, 37). Science too will not let its autonomy of defining truth be questioned
by any other system or field as the standards of scientific operations derive from science itself
(Kaplan 1964, 6).
This somewhat complex theoretical construction regarding the inherent gap between science
and politics is best illustrated by a statement of the Canadian political scientist Michael Ignatieff.
Though at first a supporter of the war in Iraq, Ignatieff later came to regret his initial
stand: "I have learned that a rational political judgment is something different to a rational
judgment in the intellectual life" (Süddeutsche Zeitung, August 8, 2007, 7). The significance
of this phrase lies in the incompatibility of political rationality and scientific rationality, not in
the distinction between rationality and irrationality which can be the problem within each of
the respective systems. An old statement of the French philosopher Gaston Bachelard supports
this view; he noted that compatibility cannot exist between the scientific mind and the
legal mind (cited in Bourdieu 2003, 97).
4. The epistemological issue.
The difficulty of communication between the systems does not mean that they operate in a
manner disconnected from another. On the contrary, they “are not sealed off from their environments
[the society and the other social systems; K.S.] but experience changes therein as
perturbations or disturbances which affect their own operation; and … in reacting to changes
in their environment, they do so in terms of their own rules for reducing the complexity of
that environment and thus environmental influences are always mediated through the system’s
own procedures” (Jessop 1990, 358). What does this mean for the relationship between criminology
and criminal law? Concerning the more general relationship between science, law and
politics, Luhmann is very clear: “Politics and law seek advice from science, but there can be
no talk of scientific decision making. This concerns not only the rejection of ‘unusable’ knowledge
by other functions systems but also a specific increase of claims and caution on the part
of science itself” (Luhmann 1998, 88).
However, a distinction must be made between facts and truths. The law cannot avoid facts
should "the legal conditional program dictate that certain facts, which may be determined with
the aid of scientific knowledge, lead to corresponding conclusions. But facts! Not truths!"
(Luhmann 1998, 130), sometimes not even recommendations grounded on facts; for example,
the German Council of Economic Advisers Act of 1963 explicitly forbids recommendations
on the part of the advisers with regard to politico-economic or socio-political measures (section
2).
Even scientifically gained and politically or legally needed facts are not always feasible for
internal systems goals. One reason could be the minor quality of social scientific knowledge
such as unclear objectives, poor research designs or methodological weaknesses. The basic
problem however lies in the epistemological limitations of the social sciences. The pursuit of
truth by means of empirical investigations is endless as empirical results and their interpretations
are of a preliminary nature thus providing the foundation for the next hypotheses; even
the most exact descriptions or predictions are only approximate, and a perfect correspondence
with observation would be suspicious rather than satisfying (Kaplan 1964, 215). Social sciences
including criminology must therefore be open to new options of experiencing the world,
based on different views or better methods; after all, the world has moved on in the meantime.
The point is that such an “epistemological modesty” is turned against the social sciences by
those who, equipped with the belief in absolute certainties, search for reasons to repel disquieting
findings.
This then might turn out to be the genuine explanation for the recurrent reluctance of criminal
policy or criminal law to adopt criminological outcomes.

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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.

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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

8
Western style) acknowledged political instruments. Highly estimated political enterprises
such as the war on crime because of crime’s destructive nature might by themselves be destructive,
as we know from our experience with the war on drugs.
Once again, none of these areas can be controlled by universal moral rules as they may disturb
the autopoiesis of the particular systems. Therefore, it is not without irony that some systems
claim to control themselves, for example by Ethical Commissions in medicine, by Compliance
Departments in larger companies or by Press Codes in the media; it would be worth
studying the degree of their transparency and practice regarding the prevention or the protection
of systems-specific criminal acts.
6. The criminological observation of the political system.
Special attention will be given to the political system. The traditional “war on crime” with its
ever increasing number of criminal laws, harsher punishments and longer sentences and with
elaborate incapacitating regimes (all this much less so on the European mainland) is still dominating
the agenda of legislation and law enforcement agencies and thereby will remain of
interest for criminological observation (research). The well-known key phrases for such analyses
are “culture of control” (Garland 2001) or “governing through crime” (Simon 2007).
One may say that criminal law in close connection with criminal policy is exceeding the area
of case-related crime control and is gradually developing more universal standards of governing
society by, e. g., broadening the area of criminalizable human behaviour and actions.
Parallel to this war on crime a much more radical system of individual and collective control
has emerged. The central ideology is prevention. In many countries, health-care systems, insurance
networks, anti-movements against smoking, alcohol use or drug use, community
crime prevention schemes, laws against truancy, gated communities, an excessive private security
industry and so forth work on the creation, or are the result, of prevention as a selfcontained
pillar of society. The philosophy of this kind of prevention tries to gain the power
of definition over the future by replacing the concrete person by factors of risk which make
the individual increasingly superfluous. “What the new preventive policies primarily address
is no longer individuals but factors, statistical correlations of heterogeneous elements. They
deconstruct the concrete subject of intervention, and reconstruct a combination of factors liable
to produce risk. Their primary aim is not to confront a concrete dangerous situation, but
to anticipate all the possible forms of irruption of danger. … To be suspected, it is no longer
necessary to manifest symptoms of dangerousness or abnormality, it is enough to display
whatever characteristics the specialists responsible for the definition of the preventive policy
have constituted as risk factors” (Castel 1991, 288-289).
Amazing parallels exist between the new forms of crime control. They operate widely without
crime, but with fear. They are less concerned with perpetrators; rather they are concerned with
each and every one of us. The key phrases are “culture of fear” (again Simon 2007) or “politics
of fear”, with fear being “the most powerful enemy of reason” (Gore 2007, 23). Criminology
will discover that our societies are about to undergo an increasing change from a repressive
type of (limited) crime control to a preventive type of (unlimited) social control.
“Crime” may gradually be substituted for “risk”, which would then be the criminological way
from crime society to risk society. “Risk-based control is no longer only one trend among
several others, including retributive and restitutional justice, but has instead become a presence”
(O’Malley 2004, 135), covering almost all segments of our life-world.
One elementary feature of risk is that it is unknown; we don’t know if and when it will materialize
by turning into a real danger or threat and what the consequences will be in such a
case. Because of this ignorance, such an uncertainty will be compensated by control; one may
call it absorption of uncertainty (Luhmann 1998, 89) through an all-encompassing high-tech

9
surveillance, in the sense that: the less we know about risks the more we have to supervise the
unknown. Should we, in addition to all this, follow Mary Douglas according to whom “risk is
not a thing but a way of thinking” (1992, 46), then we will inherit the ultimate problem both
in terms of epistemology and the justification of an overall risk prevention.
7. Prospects in lieu of a conclusion
René van Swaaningen once posed the question of whether with respect to sub-cultures, attachments,
control, exclusion, aggression, and the like we still need criminology as sociology,
psychology, political science, urban anthropology or neurology could do studies of this kind
as well (1999, 7). He thought that the only important surplus value lies in criminology’s
knowledge of the criminal justice system. In fact, we learned much about the complicated and
biased procedures within the police and the judiciary (the descriptive part of criminological
investigations by way of which the existence and functioning of widely independent codes of
practice were discovered); based on such rich material, labeling theory offered precious insights
into the definitional processes leading to crime (the analytical part of investigations).
The limitation of this approach was the emphasis on the political construction of crime while
neglecting the more general epistemological aspects.
The other limitation was the almost exclusive interest in the criminal justice system. The fact
that law makes crime is not but a point of reference for autonomous communication processes
in other functional systems affected by crime. As was already mentioned they take care to
harmonize crime with their own self-referential goals either by denying, integrating, redefining
or scandalizing it. Or they create it; should this provoke negative legal reactions they
might try to delegitimize law or claim that strict negative reactions would have affect the system’s
positive (functional) operations etc. This kind of communication turns crime into an
object of negotiation, very often with an open (contingent) output. Especially those systems
with strong function specifications have either much to win or much to lose through certain
forms of crime; they may therefore be called ‘partners of the law’.
Research in these areas is not unknown but is unstructured and lacks theoretical considerations.
A new critical criminology could take over this large field in order to observe and to
designate the functions of crime in the various social systems. When combined, the observations
may result in an unexpected picture of crime as having its own indispensable place in
society, despite its destructive qualities. Some of the subsequent questions will then be: Is this
still old-fashioned “crime”? Or do we have to change our old-fashioned perceptions of it?
References
da Agra C. (2009), Requiem pour la guerre à la drogue. L’expérimentation portuguaise de décriminalisation,
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