By Danielle,

Harmful Behaviours the Criminal Law Leaves Out (Conflict Theory)

7/08/2012 DK 0 Comments

This is a follow-up post on Are Harmful Behaviours Not Included in the Criminal Law Just As Important As Those Included?
There are numerous harmful behaviours ordinarily prohibited by the criminal law, yet which are legal and non-criminal according to the legislatures (Williams, cited in Muncie 1996, p.8). Out of many such behaviours, this post will focus on the aspects of self-defensive and political practices of violence such as the war (against terrorism) and interrogational torture.
I argue that these behaviours are just as important as those the criminal law includes; that they are deserving of the objective understanding by the population. To support this argument, I will firstly explore the legalistic definitions of crime provided in the work of Muncie (1996). Secondly, I will present their consistencies with the characteristics of the legal (non-prohibited) harmful behaviours. Thirdly, I will attempt to provide a theoretical explanation for the exclusion of these harmful behaviours from the criminal law, and lastly, I will consider the effects such behaviours have on our everyday lives and their consequences on a broader scale.

Legalistic Definitions of Crime
The definitions of crime and criminal law vary in their approaches - from legalistic to moral and socially constructional, to name a few (Muncie, 1996). This post will focus on the legalistic definitions as these are consistent with the concepts of crime employed by the legal systems and therefore subject the members of society to real implications.
The legalistic understanding of crime states that crime is defined and punishable by law (The Oxford English Dictionary, cited in Muncie 1996, p.7); that an act only becomes a crime when it is 'legally prohibited' (Muncie, 1996, p.8) 'by the authorities of the State' (Williams, cited in Muncie 1996, p.8). According to Muncie (1996), the criminal law based on these definitions are assumed to reflect the public's consensus on socially acceptable and unacceptable behaviours (p.9). However, despite this satisfying assumption that the public's interests are represented and protected, these definitions ignore political, economic, social and cultural dimensions of crime (p.9). Thus, it is arguable that they provide a one-dimensional positivistic view of crime which can give rise to the arbitrary use of legislative power by the government.

Inconsistencies Within the Criminal Law
Let us consider the harmful behaviours which are legally sanctioned by the criminal law, namely, the war and interrogational torture. The characteristics of these acts include those disapproved by the pubic and punishable by the criminal law (Crimes Act 1958 (Vic)), such as murder, assault, threat to assault, infliction of bodily, harm and damage to property and so on. This is unmistakably inconsistent with the apparent objectives of the criminal law to reflect the members of the public: if the criminal law reflects the general population's consensus on what is right and wrong, then the political activities by the government are to be subjected to the same law and consensus.
Does this inconsistency infer that the public has consented to and accepted these forms of harmful but legal behaviours as a necessary evil? Or does this imply that these harmful behaviours are legal regardless of the public's interests - that the government is in fact misusing the legislative power?
Conflict theories, specifically labelling (Becker, cited in Hasley 2006, p.97) and radical theories (Hasley 2006, p.100), say that it is both.

Conflict Theories
Conflict theories state 'that the state is captured by the interests of powerful segments of society' (p.97). Within the concepts of conflict criminology, labelling theory states that the 'deviant' is one labelled as such by the rules created by those in power. Furthermore, radical theory assumes that those powerful segments are able to influence the criminal law to (de)criminalise certain types of harmful behaviours to their advantage (p.100-1). Although conflict theories are more often used to analyse the power structures at the State level or to focus on class conflicts (p.100), these can be applied to the international power structures and hierarchy between cultures and nations, and to the Western governments' attempt to gain power and control over the 'Other' - in this case, the other countries, the "terrorists".

Applying Conflict Theories
First, the 'Other' are labelled through objective - symbolic and systemic - violence (Zizek 2008, p.1-2) by which they are portrayed as "terrorists" and criminals through discourse such as repetitive and negative images and terminologies surrounding them on the new media, while the public is ensured that they have been given adequate information on all aspects of the "problem". During this process of labelling, the symbolic power structures between countries and cultures are established and reinforced; the Western governments are those with the power to label and criminalise the 'Other'. Simultaneously, the governments assure the public that their (the governments') interests resemble those of the population (Hasley 2006, p.101), that is, to protect the nation and its people. The 'Other', the "terrorists", according to the idea of 'deviancy amplification' by Lamert (cited in Hasley 2006, p.98), then internalise their given identity and the disapproving reactions of the West, and thus are more likely to re-'offend' (p.98). Consequently, the public's trust in the government are reassured as their fear increases, which leads to the seemingly voluntary consent to the harmful acts of the government to which they would ordinarily oppose.

Implications on Our Lives
Some might disagree with the application of the conflict theories in this regard by arguing that there is not enough evidence to imply such general and contentious power-acquisition explanations to the complicated political issues such as the war against terrorism. Whilst it is agreeable that these harmful behaviours cannot be explained wholly in terms of conflict theories, the fact remains that it is important for the general public to separate themselves from the influence of the media for a more objective understanding of these inconsistencies within the criminal law. This is because these inconsistencies inflict enormous consequences in our everyday lives. For example, within a multicultural society like Australia, such invasive stereotypical generalisations of the 'Other' achieved by labelling cause unnecessary racial and cultural tension between the members of different ethnic groups. This tension, as seen in examples such as the Cronulla riots in 2005, often results in violence (Brown, Silkstone and Nicholson 2005), leading to more harmful and deviant behaviours (which is generally against the interests of the public). From such incidents the 'Other' are again portrayed as deviant, which in turn strengthens the existing tension between the ethnic and cultural groups. These implications consequently result in a continuous cycle of tension, hatred and confrontation.

I have provided in this post the legalistic definitions of crime and the inconsistencies within the criminal law from which some harmful behaviours are excluded. I have also presented a theoretical understanding of the inconsistencies in the criminal law using the labelling and radical theories of conflict theories (Hasley 2006, p.97-101). As elaborated above, harmful behaviours the criminal law leaves out are just as important as those it includes, for reasons such as that these behaviours plant among us and between nations the concious and subconscious means of categorising the 'Other', thus creating tension and producing unnecessary violence. These behaviours, therefore, require an objective perspective by the public, isolated from the manipulative discourse such as the news media.

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