Defining Crime from Outside Criminology

Orthodox criminology departs from most methodological studies in that it chooses to define its primary concept, crime, as it appears externally to the discipline in the criminal law. In doing so, criminology has avoided creating an independent, well-reasoned, and widely applicable definition of crime as its starting point. Making that choice has important implications for studying crime and for defining the scientific analysis of crime. The question we have asked is whether this choice is scientific and whether it meets the scientific criteria for making these kinds of choices (Potter 1995; Weinberg 1962). One answer to this question might be that orthodox criminology starts with the legal definition of crime because it is better than other alternatives. Thus the argument is that the criminal law might serve as a useful place to begin the analysis of criminal behavior. This observation, however, still fails to address whether this is a good choice scientifically.

Let us introduce into this discussion an observation that, as far as we know, is true: there is no physical, chemical, or biological science that begins its study of its core concept with the legal definition of its subject matter. This legal staring point only applies to criminology and the law, and the law does not make a claim to be scientific. The laws of physics are not, for example, laws in the legal sense as defined by statute. Rather, the laws of physics are derived from scientific observation of “stuff” (a term physicists and philosophers use to describe all the things in the material world) around us and how that phenomenon interacts and behaves. The laws of physics describe the basic nature of the stuff in the observable world. In the physical sense, these things are described by careful application of scientific rules of observation. This is not so for the legal definition of crime. In fact, the legal definition of crime is so variable that there is one area that has developed within criminal justice, called comparative criminal justice, that has devoted a good deal of time and energy to studying these different laws as well as the different systems of control that relate to these criminal laws (Reichel 2002). However, as most comparative criminal justice scholars are quick to admit, the task is so immense it may never be accomplished. Speaking to the breadth and difficulty of this task, Pakes (2010, 11) laments, “it must be said that a single-author text on comparative criminal justice . . . can never be fully achieved.”

As we have noted, orthodox criminology does not derive its concept of crime from its observations of the world but rather accepts as the starting point for the definition of crime the criminal law. The criminologist, therefore, makes no independent observations about crime or its nature that serves as the basis for defining crime. In selecting the criminal law as its starting point, criminologists have allowed those who make the criminal law to make those observations. Rather than the term “crime” being a carefully derived scientific concept, it is in fact quite an arbitrary concept, the content of which is determined not by scientific inquiry, but rather by the whims of those who make the law. A crime is a crime because the criminal law designates that behavior as a crime. What the criminologist has not done is examine the criminal law to see if it contains rules that would explain why a specific behavior is selected as being a crime or perhaps even why some people engage in behaviors that others have determined should be studied on a whim. Thus criminologists have given their scientific responsibility for deriving a conceptual definition crime to politicians.