PERSPECTIVES ON LAWMAKING

The creation and instrumentation of laws are routine and ongoing processes, and theoretical perspectives regarding the many facets of lawmaking abound in the sociolegal literature (Chambliss and Zatz, 1993; Hagan, 1980; Lange, 2009; Monahan and Walker, 2010; Parisi, 2008; Zander, 2005). Students of lawmaking have used a number of them in attempts to explain how laws are created or defeated. We will consider briefly four such theories to illustrate the diversity of perspectives: the rationalistic model, the functional view, conflict theory, and a “moral entrepreneur” thesis.

THE RATIONALISTIC MODEL

The rationalistic model proposes that laws (in particular, criminal laws) are created as rational means of protecting the members of society from social harm. In this perspective, crimes are considered socially injurious. This is a popular theory of lawmaking, but also one that is lacking (Goode, 2016). A major problem with the theory is that lawmakers and powerful interest groups define what activities may be harmful to the public welfare. Value judgments, preferences, and other considerations enter into the process of their definition (for example, why are certain types of behaviors, like prostitution or gambling—which will be discussed in Chapter 5—labeled as criminal?).

 
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