DEVIANCE TO DETERRENCE: FUNCTIONALIST PARADIGMS OF CRIMINAL LEGAL SYSTEMS BY - A R VARAVARNINI
DEVIANCE TO DETERRENCE:
FUNCTIONALIST PARADIGMS OF CRIMINAL LEGAL SYSTEMS
AUTHORED BY
- A R VARAVARNINI
Functionalism is the view that mental
states—such as beliefs, desires, and the experience of pain—are wholly
determined by their functional role, that is, by their causal relationships
with other mental states, sensory inputs, and behavioural outcomes. [1]
Functionalism emerged primarily as an alternative to behaviourism and the
identity theory of mind. It deals with the fundamental nature of mental states.
Functionalists contend that rather than focusing on the components of mental
states, we should instead look at what they do. In terms of familiarity or
"reception," functionalism dominates among philosophers of mind and
cognitive scientists.
The functionalism idea contends that
a mental state is more closely related to what it accomplishes than to its
physical composition. Functionalism differs from traditional mind-body dualism
in this way. René Descartes, for example, believed that minds are made of a
unique material called res cogitans (the thinking substance.) Additionally, it
sets functionalism apart from modern monisms like the mind-brain identity
thesis of J. J. C. Smart[1].
According to the identity hypothesis, mental states are certain types of
biological states, namely states of the brain, and hence presumably need to be
formed of specific types of materials, specifically brain materials.
Functionalism differs from behaviourism in that it acknowledges the existence
of interior mental states rather than just assigning psychological states to
the entire organism, as does B. F. Skinner's theory. According to behaviourism,
a creature's mental states are solely determined by how it reacts (or is
predisposed to react) to stimuli[2].
Functionalists, on the other hand, often hold that diverse internal or
psychological states might result in the same actions and that internal and
psychological states can be identified with a "finer grain" than
behaviour. Functionalists believe that mental states are created by the actions
of their internal states, not only by the actions of the creature of which they
are a part.
Even while functionalism is neutral
between materialism and dualism, many materialists find it particularly
appealing since they think it is highly likely that any states that can fulfil
the tasks in issue will be physical states. If this is the case, the
Psycho-Physical Identity Thesis, which maintains that each form of mental state
is identical with a certain type of brain state, can be replaced by
functionalism as a materialistic alternative. This thesis implies that no
creatures with brains different from our own can share our feelings, thoughts,
and desires, regardless of how similar their behaviour and internal structure
may be to our own. As a result, functionalism, with its assertion that mental
states can be realised in multiple ways, has been seen as offering a more
inclusive, less chauvinistic" — theory of the mind that is compatible with
materialism.
Functionalism, a theoretical
framework originating in sociology, has found application in various
disciplines, including law. In the realm of criminal law, the interplay between
functionalist principles and legal structures is complex and multifaceted. the
integration of functionalism into the study of criminal law provides a nuanced
understanding of the multifaceted relationship between legal structures and
societal functions. Foundational theories by Durkheim, Merton, and Parsons,
along with seminal works, have shaped the discourse. Key concepts such as social integration,
institutional functions, and manifest/latent functions elucidate the intricate
mechanisms at play. Recent developments, including neofunctionalism and
critical perspectives, contribute to the ongoing dialogue, ensuring that
functionalist analyses of criminal law remain relevant in an ever-evolving
societal landscape.
At its core, functionalism posits
that societal structures and institutions serve specific functions to maintain
social order. Applied to criminal law, this perspective contends that legal
systems exist not merely for punitive purposes but to fulfill essential
societal functions. Durkheim, a pioneer in functionalist sociology, argued that
crime is inherent in society and serves functions such as boundary
reinforcement and social cohesion. Durkheim's seminal work laid the groundwork
for understanding the functionalist perspective in the context of crime. He
proposed that crime is a normal aspect of society, functioning to define
societal boundaries and reinforce shared values[3].
Structure functionalism, which
dominated American sociology in the late 1940s and early 1950s, was summarised
by Merton. Merton's "paradigm of functional explanation" enables the
development of a wide range of hypotheses that adhere to the three axioms or
postulates[4].
It defines the functional analysis's observation, categorization, and
comparison procedures. Merton's strain theory examined how societal structures,
including the legal system, contribute to criminal behaviour. Additionally, it
describes the type of information about which functional assertions can be
made. Merton expanded functionalist thought by introducing the concept of
anomie, a state where societal norms and individual aspirations are misaligned.
Anomie occurs “when there is an acute disjunction between the cultural norms
and goals and the socially structured capacities of members of
the group to
act in accord
with them” [5]This dichotomy
mostly leads to manifestation of criminal behavior, therefore the
deviance is present in all societies; and deviance itself may have functional,
dysfunctional or ‘non-functional roles to play’[6]
Merton contends that sociologists
need to be methodologically astute, knowledgeable about the structure of an
inquiry, the nature of reasoning, and the needs of a theoretical framework.
According to his main argument, empirical research does more than only validate
or disprove ideas; it also goes beyond the passive function of validating and
testing theory. The framework that Merton's work on functionalism offers for
succeeding functionalists makes his work about utmost significance.
Additionally, it brought functionalism into a field better suited to the study
of an item's effects on the social structure as opposed to dealing just with an
item's intended and positive functions.
Parsons contributed to the functionalist framework by emphasizing the
role of legal institutions in maintaining equilibrium within society[7].
He argued that legal systems provide a mechanism for conflict resolution and
societal adaptation.
Key
Concepts in Functionalism and Criminal Law
1. Social Integration and
Regulation
Functionalism posits that legal
systems contribute to social integration by setting normative boundaries. Laws
regulate behavior, providing a framework for individuals to coexist
harmoniously. Criminal law, in this context, serves as a tool for maintaining
social order.The concept of social integration and regulation within the
framework of functionalism and criminal law is rooted in the idea that legal
systems play a crucial role in fostering cohesion within a society and
regulating individual behavior. This key concept encompasses several dimensions
that contribute to the overall functioning and stability of a community. For
functional indispensability, that specific tasks must be performed for a
community to operate[8].
Social integration refers to the
process by which individuals within a society develop a shared sense of
belonging and attachment to a common set of values, norms, and institutions. In
the context of criminal law, the legal system becomes a central mechanism for
promoting social integration by establishing a universally applicable set of
rules and standards.
1.2 Regulatory Function: The regulatory function of
criminal law is instrumental in maintaining social order and preventing
disintegration within a society. Laws act as explicit guidelines that prescribe
acceptable behavior and outline consequences for violations. The legal system,
through its regulatory function, establishes a framework that governs
interactions between individuals, ensuring a level of predictability and
stability. This regulation is essential for preventing conflicts, resolving
disputes, and fostering a sense of security among the populace.
1.3 Normative Framework: Criminal laws
contribute to the establishment of a normative framework that defines the
boundaries of acceptable conduct. By codifying societal norms into legal
statutes, the legal system reinforces shared values and expectations.
Individuals, guided by these norms, internalize the societal standards set by
the legal system, promoting a sense of unity and collective identity. The
normative framework also serves as a basis for resolving conflicts and
addressing behaviors that deviate from established norms.
1.4 Social Solidarity: The existence of
criminal laws fosters social solidarity by creating a common ground for
collective action and response to criminal behavior. When legal norms are
violated, the legal system's response reflects a collective stance against
actions deemed harmful to the community. This shared response reinforces a
sense of unity and shared purpose among individuals who abide by the law,
contributing to the overall cohesion of the social fabric.
1.5 Symbolic Integration: Beyond its
practical implications, criminal law plays a symbolic role in symbolizing the
collective values and identity of a society. Legal principles and statutes
serve as symbolic representations of shared beliefs and aspirations. The act of
upholding these laws, through legal proceedings and enforcement, reinforces the
symbolic integration of individuals within the broader social context.
1.6 Prevention of Anomie: Functionalism suggests that a
well-functioning legal system prevents anomie, a state of normlessness or
breakdown of social norms. Criminal laws act as a bulwark against anomie by
providing a structured framework for addressing deviant behavior. The clear
delineation of acceptable and unacceptable conduct reduces the likelihood of
individuals feeling disconnected from societal norms, contributing to overall
social stability.
2. Institutional Functions
The legal system is viewed as an
institution with specific functions beyond punishment. It functions as a
deterrent, preventing potential offenders from engaging in criminal behaviour.
Additionally, through the judicial process, it aims to rehabilitate offenders
and reintegrate them into society. The concept of institutional functions
within the framework of functionalism and criminal law revolves around the
roles that various institutions play in maintaining social order, upholding
legal norms, and contributing to the overall stability of a society. This key
concept delves into the specific functions performed by institutions,
particularly within the criminal justice system, and how these functions align
with the broader functionalist perspective.
2.1 Legal Institutions: Legal institutions, including
courts, law enforcement agencies, and legislative bodies, form the backbone of
the criminal justice system. These institutions collectively serve the function
of interpreting, applying, and creating laws. Courts adjudicate legal disputes,
law enforcement agencies enforce laws, and legislatures enact and amend laws.
The seamless functioning of these legal institutions is crucial for ensuring
justice, resolving conflicts, and maintaining societal order. Legal systems,
principles, rules, institutions, and concepts can be understood only as functions
of human behaviour[9].
2.2 Socialization and Norm Transmission: Institutions
within the criminal justice system contribute to socialization by transmitting
societal norms and values. For example, courts act as forums where legal norms
are reinforced through judgments and precedents. The legal process itself
becomes a mechanism for educating individuals about the consequences of deviant
behaviour, reinforcing societal expectations, and discouraging future criminal
acts.
2.3 Punitive Functions: One of the
institutional functions of the criminal justice system is the imposition of
sanctions for criminal behaviour. Courts determine appropriate punishments, and
correctional institutions carry out sentences. This punitive function serves
both a deterrent and rehabilitative purpose. It aims to deter individuals from
engaging in criminal acts through the fear of consequences and, simultaneously,
seeks to rehabilitate offenders to prevent future criminal behaviour.
2.4 Conflict Resolution: Institutions within the criminal
justice system play a crucial role in resolving conflicts that arise from
criminal activities. Courts provide a formalized venue for the resolution of
legal disputes, ensuring a fair and impartial process. The institutionalized
nature of conflict resolution contributes to the overall stability of society
by preventing individuals from resorting to vigilantism or engaging in personal
retribution.
2.5 Functional Interdependence: In a
functionalist perspective, institutions within the criminal justice system are
viewed as functionally interdependent components of a larger societal
structure. Each institution has a specific role, and their effective
collaboration ensures the smooth operation of the criminal justice system. For
instance, law enforcement agencies investigate alleged crimes, courts determine
guilt or innocence, and correctional institutions carry out sentences. This
interdependence contributes to the overall functioning and stability of the
legal system.
3. Manifest and Latent
Functions
The concept of manifest and latent
functions is a central tenet of functionalist theory, providing a nuanced
understanding of the intended and unintended consequences of social
institutions[10]. In the
context of functionalism and criminal law, exploring manifest and latent
functions allows for a comprehensive analysis of the roles played by legal
institutions and the broader criminal justice system.
3.1 Manifest Functions: Manifest
functions refer to the explicit, intended, and readily observable outcomes of
social institutions. In the realm of criminal law, the manifest functions of
legal institutions are those that are openly acknowledged and pursued. For
example:
·
Adjudication of Guilt or Innocence: Courts, as legal
institutions, have the manifest function of determining the guilt or innocence
of individuals accused of criminal acts. This function is overt and aligns with
the primary purpose of delivering justice through fair and impartial legal
processes.
·
Punishment and Rehabilitation: Another manifest function
is the imposition of sanctions, including punishments and rehabilitation
efforts, aimed at maintaining societal order and preventing future criminal
behaviour. These functions are explicitly recognized components of the criminal
justice system.
3.2 Latent Functions: Latent functions,
on the other hand, are the unintended or less overt consequences of social
institutions. In the context of criminal law, latent functions may arise
inadvertently or go beyond the explicitly stated goals of legal institutions.
Examples include:
·
Social Stratification: The criminal justice system,
despite its manifest functions of upholding justice, may inadvertently
contribute to social stratification. Certain groups may be disproportionately
affected by criminalization, leading to unintended consequences such as the
reinforcement of existing social inequalities.
·
Creation of Deviant Subcultures: The imposition of
criminal sanctions can lead to the formation of deviant subcultures within
society. Individuals who have gone through the criminal justice system may face
challenges in reintegrating into mainstream society, potentially fostering the
development of subcultures with values and norms distinct from those of the
broader community.
3.3 Interplay of Manifest and Latent Functions:
Functionalism emphasizes the interplay between manifest and latent functions,
recognizing that social institutions often serve multiple purposes, both
intended and unintended. In the context of criminal law:
·
Deterrence and Stigmatization: While the manifest
function of criminal sanctions is deterrence and rehabilitation, the latent
function may involve stigmatization. Individuals with criminal records may face
societal stigma that extends beyond the explicit goals of the criminal justice
system.
·
Social Order Maintenance: Manifest functions, such as
conflict resolution and punishment, contribute to the maintenance of social
order. However, latent functions may include the reinforcement of power
structures and social control mechanisms.
3.4 Social Integration and Conflict: The interplay
between manifest and latent functions influences social integration and
potential conflict. If the manifest functions align with societal values and
expectations, social integration is likely. However, conflicts may arise when
latent functions result in unintended consequences that deviate from shared
norms.
Evolution
of Criminal Law Through a Functionalist Lens
1. Structural Functionalism
Structural Functionalism, a
foundational sociological theory, offers a comprehensive framework for
understanding the intricate web of social structures and their functions within
a society. Originating in the early works of scholars like Emile Durkheim, this
perspective views society as a complex organism with interdependent parts, each
contributing to its stability and functioning. At the heart of Structural
Functionalism lies a set of fundamental principles that shape its approach to
the study of society.
·
Organic
Analogy: Structural functionalists often use the analogy of the human body to
describe society. Just as organs perform specific functions to maintain the
health of the body, social institutions work together to ensure the well-being
and stability of society. People were therefore interchangeable, temporary
occupiers of social positions. Its roots can be found in the research of two
anthropologists, Radcliffe-Brown and Malinowski. In contrast to Malinowski's
focus on persons, Radcliffe-Brown viewed individuals as unimportant.[11]
Both authors embraced functionalism in their field research because they
believed it to be a useful approach for analysing communities that were
"anthropologically weird."[12]
·
Interconnectedness:
Social institutions, such as family, education, religion, and law, are viewed
as interconnected parts of a larger system. Changes in one institution can have
ripple effects throughout the societal structure.
·
Manifest
and Latent Functions: Actions and structures have both manifest (intended) and
latent (unintended) functions. While manifest functions are recognized and
expected, latent functions may not be immediately apparent[13].
While Structural Functionalism has
contributed significantly to sociological thought, it is not without its
critiques. Critics argue that Structural Functionalism presents a static view
of society, focusing more on order and stability than on change and conflict.
The theory has been also been accused of promoting a conservative ideology by
emphasizing the importance of existing social structures and institutions. Some
argue that Structural Functionalism neglects the role of individual agency and
the potential for social change driven by collective actions[14].
Contemporary
Relevance
In the contemporary sociological
landscape, Structural Functionalism continues to influence research and
analysis. Researchers explore how educational institutions function to transmit
cultural values, socialize individuals, and prepare them for their roles in
society. The theory remains relevant in understanding how social institutions
contribute to stability and integration in the face of diverse and dynamic
societal challenges. While newer theories have emerged, elements of Structural
Functionalism, such as the focus on institutions and their functions, persist
in various sociological inquiries.
In conclusion, Structural
Functionalism provides a lens through which we can unravel the complexities of
societal structures and their functions. Despite criticisms, its historical
evolution and contemporary relevance showcase its enduring impact on the study
of society, offering valuable insights into the interconnected mechanisms that
shape our social tapestry.
2. Systems Theory
Systems theory, a comprehensive
framework that examines the interrelationships and interdependence of various
elements within a complex system, has found profound applications in diverse
fields. In the realm of criminal law, this theoretical perspective offers
unique insights into the functioning, evolution, and adaptation of legal
structures. This essay delves into the intricacies of systems theory, highlighting
its foundational concepts and exploring its implications for understanding the
dynamics of criminal justice.
At its core, systems theory posits
that a system is a set of interconnected and interdependent components working
together to achieve a common goal. This holistic approach emphasizes the
relationships and interactions among these components, rather than isolating
them in isolation. In the context of criminal law, this means viewing the legal
system as an integrated whole, where legislative, judicial, and enforcement
components function collaboratively.
Applying systems theory to criminal
justice involves recognizing the key components that form the system.
Legislation, law enforcement agencies, courts, correctional facilities, and
rehabilitation programs constitute integral parts that operate synergistically.
Understanding how changes in one component can affect the entire system is
essential for comprehending the systemic nature of criminal law. Systems theory
acknowledges the existence of hierarchies and subsystems within a larger
system. In criminal law, this implies recognizing the hierarchical structure of
legal institutions, from local courts to supreme courts, and understanding how
each level contributes to the overall functioning of the legal system.
Examining subsystems such as juvenile justice or specialized courts provides a
nuanced understanding of the system's complexity.
Beyond the internal dynamics of
criminal justice, systems theory extends to the interconnectedness of social
systems. It considers how external factors, such as cultural norms, economic
conditions, and political influences, interact with the legal system. This
holistic perspective sheds light on the broader societal context in which
criminal law operates.
In contemporary criminal justice
research, systems theory serves as a lens through which scholars examine issues
such as criminal profiling, policy effectiveness, and the impact of legal
reforms. Understanding the legal system as a complex, adaptive entity allows
for more informed discussions on reforms and improvements. In conclusion,
systems theory provides a holistic and dynamic framework for comprehending the
intricate workings of criminal law. By viewing the legal system as an
interconnected and adaptable entity, scholars and policymakers can gain deeper
insights into its functioning, evolution, and potential areas for improvement.
The application of systems theory enriches the discourse on criminal justice,
fostering a nuanced understanding of the complex interplay of factors shaping
legal systems.
Case studies offer a tangible lens
through which to examine theoretical frameworks in action. In the context of
functionalism and criminal law, selected case studies can illuminate how
functionalist perspectives shape legal systems and responses to criminal
behaviour.
The
Prohibition Era in the United States (1920-1933)
The Prohibition era provides a
compelling historical case study to explore the interplay between functionalism
and criminal law. The implementation of the 18th Amendment, which prohibited
the manufacture, sale, and transportation of intoxicating liquors, aimed to
address social issues associated with alcohol consumption. However, the
unintended consequences, such as the rise of organized crime and the
proliferation of illegal speakeasies, demonstrated the systemic impact of
legislative changes. Functionalism helps analyse how the legal response to a
perceived social ill resulted in the emergence of alternative, albeit criminal,
structures to fulfil societal needs for alcohol consumption[15].
The War on
Drugs
Initiated in the 1970s, this campaign
aimed to eradicate drug abuse by implementing strict legal measures. However,
the functionalist perspective allows for an examination of unintended consequences,
such as the growth of drug cartels, the overcrowding of prisons, and the
perpetuation of systemic issues related to addiction. Evaluating the societal
functions served by the criminalization of drug offenses and its impact on the
criminal justice system provides valuable insights through a functionalist
lens.
Proactive
Policing in New York City (1990s)
This approach aimed to address minor
offenses to prevent more serious crimes, aligning with functionalist ideas of
maintaining social order. Examining the impact of strategies such as "stop
and frisk" through a functionalist lens allows for an exploration of how
the criminal justice system responded to perceived threats to social cohesion,
highlighting both successes and criticisms of this approach.
White-Collar
Crime and Corporate Regulation
The Enron scandal (2001) provides a
contemporary case study that delves into the interplay between functionalism
and criminal law in addressing white-collar crime. The collapse of Enron, a
major corporation, revealed regulatory gaps and prompted legal responses aimed
at safeguarding the financial system. Enron used its standing, credit, and
energy industry knowledge to lure investors and trade partners.[16]
Functionalism helps analyse how legal mechanisms adapt to address emerging
threats to societal functions, in this case, the stability of financial
markets.
These representative case studies
showcase the dynamic interaction between functionalist perspectives and
criminal law across different historical and contemporary contexts. By
examining the unintended consequences, systemic adaptations, and societal
functions served by legal responses, scholars and policymakers can gain a
deeper understanding of how functionalist theories influence the evolution and
functioning of criminal justice systems.
Conclusion
Functionalism, as a theoretical
framework, holds multifaceted implications for criminal law. By integrating
sociological and psychological perspectives, this examination seeks to unravel
the complex interplay between functionalist theories and the legal system.
Sociological insights shed light on the structural and systemic aspects, while
psychological perspectives offer a nuanced understanding of individual
behaviours within the functionalist paradigm. This integration aims to provide
a comprehensive view of how functionalism shapes, influences, and responds to
criminal law dynamics.
Sociological perspectives emphasize
the structural functions of legal systems within society. Durkheim's seminal
work on social integration and regulation underscores how criminal law serves
as a mechanism to maintain social order. The integration of sociological
insights extends to examining how legal norms and institutions shape societal
norms, contributing to collective values and expectations. Additionally,
exploring the manifest and latent functions of criminal law from a sociological
standpoint unravels the intricate ways in which the legal system influences and
reflects broader social structures.
Psychological perspectives delve into
individual behaviours and motivations within the functionalist framework.
Examining beliefs, values, and societal norms from a psychological lens allows
for a nuanced understanding of how individuals internalize and respond to legal
norms. The foundational role of mythology in shaping cultural beliefs, as
explored in psychological literature, aligns with the symbolic reservoirs of
meaning present in functionalist perspectives on criminal law. Furthermore,
psychological studies on narratives of transformation and metamorphosis
contribute insights into how individuals navigate the psychological challenges
inherent in legal processes and societal expectations.
The fusion of sociological and
psychological insights enriches the understanding of the impact of
functionalism on criminal law. By examining the societal structures that
functionalist theories emphasize through a sociological lens, one can
appreciate how these structures influence individual perceptions and behaviors.
Moreover, the psychological examination of how individuals interact with and
internalize legal norms offers a nuanced perspective on the micro-level
processes within the broader functionalist framework.
The integration of sociological and
psychological perspectives offers a holistic and nuanced understanding of the
impact of functionalism on criminal law. By bridging the macro-level structures
with micro-level individual experiences, this approach enriches scholarly
discourse and informs policymakers about the multifaceted dynamics at play
within the functionalist paradigm in the realm of criminal justice.
[1] Smart, J.J.C: Consciousness and
Awareness?, Journal of Consciousness Studies, 11, 41-50, 2004.
[2] Delprato, Dennis & Midgley,
Bryan D.. (1992). Some Fundamentals of B. F. Skinner's Behaviorism. American
Psychologist.
[3] Émile Durkheim's "The
Division of Labor in Society" (1893)
[4] Robert K. Merton's "Social
Structure and Anomie" (1938)
[5] Merton 1968: 216
[6] Non-functions are consequences
that are simply irrelevant to the system under consideration. Included here
might be social forms that are “survivals” from the earlier historical times
(see Ritzer 2011: 246)
[8] Davis, K. Human Society is an elementary work written
from this perspective
[9] COHEN, supra note 8 at 72
[10] According to Merton, a system is said to be
functioning when "those observed consequences which provide for the
adaptation or adjustment of a given system" are noticed, and a system is
said to be dysfunctional when "those observed consequences which reduce
the adaptation or adjustment of the system." In other words, activities
that maintain social life are considered to be functional, while those that do
not dysfunctional. By separating apparent and latent functions, Robert Merton
created structural functionalism.
[12] Malinowski researched the inhabitants of Trobriand
Island in his book Argonauts of the Western Pacific. Again, a Pacific people,
Radcliffe Brown investigated the Andaman Islanders. In their writing, both
authors explore the key ideas of functionalism, notably functional unity,
universality, and irreplaceability. They both claim that the essence of
functional analysis is best illustrated through their field research. But until
Merton's meticulous examination, which was published in his work "Manifest
and Latent Functions," which was later reproduced in Social Theory and
Social Structure, the nature of functional analysis remained obscure rather
than a problem (Merton, 1968)
[15] Lisa
McGirr, The War on Alcohol: Prohibition and the Rise of the American State (New
York: W.W. Norton & Company, 2016), 11-13.
[16] U.S. Commodity Futures Trading
Commission. “CFTC Charges Enron with Price
Manipulation and Other Illegal Acts”