Political Process and Crime

Substantive criminal laws both reflect and reinforce the dominant morality in society. Many proscriptions of the criminal law are virtually universal and not politically problematic—for example, taboos against incest and prohibitions against murder and theft—yet consensual affirmation of these values reinforces existing structures of political authority. Other laws are not so widely accepted, and they reflect the power of dominant groups in society. But whatever the degrees of consensus about the substantive criminal laws, their administration is likely to be problematic and to pose problems requiring resolution through political processes.

At times, specific controversies in the criminal law are tied to larger concerns of political theory about the nature and function of the state. For example, classical liberal political theory (Mill) informs the position of those who oppose the prosecution of so-called victimless crimes, whereas another philosophical tradition embracing a broader role for the state underlies the arguments of those who would permit legislation proscribing victimless crimes (Devlin). For example, during a long period the common law accepted marriage and later the right to chastise as absolute defenses in criminal cases where men were charged with assault and battery of their wives. As such, these rules reinforced the dependence of women upon men. Similarly, the ways in which criminal laws were construed and enforced strengthened the institution of slavery and thwarted efforts to organize labor. Decisions to treat acts of political rebellion as "common crimes" rather than acts of conscience have also had the effect of defusing political opposition and reaffirming the authority of dominant elites (Balbus). The selection and administration of sanctions also reflect political considerations. In eighteenth-century England, policies to expand provisions for capital punishment, as well as nineteenth-century efforts to restrict them, were shaped by considerations of how best to enhance the authority of the Crown. In twentieth-century America, restrictions on capital punishment followed an increase in the political power of blacks. Criminal trials have also long been used to consolidate political power. Throughout history, and especially in the modern era, revolutionary regimes and military victors have mounted political trials to consolidate support and to brand opponents as common criminals (Kirchheimer).