Responding to the problem of crime: English criminal law and the limits of positivism, 1870–1940

Farmer, L. (2022) Responding to the problem of crime: English criminal law and the limits of positivism, 1870–1940. In: Pifferi, M. (ed.) The Limits of Criminological Positivism: The Movement for Criminal Law Reform in the West, 1870-1940. Routledge, pp. 176-195. ISBN 9780367340599 (doi: 10.4324/9780429323713-9)

Abstract

This paper explores the relationship between the problem of crime, as it was framed in criminal statistics, and the criminal law in England between 1870 and 1940. The use of criminal statistics (“sociological positivism”) as a means of understanding and “governing” crime predates the development of criminological positivism, and presented a challenge to older, legal understandings of crime as a moral failing. The paper looks at the different ways in which crime was understood through the criminal statistics between 1870 and 1940, at the extent to which these informed changes in criminal law and policy, and more generally at the extent to which criminal lawyers understood and engaged with the understanding of crime that emerged from the statistics. It argues that there were tensions between “legal”, “sociological”, and “criminological” positivism. Legal positivism, which was increasingly influential in this period, understood the authority of law as being independent of moral beliefs, and deriving from the power of the state: law was a command and the content of the law depended only on the will of the legislator. While this meant that understandings of the substance of the criminal law were, in a certain sense, unconstrained by traditional beliefs about crimes or wrongs, it nonetheless sought to mark out the autonomy of law so that law was not necessarily subject to social forces. This, then, could be in tension with both sociological and criminological positivisms which challenged legal autonomy by asserting (in different ways) the primacy of social science, and which undermined more moralized accounts of individual fault.

• Item Type: Book Sections
• Status: Published
• Glasgow Author(s) Enlighten ID: Farmer, Professor Lindsay
• Authors: Farmer, L.
• College/School: College of Social Sciences > School of Law
• Publisher: Routledge
• ISBN: 9780367340599
• Published Online: 31 October 2021