Conflict Theory

Conflict theories begin with the assumption that society is not held together by agreement and consensus on major values.

Conflict Theories

•      Groups are held together in a dynamic investigations of opposing group interests and efforts.

•      A dynamically maintained equilibrium with a continuous possibility of shifting positions of gaining or losing status, with the need to maintain an alert defense.

•      Conflict is as a principal and essential social process upon which society depends.

Conflict Theory

•      Power is the principal determinant of the outcome of conflict.

•      Most powerful groups control the law.

•      Less powerful groups continue to act in accordance with their norms, violating the law.

Law as a Type of Social Control

•      Social control consists of a normative system with rules about the way people should and should not behave.

•      It has a system of formal and informal mechanisms used to control deviation from and promote conformity to these rules.

•      Informal control consists of family, friendship groups, churches, neighborhoods, and other community groups.

Law as a Type of Social Control

•      Formal social control includes law and the criminal justice system in which the rules are promulgated and enforced by agents of social control.

•      Informal and formal social control are often seen as inversely related.  (Black, 1976)

•      Social control relies in large measure on socialization.

Law and Social Control

•       Law differs from other mechanisms of social control in that it relies primarily on the external application of formal negative sanctions for punishment of wrongdoing

•      These sanctions are supported by the legitimatised and authoritative coercion of the state.

Law and Social Control

•      Two major perspectives on the enactment and enforcement of the law:

•      The law develops out of a widespread normative consensus in society.

•      The law develops out of conflict between groups and the exercise of power.

•      The law endorses and protects the narrow interests of those groups that wield power.

Law and Social Control

•      Until the 1960s the major approach to law was the consensus model.

•      Under consensus the law incorporated those norms where there is the greatest consensus

•      Durkhiem (mechanical v. organic solidarity)

•      Mechanical much more brutish and strict

•      Organic more toward restitution, civil and constitutional law.

Law and Social Control

•      Weber proposed that as the economies became more rational that the law would become more rational. 

•      Rationality in the law is based on adherence to rule of law (due process) and fair procedures determined by legal principles.

•      Sumner (1906) formal codification of the prevailing folkways and mores.

Law and Social Conflict

•      In the late 1950s conflict theory began to challenge the consensus model. (Vold, 1958; Dahrendorf, 1959; Vold & Bernard, 1986)

•      In the 1960s, several criminologists reformulated conflict theory (Quinney, 1970;Chambliss, 1969; Turk, 1969)

 

Law and Social Control

•      The law on the books and the law in action often favors the interests of special groups.

•      Conflict theory sees society as in a more or less continuous state of conflict.

•      Criminal definitions describe behavior that conflicts with the interest of groups that have the power to shape public policy. (Quinney, 1970)

Law and Social Control

•      Class, sex, age, ethnicity, and other characteristics that denote social position determine who gets apprehended and punished.

•      Law is both the result of and a weapon to be used in class conflict. (Turk,1977)

•      Pluralism (debated) recognizes several power centers

Pluralistic Models of Conflict

•      McGarrell and Castellano (1991) three levels of factors that come into play:

–    Highest level, social-structural conflicts generated by heterogeneity and inequality and symbolic conflicts

–    Mid level, rates of victimization, fear of crime and public fears of victimization

–    Third level, media reports, interest group activities, reform campaigns, and political events.

 

Pluralistic Model of Conflict

•      Description: a decentralized, “loosely coupled system, into which multiple elites  and competing groups, interject their influence, but which responds to institutional, economic and political changes.

•      Competing interest groups attempt to uphold their values through legislatures.

Pluralistic Model of Conflict

•      Influence is not only directed to law but also to the appointment of judges and other key law enforcement personnel.

•      Interested threatened or supported by law may be symbolic as well as material.

•      The core of the criminal law has substantial agreement among all members of society (mala in se)

Pluralistic Model of Law

•      The core areas may have originally been developed to support particular interests.

•      The media proves to be a powerful player in shaping public opinion which in turn shapes policy.

•      This conflict model was incorporated into labeling theory.

Research on Genesis of Law

•      Three types of research that evaluate conflict theory.

•   Studies of the influence of interest groups on legislation, administrative rule making and court decisions.

•   Research on the consensus or dissensus in public opinion

•   Research into the exercise of discretion and factors influencing use of discretion.

Interest Groups and Legislation

•      These studies have identified specific groups involved in influencing the enactment of law:

–    Well organized pressure groups

–    More diffuse regional, labor, business, farms, religious and others.

–    Law enforcement and government agencies

•      These studies support more a pluralistic model as opposed to either pure conflict or consensus.

Consensus or Dissensus

•      Public opinion about what acts and how much acts are disapproved

•      If the laws resonate with approval or if there is sufficient dissensus it should suggest consensus or dissensus.

•      Studies show that there is broad agreement that cuts across class and most other characteristics.

•      Mala in se most widely held, mala prohibita increasing dissensus

•      Supports pluralistic model.

Extra-legal Variables and the Exercise of Discretion.

•      Conflict theory posits that use of discretion will be biased against less powerful.

•      The research suggests that criminal justice decisions are more likely to be based on legally relevant, neutral and non biased factors more than on extra legal group related factors.

•      It is clear that those the least powerful make up the bulk of those punished????

Extra-legal Factors and Criminal Justice

•      Blacks and the poor are over-represented in the justice system.

•      Males are over-represented.  This conflicts with the theory.

•      Black males and Indians more likely to receive lenient treatment than white youth in the Juvenile Justice System (Lieber, 1994).

•      Social Characteristics or behavior?

Extra-Legal Factors and the Justice System.

•      When legal variables ( seriousness, prior record, aggravating circumstances) are controlled differences in arrests,  court outcomes, and sentence severity disappear for race, class, sex, age and ethnicity.(Wilbanks,1987)

•      More serious the offense more likely to be neutral on extra legal variables.

Extra-legal Factors in Use of Discretion

•      How can there be such disparities in the end product when the system is not taking into account extra system variables.

•      Small uncounted discrepancies build up through the system to result in the disparities, or,

•      The underlying behavior is different.

•      Extra legal factors do not support a pure conflict model.

Conflict Theories of Criminal Behavior

•      Criminal behavior is a reflection of the conflict inherent in society.

•      Conflict theory sees crime as the ordinary learned  and normal behavior of people brought up in cultural and group conflict.

•      A set of crimes known as political crimes would be a direct manifestation of this theoretical perspective.

•      Only political crime appears to fit the conflict model.

Postmodern School

•      Conflict theory is like postmodernism.  There are different classes involved in power struggle. The dominant are those in power, in legislative and enforcer positions.  The laws are written and enforced from their perspective. “Truth" depends of how much power you wield.

•      Society no longer reflects class struggle.  Race issues have been likened to class issues; gender issues to class issues. Elements of class can be seen in both, but there is intersectionality forcing theorist to redefine class. Many who adopt this position are Post-Marxists.

Bibliography

•      Black, Donald J. (1976) The Behavior of Law. New York, Academic Press

•      Chambliss, William J. ed. Crime and the Legal Process. New York, McGraw Hill.

•      Lieber, Michael L. (1994) “A comparison of juvenile court outcomes for Native Americans, African Americans, and Whites.” Justice Quarterly, 11:257-279.

Bibliography

•      McGarrell, Edmund F. & Thomas C. Castellano (1991) “The politics of law and order, case study evidence for the conflict model of the criminal law formulation process.” Journal of Research in Crime and Delinquency.28: 304-329.

•      Quinney, Richard (1970) The Social Reality of Crime Boston: Little Brown.

Bibliography

•      Sumner, William Graham (1906) Folkways Boston: Ginn.

•      Turk, Austin T.(1969)  Criminology and the Legal Order. Chicago: Rand-McNally.

•      Turk, Austin T. (1977) “Class, conflict, and criminalization, “ Socialogical Focus 10: 209-220.

 

Bibliography

•      Vold, George B. (1958) Theoretical Criminology. New York: Oxford University Press.

•      Vold, George B. & Thomas J. Bernard (1986) Theoretical Criminology. Third edition, New York: Oxford University Press

•      Wilbanks, William (1987) The Myth of a Racist Criminal Justice System. Monterey CA: Brooks/Cole.