Chapter 3: Laws/Crime/Deviance and Ethics

Chapter Abstract

Chapter three addresses a brief history of law and ethical foundations for our existing laws. Citizens of the United States hold the U.S. Constitution in great reverence and respect. The founding document of government, law and liberty as we know it today is the result of forecasting by our founding fathers forethought. In this material readers should begin to decipher the value of the Constitution and any short comings as may be applied to the application of law or public policy.

Laws History

You may have provided little, if any thought as to the origins of law. Just as sure as God made little green apples, the law did not fall from a tree. The law is man-made (Gender Neutral) and is assumed universally applied within society. The law is as obscure as man himself. You have probably been introduced to terms such as folkways and mores which are less sophisticated terms for policies and laws. Where do our laws come from? Why are there more than one type of law? How does law(s) impact us as a society? Do courts influence public policy through judicial decision or interpretation of laws? Do these many laws intersect or interact with each other in the criminal justice system? How does ethics and the law interact? How ought the law be enforced? All interesting questions that hopefully will be answered by the conclusion of this section.

Researchers have shown that in the beginning man (generic description meaning both genders) was pretty much in groups. However, the hierarchy of dominance was generally through the strongest male, usually referring to superiority through physical force. Thereby we hear the term the strongest shall survive was thought to be the law of the land. The Oxford English Dictionary defines “The law of the jungle is an expression that means every man for himself, anything goes, survival of the strongest, survival of the fittest, kill or be killed, dog eat dog, and eat or be eaten”. The Law of the Jungle as “the code of survival in jungle life, now usually with reference to the superiority of brute force or self-interest in the struggle for survival.”

Instinctively that which was necessary to survive (individual survival) was first and foremost on the mind of man and probably did not require a great deal of ethical foundation. Not until periods in history that illustrate tribes and clans were relevant to survival and society then, focused on folkways and mores as the rules of the day. The grouping of early man were generally for sake of survival in numbers, safety against attacks of other clans, and for hunting purposes. Soon man began to form by clan and tribe creating societies, which became self-evident early on that some form of law was required to regulate these societies.

Initially man was nomadic, following his food and the need to flee uninhabitable lands. Then how did they convey these folkways and mores from generation to generation? They did not have the luxury of confining these rules to easily transferable stone tablet containing the Ten Commandments as preferred in the story of Moses. They could not take the etchings from the walls of the caves where they recorded history when they traveled from location to location, then how were these policies and rules passed on? Folkways were traditionally practiced behaviors and mores were offenses against the social norms that may become laws. Prior to the written word these practices were conveyed through fables, stories or parables in addition to common practice. Ethical awareness was observed in clan and tribal societies, although not specifically labeled ethics, none-the-less were witnessed in elements of life such as caring for the elderly, the young, and the group itself. Dr. Francisco Ayala, University of California, Irvine argues moral norms are culturally derived or products of evolution and not biological evolution. Dr. Ayala maintains that morality may not originate in an intellectual, well-reasoned process and ethics commences in moral reflections from life experiences. These become rules through a social context. His theory implies ethics is at the end of the day is impacted by some form of cognitive application, as an example caring of young or the elderly or cooperative codes or policies that permits communal living.

Hammurabi’s Code: Written Code

Eventual formal social organizations of society required written laws. An example of early written law is Hammurabi’s Code, a Babylonian King, contrived the code of law of ancient Mesopotamia, dating back to about 2100 BC. Hammurabi, enumerated laws of private conduct, business and legal precedents, of which 282 articles have survived. His code is one of the oldest journal of written laws known to man (Fagin, 2015). This is considered one of the oldest deciphered writings implying the lex talionis, law of retaliation in just deserts or scaled punishments adjusting “an eye for an eye, a tooth for a tooth” (lex talionis) as graded depending on social status, of slave versus free man or woman (Prince, 1904). Hammurabi’s Code parsed out justice by class and gender. A few Examples of his laws/code are:

Slavery: Ex. Law #15: If anyone take a male or female slave of the court, or a male or female slave of a freed man, outside the city gates, he shall be put to death.

Divorce: Ex. Law #142: If a woman quarrel with her husband, and say: “You are not congenial to me,” the reasons for her prejudice must be presented. If she is guiltless, and there is no fault on her part, but he leaves and neglects her, then no guilt attaches to this woman, she shall take her dowry and go back to her father’s house.

Restitution: Ex. Law #196: “If a man destroy the eye of another man, they shall destroy his eye. If one break a man’s bone, they shall break his bone. If one destroy the eye of a freeman or break the bone of a freeman he shall pay one gold mina. If one destroy the eye of a man’s slave or break a bone of a man’s slave he shall pay one-half his price.

Facilitation: #109. If outlaws meet in the tavern and are not captured and delivered to the court/palace, the female tavern-keeper shall be put to death.

Alcohol Consumption: #110. If a holy woman opens a tavern door or enters a tavern for a drink, she shall be burned to death (N.A., Hammurabi’s Code).

The assumption is that these codes were designed to be universally applied and provide equality for all members of society. Yet, Hammurabi’s Code was based on economic and social status, freeman v. slave, and gender. These codes may have been thought of as ethically predisposed except that the preceding demonstrates how the law provided for the wealthy and gender distinctions were made as far back as 2100 B.C. (Prince, 1904, p. 607). The codes demonstrates both social and political policy that influences laws and their creation. Precedent setting codes and laws to what we experience in contemporary society demonstrates the ethical foundations of the codes were potentially through social experience rather than cognitive reasoning.

The code is viewed as an early example of a fundamental law, regulating a government — i.e., a primitive constitution (Thomas and Stevens, 2018). The U.S. Constitution became one of the benefactors of the historical document. Hammurabi’s Code along with other preceding documents served as a precursor for America’s basis of law and equal behaviors. The U.S. Constitution was settled on after a failed attempt at the Articles of Confederation. The Constitution of the United States serves as the basis for federal, state, and local laws. (See list under following link). http://www.ushistory.org/documents/amendments.htm

What is Deviance?

Sociologist have defined expected behaviors as norms. Deviance is an action that contradicts socially accepted behaviors (McMaghy, 1979). Deviant behavior is a violation of the previously discussed folkways or mores. Then deviant behavior is any behavior that is contrary to the dominant norms of society. Deviance ultimately is judged by other in society and may not be as uncomplicated as portrayed in these first few definitions. Becker (1963) establishes deviance as a process:

“Deviance is not a simple quality, present in some kinds of behavior and absent in others. Rather, it is the product of a process which involves responses of other people to the behavior….Whether a given act is deviant or not depends in part on the nature of the act (that is, whether or not it violates some rule) and in part on what other people do about it)” (p.14).

As previously discussed if Hammurabi’s Code, as was other forms of laws, were established as a result of social influences. Then might deviant considerations be the result of social response to deplorable, intolerable, and objectionable behaviors? As an example, if one of your favorite professors was lecturing in front of the class and began to dig his index finger into his nasal passage, one may find this quite disturbing or not. Defendant upon ones social context of acceptance. I say with reasonable certitude, most would define this as deviant behavior. What is one to do about Professor Snotty? If one attempts to have Snotty arrested, what code would support this activity? Probably none. If one decided to report Snotty to his superiors and they comment, “Ah that’s just Snotty”, satisfaction is not achievable in this scenario either. Does one influence Snottys behavior with social sanctions (embarrassment, public humiliation, or attempt to influence employment opportunities or boycott his classes) in this scenario social sanctions may be the only remedy as administrative or legal sanctions may not be available. What if Snotty is the only professor that teaches the course required for graduation?

Recall from previous sections that humans operate based on free will, happiness is the absence of pain, and humans are fundamentally rational. Humans are principally self-serving and given the opportunity will seek to enhance their well-being over that of others, hence we have provided the purpose of laws, law making, and the underlying premise of equality of enforcing laws (McMaghy, 1979).

What is Law?

Is all criminal behavior deviant and is all deviant behavior criminal? A succinct definition of criminal law is:

A body of written rules governing the conduct of the inhabitants of a community, nation or society enacted by a recognized legal body, congress or parliament establishing criminal sanctions for violation of the conduct.

A criminal body of laws is the state versus the individual with the state taking enforcement action, adjudication of the offense, and punishment phase. A breach of a criminal law is a violation that may result in an enforcement action that could entail monetary loss, loss of liberty (confinement), or additional restitution. Civil law is commonly considered person against person using similar definitions but the penalties are largely monetary based rather than incarceration. Thus lies the answer to the question, “Is all criminal behavior deviant and is all deviant behavior criminal?” All criminal behavior is outside the expected behavior of society and is deviant whereby all deviant behavior does not necessarily rise to the level of criminality.

Laws then are legislative enactments intended to regulate certain human conduct. Laws are not intended to incorporate ethical principles but may be a source of ethical standards that may be sought in the enforcement of the law itself (Banks, 2017).

To begin addressing what is a law and what is an ethical ramification it is important to look at the birth of Criminal Justice (CJ) in America. Initially America was a grouping of 13 colonies and the colonist rejected English rule under a King as supreme authority beginning in 1775. During the same time the American colonist rebuffed England’s laws and the enforcement of those laws. What happened next is commonly known to even those ahistorical students of American heritage. The nation’s founders proclaimed themselves free from English rule by the issuance of the Declaration of Independence. There after ensued a long and costly war with England. However, America emerged victorious and a new sovereign nation with a new system of government, with an untested Constitution.

The grand and glorious document penned into flaming gold by James Madison and our founding fathers enumerating a division of power providing a system of checks and balance. The legislative branch enacts the law, the executive branch enforces the law, and the courts interpret the law. The crafters did not want too much authority vested in a federal government, wanting to preserve balance with states (13 Colonies) hence producing three separate but equally strong branches of government. This required the adoption of the first Ten Amendments of the U.S. Constitution, known as the Bill of Rights.

The term strong branches of government did not come to fruition for the U.S. Supreme Court until the landmark case of Marbury v. Madison, 5 US 137 (1803). The decision from that case held authority of judiciary review having the power to review congressional actions and executive actions and may declare these acts illegal. Although the court was identified within f the first five articles of Constitution, it was not until this ruling by the Court that seized upon its authority to render an act of Congress illegal. Note that this ruling did not occur until approximately 25 years after the ratification of the Constitution.

What has Ethics in Common with the Law?

However important to mention at this juncture is the fact that the Sovereign Nation known as the United States was founded on the “Rule of Law” (Fagin, 2015). There are two dimensions of rule law:

Social order which is concerned with the extent to which law is used to provide individuals with personal security and order in their personal, workplace, and business relationships; and Prevention of tyranny which is the protection of civil liberties and the accountability of government (Hall, & Feldmeier, 2017).

The Constitution contains several clauses equally important but for this discussion the Supremacy Clause specifies the federal laws of the U.S are the supreme law of the land. This requires all judges in each state to adhere to and are bound by federal law. The 10th Amendment of the Constitution reserves that authority not catalogued to the Federal Government are: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Through this authority and in this manner exist 50 different State Constitutions and 50 sets of accompanying laws with numerous digests of local laws. All of which are subordinate to the Federal Code.

Asserted by Fagin (2015) through scrutiny of laws by the courts has resolved benchmarks used in contemplation of the legality of a law. These are:

1. Principle legality-prevents arbitrary bias and must be published to inform of the law.
2. Ex Post Facto Laws-prevent retro-active prosecutions.
3. Due Process-prevents deprivation of life, liberty or property without having first the due process of the law and protections guaranteed to its citizenry.
4. Void for Vagueness-must have specific purpose and not open to individual interpretation.
5. Right to Privacy-being secure in person, places, and effects against unreasonable intrusion by government.
6. Void for Overbreadth-too far reaching and lacks specificity and often linked with Void for Vagueness.
7. Cruel and Unusual Punishment-a guard against punishment that does not fit the offense.

The listed principles are premised on Natural Rights. Natural Rights are inalienable and cannot be abdicated. The benefactor of the benchmarks are the citizens that reside in the multiple locations. There is one set of rules that cannot be waived by state or local authority and they reside in the U.S. Constitution. In an effort to standardize laws, the Model Penal Code was adopted and is used by various law schools and used in law textbooks teach law (Fagin, 2015).

Important to the discussion is that of ethics. Ethics are inviolate. Ethics is found, either directly or indirectly, in foundations of society, law, and government to name a few. Ethics cannot be defined to seamlessly agree with every situation in life, absolute impossibility and probably unethical to attempt. If something that is asked of someone does not feel right, it probably isn’t right; in other words if it brushes up against the ethical being, then it is probably unethical.

This does not prevent delivery of a service or obligation through one of the previously discussed approaches (Deontological or Teleological). As stated earlier in the discussion the former approaches are overarching and most if not all other ethical approaches generally fall within one of the two guidelines. There is another approach that is important to service delivery and that is the Prophetic Approach. Prophetic decision making is based on the fact that not all of life’s outcomes or decisions are predetermined, preordained, but rather are the result of foresight, vision, intuition, ingenuity, and emotion to seek truth. The latter is not risen to the level of philosophical acclaim, but is often taught in disciplines dealing with forecasting and planning. I offer this as an alternative for future discussions dealing with decision making. However, might this approach not prevailed in our founding fathers deliberation of our U.S. Constitution?

The U.S. Constitution is the basis of American law, the Rule of Law, and the foundation of liberties (Natural Law). Although scholars may argue that the U.S. Constitution is not the formation of ethics, and rightly so, ethics is a root proposition for the document itself and oversees our systems.

The U.S. Constitution further amplifies John Locke’s premise of a Social Contract, preventing governmental over reach in some form or fashion that violates Natural Law. The Constitution should be viewed as a contract between citizenry and government, a business document if you will. Those functions citizens permit government to perform and protects those rights of the citizen that are inalienable. The founders of the Constitution never insinuated that the document in itself would provide an easier life. On the contrary because of the difficulties fore-sought in maintaining liberty and democracy our founder‘s provided us as citizens a seat at the table. This simply means that Americans can and should be part of the debate. Too many members of society have thought they could abdicate the responsibility to others and often the more powerful that is absolutely contradictory to ethical behaviors necessary to survive in a true democracy.

To bring the section to a close, it began with the examining of the history of laws then progressed toward the foundation of the U.S. Constitution and concluded with a look at ethics and the law. What should be abundantly clear at this juncture is that Ethics is essential in the understanding of law and the student should develop a clearer understanding of how law interacts in the CJ system. Ethics is not a buzz word used when finding fault with another’s decision but rather is how “We ought to live our life; or how we ought to deliver service”. Ethics must be taught as well as morals to develop principles in life. The reader should undertake this opportunity to understand terms such as principle, values, ethics, morals, and judgements in order to place the impacts of a CJ worker in perspective.

References

Ayala, F. (n.d.). The evolution of ethics. Center for Humans & Nature. University of California, Irvine. https://www.humansandnature.org/the-evolution-of-ethics

Banks, C. (2017). Criminal justice ethics: Theory and practice (4th Ed.). Thousand Oaks, CA: Sage.

Becker, H.S. (1963). Outsiders: Studies in the sociology of deviance. New York: Free Press. P.14

Fagin, J.A. (2015). CJ2015. Boston: Pearson.

Hall, D.J. & Feldmeier, J. (2017). Constitutional Law: Governmental powers and individual freedoms (3rd Ed.). Boston: Pearson.

Law of the Jungle. Oxford English Dictionary Online. Oxford University Press. N.d. Web. 10 May 2013

McMaghy, C.H. (1979). Deviant behavior: Crime, conflict, and interest groups. New York, NY: MacMillan

N.A. (2011). The Code of Hammurabi. Internet Sacred Text Archive. Evinity Publishing Inc. Retrieved November 17, 2013.

Prince, J. D. (July 1904). “Review: The Code of Hammurabi”. The American Journal of Theology. The University of Chicago Press. 8 (3): 601–609.

Thomas, W. D. (2008). What is a Constitution? p. 8. Gareth Stevens Publishing. ISBN-13: 9780836888638 ISBN-10: 0836888634.