Criminal Justice Theory: An Introduction

By Roger Hopkins Burke | Go to book overview

3 The philosophy of law
and legal ethics

In the previous chapter we considered the different ways in which crime and criminal behaviour has been variously explained during the modern era and beyond, with reference to the four different models of criminal justice development which provide the theoretical underpinnings of this book. In this chapter we will consider the philosophers of law who are concerned with providing a general philosophical analysis of law and legal institutions and locate these debates within the context of the different models of criminal justice development.

Issues in legal philosophy range from abstract conceptual questions about the nature of law and legal systems to normative questions about the relation between law, morality and the justification for various legal institutions. Topics in legal philosophy tend to be more abstract than related topics in political philosophy and applied ethics. Thus, for example, the question of whether capital punishment is morally permissible falls under the heading of applied ethics but the issue of whether the institution of punishment can be justified falls under the heading of legal philosophy.

There are broadly three categories of modernist legal philosophy. First, analytic jurisprudence provides an analysis of the essence of law in order to understand what differentiates it from other systems of norms such as ethics. Second, normative jurisprudence involves the examination of normative, evaluative and otherwise prescriptive issues about the law, such as restrictions on freedom, obligations to obey the law, and the justifications for punishment. We should observe that both analytic and normative jurisprudence can be broadly conceptualised in the context of the orthodox social progress model of criminal justice development which recognises an incremental evolutionary process that is the outcome of enlightenment and benevolence in a widely consensual society.

Critical theories of law, such as critical legal studies and feminist jurisprudence, provide a third category of modernist legal philosophy, which can be widely conceptualised in the context of the radical conflict model of criminal justice development which proposes that society is essentially conflict-ridden and the criminal justice system operates in the interests of the reproduction of capitalism and the economic and politically dominant groups in society. Indeed, it is possible to see the incrementally increasing body of legislation which has, in recent years, placed significant restrictions on our freedoms and civil liberties in the context of

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Criminal Justice Theory: An Introduction
Table of contents

Table of contents

  • Criminal Justice Theory i
  • Title Page iii
  • Contents vii
  • 1- Introduction - Modernity and Criminal Justice 1
  • 2- Explaining Crime and Criminal Behaviour 29
  • 3- The Philosophy of Law and Legal Ethics 58
  • 4- Policing Modern Society 84
  • 5- The Legal Process in Modern Society 111
  • 6- Punishment in Modern Society 144
  • 7- Youth Justice in Modern Society 172
  • 8- Conclusions - The Future of Criminal Justice 194
  • Notes 215
  • References 222
  • Author Index 249
  • Subject Index 256
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