Question

What are some of the important contributions of positivist theory to the Canadian Criminal Justice System. What are the benefits and weaknesses of positivist theory as it relates to the Canadian Criminal Justice System?

Answer 1

The positivist school of criminology is one of the two major schools of criminology, the other being the classical school. In contrast to the classical school, which posits that criminal acts are the result of calculation and free, rational decision making, the positivist approach turns to factors outside and beyond the offender’s control as responsible for the root cause of criminal activity. The identification of these factors adheres to empirical methodologies, in particular statistical analysis. The earliest form of positivism within criminological thinking arose in the late 19th century, when some of the founding principles of the classical school began to be challenged by figures such as Cesare Lombroso, Enrico Ferri, and Raffaele Garofalo. The term criminology itself actually came into emergence during this time frame, both within Garofalo’s own works as well as that of French anthropologist Paul Topinard.

Positivist criminology asserts that criminal behaviour has its own set of distinct characteristics, and that criminal behaviour is accordingly linked with psychological factors and clearly defined genetic traits (the notion of a genetic criminal type has since been discredited). Positivist research seeks to identify key differences between criminals and non-criminals, such as linking personality traits with particular crimes to identify individual pathologies and formative experience that influence one’s predisposition towards law-breaking; this approach is known as individual positivism. In contrast, other theorists who regard crime as a consequence of social influences, seeking to realize factors responsible for crime within external categories such as poverty, population density, exposure to deviant or criminal subcultures, and racial or demographical alienation; this approach is known as sociological positivism. Together, these approaches have informed the positivist school’s quest to integrate criminal behaviour with the quantification practices of scientific objectivity.

Positivism has had, and continues to have, a profound influence on legal thought in Canada. It is the primary philosophy relied upon by those who argue that law is still relatively autonomous from other social forces such as politics, economics, gender and race. These factors are rarely, if ever, incorporated into Positivistic inquiries of law. So, while human agency is acknowledged, no real attention is focused on the consequences of such agency for law. This has generated some criticisms of Positivism. First, it is accused of creating an ideology in which the validity of a law becomes its own moral criterion (usually called formalism) and this can lead to very unjust legal systems. Second, it is argued that Positivism's attempt to isolate law from its social, economic and political context to treat law as an object of scientific study, is an inappropriate extension of the methodologies of natural science. It is difficult even to identify, let alone study, the institutions and the actors who make up the legal system without also considering their context. and function

l Positivism— Whether a certain rule is a law, creating legal obligations to comply with it, all depends on its source. Valid laws are simply rules that come from certain people (kings, city councils, etc.), in accordance with certain procedures, that the society enforces. A rule can be a genuine, valid law even though it is grossly unjust. According to H.L.A. Hart, a contemporary legal positivist, the essence of legal positivism is the “separation thesis.” Separation thesis: having a legal right to do x doesn’t entail having a moral right to do it, and vice versa; having a legal obligation to do something doesn’t entail having a moral right to do it, and vice versa; having a legal justification to do something doesn’t entail having a moral justification, and vice versa; etc. In order to know what your legal rights are, you need to look at what laws your society has. In order to know what your moral rights are, you need to figure out what is the true morality. You might have legal rights that the true morality says you shouldn’t have (e.g. the right to own slaves), and your society might deny you legal rights that the true morality says you should have (e.g. the right to be free, to own one’s own body and labor power).

The Government of Canada has committed to reviewing Canada’s criminal justice system in order to make it more effective, efficient and compassionate. This gives us an important opportunity to suggest changes that could make our criminal justice system more inclusive and supportive of victims and survivors of crime.

In order to ensure that victims and survivors are considered with respect to the Government’s agenda, the Office of the Federal Ombudsman for Victims of Crime (OFOVC) undertook an engagement process in summer 2017 on areas of interest to the Government, such as: bail reform, administration of justice offences, and restorative justice as well as on the Canadian Victims Bill of Rights.

The current system has its own agenda – and that agenda is often a mismatch for people’s needs. The process is too mechanistic and must be made much more relational. Such an approach must ensure attention to those who may face specific challenges and vulnerabilities, such as children, older adults and those with disabilities.

Canadian System needs to take a look at the role of technology and how it facilitates the victimization of children (the posting and distribution of child abuse content, the recording of assaults, etc.) and how the availability of abuse content perpetuates trauma.

The criminal justice system is built on a few important principles, which are enlisted below

Presumption of Innocence - Every criminal case begins with the presumption that the accused person is innocent. It is up to Crown counsel, representing the community, to prove beyond a reasonable doubt that the accused committed the crime.

Due Process – Due process is related to the presumption of innocence. It involves a thorough examination of the facts of each case - and recognition of the importance of protecting the legal rights of those charged with criminal offences.

Independent Judiciary – Anyone accused of a crime has the right to have their case decided by fair and impartial judges, without interference of any kind, from any source. This is the concept of judicial independence. While judicial decisions may not result in everyone being happy, the justice system is founded on public confidence that decisions - whether popular or not - are made after a full and fair hearing and without outside influence.

Openness and Accessibility of Court - Only through an open and public process can the public have confidence in the justice system and be satisfied that parties are treated fairly.

Equality Before the Law - All people in Canada are equal under the Canadian Charter of Rights and Freedoms.

Changes to the criminal justice system can have wide-ranging implications for the individuals who come into contact with it, as well as for their ability to access social services and other supports. Indeed, criminal justice interacts in complex ways with myriad other social systems such as health, in­come support, child care and housing. The review must take this reality into account and limit the potential for unintended and harmful consequences for offenders, victims, their families and communities.

The positivist method has exerted an enduring influence over social and natural scientific studies of crime. For example, Emile Durkheim (1858–1917), one of the so-called ‘founding fathers’ of sociology and an early sociological analyst of crime and punishment, borrowed from the objective ‘social mechanics’ of Que´telet (something he acknowledged in his famous book Suicide (1897)). Proponents of biological and psychological explanations of crime have likewise sought to identify the objective causes of crime. The analysis of large aggregates of statistical crime data, in the search for factors that correlate with the propensity to offend, continues to be a dominant trend in criminological research, something readily apparent in the pages of leading criminological research journals. However, almost from its inception, positivism has come under sustained criticism from alternative perspectives. Interpretive social scientists in particular have objected to positivists’ attempts to equate humans with other objects and entities to be found in the world of nature. They point out that, unlike stones or trees, humans are capable of understanding the world in which they live and of interpreting the situations in which they find themselves. Human conduct is, they insist, meaningful – how someone acts will depend crucially upon the meanings they attach to their own experiences and actions, and those of others.

They accuse positivists of reducing humans to unthinking ‘puppets’ who are blindly propelled this way or that by forces over which they have no control. The interpretive critique within criminology reached its high point in the work of labelling theorists such as Howard Becker. Becker and others insisted that the objective causes of crime could not be found because crime itself is a social construct, and whether or not an act is deemed criminal will be the result of labels or meanings attached to people’s actions. Rather than vainly searching for the objective causes of criminal behaviour, we should instead uncover the subjective interpretations through which particular individuals and certain actions become identified as criminal in different social contexts. This critique of criminological positivism has been revived, most recently, by cultural criminology. Thus for example Jock Young (2004) dubs positivist, statistically oriented analysis to be a kind of ‘voodoo criminology’, one which makes spurious connections between actions and their supposed causes by playing a ‘numbers game’ complete with scientific-looking equations, charts and tables. This rhetoric of science, he suggests, hides the fundamental wrong-headedness of a criminology that treats humans as dumb objects rather than the reflexive and self-aware beings that they in truth are