Crime and the Penal System
| Author | Manuel López-Rey |
| DOI | 10.1177/000486587100400102 |
| Date | 01 March 1971 |
| Published date | 01 March 1971 |
AUST. &N.Z. JOURNAL OF CRIMINOLOGY (March, 1971): 4, 1
Crime
and
The
Penal System
I
MANUEL
LO-PEZ-REY*
5
I.
Purpose
'I'HE purpose of
this
paper
is to show
that,
with
some exceptions,
the
penal
system of our time does
not
correspond to
present
and
future
evolution of
society;
that
it
is generally obsolete
and
manifestly
unjust
and
that
as a
whole
it
is a
contributing
factor
to
the
increase of crime.1
For
reasons
some of which
are
examined below, while
many
systems have been
radical-
ly changed to meet
present
and
future
transformations,
that
of criminal
justice,
in
spite of
frequent
reforms, remains essentially
what
it
was more
than
a
hundred
years ago.
The
result of
this
patching
method
has
been
the
preservation of a
penal
system unable to provide
what
is demanded of
it:
criminal justice. Since
this
is more
important
than
the
rehabilitation
of offenders or
the
elaboration of criminological theories
and
sub-theories,
what
follows is
an
attempt
to draw
attention
to
the
urgent
task
of creating
a
penal
system in accordance
with
the
characteristics
and
aims of our
time
and
the
immediate future.
The
method
followed is
that
of
referring
ad
exemplum
to specific
cases, to raise some crucial questions, provide some answers,
and
above
all
to invite
further
discussion on
the
matter.
All
this
is done in a
rather
schematic
and
assertive way which increases
the
VUlnerability of my
reasoning. Nevertheless,
in
view of
the
purpose, Igladly
take
the
risk
of
being criticized.
II.
The
determinants
of
the
penal
system
The
organization
and
functioning of
any
penal system is mainly
determined by:
(a)
the
concept
and
extent
of crime;
(b)
the
socto-economic
and
political
structure
of society;
(c)
the
kind of criminal policy
undertaken,
and
(d)
the
role played by criminology
and
allied disciplines.
Methodologically, before saying
anything
about
the
penal
system itself,
something
must
be said
about
its determinants.
*LL.D. (University of Madrid); formerly County Judge, Professor of Criminal Law,
University of Salamanca; Director General of Prisons, Spain; formerly Chief of, and
Senior Adviser in, Social Defence, United Nations, from 1946 to 1965. English address:
Greenhaven, Alston, Axminster, England.
1. The paper is based on the notes I used when, at the invitation of the Secretariat, Idelivered
alecture on this subject at the Fourth United Nations Congress on the Prevention of Crime
and the Treatment of Offenders, Kyoto, August 1970. Since government representatives
were present, for obvious reasons I did not mention countries
but
continents. As befits a
paper, the countries are mentioned now as examples. All statistical
data
are from official
sources.
6AUST. &N.Z. JOURNAL OF CRIMINOLOGY (March, 1971): 4, 1
1. Concept
and
extent
of
crimes
As arule crime is still regarded as a causal
entity
the
causes of which
will eventually be unfolded by persistent criminological research
and
eventually suppressed or considerably reduced. My contention is
that
crime
is a conceptual
and
not
acausal or
natural
entity, Le,
it
is what,
at
a
his-
torical
juncture,
is defined as
such
by
the
legitimate order in accordance
with
achangeable
but
always
tundamental
system of values
and
the
struc-
ture
and
aims of a given society. Legitimate order
means
here
that
establish-
ed
and
accepted by
the
majority
according to a
factual
democratic process.
By defining
what
crime is, criminal law performs asocio-political function
-
that
of protecting
the
historical continuum of a
particular
society
in
which
the
individual is
not
the
only element to be considered. His coexis-
tence
with
other
elements
makes
imperative
the
protection of
human
rights. As a conceptual
entity
the
meaning
and
extent
of crime changes more
in accordance
with
the
evolution of
rundamental
values
and
socio-economic,
as well as political, aims
than
as a result
of
the
discovery of its "causes".
Political
means
what
is required for
the
preservation
and
development of
society in accordance
with
its
historical evolution
and
what
is understood
as its destiny
and
not
necessarily in conformity
with
asingle political
ideology,
although
political ideologies
are
supposed to play a role.
Since crime is a socio-political concept
there
is no criminological con-
cept of crime,
but
as criminal law
is
primarily interested in protecting
the
changing
continuum
of a
particular
society
the
socio-political
character
of
crime, as legally defined, is
paramount.
Undoubtedly criminology is entitled
to explore every possible avenue
in
the
study of crime,
but
its point of
departure
and
return
is
the
legal definition of crime.
The
conceptual
charac-
ter
of
it
is
often
criticized as being conventional if
not
arbitrary. Without
denying
that
under
undemocratic regimes arbitrariness
may
playa
role,
conventional
and
arbitrary
are
two different things. As
far
as crime is con-
cerned conventional
means
the
legal conceptualization by
the
legitimate
policy-making bodies of
what
historically
must
be regarded as such. No
less conventional
are
the
concepts of beauty, nation,
and
many
others which
are
regarded as necessary
and
valid,
Going
further,
it
may
be said
that
all
scientific concepts
are
historically conventional
and
yet
they
are
used.
The
socio-political
character
of crime explains its historical conceptual
fluctuations.
Thus
the
meaning of treason, of crimes
against
national
and
State
security,
the
orderly functioning of
the
policy-making bodies;
national
economy
and
resources,
transport
and
communication, public
health
and
order, life, property, etc. show
constant
changes in. which
their
"causes"
playa
minor
role when compared
with
the
socio-political considerations
ensuring
the
historical
continuum
of a
particular
country.
In
other
words,
the
legal declaration
that
a
particular
act
is criminal is mainly
the
result
of a socio-political
and
not
of a criminological process. The
latter
usually
comes
afterwards
and
as a causal explanation ceases as soon as
the
condition
of criminal is abolished by law. Contemporary criminology tries unsuccess-
fully to avoid
this
conceptual
character
of crime by using such vague con-
cepts as deviant or deviance or by styling itself ameta-science entitled to
2. In conformity with the recommendations of the Second United Nations Congress, London
1960, crime means also delinquency, which is understood as the violation of criminal law
and not a form of behaviour for which adults would not be prosecuted.
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