LAW AS SOCIAL PROCESS: CRIME AND PUNISHMENT

4.5 Sociology – II

Submitted by:
Prakhar Choudhary
UID – UG-19-81

Academic Year (2020-2021)

Second Year, Semester IV

Submitted to:

Dr. Rajesh KP, Assistant Professor of Sociology

May, 2021
MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR
Table of Contents
INTRODUCTION ..................................................................................................................... 2
LAW AS SOCIAL PROCESS................................................................................................... 3
CRIME AND PUNISHMENT THEORIES .............................................................................. 6
Deterrent Theory .................................................................................................................... 6
Retributive Theory ................................................................................................................. 6
Preventive Theory .................................................................................................................. 7
Reformative Theory ............................................................................................................... 7
EFFECTIVENESS OF PUNISHMENT .................................................................................... 7
CONCLUSION .......................................................................................................................... 8

1
INTRODUCTION

Basically, social process refers to some of the general and recurrent forms that social interaction
may take. The interaction or mutual activity is the essence of social life. Interaction between
individuals and groups occurs in the form of social process. 1 And law is a command of the
sovereign. If the command is not followed, there is a sanction.

This research paper deals about the connection between law and social process that is law as a
social process.

Further as it deals about the theory of crime and punishment which is an integral part of law,
and the connection of the theory with the social process that how these all are co-related.

Punishment, a term which is inherent to criminal justice. It is only because of the term
punishment, that certain acts are classified as ‘crimes’.2 Down the lane of the history of the
society, we have seen that without punishments, it would have sometimes been impossible to
tame the barbaric, as well as primitive tendencies of the public. It was the weapon named
‘punishment’, that the rulers used against their subjects in order to maintain a fear in the minds
of the public regarding the capacities and powers of their rulers. Punishments sometimes were
also given as an insult to someone else. The study of crime and punishment has become
increasingly central to understanding of how society works.3 Crime varies widely across time
and place, for example, and is deeply intertwined with multiple forms of social stratification. 4

1
https://www.jstor.org/stable/41886414 (Accessed on 14 May 2021).
2
https://www.britannica.com/topic/punishment (Accessed on 14 May 2021).
3
https://sociology.fas.harvard.edu/pages/crime-and-punishment (Accessed on 14 May 2021).
4
Ibid.

2
LAW AS SOCIAL PROCESS
Social processes are the ways in which individuals and groups interact, adjust and readjust and
establish relationships and pattern of behaviour which are again modified through social
interactions.5

Essentialists described law has an essence of its own and it is possible to specify the conditions
that must be met in order to assert that law, as well as its legal system, exists. This can be done
by analysing its components. 6 While, the positivists defined law as a command of the
sovereign. If the command is not followed, there is a sanction, which may be either punitive,
such as in criminal law, or privative, i.e., you are deprived of the enforcement power of the
state with respect to the transaction in question. 7

Sociologically Max Weber defined law in a manner such that an order will be called law if it
is externally guaranteed by the probability that coercion physical or psychological will be
applied to bring about conformity or avenge violation by specialized personnel. 8

(i) pressures to comply with the law come externally in the forms of actions or threats
of action by others
(ii) these actions involve coercion
(iii) those who apply coercion are officials whose official role is to enforce the law.

Law can be analysed sociologically as a method of doing something. Law can be studied as a
social process, instrumented by individuals during social interaction. Sociologically, law
consists of the behaviours, situations, and conditions for making, interpreting and applying
legal rules that are backed by the state’s legitimate coercive apparatus for enforcement.

It is only with the advent of modern social science, in its impacts upon the historical,
sociological, and American realist emphases, that we begin to get an appropriate account taken
of the inescapable interconnections of legal process and social process.9 Even the best of our
contemporary theories about law do not, however, always offer or suggest recourse to either a

5
Bardis, P. (1979). Social Interaction and Social Processes. Social Science, Volume 54(3), 147-167.
http://www.jstor.org/stable/41886414. (Accessed on 14 May 2021).
6
Tamanaha, Brian Z. “Socio-Legal Positivism and a General Jurisprudence.” Oxford Journal of Legal Studies, vol. 21,
no. 1, 2001, pp. 1–32., www.jstor.org/stable/20468353. (Accessed on 14 May 2021).
7
Ibid.
8
Albrow, Martin. “Legal Positivism and Bourgeois Materialism: Max Weber's View of the Sociology of Law.” British
Journal of Law and Society, vol. 2, no. 1, 1975, pp. 14–31. JSTOR, www.jstor.org/stable/1409782 (Accessed on 14 May
2021).
9
https://heinonline.org/HOL/P?h=hein.journals/uchclf2005&i=293 (Accessed on 14 May 2021).

3
comprehensive map of the interrelations of legal process and social process or the more detailed
procedures necessary for the effective employment of this map in particular instances. 10 Some
of the inadequacies in our inherited theories would appear to derive both from the absence of
a clear focus upon authoritative decision and from failure to distinguish and specify the various
intellectual tasks of inquiry. 11

It has already been observed that the "natural law" frame of reference, grounding authority in
transempirical sources, exhibits a minimum of concern for the formulation of comprehensive
theory designed to facilitate inquiry about the interrelations of authoritative decision and its
context of social process. It is this frame which is "the most elaborated form" of the conception
that law is largely independent of time, place, and other circumstance and which has "left little
room for conceiving of law as a dynamic phenomenon and prevented legal scholars from
theorizing about legal change." When the primary concern of a theory is identifying or
formulating general principles of a universal character for purposes of appraisal only, it can
hardly be expected that such a theory will find need to engage in detailed inquiry about the
events that precipitate claims to decision, the modalities of claim within decision process, the
environmental and pre-dispositional factors that affect decision, or the impacts of decision upon
continuing social process. Yet it should be remembered that many of the great historic
expositors of the natural law frame have made, as we have seen before with respect to
constitutive process, profound and searching criticism of the most minute details of legal
process in terms of values that can be given empirical reference, and that no proponent of this
frame who would communicate can entirely escape reference to effective decision and its
empirical context.12

Penal law is a social process originally, it has become so rigid and crystallized that it has lost
the vitality and flexibility of the social process by which our civilization has advanced. The
social processes are elastic and alive. They represent growth and development. Penal law,
according to the orthodox concept, is static and unchanging. Beginning as a loose collection of
social rules for human conduct, as our social life became more and more complex, penal law
has hardened into a code of "minutely defined degrees of crime and exact statutory penalties

10
Lasswell & McDougal, Criteria for a Theory About Law, 44 S. Cal. L. Rev. 362 (1971); Trends in Theories
About Law: Comprehensiveness in Conceptions of Constitutive Process, 41 G. Wash. L. Rev. 1 (1972)
11
Morrill, Calvin, et al. "Seeing Crime and Punishment through a Sociological Lens: Constributions, Practices,
and the Future." University of Chicago Legal Forum, 2005, 2005, p. 289-324. Available at
https://heinonline.org/HOL/P?h=hein.journals/uchclf2005&i=293. (Accessed on 14 May 2021).
12
Ibid.

4
worked out in detail for minutely differentiated offenses."13 The theory of criminal justice and
the treatment of criminal offenders based on the penal law have caused the administration of
justice to be conceived and set up outside and beyond the operation of the social process. We
give the administration of criminal justice the odour of sanctity and the authority of a great
tradition and infallible wisdom. By making it unyielding and abstract we thought to make it
impartial. Thus, paradoxically, penal law and social process, sprung from the same source, are
often far as the poles asunder. 14

Since all crimes of the same degree and kind carry equal sanctions or penalties, unless the
situation is exceptional or the individual abnormal according to readily applicable legal
definition and proof, it follows, as Dr William A. White points out, that the prisoner who is
sentenced at the bar of justice is a hypothetical individual who has not been sized up in all his
parts, his assets as well as his liabilities, dispassionately evaluated. He is an individual whose
personality has been built up in a way to explain the crime with which he has been charged. 15
Passionate prosecution and indignant defence both participate in the game. The new penal
philosophy, however, does not divorce penal law and social process. It recognizes the two as
warp and woof of the same social web, not to be forcibly separated by a mechanical treatment
of the penal law. Unlike the old theories of criminal justice this new philosophy has not been
created by the closest speculations of ancient philosophers, medieval schoolmen, and more
modern legalists as to the nature of justice; it is the result of the operation of new social forces
and agencies within the penal services introduced for practical reasons by practical judges and
penal administrators. They did not ask each other "what is justice?" They worked it out in their
daily tasks in the courtroom, in the prison, and in the penal services. 16

We are introducing everywhere the vitality and flexibility of the social process. We have,
however, still a long road to travel, to bring about the union of penal law and social process so
that a true criminal justice may be established throughout the society.

13
Stern, Leon. "Penal Law and Social Process." Proceedings of the Annual Congress of the American Prison
Association, 1934, 1934, p. 76-86. https://heinonline.org/HOL/P?h=hein.journals/panectioip48&i=86 (Accessed
on 14 May 2021).
14
Ibid.
15
White, William A. “NEED FOR COOPERATION BETWEEN LAWYERS AND PSYCHIATRISTS IN DEALING
WITH CRIME.” American Bar Association Journal, vol. 13, no. 10, 1927, pp. 551–555. JSTOR,
www.jstor.org/stable/25707248 (Accessed on 14 May 2021).
16
Stern, Leon. "Penal Law and Social Process." Proceedings of the Annual Congress of the American Prison
Association, 1934, 1934, p. 76-86. https://heinonline.org/HOL/P?h=hein.journals/panectioip48&i=86 (Accessed
on 14 May 2021).

5
CRIME AND PUNISHMENT THEORIES
There are different kinds of punishment that a person can face. In order to understand them,
first, we need to understand the theories of the punishment. There are majorly four theories of
punishment.

These theories are the deterrent theory, retributive theory, preventive theory, and reformative
theory.

Deterrent Theory
The deterrent theory assumes that the punishment is given only for the sake of it. Thus, it
suggests that evil should be returned for evil without taking into consideration any
consequences. There are two theories in which this theory can be divided further. They are
specific deterrence and general deterrence. 17

In specific deterrence, punishment is designed such that it can educate the criminals. Thus, this
can reform the criminals that are subjected to this theory. Also, it is maintained that the
punishment reforms the criminals. This is done by creating a fear that the punishment will be
repeated.

While a general deterrence is designed to avoid future crime. So, this is done by making an
example of each defendant. Thus, it frightens the citizens to not do what the defendant did.

Retributive Theory
Retribution is the most ancient justification for punishment. This theory insists that a person
deserves punishment as he has done a wrongful deed. Also, this theory signifies that no person
shall be arrested unless that person has broken the law. 18 Here are the conditions where a person
is considered as an offender are:

1. The penalty given will be equivalent to the grievance caused by the person.
2. Performed a crime of certain culpability.
3. That similar persons have been imposed for similar offenses.
4. That the action performed was by him and he was only responsible for it. Also, he had
full knowledge of the penalty system and possible consequences.

17
Wertheimer, Alan. “Deterrence and Retribution.” Ethics, vol. 86, no. 3, 1976, pp. 181–199. JSTOR,
www.jstor.org/stable/2380188 (Accessed on 14 May 2021).
18
Ibid.

6
Preventive Theory
This theory has used a restraint that an offender if repeats the criminal act is culpable for death,
exile or imprisonment. The theory gets its importance from the notion that society must be
protected from criminals. Thus, the punishment here is for solidarity and defence. 19

The modern criminologists saw the preventive theory from a different view. They first realized
that the social and economic forces should be removed from society. Also, one must pay
attention to individuals who show anti-social behaviour. This is because of psychological and
biological handicaps.

Reformative Theory
Deterrence and retributive are examples of classical and non-classical philosophies. The
reformative theory was born out of the positive theory that the focal point of crime is positive
thinking. Thus, according to this theory, the objective of punishment needs to be reformation
by the offender.20

So, this is not a punishment virtually but rather a rehabilitative process. Thus, this process helps
in making a criminal a good citizen as much as possible. Furthermore, it makes the citizen a
meaningful citizen and an upright straight man.

EFFECTIVENESS OF PUNISHMENT
There is considerable controversy over the effectiveness of punishment in reducing crime. For
example, most researchers have failed to find any systematic relationship between crime rates
and imprisonment rates: it is equally probable for regions with high imprisonment rates to have
high or low crime rates, while increases or decreases in rates of imprisonment are equally likely
to be followed by increases or decreases in crime, and so on. Thus, the “three strikes”
legislation passed in many U.S. states in the 1990s, which imposed mandatory prison sentences
after three convictions, was found to have no effect on crime rates. 21 Even the death penalty,
as noted above, appears to do little to reduce murder rates, since most jurisdictions that use it
(including several U.S. states and various other countries) have substantially higher murder
rates than jurisdictions that do not. Among Western industrialized countries, the United States

19
https://www.ohchr.org/documents/publications/handbookparliamentarians.pdf (Accessed on 14 May 2021).
20
Kaufman, Arnold S. “The Reform Theory of Punishment.” Ethics, vol. 71, no. 1, 1960, pp. 49–
53. https://www.jstor.org/stable/2379535?seq=1 (Accessed on 14 May 2021).
21
Parke, Ross D. “Effectiveness of Punishment as an Interaction of Intensity, Timing, Agent Nurturance, and Cognitive
Structuring.” Child Development, vol. 40, no. 1, 1969, pp. 213–235. JSTOR, www.jstor.org/stable/1127169 (Accessed
on 14 May 2021).

7
has the highest murder rate and is virtually alone in using the death penalty. The state of Texas
accounts for a very high proportion of all executions within the country (roughly half in the
early years of the 21st century), yet it has continued to experience relatively high rates of
murder and violent crime. In general, criminologists believe that severe punishments are not
particularly effective in reducing high crime rates. 22

CONCLUSION
To conclude it is found that punishment as a method of social control. To summarize the
understanding about the theories of punishment:

1. There is an attempt to portray punishments as a method of inflicting of unpleasant

circumstances over the offender.
2. Though certain theories like the reformative and preventive rely upon humanitarian
modes of punishment, but these have a weakness against the hardcore criminals.
3. Punishments such as the retributive and deterrence though the use of fear as an
instrument to curb the occurrence of crime helps in controlling the criminals up to a
certain extent. As these employ the idea of revenge and vengeance these are much
harsher than others.

The researcher would like to add his own views on this very controversial topic. We all know
that truth is stranger than fiction and so is the practice of these theories. Though prisons are
meant to be the place where the criminals would be corrected or for that case deterred from
committing a wrong in the future, but the present day witnesses the prisons to have become
redundant in their objective and becoming sites of breeding for hardcore criminals. This is a
fact that the penologists must look into. Furthermore, the techniques applied in executing the
punishment are not fool proof, for e.g., the criminals are able to carry on their illegal activities
even during serving the period of sentence. Though in theory all of the punishments discussed
above may seem perfect if used collectively, but this all becomes a mere joke when tried to
implicate in the practical sense.

22
https://www.britannica.com/topic/punishment (Accessed on 14 May 2021).