Criminal Justice

The Criminal Justice System

Components of the Criminal Justice System

Components of the Criminal Justice System include:

• Law Enforcement
• Corrections
• Judiciary
• Regional Legislatures, such as the State Legislatures in the United States
• The national Parliaments (such as the Congress in the United States)

Legal Systems and Criminal Justice

Note: there is additional information on the entries about legal systems justice and the criminal justice system in this legal encyclopedia.

Previous writings that have tried to compare the criminal justice systems of different
countries have virtually all rooted themselves in the identification of various types of legalsystems or rules of law (See for example, Cole et al, 1987; Terrill, 1984; David and Brierley, 1968). Generally speaking, such studies claim that there are basically three legal families in
the world: civil law, common law, and socialist law. First, civil law refers to the Romano-Germanic family of law where “rules of law are intimately linked to ideas of justice and morality…[This family] attache[s] special importance to enacted legislation in the form of “codes” (David and Brierly, 1968:22). Second, common law is historically English and is premised on the notion that judicial decision “seeks to provide the solution to a trial rather than to formulate a general rule of conduct for the future. It is, then, much less abstract than
[civil law]” (David and Brierly, 1968:24).

Third, law in the socialist society is “strictly subordinate to the task of creating a new economic
structure… [In fact], the proclaimed ambition of socialist jurists is to overturn society and
create the conditions for a new social order in which the very concepts of state and law will
disappear (David and Brierly, 1968:26). There is also some, though not much, recognition of other systems of law: “Asian,” “Islamic” and “Hindu” (David and Brierley, 1968). Since the people of the world who live under these three systems comprise roughly half the world’s population, it is difficult to avoid Beirne’s charge of “legal chauvinism” (1983) against such writers. From the point of view of legal systems and the idea of law, perhaps this charge is justified. However, from the point of view of criminal justice systems, we do not think that it is, for reasons that we shall make clear shortly.

Some question the wisdom of making too much of the division between the civil law tradition and that of common law. While it is true that the common-law tradition emerged in England after the Norman invasion in 1066, nevertheless there are many roots of English common law in previous European legal history.

The Latin terminology retained in all Western law, both civil and common, surely attests to its
origins in European culture and philosophy.

The attempt to separate socialist law from the civil and common law is misguided at best, for some commentators. They argue that the fact is that Marxist theory has no room whatsoever for the concept of law. The emergence of socialist law is an aberration of civil law, not a “new” or independent body of law. Aberration is meant simply as a re-affirmation of the inquisitorial aspect of the history of the civil law family: law’s appropriation by a politically powerful autocracy to further its own interests.

Such occurred during the Inquisition of the Middle Ages, as well as during the Marxist era of the
20th century, they say. While the actual content of socialist law may appear different, its functions and operations remained an accentuated version of civil law with a heavy emphasis on a control model of criminal justice (See Packer, 1968). It is the latter observation of “socialist law” that suggests a differentiating factor: the needs of the state to establish an operational mode on top of the legal system. Thus, they conclude, it is the demands of the state that produce the basic structures of criminal justice systems, not the legal system or law per se.

An excellent example of this complex relationship between legal systems and criminal
justice may be seen in the case of the United States itself. The United States criminal justice
system is commonly held to have its roots in English common law. Also noted is the incredible
diversity of criminal justice systems within the United States. These systems are, however, tied
together by the overarching political structure of the United States federal system of government, with its built in “checks and balances”.

Of equal or greater importance in binding the diverse systems is the United States Constitution.
Further, the Constitution is based on an even deeper philosophical (some would say cultural)
binding force: the rule of law. This “legal principle provides that decisions should be made
by the application of known principles or laws without the intervention of discretion in their
application” (Black, 1990: 1332). This principle, while it serves to bind different systems together
under one “goal”, says nothing about the organizational structure required in order to implement the ideal.

It does, however, require that there be formal systems for the identification of crime and societal reactions to it. That is to say, the concept brings with it the profoundly Western solution to crime: formal punishment. This “rule” therefore is as much socio-cultural in origin as it is legal.

The criminal justice system of common law countries are based on this widely identified rule of law along with its correlatives: the official finding of guilt and the response of punishment and/or corrective sanctions in one form or another. Anthropologists of law have taught us that this concept of social control is distinctly Western (though not only Western). In many cultures, historically and currently, the idea of formal law, both written or unwritten, does not or did not exist (See, for example, Hoebel (1954); Malinowski (1926)). But these observations of anthropologists are based on studies of cultures, rather than nation-states, and it is this fact that sets a book such as this apart from the traditional work of the anthropologists of law.

Furthermore, it is no coincidence that the U.S. criminal justice system is based on English common law. It was, of course, a colony of the newly emerged nation-state of England.

But a country does not need to have been colonized by one of the western powers in order to
have its criminal justice structure influenced by the West. The reason for this is that the very
concept of the nation-state, to which all countries of the world today claim status, is a
Western concept, and a product of relatively recent Western history.

Criminal Justice and the Nation-State

The concept of the modern nation-state emerged in Europe roughly in the 16th century, and it was this powerful concept that drove these nations (e.g., England, Spain, France, Portugal, Holland) to expand and impose their national identities on other countries. The colonized countries, while often more advanced in other respects (e.g. China technologically), did not conceive of themselves as “one nation,” and so became vulnerable to attack by a Western power, with a unified and highly charged political concept of its own “sovereignty.”

It is the dominance of both the concept and legal entity of the nation-state that has demanded
the formal structures of the criminal justice system. All the countries mentioned above
developed the various parts of what we call the criminal justice system today–police, courts,
prisons–at roughly the same time that they emerged as nation-states. Social historians and
critics alike are clear on their identification of this period as contiguous with the rise in complex
organizations and bureaucracies (Weber, 1978; Foucault, 1977) in regard to many aspects of
social and economic life.

Crime and its control were clearly a part of this massive change in the way in which States were organized and structured. Thus, while the actual legal systems may form the basis for the particular modes of decision making in the various countries (e.g. the civil law tradition in contrast to the common law tradition), all modern nation-states have formal systems of law, police forces, prisons, and court systems, regardless of the ethnic, cultural, or religious background of the country.

All nation-states, as part of their very definition, seem to require such formal (criminal) justice structures. That both the concept and legal entity of the “nation-state” are distinctly Western, there can be no doubt. One needs merely to look at the basic charter of the United Nations to see that it emerged from the basic concerns of sovereignty of the Western powers (including the USSR) as a result of the conflict among major nation-states of World War II.

If the events of the period 1970-1990 are any indication, the push for the establishment of new nation-states and their demand for the United Nations recognition has never been stronger. The number of new states that have emerged in that period is stunning.

The cultural aspects of nation-states may strongly influence the criminal justice system.
However, (almost) all countries, no matter what their political or cultural history, have police forces, all have courts of law, and all have prisons. This is quite remarkable in itself, especially since the recent emergence of new nation-states has been based on their reaffirmation of separate cultural and ethnic identities. The formal attributes of criminal justice (police, courts and corrections) have continued to exist, sometimes in stark relief.

There are, of course, wide variations in the extent to which these formal attributes of criminal justice exert influence in the overall social control of a particular country. It might be argued that, in some countries (e.g., Japan) the formal aspects of the criminal justice system (police, courts, corrections) play a very small part in he overall social control of its society. Obviously, the comparative weight of other social control institutions or systems–such as education, manners, family discipline and structure–must be determined on their own merits. Any comparisons of criminal justice systems across countries would, of course, need to take such
factors into account.

The Western Criminal Justice Model

The Western model of criminal justice it not far from the American model. This is justified by the
predominance of the Western criminal justice model at this point in world history. It must be
emphasized that it is a Western criminal justice system model that dominates the world, not a
Western legal system model. With some exceptions when the legal model that did not fit a particular country (for example, the concept of “arrest” does not exist as a concept in some countries).

It is true that there is a continuing search in many countries for “alternatives” to criminal justice, but so far, these alternatives tend to become subsumed within the formal structures of criminal justice. These are embellishments to the basic model of criminal justice, not replacements of it. Until or unless the historically recent concept of the nation-state recedes, the Western model of criminal justice will remain dominant.

There are, in the world, criminal justice systems in countries that do not fall easily within the traditional “big three” families of law (i.e., civil, common, and socialist; see also the mixed legal systems entry in this encyclopedia for more information).

Components of the Criminal Justice System

Racial and Ethnic Disparities in the Criminal Justice System

Resources

See Also

• Restorative Justice
• Criminal Justice System

Further Reading

• Adams, P. (2004). Restorative justice, responsive, regulation, and democratic governance. Journal of Sociology and Social Welfare, 31(1), 3-5.
• Alexander, R., Jr. (1997). Juvenile delinquency and social work practice. In C. A. McNeece & A. Roberts (Eds.), Social work policy and practices in the justice system (pp. 181-197). Chicago, IL: Nelson-Hall.
• Alexander, R. Jr. (2005a). The relationship of prisoners, poverty measures, and social welfare allocations in Ohio. Journal of Policy Journal, 4, (2), 69-82.
• Alexander, R., Jr. (2005b). Racism, African Americans, and social justice. Lanham, MD: Rowman & Littlefield.
• Alexander, R., Jr. (2006). Restorative justice: Misunderstood and misapplied. Journal of Policy Practice, 5(1), 67-81.
• Alexander, R., Jr. (2007). A wrongful conviction from Georgia. Journal of the Institute of Justice and International Studies, 7, 75-89.
• Alexander, R., Jr. (2010). Beyond micro: A macro perspective of human behavior and the social environment. Newbury, CA: Sage.
• Alexander, R., Jr., Butler, L., & Sias, P. (1993). Woman offenders incarcerated at the Ohio penitentiary for men and the Ohio reformatory for women from 1913-1923. Journal of Sociology and Social Welfare, 20(3), 61-79.
• Allard, P., & Young, M. (2002). Prosecuting juveniles in adult court: Perspectives for policymakers and practitioners. Washington, DC: The Sentencing Project.
• Beirne, P. (1983). “Generalization and its discontents: The comparative study of crime”. In I.L. Barak-Glantz & E.H. Johnson (eds.), Comparative criminology, Beverly Hills, CA: Sage.
• Cole, George F., S. J. Frankowski, and M. G. Gertz, (1987) Major Criminal Justice Systems. Beverly Hills: Sage.
• Beck, E., & Britto, S. (2006). Using feminist methods and restorative justice to interview capital offenders’ family members. Afflilia: Journal of Women and Social Work, 21(1), 59-70.
• Bureau of Justice Statistics (2006a). Probation and parole statistics.
• Burford, G., & Adams, P. (2004). Restorative justice, responsive regulation and social work. Journal of Sociology and Social Welfare, 31(1), 7-26.
• Fairchild, E. (1993), Comparative criminal justice systems. Belmont, CA: Wadsworth.
• Holtquist, S. E. (1999). Nurturing the seeds of restorative justice. Journal of Community Practice, 6(2), 63-77.
• Hoebel, E. Adamson (1954), The Law of Primitive Man. Cambridge: Harvard University Press.
• Hundley, W. (2007, November). Cities’ residency restrictions don’t move registered sex offenders. Dallas Morning News,
• The Innocence Project. (2007). The faces of exonerations.
• Jaffee v. Redmond et al., 518 U.S. 1 (1996).
• Lee, J. (2010). President Obama signs the Fair Sentencing Act.
• Lennon, T. M. (2005). Statistics on social work education in the United States: 2003. Alexandria, VA: Council on Social Work Education.
• Lynch, T. (2003, Fall). The case against plea bargaining. Regulation, 26, 24-27.
• Mauer, M. (2003). Lessons of the get tough movement in the United States. Washington, DC: The Sentencing Project.
• Mauer, M. (2006). Race to incarcerate. New York, NY: New Press.
• Pager, D. (2003). The mark of a criminal record. American Journal of Sociology, 108, 937-975.
• Restorative Justice Online. (2005). Restorative justice sites listed alphabetically.
• Roper v. Simmons, 543 U.S. 551 (2005).
• Sandholtz, N., Langton, L., & Planty, M. (2013). Hate crime victimization, 2003-2011. Washington, DC: Bureau of Justice Statistics.
• Snell, T. L. (2013). Capital punishment, 2011-Statistical tables. Washington, DC: Bureau of Justice Statistics.
• Stinebrickner-Kauffman, T. (2004). Counting matters: Prison inmates, population bases, and “one person, one vote.” Virginia Journal Social Policy and Law, 11, 229-305.
• Umbreit, M., Coates, R. B., & Vos, B. (2004). Restorative justice versus community justice: Clarifying a muddle or generating confusion? Contemporary Justice Review, 7(1), 81-89.
• van Wormer, K. (2003). Restorative justice: A model for social work practice with families. Families in Society, 84(3), 441-448.
• van Wormer, K. (2006). The case for restorative justice: A crucial adjunct to the social work curriculum. Journal of Teaching in Social Work, 26(3/4), 57-69.
• Walker, Sam (1992), Origins of the contemporary criminal justice paradigm: The American Bar