Conflict v. Consensus Theory
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Society should rationally function within the confines of the majority of the consensus. The consensus theory is the basic argument that criminal law within societies is wide spread with a strong belief that certain crimes/acts are morally and humanely wrong. This means that a true and strong punishment should be imposed despite the offender’s stature or un-criminal past. Society seems to feel vindicated, and should under the consensus theory.
Theorists of criminal law have other viewpoints. “They need not look for a strict, a historical definition—an account of the necessary and sufficient conditions given, and only given which a human practice counts s a system of criminal law (Duff, 2002)”. These different theorists are compelled to then sway the moral and obligatory decisions of the public. When a crime is committed, one should simply rely morally on the position that the crime must be vindicated by legal means of one way or another. This only backs the decision to side with a consensus theory viewpoint.
The purpose of criminal law is to seek and identify central characteristics, features, and systems to allocate a consensus punishment in the eyes of the law. An example would be the punishment phase for an offender who has committed murder. Many would see the most extreme version (death penalty) as an option, while others may seek life imprisonment without parole. The case is decided with each option given to a jury of the offender’s peers who decide what the offender should receive as punishment. They see the case for the facts presented and nothing else. Consensus theory adds that despite the “justness” of the system moral values, conflicts, and punishment are on a more equal plain.
The functionalist theory has a different argument in criminal law. They see criminal law as a mere studying tool; a way to find a more psychological and philosophical viewpoint. They view offenders as having their own free will. They view someone who is seen as an ordinary criminal such as a drug offender, as not being a threat to the general social order. Functionalist theory believes that criminal behavior is needed along with legal measures and responses to them in order to function properly.
“The major distinction between functionalists and all other theories of crime causation is the formers apparent positive view of deviant behavior (Greek, 2005)”. The mutual understanding between the theories is that individually we learn from our mistakes. An example would be a teen DUI who kills a pedestrian. The teen would then be evaluated by a consensus and functionalist viewpoint. The consensus is more inclined to see the punishment that should legally be implied to the teen for their wrong doing. The functionalist would view the teen has having already repaid a great portion of the debt by the emotional implications, and would see them better be punished since they are young, in the way of public speaking to other teens or something else that keeps them functioning in society; thus allowing society to learn and study from the wrong doing itself.
In conclusion, by taking the point of the consensus, true justice is then given in the eyes of the law morally and legally. The case in point should not be judged and utilized as an excuse for deviant behavior. It should be viewed as an example to not commit deviant acts. Consensus should reign within the majority in order to see some stable results to the families and victims thereof. There should always be punishment.
Antony Duff (2002). Theories of Criminal Law. Stanford Encyclopedia of Philosophy.
Cecil Greek (2005). Functionalists Explanations of Crime. Internet reference: www.criminology.fsu.edu