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To do so we must start with a more concise definition of the Criminal Law System and of its rationality, as well as of innovation. In conclusion, we remind the reader that this article does not aim at invalidating the results of the critical stance: simply, that critical position would be more reflexive and accurate if it extended its field of vision to learning by a system whose contours remain to be defined.

This no more and no less than a program for research, a genuine invitation to return to epistemology. We propose, so to speak, and completely immodestly, to reflexively produce a theoretical innovation in the field of penal sociology using a theory of innovation. This is the foundation on which to build a new theoretical approach to the question of innovation. Much of the next two sections 4. Innovation must be observed with respect to the resistance to change that has affected the system for close to three centuries Pires, a, b.

This defense of the status quo seems to have been caused by the crystallization of a warlike rationality within the system, since the close of the 18 th century. Pires, a, b. Make no mistake: lack of change does not imply lack of alternatives — be they ideas or practices — to the dominant discursive pattern. It simply means that the self-image and conceptual system that accompanied, chronologically, 18 th century Criminal Law has remained fundamentally the same up to the present.

Just as the Law System was able to differentiate itself from the Political and Religious Systems, the Criminal Law System achieved differentiation within the Law System, through a long, complex process. What is a sanction? How should a sanction be chosen, determined and characterized?


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Should pain be intentionally, directly inflicted on a person who breaks the law? Can the Criminal Law System consent when the victim of an attack pardons the offender? Can a court decide not to punish an offender? Must the criminal legislation necessarily set death, prison or a fine as a sanction for each clearly defined offense? It is easy to see these as the theory of retribution Kant, and the theory of deterrence Beccaria, ; Bentham, , which form the nucleus of modern penal rationality because they represent its most weighty, ancient and inescapable matrix Pires, a.

The latter theory, which adds complexity to the dominant conceptual of modern western Criminal Law System, is usually in cognitive conflict with the nuclear matrix. But we shall see that for the time being, one of these paradigms definitely cannot be conceived independently of that matrix Pires, a. The theory of rehabilitation, the only modern theory of penal sanction to have really undergone major transformations since the late 18 th century, soon split into two major paradigms in both science and law.

It agrees that prison may blame retribution , deter and treat. Living conditions in prison are conceived in view of retribution and deterrence as well as treatment. The main idea of producing good through harm is still very definitely present. Moral correction, psychosocial rehabilitationand corporal punishment are not necessarily differentiated. Our discussion below of the penal model of assistance bears some evidence of the possible shift from one paradigm to the other.

It is a descriptive concept with precise limits. For example, it is definitely not synonymous with modern Criminal Law nor even with classical Criminal Law. It is not this dominant rationality which sets up the legal guarantees specific to modern Criminal Law, any more than it is responsible for the main principles equality, legality, proportionality on which the latter is founded.

But its parasitic action is seen in the way the modern Criminal Law System shapes and limits those guarantees, principles and concepts. It is useful to keep the dominant rationality in mind, then, essentially for observing, describing and understanding how the Criminal Law System changes or again, how it does not change: why it remains indifferent at one point and is vigilant at another.

However, this concept is by far not the only path for describing and understanding the inertia and changes in modern Criminal Law. Nor should it be automatically connected with lack of change Pires, b: Modern penal rationality may indeed be updated, both to produce change mobilization of the theory of deterrence to abolish the death penalty, for instance or to produce lack of change mobilization of the same theory, but to maintain the death penalty Pires, b: Rather than speaking of change and lack of change, it would in fact be conceptually more fruitful to identify regressive, 25 normal or usual , deviant and innovative types of change see below.

Moreover, any discussion of innovative change cannot avoid defining normal or usual change beforehand. Normal change is change that may be reduced to the prior characteristics of the dominant system of ideas. It is also predictable and deductible from those prior characteristics. Calling change normal or usual necessarily implies locating it with respect to a reference point; that is, modern penal rationality.

Can we now infer, from that definition of normality, that irreducibility, non-predictability and non-deductibility are sufficient features to designate innovative change? To our way of thinking, they are necessary but not sufficient. This is why we felt the need to differentiate deviant change from innovation. These three criteria are indeed sufficient to depict deviance, but too broad to define innovation. Whereas any innovation must first appear as a deviance, we need a theoretical framework capable of distinguishing between deviant change and innovative change.

In other words, a theoretical framework capable of identifying a reference point modern penal rationality and the signs possibly indicating that it is being called into question. These are:. Variation does not guarantee selection, and the latter is not necessarily a promise of re-stabilization. Furthermore, there is always an element of uncertainty in the shift from deviance to innovation, inasmuch as innovation is probably only recognized or recognizable as such afterward. Community service, listed in article 7 of the Belgian Criminal Code, has indeed been given the status of a main punishment.

And even if doctrine rightfully points out the dubious conditions under which this status was granted, 34 community service is nonetheless listed in the Code as punishment. Now, given how difficult it is for modern penal rationality to grant that status, it is clearly important to emphasize this consecration. The second innovation identified has to do with the semantics of punishment and is mainly located at the doctrinal level. Let us simply say that this penal framework based on assistance seems unexpected under the corrective matrix of the modern penal rationality.

This framework will be driven to create its own limits both at the judicial and psychosocial levels see Cauchie, Kaminski, However, nothing guarantees the number and quality of the connections between those levels. An innovation in sentence-serving may have many effects on the practices of professionals and on the penal experience of offenders. Nonetheless it cannot, in itself, modify the dominant rationality of the Criminal Law System. To do so it must rely on the support of innovations receiving doctrinal encouragement. By supporting an alternative semantic of assistance under a court order, doctrine will in fact validate sentence-serving policies and practices that will go in the same direction, but perhaps above all it will be in a position to give a legal translation of this orientation affecting the normative program.

But that is not all: whereas penal doctrine too often relies too much on the normative program in its reflections on the sense of its foundations, it may now make use of a programmatic innovation in order to give further theoretical attention to the semantics of punishment. These doctrinal interpretations will be presented with respect to how they assess the status of the punishment and what they foresee as its future. The latter, reputed to be omnipotent, seems to be capable of infinitely multiplying stratagems for perpetuating itself.

It seems to have disappeared, and it is already making a comeback. Invariably imitating itself, it is believed to be constantly inciting the Criminal Law System to bind courageous initiatives to the specter of well-known threats a criminal record, imprisonment. Now this is where our study operates a provocative reversal, since it asserts that the most catastrophic scenario — evidenced in the changed status of community service — is perhaps a paradoxical, and definitely unexpected solution for escaping from modern penal rationality.

In other words, one possible way of making that rationality vulnerable may consist in speaking its own language while modify its meaning. And although that character partially served as an argument in favor of adoption of that sanction, it will perhaps, paradoxically, also end up limiting the weight of modern penal rationality on its future orientation. Yet it is this type of reasoning that enables us to understand that the presence of conventional cognitive elements does not prevent and may even favor the occurrence of normative or cognitive innovations.

Now the presence of a conventional argumentation may prevent us from perceiving an innovation in the normative structure. Pires, But at the same time, we note that this innovative act received the support of conventional punitive semantics. Whence, to some extent, the difficulty in perceiving it and defining it as innovative. Admittedly, the point of view of the outside observer as well as his ability to previously develop a theory of the Criminal Law System and to identify indicators, however slight, of changes in its identity, play an essential role in the identification of such innovations.

They do not all view modern penal rationality positively, nor do they all update it. Some arguments reassert that rationality, while others reject it or simply observe it. There is the threat of a subsidiary sentence a fine or prison ; an increase in the maximum number of hours to be served; harsher sentence-serving conditions less tolerance of lateness on the work site , the compulsory nature of the work to be done, disinterest for any possible personally beneficial aspect of the work done. Independently of the potential and real future of WP on the cognitive level, these arrangements and this interpretation therefore represent a structural and cognitive obstacle to the development of innovations.

If this doctrinal prediction were to be attended by a rich exchange between itself and the normative Criminal Law program, the chances are that the possibility of innovations will increase. Without necessarily appending a clear-cut ethical position to this claim does it view the fact as positive or offensive? The critical interpretation will certainly also assimilate the sociology of innovation to a hidden reformist reading, and will accuse it too of being naive, believing stated intentions and having a teleological approach.

Lastly, it will probably make the usual Marxist and functionalist reproaches, pointing out that if there were to be any real innovation, it would certainly not be located in theories of penal sanction or even in the conceptual distinctions enunciated nor should these be legitimated. As opposed to the reformist discourse, the innovative stance has no intention of automatically taking humanistic claims seriously at face value.

First of all because it is aware that humanism is a polysemic concept open to all sorts of abuse. Another difference from the reformist discourse is that the innovative stance absolutely does not defend the thesis of a teleological vision of the Western dynamic. But while it categorically rejects the naive Enlightenment view announcing the end of cruelty and the dawn of civilization, it refuses to be fenced into the infinite reproduction of cruelty, however civilized the form it takes. Rather, it would refer to an effect of the structural and cognitive functioning of the Criminal Law System, thus retaining a much more neutral definition of the notion of function, one which is then much less subject to hasty ideological interpretations.

It should be recalled that the Criminal Law System can only fulfill that function provided it identifies on the structural and cognitive levels the problem situations it faces. This definition, based on description rather than denunciation, should certainly not be viewed as apolitical ; to the contrary, it is a sociological phase necessary to any denunciation concerned with its falsifiability.

However, this objective must not be tied to any corruption or compromise of the critical stance. This would be tantamount to the death of the political sphere , intended here as the absence of spaces and resources devoted to living together and aimed at building a framework within which exchanges may take place on the basis of a trustful relationship susceptible of preventing violence.

Our concern with introspection as to the scientific accuracy of critical writings and, by the same token, reflect on their contribution as sometimes having had devastating political effects is combined with the profound conviction that this gives sociological nourishment to the concept of penal innovation. In our opinion, the complexification of the system is most propitious to innovation. Not having any full definitions to offer, we hope to have indicated some useful paths in that direction.

Beccaria c. Bentham J. Bourdieu P. Critique sociale du jugement , Minuit, Paris. Cauchie j. Cauchie J-F. Christie N. Cohen S. Cormier B. DantinnE M. DeleuzE G. De Rue M. Devresse M-S. Dreyfus H. Un parcours philosophique , Gallimard, Paris. Foucault M. Franke H. Garcia Amado A. Garofalo R. Houchon G.

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Howard J. Hulsman l. Jaccoud M. Jacobs a. Kaminski D. Kant E. Krause d. Lianos m. Luhmann n. Luhmann N. Martin D. Mary P. Mathiesen T. Mathiesen, Prison on trial , Waterside Press, Mc Mahon M. Mead G. Ouimet R. Pires a. Pires A. Prins A. Robert P. Rotman E. Simondon G. Teubner G. Trepanier J. Van de Kerchove M. Van Dijk J.

Wattier I. Luhmann uses the Law as a social system. Alvaro P. Pires of the University of Ottawa on the question of modern penal rationality and the requisites for its evolution. For instance, these two readings have been trumped by administrative , neoliberal and neoconservative criminology. Nonetheless, a discussion addressing those two interpretations is most helpful for the development of a sociology of penal innovation. Most sentences can be argued a posteriori to have had the intention of serving any combination of purposes or any purpose exclusively cf.

As such, one might even argue that moral legal theory concerning punishment merely serves as a convenient pool of rationalisations that can be drawn from eclectically cf. Van der Kaaden, Even if all judges would be completely consistent within and between themselves in their sentencing practices, it would still be impossible to infer an underlying philosophy solely from the sentences passed.

Additional external statements concerning purposes of punishment would be helpful. Neither a general justification, nor purposes at sentencing are provided in the Dutch Penal Code. We need to be able to measure penal attitudes in a manner consistent with moral legal theory. If there is a legitimising moral view or framework underlying the practice of sentencing today, it should somehow be reflected in the minds of the sentencing judges. The first necessary step is to establish that the various theoretical arguments and concepts have some meaning whatsoever in the minds of magistrates.

Such a system of starting points, however, presupposes the existence of an underlying vision Lensing, Detailed knowledge about the visions of Dutch magistrates may determine the success and acceptance of such starting points. It is conceivable that judges interpret and validate goals and means of sentencing in different ways. If we want to harmonise such differences, we need to be able to explicitate them objectively Van der Kaaden, Furthermore, longitudinal assessment of penal attitudes, as well as their measurement among different professional groups e.

The specific definition of our attitude object as described in Section 3. In Section 3. As such, attitudes are not open to direct observation. Such responses are believed to be expressions of attitude De Vries, These expressions may be verbal or non-verbal in nature and, in general, are measurable. Table 3. The table was extracted from Ajzen , p. Because attitudes have to be inferred from verbal or non-verbal expressions, concerns for reliability and validity of the measurement abound.

We will pay due attention to such concerns. Although Table 3. Qualitative approaches to attitude measurement generally focus in depth on relatively few cases. Although some level of quantification coding is not uncommon in qualitative research, in general it does not rely on statistical methods of inference. Rather the qualitative researcher emphasises in-depth interpretation of the often detailed qualitative data at hand Swanborn, Quantitative approaches, on the other hand, focus on relatively large numbers of cases. They are aimed at producing quantitative or easily quantifiable data.

Quantitative research methods generally involve the use of inferential statistics in order to search for or test common and generalisable patterns of association or causation. A Likert scale produces a single score for a person representing his or her degree of favorableness toward a particular object. Some other well-known unidimensional scaling techniques are Guttman scaling and Coombs scaling cf. In contrast with the Likert scale, which is subject i. Of course, the choice of method should depend on the research questions.

In contemporary attitudinal research, however, most researchers seem to prefer the use of Likert scales. Likert scaling procedures are relatively simple, easy to use and generally appear to produce results at least as reliable as the other, more complex methods. As such, in empirical research, multidimensional methods frequently precede unidimensional scaling in order to determine how many and which attitude scales should be constructed as well as which items should be included in those scales. Before elaborating on some examples of different approaches to attitudinal research in a judicial setting, one more methodological issue regarding certain types of attitude measurement needs to be addressed.

As mentioned above, concerns for reliability and validity abound in any type of attitude measurement. A single measure can never fully represent a complex theoretical construct. Rather, such a single measure simply captures part of that construct. This is a matter of validity. Furthermore, single measures tend to be unreliable: repeated measurements are not as highly correlated as one might expect or wish. This is due to random error in measurement.

In multiple item scales, the random errors involved in the separate items are assumed to cancel each other out through the combination procedure, yielding a much more reliable final scale. Apart from, but related to, methodological issues in scaling, the researcher interested in a particular attitude must decide on how to select or derive the items attitude statements that will be used for the measurement. Again, different approaches are possible. Among these are eclectic or pragmatic approaches, theory driven approaches and phenomenological approaches.

Below, a number of research experiences with attitude measurement in a judicial setting are discussed to illustrate different approaches. He distinguished between three main classes of independent variables: variables related to the cases dealt with, legal and social environment constraints , and personality and backgrounds of the magistrates Hogarth, , p. As such, he conceived attitudes as information-processing structures p.

His attitude object, however, is much more widely defined. Hogarth considers judicial attitudes. Judicial attitudes include all attitudes relevant to the judicial role which the individual magistrate has adopted. In determining the method of attitude measurement, Hogarth argued against inferring judicial attitudes from judicial conduct i. Instead, he chose to construct attitude scales through specifically designed questionnaires. This approach can be contrasted with the theoretical approach to item selection in which items are logically derived from existing theories on the subject.

In the phenomenological approach, on the other hand, items are selected from evaluative statements made by the subjects of investigation themselves. The phenomenological sources of evaluative statements which Hogarth used include sentencing principles stated by magistrates in reported cases, articles published by magistrates, reports of study groups, decisions of courts of appeal and speeches by judges related to crime and punishment p.

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The pool of attitude statements thus obtained was narrowed down in the course of three pilot studies involving various types of subjects such as students, police officers, and probation officers. For his main study, Hogarth selected a sample of probation officers, police officers, 50 law students, 59 social work students, and 73 magistrates. He used Principal Components Analysis with orthogonal varimax rotation of the components to derive attitude scales from a pool of items.

Five rotated principal components emerged from the analysis, explaining almost 60 percent of the total variance in responses. The first component is labelled justice. It covers items that seem related to the concern that crime be punished in proportion to its severity just deserts. The second component is labelled punishment corrects and involves items related to individual prevention through treatment and individual deterrence. The third component is labelled intolerance and involves items not directly related to crime, but, rather, social deviance in general.

The fourth component is labelled social defence and involves items related to general deterrence and denunciation of crime. It involves items concerning the use of alcohol, crime, need for self-discipline and antagonism to social welfare measures p.


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  • This finding was obtained through regression analyses. Results showed sentencing by Canadian magistrates … as a dynamic process in which the facts of the cases, the constraints arising out of the law and the social system and other features of the external world are interpreted, assimilated, and made sense of in ways compatible with the attitudes of the magistrate concerned Hogarth, , p. Although the judicial attitudes themselves may not be the most important single factor determining the outcome of a sentencing process, they play an important role in the way judges perceive filter the world around them p.

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    Although criticisms regarding some of the methods are possible[vii], the study had considerable impact and served as an important impetus for future research. Examples of more recent studies in which similar quantitative approaches to the measurement of penal attitudes were used, include those carried out by Carroll et al. Carroll et al. They described two studies: one with law and criminology students and one with probation officers, both in Chicago, U. They factor-analysed a pool of sentencing goal items. Subsequently, for further analyses, the highest loading items were selected for inclusion in summated rating scales i.

    The same procedure was applied to construct scales for attributions of crime causation, ideology and personality. For both students and probation officers, further analyses indicated two types of coherent patterns among the variables. The first revealed a conservative and moralistic pattern: a punitive stance toward crime; belief in individual causes of crime; lower moral development of offenders; authoritarianism; dogmatism; and political conservatism.

    The first study used a sample of students, while the second study used rehabilitation teams and social workers from prisons, prosecutors, judges and lawyers, corrections officers and police officers. The main purpose of the first study was to develop scales measuring the attitudes towards causes of crime cf. They eclectically obtained items from existing attitude scales e. Causes of crime were represented by 22 items, prevention by 25, and treatment by Each set of items was separately analysed using Principal Components Analysis with orthogonal rotation. Two principal components appeared to underlie attitudes toward causes of crime: hereditary and individual causes, and social and environmental causes.

    Analysis of the prevention items also resulted in two components: coercive prevention and social intervention prevention.

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    Analysis of the treatment items resulted in one substantive underlying component, which was labelled assistance versus punishment. Analogous summated rating scales i. The second study aimed at describing and comparing mean scores on the attitude scales between the various professional groups in the sample. Apart from this overall impression, any differences found were in the directions that could be expected considering the different professional roles of the groups.

    For instance, rehabilitation teams and social workers from prisons were less favourable towards coercive prevention and more favourable towards social intervention prevention than were law enforcement officers. Single measures Single measures generally focus on concrete sentencing goals, such as rehabilitation, retribution and deterrence.

    Respondents are either asked to indicate their favourableness toward the concepts on separate rating scales or requested to rank a number of sentencing goals. Some of the studies concern ratings for sentencing goals in general whilst others relate to specific cases. Examples of studies in which such measurement procedures are used include those carried out by Forst and Wellford , Henham , and Bond To provide an empirical foundation for the formulation of sentencing guidelines for the federal court system in the U. Respondents were asked to rate the importance that they in general attached to general deterrence, special deterrence, incapacitation, rehabilitation, and just deserts on five-point scales.

    In order to improve validity of the measurement, all respondents were first provided with definitions of these concepts. Judges were also asked about the severity of their sentences when, for a given case, they had a specific sentencing goal in mind. Results indicated that among judges general and special deterrence were found to be especially important, followed, in decreasing order of importance, by incapacitation, rehabilitation and just deserts.

    Prosecutors and probation officers also found deterrence and incapacitation more important than rehabilitation and just deserts. Among defence attorneys and prison inmates, rehabilitation received strongest support. Judges indicated that rehabilitation, if intended, clearly makes a sentence more lenient. Henham interviewed magistrates using structured questionnaires. He asked the magistrates to rate the general sentencing objectives of reformation, punishment, general deterrence, individual deterrence and protection of society on five-point scales. Results showed that, in general, English magistrates attached greatest importance to protection of society, followed by, in decreasing order of importance, individual deterrence, general deterrence, punishment and reformation.

    Correlations between these ratings led Henham to speculate that magistrates find it difficult to discriminate amongst the various objectives p. Furthermore, magistrates appeared to be consistent in terms of the general and case specific views that they hold themselves. Bond and Lemon carried out a study among English magistrates to determine the effect of experience and training on importance attached to sentencing objectives and sentencing behaviour. Respondents were asked to give a general rating of importance for individual deterrence, general deterrence, reformation, retribution, and protection of society.

    Subsequently for eight hypothetical cases, judges were requested to indicate the appropriate sentence. Results indicated that as a result of experience, magistrates became less inclined to perceive their role in sentencing as one concerned with reformation of offenders and more inclined to see it as concerned with deterrence and protection of society.

    Furthermore, increasing experience leads to less sympathetic views of offenders p. Training, which magistrates receive on the bench, appeared to moderate these effects. Apart from measuring favourableness toward certain sentencing goals with rating scales, several other methods have sometimes been used. Some researchers asked respondents to mention the goal s they aim to achieve with a sentence either in a general sense, or in the context of a specific case. Judges were asked to pass sentence and indicate which goal s they wanted to achieve.

    The most frequently stated aim among magistrates was individual deterrence, followed by punishment, reform, protection of society, general deterrence, denunciation and reparation. However, widely different sentences were sometimes given in the same case and with the same penal aim in mind. A second example of a study concerning judges in criminal courts using other methods than rating scales, is the study carried out by Bruinsma and Van Grinsven Although this study was not directly focused on measuring individual penal attitudes it is an exception to the general lack of quantitative studies in the Netherlands in this area of research.

    Bruinsma and Van Grinsven chose abstract sentencing goals as the starting point of their analyses. Propositions were deduced from these sentencing goals. In order to empirically test these propositions, Bruinsma and Van Grinsven transformed them into decision rules, incorporating case- and offender characteristics.

    This is due to unavoidable difficulties involved in inferring underlying purposes from the actual practice of sentencing discussed in Section 3. Instead, they argued that failure to empirically confirm a decision rule does merit the conclusion that the underlying sentencing goal had not been applied. In the above manner, propositions and decision rules were deduced from a number of sentencing goals.

    Bruinsma and Van Grinsven tested their decision rules using a random sample of cases heard by police judges at district courts in the Netherlands. Results indicated that Dutch police judges are only to a limited extent guided by the decision rules that were deduced from sentencing goals.

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    In so far as Dutch research directly or indirectly involved penal attitudes, views or opinions, it has been predominantly qualitative in nature. The methods used involve interviews, dossier and protocol analysis, discussion groups, and participant observation. As such, this section not only illustrates relevant methods of qualitative research, but also outlines the general state of affairs of such research in the Netherlands.