The Roots Of Every Theory Of Criminal Law Creation

930 WordsSep 25, 20154 Pages
The roots of every theory of criminal law creation are conflict perspective and functionalism. Functionalism is a theory that social consensus holds social structure together. The societal needs theory and consensus view are both theories that come from functionalism. In contrast, the conflict perspective explains that the divide between class fuels social structure. Ruling class, pluralist, and the structural contradictions theories share roots in conflict perspective. The consensus view is one grounded in the ideas of the functionalist theory. It dictates that the law develops out of common experience and ideology. Moreover, what the consensus agrees is wrong becomes criminal. A classic example of this theory in action is that of homicide. Instinct tells us that it is wrong to kill another human being, and thus an instinct becomes law. A demonstration of this theory is the FBI’s change in its definition of rape. The old definition was “The carnal knowledge of a female forcibly and against her will.” (FBI, 2014, p. 1) The definition is now “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim." (FBI, 2014, p.1). This change reflects the general public’s realization that the previous definition did not encompass the nature of sexual assault. The major trouble of this theory is the idea of consensus. There exists a miniscule subset of cases which are

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