NCJ Number
53785
Journal
Law and Society Review Volume: 12 Issue: 4 Dated: (SUMMER 1978) Pages: 585-606
Date Published
1978
Length
22 pages
Annotation
THE RELATIONSHIP BETWEEN SOCIAL STRUCTURE AND CHANGE IN SUBSTANTIVE CRIMINAL LAW PERTINENT TO PROCESSES OF CRIMINALIZING AND DECRIMINALIZING DRUG USE IN GERMANY AND THE NETHERLANDS IS EXPLORED.
Abstract
FROM A FUNCTIONAL PERSPECTIVE, NORMS OF SOCIETY ARE VIEWED AS A SPECIFIC SUBSYSTEM INCORPORATING BASIC EXPECTATIONS OF SOCIETY ABOUT ITS MEMBERS. CRIMINAL LAW IS THE MORAL CORE OF THIS SUBSYSTEM. IN SOME INSTANCES, NONCOMPLIANCE WITH NORMS IS PERCEIVED AS A THREAT TO THE IDENTITY OF THE OVERALL SYSTEM OF WHICH NORMS ARE A SUBSYSTEM. WHERE DEVIANCE IS DIRECTED AGAINST THE EXISTENCE OF NORMS, PUBLIC AWARENESS OF THE INEFFICACY OF LAW CAN ENDANGER BOTH THE MORAL AUTHORITY OF SOCIAL GROUPS OR CLASSES WHOSE BELIEFS IT SYMBOLIZES AND THE POLITICAL AUTHORITY OF AGENCIES HAVING SOCIAL CONTROL. CRIMINALIZATION IS DEFINED AS THE CREATION OF NEW MORAL BOUNDARIES WITHIN THE SOCIAL SYSTEM OR THE AFFIRMATION OF EXISTING ONES IN AN ATTEMPT TO ASSIMILATE NORMATIVE CHALLENGES. DECRIMINALIZATION REFERS TO THE ADJUSTMENT OF MORAL BOUNDARIES TO SOCIAL CHANGE. ALTHOUGH BOTH THE FEDERAL REPUBLIC OF GERMANY AND THE NETHERLANDS HAVE EXPERIENCED A SIGNIFICANT INCREASE IN THE USE OF CANNABIS AND HEROIN AMOUNG YOUTH, LEGISLATIVE RESPONSES OF THE TWO COUNTRIES ARE STRIKINGLY DIFFERENT. THE NORMATIVE SYSTEM IN THE NETHERLANDS HAS ACCOMMODATED DRUG USE, BUT THE GERMAN SYSTEM HAS REAFFIRMED EXISTING MORAL BOUNDARIES BY INCREASING PRESCRIBED PENALTIES. LITERATURE ABOUT LAWS CRIMINALIZING BEHAVIOR STRESSES ELEMENTS OF CONSENSUS AND COLLECTIVE BEHAVIOR, THUS INTRODUCING A DEMOCRATIC BIAS INTO THE EXPLANATION OF CRIMINAL LAWMAKING. IT IS MISLEADING TO ATTRIBUTE DECRIMINALIZATION TO AN INCREASE IN POPULAR TOLERANCE TOWARD DEVIANT BEHAVIOR; DECRIMINALIZATION IS MOST OFTEN IMPOSED ON A PUNITIVE PUBLIC THROUGH COOPERATION BETWEEN MORAL LIBERALS AND MORAL CONSERVATIVES. THE COMPARISON OF THE GERMAN AND DUTCH EXPERIENCE INDICATES THE IMPACT OF UNDERLYING SOCIAL STRUCTURAL VARIABLES ON THE EXTENT TO WHICH A MORAL ISSUE IS POLITICIZED AND GIVEN SYMBOLIC SIGNIFICANCE BY POWERFUL GROUPS. HISTORICAL DEVELOPMENTS IN THE LEGISLATIVE PROCESS OF THE TWO COUNTRIES ARE REVIEWED, AND REFERENCES ARE CITED. (DEP)