Legitimacy in the Criminal Justice System of Northern Ireland: A Criminological Analysis

Author:Mary Rogan
Position:Senior Sophister Law, Trinity College, Dublin
Pages:34-58
LEGITIMACY
IN
THE
CRIMINAL
JUSTICE
SYSTEM
OF
NORTHERN
IRELAND:
A
CRIMINOLOGICAL
ANALYSIS
MARY
ROGAN*
He
Who
Marches
Out
of
Step,
Hears
Another
Drum.
-
Ken Kesey,
One
Flew
Over
the
Cuckoo's
Nest
The
kernel
of
all
our
problems
in
Northern
Ireland
is
law
and
order.
Brian
Faulkner
The
criminal
justice
system
is
a
powerful
social
tool.
For
social
consensus
theorists
such
as
Thomas Hobbes
and Emile
Durkheim,
it
reinforces
a
sense
of
societal
unity,
a
concrete expression
of
uniform
disapproval
and
reaction to those
who
deviate
from
a
community's
norms.
From
a
conflict
perspective,
the
criminal
law
and
its
institutions
are
vital
ideological
and
actual
embodiments
of
State
repression
and
ruling
class
preservation.
Implicit
in
both
schools
of
thought
lies
the
concept
of
'legitimacy'.
The
former
utilise
it
as
a
foundation
upon which
all
other
incidents
of
criminal
justice
are
built,
while
the
latter
highlight
its
absence
and
the
steps
taken
to
disguise
such
deficiency
in the
governmental claim
to
authority.
Legitimacy
and
Criminological
Theory
Legitimacy
is
at
the
heart
of
lawmaking, enforcement
and
penality
-
without
it,
the
criminal
justice
system
is
unable
to
function,
being
rejected
and
substituted.
The idea
of
legitimacy
is
a
significant
undercurrent
in
criminological theory. Emile
Durkheim
saw
criminal
law
as
the
representation
of
the
synthesis
of
the
essential morality
of
a
people,
based
"
Senior
Sophister
Law,
Trinity
College,
Dublin.
I
would
like
to thank
Ms.
Maria
Cahill
and
Ms.
Mary
Connery
for
their
helpful
comments
on
an
earlier
draft
of
this
article.
However,
any
errors and
omissions
remain
entirely
my
own.
©
Mary Rogan
and
Dublin
University
Law
Society
Legitimacy
in
Northern
Ireland
on
religious
and
customary
values
shared
by
all
healthy consciences.' 'The
Law'
derives
its
command through being
the
conglomeration
of
generally
held mores.
Turk
saw
it
as
central
to
the concept
of
authority,
distinguishing
it
from
'raw
power'
as
the use
of
such
power
is
accepted
by
those
subjected
to
it
in
a
legitimate regime.
Reiss, taking
an
analogy
from
the
informal
controls
provided
by
the
family,
highlighted that social
conformity
may arise
from
either
acceptance
of
the
rules
imposed
on
an
individual
or
from
simply
submission
to
them.
2
Other
theorists
recognised
the
potential that
criminal
law
has
in
social
control
and
governance.
Chief
amongst
them
are
those writing
from
a
Marxist
or
conflict
perspective,
who
see
the
law
as
inherently
a
tool
of
repression
and
class
domination,
but
a
tool,
submitted
to
by
the
People
who
see
it
as
also
reflecting
their
needs
and
desires.
In
this
way,
legitimacy
(or
more specifically,
perceived
legitimacy)
becomes
crucial
to
establishing
accepted
government.
As
Weber
wrote:
The
State
is
a
relation
of
men
dominating
men.
A
relation supported
by
means
of
legitimate
(considered
to
be
legitimate)
violence.
If
the
state
is
to
exist
the
dominated must
obey
the
authority
claimed
by
the
powers that
be.
3
Quinney
saw the
law
as
part
of
the
interest
structure
of
society,
with
changes
in
the
law
reflecting
changes
in
the
interest
structure. The
Russian
jurist
Pashukanis
considered
the
law
to
provide
a
powerful ideology which
helps
to
legitimise
the
existing
social structures
and
regulations.
At heart,
these
writers adjudged
that
the
legitimacy
which
the
law
purports
to
hold
provides the
perfect
justification
for
penality
and
other criminal
law
responses. Since
the
public support
it,
the
State
has
every
right
to
use
force
against those who
have
deviated
from
the
public's
norms
as
expressed
through
the
criminal law.
Conversely,
if
the
public
removes
its
allegiance
the
State
loses
its
power
to
punish.
Thus,
perceptions
of
legitimacy must
be
maintained
in
order
to
prevent
such
withdrawal
of
support.
Legitimacy
is
fundamentally
about sovereignty.
From
the
establishment
of
monarchical
regimes
and
Weberian
'traditional
authority'
Garland,
Punishment
and
Modern
Society:
A
Study
in
Social
Theory
(Oxford University
Press,
1991),
at
172.
2
See
Cullen,
Lilly
and
Ball
eds.,
Criminological
Theory:
Context
and
Consequences
(2
ed.,
Sage,
1995).
3
Quoted in
Connolly
ed.,
Legitimacy
and
The
State
(Basil
Blackwell,
1984),
at
33.
4
Quinney,
The
Problem
of
Crime:
a
Critical
Introduction
to
Criminology
(2 d
ed.,
Harper
and
Row,
1977).
20031

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