Crime, Law and Social Change (2019) 72:211–226

https://doi.org/10.1007/s10611-019-09812-1

What is crime? A search for an answer encompassing

civilisational legitimacy and social harm

Aleš Bučar Ručman 1

Published online: 25 January 2019

# Springer Nature B.V. 2019

Abstract
Mainstream sociology and criminology uncritically accept the legal definition of crime.
This paper rejects this academic ideologically-laden approach in favour of the current
power relations by critically analysing and evaluating consensus, conflict and
interactionist views as well as integrated definitions of crime. Later on, an alternative
definition of crime is presented. This builds on the inclusion of civilisational legitimacy
and social harm. Civilisational legitimacy stems from general justice and fairness.
Harm is a necessary component of crime and is always linked with the abuse of power.
The new definition of crime encompasses harmful acts and processes that penal codes
do not recognise as crime while excluding legitimate yet illegal actions.

Introduction

The answer to the question BWhat is crime?^ may appear simple at first glance.
Common-sense conclusions entice us to search for explanations within good/bad,
harmful/harmless or permitted/prohibited relationships. Despite what seems a fairly
simple task, deeper consideration quickly shows that answering this question is de-
manding and difficult. According to Lanier and Henry [1], this is even Bone of
criminology’s more pressing issues^, which has dogged Bcriminology since its very
beginnings^ ([2]: 2). Yet, notwithstanding expectations that scientists would first
eagerly define the object of their inquiry, most mainstream criminologists take Bthe
easiest way to resolve the dilemma^ concerning what classifies behaviour as criminal
and Bborrow the set of legal standards created by the state^ ([3]: 4). Further, this
approach is so Btaken for granted^ and Bpervasive in mainstream criminology that it
is no longer necessary to present and defend it^ ([4]: 14). Among the many discussions
of crime, its causes, prevention, control, Bthe issue what crime is, is rarely stated,
simply assumed^ ([5]: 11, emphasis in original). This simplification has a great impact

* Aleš Bučar Ručman

ales.bucar@fvv.uni-mb.si

1
Faculty of Criminal Justice and Security, University of Maribor, Kotnikova ul. 8, 1000 Ljubljana,
Slovenia
212 Bučar Ručman A.

on criminological and sociological research, engenders Bscientific blindness^ and leads

to incomplete explanations and theories of crime, which overlook some of the most
harmful actions.
The first part of this paper outlines various perspectives on crime that are later
evaluated and upgraded by introducing a specific definition of crime. I seek answers to
the following research questions: What are the dominant conceptualisations of crime in
sociology and criminology? How do they reflect the understanding of power relations
in society? What would constitute an alternative approach to defining crime that is
based on a critique of existing perceptions of crime? I try to ensure objectivity by
questioning the established concepts of crime and improving them with definitions that
exceed the narrow conceptual limitations brought by insisting on one single notion of
crime. Although some integrated definitions of crime already exist (e.g., [4, 6–8]), the
approach taken in this paper follows a different path. Existing conceptualisations are
analysed, deconstructed and then a new definition is proposed. It introduces funda-
mental ideas of humanistic perspectives linked to questions of (social) harm as a basic
characteristic of crime. In this vein, the idea of formal or public support for including a
particular act in the definition of crime is rejected and the focus instead turns to
civilisational legitimacy.

Overview of existing views on crime

The differences in how crime is viewed reflect a broader dichotomy in the

attitudes of society, its structure, the perception of power distribution, and under-
standing of legislative and political procedures. There are thus two central and
contradictory perspectives – consensus and conflict. The former argues that
society is made up of individual segments that are in equilibrium, whereas broader
social values and norms are based on consensus. This view stems from ideas of
the Enlightenment, the concept of social contract, and the principles of equality
and (legal) positivism. This understanding of society leads to the utilitarian
concept of crime as behaviour regarding which people hold an abstract consensus
that it should be prohibited. Crime is determined by criminal law and includes
prohibited actions, while also excluding everything outside those parameters. Such
an approach is evident in Durkheim ([1893] [9]: 39; [1895] [10]: 99) when
arguing that the perception of crime is otherwise socially relative and that crime
includes actions which offend especially strong and clear-cut feelings and states of
the collective or common consciousness, which are protected by the penal code.
This approach has some similarity with Garofalo’s [11] Bsociologic notion of
crime^, with one important difference. Garofalo called for the development of
an academic definition of crime, independent of the influences of law-makers. He
formulated the notion of Bnatural crime^, which is tied to a violation of the
Baverage moral sense of the community^ (ibid.: 10) and offends (one or both)
distinct types of altruistic sentiments – pity (compassion and rejection of causing
(physical) pain to others) and probity (respect for other people’s property).
Garofalo’s understanding of natural crimes is closely connected to the concept
of evil and immoral crimes, that is mala in se, while other types of prohibited
political crimes can be included in the mala prohibita category.
What is crime? A search for an answer encompassing civilisational... 213

A known advocate of the consensus perspective, Tappan [12] claimed that BCrime is
an intentional act in violation of the criminal law /.../ Crime is itself simply the breach
of the legal norm^. He defends the narrow legalistic determination of crime which
includes judging an act only through legislation. Criminal justice legalism is also seen
in the definition of crime given by Sutherland and Cressey [13]: Bcriminal behavior is
behavior in violation of criminal law. No matter what the degree of immorality,
reprehensibility, or indecency of an act, it is not a criminal act unless it is outlawed
by the state^. Even though some broader descriptions and views of crime can be found
in Sutherland’s work, he supported the consensus view on social relations, the forma-
tion of legislation and its influence on society. As he stated: BThe relation between the
law and the mores tends to be circular. The mores are crystallized in the law and each
act of enforcement of the laws tends to re-enforce the mores^ ([14]: 139). Among
contemporary researchers, Wikström [15] takes a similar position by arguing that
criminal law is Bessentially a set of moral rules^ and crime Ban act of breaking a moral
rule defined in criminal law^.
Social constructionists and interactionists still regard crime as a violation of legis-
lation, although they emphasise the social responses to specific behaviour and the
importance of social control. In the perspective of social interactionism, crime is a
social event which includes Ba particular set of interactions among offenders(s), crime
target(s), agents(s) of social control and society^ ([16]: 4). The ethics, values and
similar interests of individuals and influential groups play a central role. Criminal
law is not an outcome of consensus, but a reflection of social interaction, meaning
construction, particularly by so-called moral entrepreneurs (for example victims and
secondary victims, professionals, NGOs, coalitions of various groups, opinion-makers,
politicians), who use the means of their influence, fear mongering and myth creation to
create moral panic and achieve the prohibition of particular – in their view – immoral
and unwanted behaviour. Those who formulate the rules are convinced of their moral
positions and believe in abolishing evil by setting new rules ([17]: 147). Examples of
such activities are said to be linked with the criminalisation of homosexuality, pornog-
raphy, prostitution, alcohol prohibition, drug-related crimes, road traffic offences,
gambling bans.
Opposite the consensus view is the conflict perspective. Researchers in this per-
spective argue that conflict derives from different interests and the diverse distribution
of socio-political power based on culture, status, race, ethnicity, religion, gender.
Radical theory adds here the insight that the key problem stems from the unequal
distribution of ownership of the means of production and unfair economic conditions
[18], whereas the anarchist perspective claims problems derive from our commitment
and subordination to hierarchical arrangements and structures, mainly the state, the
institutionalisation of conflict resolution and internalisation of social orders dominated
by the rights-based system of justice [19]. The critical view of (criminal) law stems
from a Hegelian perspective which argues that groups (social classes) holding political
power oppose and neglect the universal and look after certain private interests (for a
detailed analysis of Hegel’s view, see [20]: 169–223). They (ab-)use political proce-
dures, ideological apparatuses and assist themselves with the legal system and laws,
especially criminal law. Laws – in particular criminal justice legislation – represent a
key instrument for the exercise of political power. The legal concept of crime maintains
the existing power relations ([5]: 15) or, as Turk contended [21], Blaw is power^, while
214 Bučar Ručman A.

its use that seeks to gain control over a set of resources can trigger conflicts. Criminal
law simply reflects unequal political power and any group in control of the political
machinery can make anything criminal or prevent the condemnation of just about
anything [22]. Therefore, criminal law internalises the incrimination and prosecution of
acts that threaten the powerful either directly (for example violence, crimes against
property) or indirectly (acts that jeopardise their interests and values). At the same time,
harmful acts committed by this group are ‘overlooked’ by the law and agents of the
criminal justice system. In support of argument, Pashukanis ([1924] [23]: 173) de-
scribed the state’s Borganized class terror^, as evident in Marx and Engels’ thesis where
they demonstrate that legislation serves as a means for asserting capitalists’ interests
and a mechanism for subordinating the socio-politically powerless proletariat: B… your
jurisprudence is but the will of your class made into a law for all, a will whose essential
character and direction are determined by the economical conditions of existence of
your class^ (Marx and Engels [1848] [24]: 29; emphasis added).
Conflict theories’ definitions of crime can be split into two. The first view includes
authors who accept the legalistic concept of crime, while also stressing the illegitimacy
of criminal law (e.g., [22]; Pashukanis [1924] [23, 25]). They believe that crime is
socially and legally determined and created, yet its definition is not the outcome of
social consensus but of the socio-political dominance of a segment of society that
manages to enforce its views by soft means of power – the activities of ideological state
apparatuses [26] – and, in Gramsci’s [27] words, creates Bspontaneous consent^
concerning the nature of crime. In this context, Quinney [25] states that Bcrime is a
definition of human conduct created by authorized agents in a politically organized
society^. He claims that Bcrime is created^, while people and behaviour become
criminal due to state agencies (legislators, police, prosecutors and judges) imposing
definitions of crime on the powerless. The powerful protect their privileges by ensuring
the creation and implementation of biased criminal legislation and reinforce their
positions on the ideological level by creating a legitimating social reality of crime
(ibid.: 22). In addition, some postmodern (neo-)Marxist theories go even further and
see the distribution of power, (criminal) legislation and international relations as a
mechanism for global control and an indicator of antagonisms that rise above class
divisions in individual states and impact global relations between core, semi-periphery
and periphery countries (see, for example, [28–31]).
Authors holding the second view of conflict theory underscore a consequen-
tialist understanding of crime. They focus on the harm caused by various legal or
illegal acts.1 The consequentialist approach has been elaborated by some critical
and postmodernist researchers (e.g., [2, 4, 33–38]). They no longer perceive
crime as only an act committed by individuals but add to this a set of conditions,
social relationships, social structures and systems that bring negative conse-
quences. In this perspective, one can understand states, corporations, organisa-
tions, policies and political systems as criminal and their actions as crime. By
viewing crime through harm and consequences, the pioneers of this perspective

1
One of the first attempts to introduce the concept of harm into the definition of crime appears in Sutherland
[32]. In his white-collar crime research, while still siding with legalists, Sutherland partially moves beyond the
limits of the legalist perspective of crime. His understanding of crime was linked to the administrative and
regulatory violations and not merely to the violation of criminal law.
What is crime? A search for an answer encompassing civilisational... 215

Schwendinger and Schwendinger [38] defended their standpoint that imperialism,

racism, sexism and poverty may also be regarded as a crime. These acts cause
greater harm, widespread and damaging consequences than most of the current
(legally defined) crimes [39–41]. Referring to this, Reiman [41] concludes that
the criminal justice image of crime resembles much more a distorted carnival
mirror image than reflecting actual evil and harm in society. Henry and
Milovanovic’s [34, 35] position coincides with the concept of structural and
direct violence [42] as it defends viewing crime (violence) in the context of
harming human potentiality. Henry and Milovanovic [34] state that Bcrimes are
nothing less than moments in the expression of power /.../ Crime is the power to
deny others their ability to make a difference^. Crime is connected to the
disrespect of people, which always stems from reducing or repressing their
ability to become social beings.

Critical perspectives on existing notions of crime and the introduction

of integrated views

A detailed analysis of the existing notions of crime reveals that each approach has its
own deficiencies and inaccuracies. The consensus/legalistic perspectives focus on the
attitude of a certain part of society – the one with political power – with respect to a
specific act, although they do not say anything about the act itself. Further, they do not
shed any light on the condition and consequences of the act since they only determine
that a defined act is legally prohibited in a specific territory. Strictly focusing on the
legalistic view of crime and formal reactions to violations so defined leads to the
exclusion of various acts and processes that have not (yet) been or will ever be defined
as criminal acts in law, but which are no less harmful, unfair or less present. Similar
arguments can be found in rejection of the social constructionists’ view. In some cases,
this approach may seem acceptable and appropriate, but is far from being universal. On
numerous occasions, individual groups (e.g., trade unions, the Occupy movement,
pacifist movements, environmental movements) strive to change or put into force
different policies, but fail to do so despite the ‘moral power’ of their arguments. The
reason for excluding these standpoints from policymaking and the absence of their
principles in criminal law lies outside the question of ethics and relates to the unequal
distribution of socio-political power. Those who have such power can also rely on the
support of the mass media. They enable them to address the audience and Bby giving
some constructions more credibility and coverage than others^ they also add to the
legitimacy of these constructions ([43]: 34) and provide wider acceptance of what is
said to be the best social and political system, which is never questioned by the
(mainstream) media ([41]: 176).
Criminal law is far from being the result of social consensus, yet it would be wrong
to claim it is merely the result of powerful groups’ activities. The penal code also
includes acts considered unwanted and harmful by a social consensus in most societies,
which fall into the Bmala in se^ category, i.e. they are inherently wrong and evil (e.g.,
murder, physical injury, sexual assault). However, it must not be overlooked that this
prohibition and regulation is also in the interest of those holding power and the entire
capitalist system, which desire certain conditions to enable the maximisation of profits.
216 Bučar Ručman A.

Violence, murder, robbery, rape, which extend the socially tolerated margins, comprise
a threat to these aims. It should also not be disregarded that penal codes simultaneously
do not prohibit other acts which also enjoy a similar degree of agreement (e.g.,
untransparent and corrupt banking, an investment and tax system void of responsibility,
massive income and capital inequalities, unjust privatisation of social property and
resources, irrational priorities in public budget expenditure, legal political corruption,
legalised destruction of the environment and even wars). Moreover, states determine
specific acts as extreme forms of crime (e.g., murder) but actually carry them out
themselves. BMala in se^ are therefore crimes only so long as they are not carried out
by the politically strongest groups – the state authority or Bbig business^. In such cases,
endangering or even taking a person’s life may be considered part of a ‘rational and
necessary’ business action (for example environmental pollution, occupational disease,
unsafe food), punishment (capital punishment) or even ‘a necessary act’ in the fight
against terrorism (assassination of individuals without conviction or even (illegal) wars
bringing many casualties). These harmful policies and practices of international
(financial) institutions and states, which are mostly neglected by mainstream criminol-
ogy and criminological theories, are no less crimes and thus justly called Bcrimes of
globalization^ [44, 45] or Bpower crimes^ [37].
Criminal law can include behaviour the majority does not consider unwanted and
harmful (e.g., illegal downloading of copyrighted materials for non-profit use and
distribution of knowledge). Along these lines, Agnew [4] concludes that in criminal
law Bmany harmful acts are not defined as crime and certain relatively harmless acts are
defined as crimes^. Criminal prohibition does not necessarily express a legally
prohibited act’s social harm and injustice, which are among the fundamental charac-
teristics of crime. Kennedy [22] argues that criminal law was primarily established to
defend the institutions of capitalism, deny the unprivileged chances of upward mobility
and create the social conditions for the continuous supply of labour force for capitalist
production. In addition, criminal acts can even be acceptable, just and necessary
because the acts themselves, despite being prohibited by law, are not harmful, whereas
the execution of such laws can indeed be harmful and criminal (e.g., violation of the
Nuremberg race laws, resistance against invading forces, slave rebellion, resistance to
exploitation and discrimination). Milovanovic and Henry [46] clearly conclude that law
can also be regarded as crime and recognised Bas the agency that legitimizes the very
power relations that continue to inflict harm on others^. It is important what the
criminal law defines as a criminal act, but it is of equal (if not even greater) importance
to include in the definition of crime all those acts that are not legally defined as crimes,
but are unfair and harmful. The reason for excluding them from criminal legislation lies
in the unequal distribution of power in society. A similar critique can be levelled against
the use of a broader legalistic approach that defends the inclusion of international law in
the definition of crime (e.g. [3, 4, 40]). Although these perspectives overstep national
legislative boundaries, they still reflect unequal power relations – this time in the
international community (also see [37]: 318).
Some criminologists offer alternative integrated definitions of crime which include
characteristics of the approaches presented above. Hagan’s [6, 7] Bpyramid of crime^ is
one of such attempts. For him, crime is Ba kind of deviance, which in turn consists of
variation from a social norm that is proscribed by criminal law^ ([7]: 49). The pyramid
of crime includes three measures of seriousness of deviance (social harm, formal social
What is crime? A search for an answer encompassing civilisational... 217

response, and agreement about the norm) and, in this setting, crimes are those acts that
are at least somewhat or very harmful, include a moderate or severe formal response as
well as a high level of agreement (consensus crimes) or disagreement (conflict crimes)
on the wrongfulness of a prohibited act. Hagan’s crime pyramid provides a starting
point for an integrated definition, although I see two problems here (cf. also [8]: 618–
621; [47]: 33–34). The main problem is the domination of legalistic elements and
inclusion of a formal response to an act (severity of punishment and public support for
it). In this context, Hagan neglects the conclusions of conflict theory regarding power
distribution. The second weakness is his inclusion of quite a subjective evaluation of
social harm. Various acts may be extremely harmful, but for various reasons (e.g.,
harmful traditions and cultural practices, ideological interpellation) are not understood
as such by society; moreover, they can be perceived as necessary and positive by the
social mainstream and majority of people. Therefore, crime cannot be understood from
a Durkheimian perspective (as a violation of strong states of collective consciousness)
since it is possible that the collective consciousness legitimises, legalises or even
glorifies harmful and criminal practices which victimise individuals and various social
minorities or those without socio-political power.
Hagan’s pyramid of crime was later upgraded by some definitions of crime I find
to be more consistent – the Bprism of crime^ concept [8, 47] and Agnew’s [4]
integrated definition of crime. Henry and Lanier include the dual understanding of
crime and, in addition to crimes of the powerless included in the upper pyramid
representing consensus theory, overcome the drawback of unequal power distribution
by introducing a second inverted pyramid. This includes the hidden crimes of the
powerful and thereby integrates conflict perspectives. Henry and Lainer ([8]: 621)
also argue that not all harmful acts (and their perpetrators) experience an equal
response of formal social control, Beven when these are defined by the criminal law;
crimes of the powerless are far more likely to receive the full weight of the law than
are crimes of the powerful^.2 Agnew’s [4] integrated definition also puts more stress
on conflict perspectives, yet still includes a consensus approach and introduces an
alternative solution – the inclusion of international law principles. He considers that
acts are crimes if they possess at least one of the following core characteristics:
blameworthy harm (a set of acts considered harmful in most societies or acts
identified as harmful or blameworthy by international law); and/or acts subject to
at least modest condemnation by a significant proportion of the public (measured
through surveys); and/or if sanctioned by the state. However, there is one challeng-
ing detail – both approaches presume (at least) the moderate or symbolically
moderate, formal [47] or public [4] condemnation of an act. Lanier and Henry lean
towards a (minimal) consensus approach and internalise all its weaknesses or, in the
case of Agnew, he counts on (moderate) level of agreement and condemnation of an
act by the public. As described in the above criticism of Hagan’s pyramid of crime,
it is wrong to rely on public awareness of harm and its condemnation. The clearest
support for this objection is found in Bauman’s [48] conclusion about the Holocaust.
2
Although the Bprism of crime^ introduces new dimensions, it includes one questionable (and reluctant)
aspect – the number of victims/extent of victimisation. Different numbers of victims are the consequence of a
crime and not the core characteristic for its qualification. For definitional purposes it is enough to understand
something as a crime if there is ‘only’ one (possible) victim, not even necessarily a human one for it can also
include animals or the environment.
218 Bučar Ručman A.

He argues it was the lack of public condemnation, indifference and public paralysis,
supported by the self-imposed moral silence of science, which (among other rea-
sons) facilitated this brutal crime.

What is crime? Moving beyond the legalistic perspective

The above critical analysis of conflict, consensus, social construction theory, and
integrated definitions of crime leads us to a broader conceptualisation of crime. There
are different ways to overcome the described theoretical drawbacks and related prob-
lems. Some academics believe the approach that focuses on crime needs to be replaced
or complemented by one which deals with social harm. Some argue for an alternative
discipline, i.e. zemiology [5, 49]. For them, crime and social harm are two different
concepts. While I consider this as legitimate and progressive approach and I can agree
with the many conclusions of zemiologists, there is one important difference in my
understanding. I place crime in the centre of analysis, although I emphasise this is not a
legal understanding of crime, but a deconstructed one which includes the notion of
civilizational (il)legitimacy and social harm as necessary internal components of crime.
The definition presented below is influenced by the inclusion of basic human rights
perspectives in the definition of crime [38], the constitutive definition of crime [34, 35]
and the theory of justice [50]. In contrast to traditional views, attention is turned to the
symbolic and discursive dimensions of crime. Following Agnew [4], Galtung [42, 51],
Lanier and Henry [47], Henry and Milovanovic [34, 35], Michalowski [36, 37],
Schwendinger and Schwendinger [38] and Reiman [41], the consequentialist element
– the concept of harm – is incorporated in the definition of crime. Drawing on all the
conclusions presented earlier, crime is understood as an illegitimate act or a process
which causes (or can cause) serious harm. In this act or process, a perpetrator is
aware of the consequences or would have had to foresee them. All main elements of
this definition (perpetrators and victims, legitimacy, fairness, harm and seriousness of
harm) are described in detail below.

Who are the perpetrators and victims of crime?

It is unacceptable that acts of individuals or small groups can be regarded as crimes,

while at the same time policies and systems that cause suffering and victimisation on a
much higher scale are not. We must reject the myth of individual responsibility that is
intrinsic to modern criminal law and criminal justice system (see [22, 41, 52]).
Therefore, perpetrators can be individuals, groups, organisations, corporations, govern-
ments, states, social structures or systems which carry out such acts or are responsible
for them. The presented perception of crime incorporates the distinction between direct
and structural violence [51] or between subjective and systemic violence [53]. This
approach is applied to the definition of crime and further developed as the distinction
between direct and structural crime.3 On one hand, direct violence or crime is typically

3
Apart from these forms, Galtung [42] and Žižek [53] also expose a third form of violence – cultural or
symbolic violence, which operates in the ideological field and legitimises direct and structural violence
(crime). In the presented interpretation of crime, this form is included within the concept of structural crime.
What is crime? A search for an answer encompassing civilisational... 219

committed by a Bclearly identifiable agent^ (ibid.: 7), an actor or subject who commits
an illegitimate act. On the other, structural crime is Bbuilt into the structure^ of the
economic, political – or complete social – system and Bshows up as unequal power and
consequently as unequal life chances^ ([51]: 171). Structural crime is perceived as a
political and social practice or process – both being accomplished in society by formal
and informal structures – which make it possible for illegitimate and unfair acts to cause
serious harm to others, to become legalised (un-incriminated), legitimated and normal-
ised. Who can be the victims of structural and direct crime? They may be found in
individuals, groups, communities, nations and even all of humanity, animals, and the
environment.

Legitimacy and crime

Legitimacy is another basic characteristic of the newly proposed definition of crime and
can be dealt with from two perspectives – narrow (internal political) and broader
(civilisational). This dichotomous approach closely coincides with the distinction
between empirical and normative legitimacy [54]. The first concept applies to the
narrow perception of internal political legitimacy, which is connected to the approval,
agreement and support of a particular issue or policy by the majority of the population.
With universal suffrage and representative democracy, the capital of the people be-
comes the main source of legitimacy of authority in democratic societies. Internal
political legitimacy is what Hinsch [54] describes as the Bapproval of those who are
supposed to live in this group^. In a wider sense, this includes the approval and support
of the entire population of a specific territory over which the people have the possibility
to exercise a political influence (e.g., states, regions, cities); in a narrower sense, it can
include only citizens with political rights for the same territory. This narrow internal
political understanding of legitimacy can also be found in some integrated definitions
of crime (e.g., in Agnew’s [4] requirement for public condemnation of an act or in
Hagan’s [6, 7] measure of the seriousness of an act through social response and support
for the sanction).
According to Weber ([1925] [55]: 37), the legitimacy of authority (or in broader
terms the political system) in modern societies most often derives from a Bbelief in
legality^, that is the compliance with formal abstract and enacted rules – adopted on the
basis of a specific procedure – that Blegally establish impersonal order^ and are the
foundation for rational (legal) authority (ibid.: 215–218). These abstract rules represent
instructions for the functioning of an organisation: the state. In addition, Weber (ibid.:
36) states that the legitimacy of legality derives from a) the Bvoluntary agreement of
interested parties^ about individual formal rules or out of respect for laws, or b) is
imposed by an authority which is considered to be legitimate. Since not all residents of
democratic states agree with the authority and partial laws, given that a minority of
people will always have different views and oppose the authority, it is obvious that the
legitimacy of the legality of authority does not stem from the agreement of all parties
(cf. Kant’s ([1795] [56]: 76) thesis arguing that democracy inevitably represents
despotism because in democracy ‘all’, who are not quite all, make decisions for all).
The legitimacy of legality is partially based on an imposed legitimacy deriving from
legitimate authority and partially on the agreement about formal rules. A legitimate
authority gains its legitimacy by possessing the capital of the people or the majority of
220 Bučar Ručman A.

them, as won at elections. This is the link between political and social structures.
Modern ‘democratic’ societies are based on a mostly unexpressed agreement on the
formal rules (e.g., the constitution), which normally ensure legitimacy to govern for
those who gain the majority of support from voters at elections or are able to form
coalitions that represent the largest support from voters who attended the elections. This
rule is not underpinned by an explicitly stated and constantly repeated agreement, but
silent compliance that instead has become part of the socially acceptable practice and is
the foundation of today’s ‘democracies’. This reminds us of (or even derives from) the
concept of social contract, which is also based on an unexpressed tacit agreement or
rather on an agreement which stands until disagreement on it is expressed.
Apart from the issue of the legitimacy to govern (who has the right to govern), one
must also question whether the decisions and rules are legitimate. However, this must
not be done by solely applying the internal perception of legitimacy among subordi-
nated populations ([57]: 376), which believe that Bauthority, institution, or social
arrangement is appropriate, proper, and just^ because it is fair and respectful (proce-
dural justice theory) [57, 58], but in a broader civilisational perspective of legitimacy. In
other words, legitimacy is not only connected to the processes by which decisions are
made and enforced, but above all to the content of those decisions. This conception of
legitimacy also differs from the idea of legitimacy as a Bfelt obligation, moral alignment
and perceived lawfulness^ [59]. Legitimacy is not an external but an internal charac-
teristic of an act or process. It is not what people feel, but what an act is. Ignoring the
wider perspective allows the conclusion that imperialism, colonialism, slavery, racism,
subordination of women and children and all other harms (crimes) to various powerless
minorities are legitimate since they had the support of the majority in a specific period,
place or culture – not to mention that they were all legal. The proposed approach (in a
way) represents an extension of dialogic legitimacy [60] which deals with the question
of the right to rule and is understood as a Bperpetual discussion, in which the content of
power-holders’ later claims will be affected by the nature of the audience response^
(ibid.: 129). Yet, in my perception of legitimacy, a relevant audience for conducting a
dialogue with power-holders is not limited to political groups and people in a specific
territory, but includes a (metaphysical) representation of the basic interests of all people
in the form of Bcivilisational legitimacy^. Understanding the power of ideological state
apparatuses [26] and propaganda’s role in manufacturing public consent and support
[61, 62] further strengthens the position that we cannot accept the internal political
concept of legitimacy, but must take a step further. Legitimacy is not connected (only)
to the question of people’s perception or support, but to the question of humanity and
civilisation. Since this approach differs from some established and recognised concepts
of legitimacy, it is proposed to differentiate between support, approval or trust (internal
legitimacy) and (civilisational) legitimacy, as elaborated below.

Civilisational legitimacy and crime

Civilisational legitimacy does not derive from mass support of the people, but stems
from social justice and fairness. In the analysis of the Holocaust, Bauman ([48]: 177–
178) persuasively shows that, even if all of society recommends a specific action, this
can still be an immoral one and defying the social consensus can represent a moral (and
legitimate) action. Therefore, the most illustrative limitation of legitimacy, based on
What is crime? A search for an answer encompassing civilisational... 221

mass support and realised in the name of justice, is the assurance of a spectrum of the
individual’s freedoms which cannot be interfered with. The assurance of equal rights
and basic liberties for all people is the foundation of civilisational legitimacy.4 This
corresponds to Rawls’ [50] well-known concept of justice as fairness and allows us to
conclude that the inequality of basic rights leads to illegitimacy. Inequality and
consequent illegitimacy are linked to the deprivation of power and the enforcement
of hierarchical relations marked by inferiority and subordination. However, it is
important to distinguish cases on the basis of needs, i.e. the causes and sources of
inequality. In this regard, the notion of substantive social justice and not just the
principles of formal justice must be included. If not, we directly integrate the com-
modification of social relations into our definition (cf. Pashukanis [1924] [23]).
Basic liberties can be limited in the name of freedom when a less extensive liberty
must strengthen the total system of liberties shared by all and a less than equal liberty
must be acceptable to those with the lesser liberty; inequalities are also acceptable when
this benefits the least advantaged in society ([50]: 266). On the path of social justice, one
steers between the rights of individuals and collective duties. Legitimation for the
limitation of the individual’s freedom can be found in Reiman’s [41] argument that
Bjustice is a two-way street /…/ Individuals owe obligations to their fellow citizens
because their fellow citizens owe obligation to them^. In Rawls’ view ([50]: 53), basic
liberties also include political liberties (the right to vote and the right to hold public
office), freedom of speech and assembly, liberty of conscience and freedom of thought,
freedom of the person, which includes freedom from psychological oppression, physical
assault and the integrity of the person, the right to hold personal property and freedom
from arbitrary arrest and seizure. The described concept of liberties coincides with
Michalowski’s [37] description of analogous social injuries – which may be understood
as a violation of basic liberty – although Michalowski importantly extends the concept
by including social rights (proper health care, adequate food, clothing and shelter). Basic
liberties must undoubtedly guarantee the possibility of survival to all. Moreover, they
must assure a decent life to all members of society and give them a fair chance to realise
their potential. In addition, basic liberties have to ensure the right to privacy as well as
possibilities of active public participation in the policymaking process, and must include
the right to express individual culture and freedom of identity (cultural rights).
The presented understanding of crime includes both structural and direct crime and
protects (or rather defines that its violation is a crime) political rights and humans as a
whole – their body and spirit – whereby it eventually provides for the protection of
society as a whole. It ensures the individual’s right to personal property, albeit this is not
unlimited. The right to own the means of production and the freedom of contract, as
understood by the laissez-faire doctrine, are not included in basic liberties ([50]: 54). If
we acknowledge the fact that human life is incorporated into society, that a human being
is not merely an individual living his Robinson life alongside other Robinsons, but is a
social being, part of a community in which she/he lives and manifests her/his existence,
then we have to consider the broadest freedom of all members of society and not only the
ultimate, unlimited economic freedom of the dominant group and its privileged

4
The idea of including basic liberties in a definition of crime derives from Schwendinger and Schwendinger’s
[38] humanistic alternative perception of crime, which sees this kind of rights as basic rights of individuals
(human rights) and not as rewards or privileges. The denial of these basic rights is considered a crime.
222 Bučar Ručman A.

individuals (the socio-economic elite). Unlimited economic freedom does not belong to
the inalienable freedoms of individuals, but can (must) be restricted in the name of
general social justice. This view importantly exceeds Rawls’ theory and includes the
welfare of the entire (global) society and the social whole. Barak and Henry [63] argue
that liberal theories of redistributive and procedural justice fail to address the real
problems of injustice rooted in inequality. I believe the sources of this inequality lie in
the domination of economic capital, its recognition as a primary source of social power
and the commodification of all aspects of human life. In the restriction of economic
freedom, we must include Marx’s ([1867] [64]: 541) distinction between capitalist
private property – a result of an exploitive value surplus appropriation and based on
the possession of capital – and self-earned private property based on one’s own work. I
argue that the former has to be understood as illegitimate and unjust, and the latter as
legitimate and just. Namely, an action is considered legitimate when, in economic terms,
it places the principles of justice (one cannot claim the value of someone else’s work
solely to him/herself), solidarity and global human social co-responsibility before the
right to the endless accumulation of economic capital. A violation of this civilisation
principle represents a structural crime (e.g., declining healthcare or education for those
unable to pay, declining access to knowledge due to copyright and patent rights).
However, at the same time, I believe it is legitimate for an individual to enjoy the fruit
of his/her own work, resulting in a form of personal private property.

Harm and crime

Harm is necessarily linked with the abuse of power and is an inevitable component of
crime. Reiman [41] argues that the label of Bcrime^ is applied appropriately when
attached to all or at least the worst harms to society and inappropriately if used for
harmless or even not seriously harmful acts. Crime internalises the notion of social
harm; these are not separate concepts, but the former incorporates the latter. The
concept of harm pursued in the definition presented above coincides with the Bharm
principle^ and Brefers to setbacks to others’ interests^ ([65]: 34–37). Harm represents a
decline in the individual’s potential, possibilities or interests, which is unfair (i.e., a
violation of their rights). The accepted understanding of harm integrates the views of
Milovanovic and Henry [46] on harms of reduction and harms of repression. They see
them as expressions of power by which something is taken away (reduced) or there is a
systematic limitation of another person’s capabilities and they are stripped of power by
repression. Consequently, the harmed party is in the end in a worse position than
before. However, unlike Milovanovic and Henry, I do not accept the subjective
estimation or perception of the victim as the criterion for harm. In many cases, for
various reasons (e.g., ideological interpellation, manipulation, inability to make rea-
sonable judgment) victims cannot recognise their position and victimisation. It also
enables the inclusion of actions which victims do recognise as harms, but where the
ideological functions of criminal law and the implicit ideology of the criminal justice
system blinds societies and make such harms generally invisible or socially acceptable
(e.g. slavery, exploitation and discrimination of minorities).
The use of a ‘test’ for determining the harming of potential is more objective than a
personal perception of a victim. Harm is defined as an action which puts (or can put)
the victim’s interest in a worse condition than it would have been had the action not
What is crime? A search for an answer encompassing civilisational... 223

occurred at all ([65]: 35). Harm is always understood as a relation or process where the
perpetrator harms the victim and where the victim cannot voluntarily harm her/himself.
This determination excludes different acts of self-harm and ‘victimless crimes’ from the
definition of crime (e.g., attempted suicide, euthanasia, drug (ab-)use, prostitution,
homosexuality, gambling). If these acts include only persons who have freely decided
to participate, they do not threaten the liberty of others ([41]: 191) and do not harm
them. Further, the definition excludes the use of power which also harms but represents
a necessary self-defence reaction to a previous crime. Yet, use of this power/force must
be (mostly) proportionate to the threatened power/force and must stop when the
primary crime has been prevented or neutralised (see [66]).
To determine the seriousness of harm, I follow Reiman’s [41] notion of Bcrimes by
other names^ and Michalowski’s [36] concept of Banalogous social injuries^. They both
claim these are acts that cause harm comparable or equivalent to acts defined as crimes
by law. Harm is judged according to the (possible) consequences for the victim –
psychological, physical, economic, social, cultural, material or developmental damage.
Including the serious harm element in the definition of crime also allows the inclusion of
distinctly negative acts with severe consequences within the scope of crime. It enables us
to differentiate between crime and deviance, depending on the harm an act causes (or
can cause). Deviance is an act perceived as an illegitimate by the social audience and can
cause neglectable harm, while crime is inevitably an act of serious harm.
Crime can only consist of harm caused by people. This excludes natural disasters or
other forms of harm (e.g., a wild animal attack), but still keeps open the possibility that
victims are harmed indirectly (e.g., by polluting the environment). Another condition
defines the link between the perpetrator and the act or process which harms (or could
harm) the victim. Crime unavoidably includes the knowledge or anticipation of the
consequences which the act or process (can) cause. In order to define an act or process
as a crime, the perpetrator must be able/should realise the consequences of their actions.
With this approach, the definition of crime includes all those acts that purposely,
knowingly and also recklessly or negligently cause harm (see [41]: 69–71). These
characteristics are valid for direct as well as structural crimes. Finally, an act cannot be
categorised as a crime solely based on harm (e.g., accidents have to be excluded).
Further, crime can also include acts that do not harm anyone or can even produce
positive consequences but, due to their illegitimacy, unfairness (e.g., concealing infor-
mation, misleading, forcing someone) and high possibility of harm, must be considered
as a crime.

Conclusion

The considerations presented in this paper were written in the spirit of affirmative
postmodernism and influenced by critical sociology and criminology. Postmodern
authors argue that domination in language and discourse production guarantees power
over the prevailing definitions of crime. To overcome this, we need to engage at the
discursive level of crime and the leading concepts of crime are therefore deconstructed
and an alternative view is offered. The acceptance of and persistence on a positivistic
legalistic criminal law definition of crime can be understood as an academic
ideologically-laden approach in favour of the current ideology and power relations.
224 Bučar Ručman A.

The presented alternative approach integrates the critique of existing definitions of

crime and exerts a deep influence on our perception of the reality of crime and our
understanding of social injustice and social harm in society.
Setting a specific course for defining crime on the foundations of civilisational
legitimacy and harm raises the issue of the relationship between the presented definition
of crime and that found in criminal law. The definition is much broader than what is
found in penal codes in terms of including acts and processes that penal codes do not
recognise as crime (e.g., the capitalist exploitation of workers, harmful accumulation of
economic capital not benefiting the community, corruption, harmful policymaking
processes, environmental crimes, wars, other forms of legal state violence or crime,
widespread criminalisation of migration, the offshore economy and other legal types of
tax evasion). On the other hand, it is narrower than those cases when it does not
recognise legitimate yet illegal actions in the definition of crime (e.g., rebellion against
exploitation, aggression or occupation, illegal copying of contents for non-commercial
use and knowledge sharing, illegal crossing of borders of industrially developed
countries which the poor cannot cross legally, disclosure of secret information about
the abuse of power, various victimless crimes). The described cases demonstrate that
the proposed definition deconstructs power relations, introduces a new realm of crime
and alters the oft-enforced opinions about who can be regarded as a criminal or a
victim.
The social sciences (sociology and criminology in particular) need to confront and
define one of the most important and pervasive social phenomena, that is crime. They
must (at a minimum) establish the basic axioms of this determination which need to be
placed beyond the domains of the political, legalistic, collective consciousness and
internal legitimacy and include the concepts of civilisational legitimacy and social
harm.

Compliance with ethical standards

Conflict of interest The author declares that he has no conflict of interest.

Publisher’s note Springer Nature remains neutral with regard to jurisdictional claims in published maps and
institutional affiliations.

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